[Congressional Record (Bound Edition), Volume 149 (2003), Part 21]
[Issue]
[Pages 28533-29010]
[From the U.S. Government Publishing Office, www.gpo.gov]



[[Page 28533]]

                           VOLUME 149--PART 21


         HOUSE OF REPRESENTATIVES--Wednesday, November 12, 2003

  The House met at 2 p.m.
  The Most Reverend Anthony Sablan Apuron, Archbishop of Agana, Guam, 
offered the following prayer:
  Almighty God, whose goodness fills our hearts with joy. You are 
blessed for bringing us together to work in harmony, in peace, and in 
justice. Send Your blessings upon our United States House of 
Representatives, who generously devote themselves to the work of our 
Nation and Territories in the laws they pass and the resolutions they 
create.
  In times of difficulty and need, grant them the strength to transcend 
personal interests and seek after the common good for all. Strengthen 
them with Your grace and wisdom so that everything that they begin with 
Your inspiration, continue with Your guidance and by You be happily 
ended. Grace us with Your saving presence and aid us with Your constant 
blessing.
  All glory and praise be to You, our ever-living God, forever and 
ever. Amen.

                          ____________________




                              THE JOURNAL

  The SPEAKER. The Chair has examined the Journal of the last day's 
proceedings and announces to the House his approval thereof.
  Pursuant to clause 1, rule I, the Journal stands approved.

                          ____________________




                          PLEDGE OF ALLEGIANCE

  The SPEAKER. Will the gentleman from Alabama (Mr. Aderholt) come 
forward and lead the House in the Pledge of Allegiance.
  Mr. ADERHOLT led the Pledge of Allegiance as follows:

       I pledge allegiance to the Flag of the United States of 
     America, and to the Republic for which it stands, one nation 
     under God, indivisible, with liberty and justice for all.

                          ____________________




                        MESSAGE FROM THE SENATE

   A message from the Senate by Mr. Monahan, one of its clerks, 
announced that the Senate has passed without amendment a bill of the 
House of the following title:

       H.R. 3054. An act to amend the Policemen and Firemen's 
     Retirement and Disability Act to permit military service 
     previously performed by members and former members of the 
     Metropolitan Police Department of the District of Columbia, 
     the Fire Department of the District of Columbia, the United 
     States Park Police, and the United States Secret Service to 
     count as creditable service for purposes of calculating 
     retirement annuities payable to such members upon payment of 
     a contribution by such members, and for other purposes.

  The message also announced that the Senate has passed with amendments 
in which the concurrence of the House is requested, a bill of the House 
of the following title:

       H.R. 1828. An act to halt Syrian support for terrorism, end 
     its occupation of Lebanon, and stop its development of 
     weapons of mass destruction, and by so doing hold Syria 
     accountable for the serious international security problems 
     it has caused in the Middle East, and for other purposes.

  The message also announced that the Senate has passed with an 
amendment in which the concurrence of the House is requested, a bill of 
the House of the following title:

       H.R. 2673. An act making appropriations for Agriculture, 
     Rural Development, Food and Drug Administration, and Related 
     Agencies for the fiscal year ending September 30, 2004, and 
     for other purposes.

  The message also announced that the Senate insist upon its amendment 
to the bill (H.R. 2673) ``An Act making appropriations for Agriculture, 
Rural Development, Food and Drug Administration, and Related Agencies 
for the fiscal year ending September 30, 2004, and for other purposes, 
requests a conference with the House on the disagreeing votes of the 
two Houses thereon, and appoints Mr. Bennett, Mr. Cochran, Mr. Specter, 
Mr. Bond, Mr. McConnell, Mr. Burns, Mr. Craig, Mr. Brownback, Mr. 
Stevens, Mr. Kohl, Mr. Harkin, Mr. Dorgan, Mrs. Feinstein, Mr. Durbin, 
Mr. Johnson, Ms. Landrieu, and Mr. Byrd, be the conferees on the part 
of the Senate.
  The message also announced that the Senate has passed bills of the 
following titles in which the concurrence of the House is requested:

       S. 286. An act to revise and extend the Birth Defects 
     Prevention Act of 1998.
       S. 1657. An act to amend section 44921 of title 49, United 
     States Code, to provide for the arming of cargo pilots 
     against terrorism.

                          ____________________




                ADJOURNMENT TO FRIDAY, NOVEMBER 14, 2003

  Mr. ADERHOLT. Mr. Speaker, I ask unanimous consent that when the 
House adjourns today, it adjourn to meet at 2 p.m. on Friday, November 
14, 2003.
  The SPEAKER. Is there objection to the request of the gentleman from 
Alabama?
  There was no objection.

                          ____________________




  ADJOURNMENT FROM FRIDAY, NOVEMBER 14, 2003, TO MONDAY, NOVEMBER 17, 
                                  2003

  Mr. ADERHOLT. Mr. Speaker, I ask unanimous consent that when the 
House adjourns on Friday, November 14, 2003, it adjourn to meet at 
12:30 p.m. on Monday, November 17, 2003, for morning hour debates.
  The SPEAKER. Is there objection to the request of the gentleman from 
Alabama?
  There was no objection.

                          ____________________




DISPENSING WITH CALENDAR WEDNESDAY BUSINESS ON WEDNESDAY, NOVEMBER 19, 
                                  2003

  Mr. ADERHOLT. Mr. Speaker, I ask unanimous consent that the business 
in order under the Calendar Wednesday rule be dispensed with on 
Wednesday, November 19, 2003.
  The SPEAKER. Is there objection to the request of the gentleman from 
Alabama?
  There was no objection.

                          ____________________




               COMMUNICATION FROM THE CLERK OF THE HOUSE

  The SPEAKER laid before the House the following communication from 
the Clerk of the House of Representatives:


[[Page 28534]]


                                              Office of the Clerk,


                                     House of Representatives,

                                Washington, DC, November 12, 2003.
     Hon. J. Dennis Hastert,
     Speaker, House of Representatives,
     Washington, DC.
       Dear Mr. Speaker: Pursuant to the permission granted in 
     clause 2(h) of rule II of the Rules of the U.S. House of 
     Representatives, I have the honor to transmit a sealed 
     envelope received from the White House on November 12, 2003 
     at 12:10 p.m. and said to contain a message from the 
     President whereby he submits a copy of a notice continuing 
     the national emergency with regard to Iran.
       With best wishes, I am
           Sincerely,
                                                    Jeff Trandahl,
     Clerk of the House.

                          ____________________




  CONTINUING NATIONAL EMERGENCY WITH REGARD TO IRAN--MESSAGE FROM THE 
          PRESIDENT OF THE UNITED STATES (H. DOC. NO. 108-141)

  The SPEAKER laid before the House the following message from the 
President of the United States; which was read and, together with the 
accompanying papers, referred to the Committee on International 
Relations and ordered to be printed:

To the Congress of the United States:
  Section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)) 
provides for the automatic termination of a national emergency unless, 
prior to the anniversary date of its declaration, the President 
publishes in the Federal Register and transmits to the Congress a 
notice stating that the emergency is to continue in effect beyond the 
anniversary date. Consistent with this provision, I have sent the 
enclosed notice, stating that the Iran emergency declared by Executive 
Order 12170 on November 14, 1979, is to continue in effect beyond 
November 14, 2003, to the Federal Register for publication. The most 
recent notice continuing this emergency was published in the Federal 
Register on November 13, 2002 (67 Fed. Reg. 68929).
  Our relations with Iran have not yet returned to normal, and the 
process of implementing the January 19, 1981, agreements with Iran is 
still underway. For these reasons, I have determined that it is 
necessary to continue the national emergency declared on November 14, 
1979, with respect to Iran, beyond November 14, 2003.
                                                      George W. Bush.  
The White House, November 12, 2003.

                          ____________________




                          SENATE BILL REFERRED

  A bill of the Senate of the following title was taken from the 
Speaker's table and, under the rule, referred as follows:

       S. 1657. An act to amend section 44921 of title 49, United 
     States Code, to provide for the arming of cargo pilots 
     against terrorism; to the Committee on Transportation and 
     Infrastructure.

                          ____________________




                      SENATE ENROLLED BILLS SIGNED

  The SPEAKER announced his signature to enrolled bills of the Senate 
of the following titles:

       S. 677. An act to revise the boundary of the Black Canyon 
     of the Gunnison National Park and Gunnison Gorge National 
     Conservation Area in the State of Colorado, and for other 
     purposes.
       S. 924. An act to authorize the exchange of lands between 
     an Alaska Native Village Corporation and the Department of 
     the Interior, and for other purposes.

                          ____________________




                    BILLS PRESENTED TO THE PRESIDENT

  Jeff Trandahl, Clerk of the House, reports that on November 7, 2003 
he presented to the President of the United States, for his approval, 
the following bills.

       H.J. Res. 76. Making further continuing appropriations for 
     the fiscal year 2004, and for other purposes.
       H.R. 1442. To authorize the design and construction of a 
     visitor center for the Vietnam Veterans Memorial.
       H.R. 3365. An act to amend title 10, United States Code, 
     and the Internal Revenue Code of 1986 to increase the death 
     gratuity payable with respect to deceased members of the 
     Armed Forces and to exclude such gratuity from gross income, 
     to provide additional tax relief for members of the Armed 
     Forces and their families, and for other purposes.

                          ____________________




                              ADJOURNMENT

  Mr. ADERHOLT. Mr. Speaker, I move that the House do now adjourn.
  The motion was agreed to; accordingly (at 2 o'clock and 6 minutes 
p.m.), under its previous order, the House adjourned until Friday, 
November 14, 2003, at 2 p.m.

                          ____________________




         REPORTS OF COMMITTEES ON PUBLIC BILLS AND RESOLUTIONS

  Under clause 2 of rule XIII, reports of committees were delivered to 
the Clerk for printing and reference to the proper calendar, as 
follows:

       Mr. COX: Select Committee on Homeland Security. H.R. 2886. 
     A bill to amend title 31, United States Code, to improve the 
     financial accountability requirements applicable to the 
     Department of Homeland Security, and for other purpose; with 
     an amendment (Rept. 108-358 Pt. 1). Ordered to be printed.

                          ____________________




                      PUBLIC BILLS AND RESOLUTIONS

  Under clause 2 of rule XII, public bills and resolutions were 
introduced and severally referred, as follows:

           By Mr. RAMSTAD (for himself and Mr. Cardin):
       H.R. 3485. A bill to amend the Internal Revenue Code of 
     1986 to provide an incentive to preserve affordable housing 
     in multifamily housing units which are sold or exchanged; to 
     the Committee on Ways and Means.
           By Mr. THOMAS (for himself, Mr. Nunes, Mr. Dooley of 
             California, Mr. Radanovich, Mr. Cardoza, Mr. Matsui, 
             Mr. Doolittle, Mr. Ose, and Mr. Herger):
       H.R. 3486. A bill to create 4 new permanent judgeships for 
     the eastern district of California; to the Committee on the 
     Judiciary.
           By Mr. RAMSTAD (for himself and Ms. Eshoo):
       H. Con. Res. 324. Concurrent resolution urging Japan to 
     honor its commitments under the 1986 Market-Oriented Sector-
     Selective (MOSS) Agreement on Medical Equipment and 
     Pharmaceuticals, and for other purposes; to the Committee on 
     Ways and Means.

                          ____________________




                          ADDITIONAL SPONSORS

  Under clause 7 of rule XII, sponsors were added to public bills and 
resolutions as follows:

       H.R. 300: Mr. Gingrey.
       H.R. 476: Mrs. Capps and Mr. Goode.
       H.R. 489: Mr. Jones of North Carolina.
       H.R. 852: Mr. Olver, Mr. Bishop of Georgia, Mr. Langevin, 
     Mr. McDermott, Mr. McNulty, Mr. Stark, and Mr. Doyle.
       H.R. 1548: Mr. Bartlett of Maryland.
       H.R. 1699: Mr. Bartlett of Maryland.
       H.R. 1910: Mr. Bradley of New Hampshire.
       H.R. 2102: Mr. Beauprez.
       H.R. 2173: Mr. Rush, Ms. McCollum, Mr. Emanuel, Mr. 
     Peterson of Minnesota, Mr. Cooper, Mr. Kildee, Mr. Ballance, 
     Mr. Matsui, and Mr. Ross.
       H.R. 2354: Mr. Farr.
       H.R. 2683: Mr. Kucinich.
       H.R. 2823: Mr. Costello.
       H.R. 2945: Mr. Miller of North Carolina.
       H.R. 2967: Mr. Hoeffel and Mr. Platts.
       H.R. 3125: Mrs. Musgrave.
       H.R. 3240: Mr. Stenholm, Mr. Carter, Mr. Paul, Mr. Bonilla, 
     Mr. Smith of Texas, Mr. Brady of Texas, Mr. Culberson, Mr. 
     Barton of Texas, Mr. Sessions, Mr. Hensarling, Mr. 
     Thornberry, and Mr. Burgess.
       H. Con. Res. 30: Ms. Lofgren, Mr. Ackerman, Ms. Solis, Ms. 
     Woolsey, Mr. Clyburn, Mr. Ryan of Ohio, Mrs. Lowey, Mr. 
     Allen, Mr. Schiff, Mr. Ross, Mr. Lucas of Kentucky, Ms. 
     Kaptur, Ms. Berkley, Mr. Meeks of New York, Mr. Brown of 
     Ohio, Mr. Honda, Ms. Kilpatrick, Mr. Lewis of Georgia, Mr. 
     Jefferson, Ms. Majette, Mr. Bell, Mr. Davis of Tennessee, Mr. 
     Watt, Mr. Ford, Mr. Weldon of Pennsylvania, Mr. Israel, Mrs. 
     McCarthy of New York, Mr. Bishop of New York, Ms. McCollum, 
     Mr. Ortiz, Mrs. Jones of Ohio, Mr. Davis of Alabama, Mr. 
     Scott of Virginia, Mr. Langevin, Mr. Weiner, Mr. Larsen of 
     Washington, and Mr. DeLauro.
       H. Con. Res. 311: Mr. Souder.
       H. Res. 103: Mrs. Kelly, Mr. Jenkins, Mr. Schrock, and Mr. 
     Scott of Virginia.
       H. Res. 371: Mr. Kirk, Mr. Dingell, Mr. Shays, and Mr. 
     Smith of Michigan.
     
     
     


[[Page 28535]]

                  SENATE--Wednesday, November 12, 2003

  The Senate met at 9:30 a.m. and was called to order by the President 
pro tempore [Mr. Stevens].
                                 ______
                                 

                                 prayer

  The Chaplain, Dr. Barry Black, offered the following prayer:
  Let us pray.
  O God our rock, great is Your glory, and worthy is Your name. We lean 
upon Your great strength, for You are our anchor on life's raging seas. 
As we prepare for the long day ahead, give Your servants in this place, 
the chosen of the people, the discipline to embrace Your wisdom. Remind 
them that true wisdom is pure, peaceful, gentle, impartial, sincere, 
merciful, and productive. May they remember that You expect from us 
faithful stewardship of our time. Give them the grace to use words 
responsibly, for the power of life and death is in the tongue. Place 
within their hearts a desire to be instruments for Your glory. Deliver 
them from discouragement and today let them mend the defective, 
bringing order where there is chaos and choosing the road that leads to 
life. We pray this in the name of Our Creator. Amen.

                          ____________________




                          PLEDGE OF ALLEGIANCE

  The PRESIDENT pro tempore led the Pledge of Allegiance, as follows:

       I pledge allegiance to the Flag of the United States of 
     America, and to the Republic for which it stands, one nation 
     under God, indivisible, with liberty and justice for all.

                          ____________________




               RECOGNITION OF THE ACTING MAJORITY LEADER

  The PRESIDENT pro tempore. The acting majority leader is recognized.

                          ____________________




                                SCHEDULE

  Mr. McCONNELL. Mr. President, this morning, the Senate will begin 
consideration of the VA-HUD appropriations bill. We expect to have 
amendments offered and debated before the noon hour. Therefore, 
rollcall votes are anticipated. This is the final individual 
appropriations bill that will be considered on the floor, and it is my 
hope that we can finish the VA-HUD bill during today's session.
  As previously announced, the Senate will recess from 12:30 p.m. to 
2:15 p.m. for the Democratic Party luncheon. Following that recess, 
there will be 20 minutes remaining for debate before the vote on the 
adoption of the Department of Defense authorization conference report. 
Immediately following that vote, the Senate will vote on the adoption 
of the military construction appropriations conference report.
  As the majority leader stated previously, tonight we will begin an 
extended debate on judicial nominations. All Senators are encouraged to 
participate in this very important process.
  Mr. President, I yield the floor.

                          ____________________




                       RESERVATION OF LEADER TIME

  The PRESIDENT pro tempore. Under the previous order, the leadership 
time is reserved.

                          ____________________




 DEPARTMENTS OF VETERANS AFFAIRS AND HOUSING AND URBAN DEVELOPMENT AND 
             INDEPENDENT AGENCIES APPROPRIATIONS ACT, 2004

  The PRESIDENT pro tempore. Under the previous order, the Senate will 
resume consideration of H.R. 2861, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (H.R. 2861) making appropriations for the 
     Departments of Veterans Affairs and Housing and Urban 
     Development and for sundry independent agencies, boards, 
     commissions, corporations, and offices for the fiscal year 
     ending September 30, 2004, and for other purposes.

  Mr. BOND. Mr. President, I suggest the absence of a quorum.
  The PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  Mr. REID. Mr. President, I know the distinguished Senator from 
Missouri is going to make an opening statement. Senator Mikulski, in an 
effort to move this bill forward, even though she had a longstanding 
commitment in Maryland this morning, asked that I represent her this 
morning, which I am happy to do.
  However, her statement will be made at a later time at her 
convenience. She should be here in a relatively short period of time. 
As I indicated, she would not want to hold the bill up in any way. 
There is a lot of business going on today, as everyone knows, not the 
least of which Senator Bond and I are the chairman and ranking member 
of the Transportation Subcommittee of the Environment and Public Works 
Committee, and we are trying to move that bill along, too. That meeting 
started 5 minutes ago. I appreciate everyone's understanding, and I 
look forward to working as quickly and expeditiously as we can on this 
legislation.
  The PRESIDING OFFICER (Mrs. Dole). The Senator from Missouri.
  Mr. BOND. Madam President, I thank the minority whip. I look forward 
to working with him on many issues, but the highway bill, which comes 
up once every 6 years, is being marked up in our subcommittee and full 
committee today. This is the perfect storm for me.
  I understand Senator Mikulski's commitments today. I intend to make 
an opening statement, and then I have an amendment to lay down. I am 
going to have to turn over the floor to the Presiding Officer.
  As always, VA-HUD is a challenging measure to produce, but this time 
it is particularly difficult because of the constraints in the budget. 
We have had to make some very hard decisions on how to fund almost 
every program in the bill. No one will be completely happy with this 
bill, but ultimately the decisions the distinguished ranking member, 
Senator Mikulski, and I have made with our committee have been the 
right ones, and the American taxpayers should be happy since our job is 
not only to fund programs, but to do so wisely, and that is what we 
have tried to do.
  Ultimately, this is a good bill. It balances the needs and priorities 
of Members with requirements of the budget request of the 
administration. The bill also meets our discretionary budget allocation 
of $91.334 billion, and we are under our outlay allocation as well.
  My compliments, once again, to my colleague and ranking member, 
Senator Mikulski, on her hard work, cooperation, and commitment to 
making this bill a balanced and good piece of legislation. I know that 
Senator Mikulski has a number of concerns about certain aspects of the 
bill, mostly regarding the funding level of certain programs. I share 
her concerns. But I believe we both understand we are drafting a bill 
with significant funding constraints. She and I worked hard to ensure 
the funding is targeted to key programs and priorities that we both 
strongly support, and we think most Members support as well.
  To be clear, our most pressing and important priority in the VA-HUD 
2004 appropriations bill is funding for our Nation's veterans and, most 
importantly, funding to provide quality and accessible medical care 
services from the Department of Veterans Affairs. I am proud to say our 
bill meets our commitments to our Nation's veterans and ensures the VA 
medical care system has adequate resources to meet its

[[Page 28536]]

current and ongoing needs, especially for VA's core constituents, such 
as those with service-connected disabilities, low incomes, or needs for 
specialized services.
  It is critical that we ensure VA can provide a safety net for our 
veterans, especially during a time when our Armed Forces are mobilized 
across the globe maintaining the peace and fighting the war against 
terrorism.
  While we expect the brave men and women serving in Iraq, Afghanistan, 
the Philippines, Bosnia, and other places to face dangers on a daily 
basis, they should not expect to face the danger of inadequate medical 
services when they return from duty. This bill ensures that they have 
peace of mind, meaning the Government will be there for them when they 
return.
  Further, our bill meets the funding agreement for the VA under the 
fiscal year 2004 budget resolution by providing $30.6 billion in 
discretionary spending, an increase of $2.9 billion over the fiscal 
year 2003-enacted level.
  Consistent with the budget resolution, nearly all of the 
discretionary spending increase is for medical care. Further, the bill 
does not include the administration's request to impose new enrollment 
and higher prescription drug fees on certain veterans. We have not 
included the administration's proposal because I believe it is unfair 
to ask our Nation's veterans to bear too heavy a burden for the cost of 
the medical care they rightly deserve. The proposal has proposed a new 
$250 enrollment fee and an increase in prescription copays from $7 a 
month to $15 a month.
  The administration also requested funds to implement its 
controversial outsourcing program. According to VA, if these were not 
enacted, it would need $1.3 billion to meet its projected medical care 
needs in fiscal year 2004. Therefore, we have rejected these new fees 
and have included an additional $1.3 billion to make up for the lost 
revenues from those fees.
  Let's be clear. Without these funds, the VA would be forced to deny 
care to about 585,000 veterans. During a time when our troops are 
deployed, fighting in Iraq, Afghanistan, and other places, it is not 
just necessary to include the additional funds; it is our moral duty to 
include those funds.
  For medical care, the VA/HUD bill before us provides $26.8 billion in 
funds without collections, representing a $1.57 billion increase over 
the request. With third party insurance collections, the medical care 
account will have over $28.3 billion in funds. That is about $3.1 
billion over fiscal year 2003's enacted level and represents a 12.3 
percent increase over fiscal year 2003, the largest increase in VA 
medical care history.
  Let me illustrate the urgent and pressing needs. Several of us went 
to the VA hospital in Washington yesterday to thank the veterans and 
wish them happy Veterans Day. But on our visits around the system, we 
found that there are tremendous needs.
  According to a recent VA analysis, 15,000--almost 16,000 service 
members who served in Operation Iraqi Freedom have separated from 
military duty, and among these service members almost 2,000 had sought 
VA health care during 2003. I point out, these numbers do not include 
those military men and women who are returning from Afghanistan and 
other parts of the world, fighting the war on terrorism.
  Every day in the news we hear the unfortunate, sad news of American 
soldiers killed in Iraq. However, as illustrated by the VA analysis and 
scores of news reports, we have found that our new medical care in the 
field has enabled us to save many service members who might not have 
survived. They come back with very serious wounds and perhaps 
disabilities.
  USA Today, on October 1, said at least seven times as many men and 
women have been wounded in battle as those killed in battle. The good 
news is we have kept these people alive. But as these wounded service 
members are discharged, they confront new and challenging hardships in 
piecing together their lives. Most of them will be depending on the VA 
to meet their needs. Further, we know the demand for VA medical care is 
not going to lessen. We have already seen the VA medical care system 
overwhelmed by the staggering increase in demand for medical services.
  Since 1996, the VA has seen a 54 percent growth, 2 million patients, 
in total users for the system. Further, the VA projects its enrollments 
will grow by another 2 million patients from the current level of 7 
million to 9 million in 2009.
  The other major highlight of VA funding is construction funding for 
VA's medical care infrastructure. The bill provides almost $525 million 
for minor and major construction projects. A significant portion of 
that is dedicated to the Department's Capital Asset Realignment for 
Enhanced Services, or CARES, initiative.
  I want everybody to remember this because this CARES initiative is 
important. To jump-start the program, the bill includes authority for 
the Secretary to transfer up to $400 million from medical care to the 
CARES program. This transfer authority is provided because buildings 
that are no longer suitable for the delivery of modern health care cost 
the VA money out of medical care. Instead of spending these important 
resources on obsolete facilities, these funds could be used to provide 
quality care to more veterans closer to where they live. The GAO has 
concluded that the VA wastes $1 million a day on sustaining the 
obsolete and out-of-date, unused facilities. The CARES program is 
designed to move VA health care into the 21st century. It depends on a 
modernized infrastructure system located in areas where most of our 
veteran population lives.
  Many veterans today have to travel hundreds of miles to receive care. 
I visited the VA hospitals in my home State of Missouri and found they 
all have great need for infrastructure improvements, such as modernized 
surgical suites, intensive care units, and research space. Most of the 
VA system was created right after World War II. It is outdated and 
located in areas that are not always easily accessible to veterans. 
That is why I strongly support the CARES initiative and believe 
Secretary Principi is on the right track in realigning the health care 
system.
  As for HUD, we provide adequate funding for all programs either at 
last year's level or the budget request, and usually the higher of the 
two. However, there are several points to be made about funding for two 
programs: Section 8, and HOPE 6.
  The administration proposed funding section 8 vouchers through a new 
account, Housing Assistance for Needy Families, which would have 
allocated section 8 certificates through a State block grant program. 
Under the budget request, section 8 project-based housing assistance 
would have continued to be funded through HUD. This program has been 
uniformly criticized and could have placed a number of families at risk 
of losing their housing over the next few years.
  Instead, we funded the section 8 certificate fund at $18.4 billion, 
consistent with the budget request, without the new program structure. 
Many groups say this appropriation is inadequate and could result in 
the loss of housing. I share these concerns with several 
qualifications.
  First, in previous bills we restructured the account to provide 
funding to PHAs only for the families actually using vouchers and then 
with the central reserve at HUD, to ensure additional funds would be 
available to fund vouchers for additional families up to the PHA--that 
is, public housing authority--authorized contract level.
  This is new. The data is incomplete. There is a risk that there are 
not enough funds in the appropriation to meet all the needs of all 
families. But we do not know what that number will be.
  In past years, HUD has found additional excess section 8 funding to 
meet all section 8 needs, and no doubt will next year and the year 
after until this new funding system is in place and data is reliable.
  Nevertheless, we made it clear in the report that we expect the 
administration to alert us to any shortfalls and that we expect any 
shortfalls to be funded fully in a supplemental appropriations request.

[[Page 28537]]

  Second, the administration eliminated the HOPE VI Program, which was 
funded last year at $570 million. This program has been a tremendous 
boost to the quality of housing for many low-income families. It has 
allowed PHAs to take down obsolete public housing, where we essentially 
warehouse the poor, and replace that housing with mixed income and 
public housing that has anchored new investments in distressed 
communities.
  I have a personal interest in this program because we started this 
change. We made this change initially in St. Louis, MO, with one 
project which was totally uninhabitable, unsafe, and unfit to raise a 
family. It has been replaced with new, modern, mixed-income family 
housing. This program is working. This is one of the best things that 
has happened in public housing.
  Does there need to be a change? Certainly we can look at it, but we 
need a discussion, a debate, and a decision before we try to shut down 
HOPE VI. We have not been able to fund this program fully, but we have 
provided $195 million for HOPE VI in fiscal year 2004 and provide 
limited authority to recapture funds from old projects unable to use 
their HOPE VI funding.
  For the Corporation for National and Community Service, the bill 
provides $484 million for fiscal year 2004, about $100 million above 
the fiscal year 2003-enacted level and $113.6 million below the 
request. The dollar increase is the largest increase in the 
corporation's history, and the total amount provides the highest level 
of funding for the corporation. While our funding level does not meet 
the President's request, along with additional flexibilities we 
provided in the bill, it will support the President's goal of enrolling 
up to 75,000 new AmeriCorps members.
  We have provided a robust appropriation for the corporation. I 
strongly believe the bill contains the necessary controls to ensure 
that the corporation does not continue to repeat the highly publicized 
mismanagement problems of the past. The bill ensures accountability, 
addresses the AmeriCorps enrollment problems, without penalizing the 
thousands of volunteers who want to serve and serve well.
  Further, with the current chief financial officer in place, and 
Chairman Steve Goldsmith at the helm of the corporation's board of 
directors, I am very confident the corporation can correct its 
longstanding management problems.
  I am a believer in tough love, and I can say with confidence this 
bill represents that philosophy. The promise of the corporation is too 
great to allow it to be derailed by inappropriate, inadequate 
mismanagement and the inability to count, which has perplexed the 
corporation in previous years.
  For the Environmental Protection Agency, the bill provides $8.2 
billion, some $552 million more than the budget request. The funding 
represents a number of tough decisions balancing Member priorities with 
the budget request. In particular, we were able to fund fully the clean 
water State revolving fund at the fiscal year 2003 level, which is $500 
million more than the budget request. We also fully funded the drinking 
water State revolving fund at $850 million, which is equal to the 
budget request in the fiscal year 2003 level.
  I know there will be some concerns about Superfund, which is funded 
at $1.265 billion, the same as fiscal year 2003, and $125 million less 
than the budget request. This is one of the tough choices, but this 
funding level reflects a level of funding consistent with the last few 
years.
  We have included requirements to help push EPA toward more Superfund 
closeouts. There is a contentious issue in the count. Language has been 
included to clarify an existing exemption in the Clean Air Act that 
engines that are used in farming and construction and are smaller than 
175 horsepower are exempt from State regulation for emissions but 
remain subject to EPA regulations.
  The problem we face today is that California is on the verge of 
issuing new regulations that would drastically change the emission 
requirements for small engines, whether they are used for lawn and 
garden or farm and construction. This California Air Resources Board 
threatens 17,000 jobs in other States and 5,000 jobs in Missouri.
  Before the board acted, I specifically requested them to find a 
resolution to the issue which would not force U.S. manufacturers to 
move their plants offshore because I think Government-required export 
of jobs is unacceptable. The California Air Resources Board had an 
opportunity to adopt a rule supported by the entire industry to provide 
the environmental gains needed and protect the public from the risk of 
burn and explosion from catalytic converters on small engines, but they 
chose not to go this route. Unfortunately, the proposed regulations 
raise great threats to safety of lives and the health of consumers.
  I will be addressing that in an amendment I will be offering which 
will clarify the purpose of these provisions and also respond to 
concerns raised by a number of Senators. I hope we can support this 
measure to assure that we can clean up our environment, and we do so in 
a way that does not bring additional risk of explosion and fire. We 
have seen what tragedies fires caused in California. We do not want to 
see fires caused by small engines, and we do not want to see 22,000 
manufacturing jobs exported directly as a result of a regulation.
  The underlying bill itself also includes $5.586 billion for the 
National Science Foundation, an increase of $276 million over the 
current funding level. It is an increase of only 5.2 percent, which is 
far short of the funding path, which I think an overwhelming majority 
of this Senate supports, to put NSF on a path to double in 5 years. To 
keep us from losing jobs to overseas, we have to have the high 
technology science that the NSF can provide.
  In addition, people working in the National Institutes of Health tell 
us that continued gains in NIH, which we have so generously doubled, is 
being held back by the failure of the hard sciences in NSF, which are 
necessary to support the medical advances. I am pleased we are funding 
the priorities of nanotechnology, plant genome, and EPSCoR above the 
requested levels and continue to support research at all levels, from 
elementary school to post-docs and beyond.
  Finally, we continue our support of minority-serving institutions, 
including such programs as historically Black-serving institutions and 
the Louis Stokes Alliance for Minority Participation, with $22 million 
in additional funds over the President's request.
  NASA is funded at $15.3 billion, consistent with the 2003 level. We 
have funded the space shuttle program at the President's requested 
level of $3.97 billion. The Columbia Investigation Accident Board 
recently issued a final report, and the response of NASA has developed 
an implementation plan as a foundation for return to flight.
  Nevertheless, NASA is facing a crossroads in its human space program 
and we need to understand the extent of the administration's commitment 
to the shuttle, the International Space Station, and human space 
flight.
  The need to define this commitment has become even more important in 
recent weeks with the successful launch of a Chinese taikonaut and 
after the disturbing news that Russia will be unable to fund the next 
scheduled launch of a Progress to the ISS, meaning the current crew on 
the ISS will not return to Earth until next year.
  The bill does have to necessarily reduce the budget for the 
International Space Station by $200 million, reflecting the current 
state of the ISS, with its reduced crew and the inability of NASA and 
international partners to continue its construction of the ISS, as well 
as the obvious risks of relying on Russia and Russian vehicles to 
supply the ISS for an indeterminate amount of time.
  There are many constraints within this bill. We must consider all the 
current uses for funds versus a program that in some respects is on 
hold. We will gladly reconsider this action as NASA and the 
administration present a plan that will restart the construction of the 
ISS to reach core complete.
  The bill also provides for some minor programmatic changes within the

[[Page 28538]]

science aeronautics and exploration account. We do provide for an 
additional $50 million beyond the President's request in the area of 
aeronautics.
  Europe has made it clear they intend to dominate the commercial 
aviation market, and we intend not to let that happen.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. I thank the Chair.
  Madam President, I thank Senator Bond and the distinguished Senator 
from California for her graciousness as we proceed on both the bill and 
an amendment of Senator Bond and her advocacy in behalf of the State of 
California. Her advocacy on the issue is well known, but I know she 
also has pragmatic solutions. I also appreciate that she did not object 
to bringing this bill forward. We thank her very much.
  The veterans need this bill. We need it to protect America's 
environment. We need it to empower communities, and we need to invest 
in science and technology that helps us come up with new ideas for the 
new products that are going to lead to new jobs right here in the 
United States of America.
  The Presiding Officer knows about the loss of jobs in our country and 
the way we are going to not only have the jobs today, but also the jobs 
of tomorrow, is by coming up with these new products. We know we win 
the Nobel Prizes, but now we have to start winning the markets.
  I am so pleased to bring the VA-HUD bill to the Senate floor with my 
dear colleague, Senator Bond. This is truly a bipartisan bill. I thank 
Senator Bond for his cooperation and collegiality in developing the 
framework for this legislation, as well as Senator Stevens and Senator 
Byrd who worked with us as we tried to deal with a very spartan and 
frugal allocation in these tough economic times. We really appreciate 
Senator Stevens trying to problem-solve with us on how we can meet the 
compelling needs that are in this legislation.
  One of the most compelling needs is VA. During the August recess, I 
traveled to VA clinics all over Maryland, from the rural parts of my 
State all the way up to metropolitan areas, meeting with doctors and 
nurses, but also with veterans. What did I see? Outpatient clinics at 
capacity, waits to see specialists, and, at times, driving long 
distances to travel in rural areas. Everywhere I went, they all said 
they were being swamped by new veterans seeking care.
  They are anticipating the return of the Iraqi war veterans, not only 
Jessica Lynch, but others who come back bearing the permanent wounds of 
war knowing that they are going to need the permanent help of the VA. 
We want to be on their side to stand up for that help.
  We also saw that many people who had health care but lost their jobs 
or were forced into early retirement turning to the VA. When we took a 
look at the VA budget, we found that the President's request was about 
$1.5 billion under what we needed to deal with the waiting lines, the 
new Iraqi vets coming back, and also the fact that we need to take care 
of those category 7 veterans, those World War II veterans. So we need 
more money in VA. We tried to take care of this on the Iraqi 
supplemental, but that was not the time nor the place, and we count on 
working with the leadership, under Senator Stevens, to solve this 
problem. We have come a long way in this VA-HUD budget in dealing with 
this issue.
  While we stand up for our veterans, we also want to stand up for our 
communities. This is why the HUD budget offers promise to the area of 
housing and community development. We continue our commitment to core 
housing programs. We particularly are enthusiastic about the Community 
Development Block Grant Program because it goes to local communities; 
it is flexible funding where the local community decides where the 
public investment needs to go to leverage jobs or to rebuild 
communities. This is why we like CDBG, whether it goes to North 
Carolina, to those small rural communities in Alaska, or to a big city 
such as Baltimore. Because of what we have done, we have helped retain 
over 100,000 jobs nationwide.
  It is also the same for a program called HOME, which has created in 
the past 10 years over 700,000 affordable housing units. We are going 
to continue in this bill the longstanding commitment to renew all 
section 8 vouchers and also to keep the HOPE VI program going. So we 
are looking out for building housing, building hope, and providing 
access to the American dream.
  We are also in this bill fighting to protect our environment. We are 
helping EPA by providing the right funds to clean up brownfields, 
improve air quality, and fix water and sewer systems. I am particularly 
proud of the way we have continued on a bipartisan basis to fully fund 
the Chesapeake Bay Program.
  Where we would like to do more is in the water and sewer program. 
Every Senator has come to us, along with every Governor, to say: 
Increase water and sewer money. The communities need it to protect 
public health and the environment, but we also need it, say the 
Governors and the local officials, because this will also create jobs. 
We are under so many EPA-unfunded mandates that essentially this will 
push problems onto the local ratepayer.
  We have funded water and sewer projects, but I am going to be 
offering an amendment to increase it even by $3 billion more.
  We also have to have very strong enforcement of environmental laws. 
So we must not skimp on enforcement, and I will be supporting an 
amendment by Senator Lautenberg on this issue.
  Then we go to national service. This bill also empowers communities 
through national service. Working with Senator Bond, we cleaned up a 
terrible accounting mess. The President has responded and given us new 
leadership, but right now we are working to increase the volunteer 
program. We continue to need additional funds and better management.
  At the same time, we are working on NASA to return our space program 
to flight, but we want to ensure, as always, the safety of our 
astronauts, and we are absolutely committed to implementing the Gay-Min 
commission report so that when we go back to space, our astronauts will 
be safe.
  Space science: This is where we look at big breakthroughs, whether it 
is Earth science, work at NASA Goddard, or the Hubbard telescope, but 
also Senator Bond and I worked to increase funding of aeronautics by 
$50 million.
  In 1980, the U.S. had 90 percent of the commercial aviation market. 
Now we are down to 50 percent. This is unacceptable. We have to make 
sure we make airplanes in this country, and we come up with the best 
ideas and the breakthrough technology, not only for smart weapons of 
war, but where this is translated into the commercial airline business 
where we can fly and ensure that passengers are safe, but also maintain 
this manufacturing base. So Senator Bond and I put in $50 million for 
increased aeronautical research.
  At the same time, we have put money into the National Science 
Foundation to make sure we have that farm team of the next generation 
of scientists and engineers, but also in breakthrough technologies, 
investment in biotech, infotech, and a marvelous new field called 
nanotech that could create thousands of new jobs.
  Imagine that wonderful wedding ring the Chair has on, that our former 
colleague Senator Dole gave. As she looks at that ring, just know that 
that is the size of a supercomputer when we move our nanotechnology 
further ahead, that the entire Library of Congress will be in something 
less than the size of my earring. Is this not phenomenal?
  There will come a day when someone will be able to take one little 
pill-like item a day, or even a month, and that nanotechnology will be 
an ongoing monitor for the diabetic, for the high blood pressure 
person, for the stroke-prone person and be able to send alerts to a 
doctor's office. This is what lies ahead.
  We will not only be saving lives or collecting information, but what 
we will be doing is winning the Nobel Prizes and winning the markets 
and these products will be manufactured in

[[Page 28539]]

this country and will revolutionize the world.
  This is what VA-HUD is all about, standing up for our veterans, 
rebuilding communities, protecting the environment, answering a call to 
national service, making public investments in science and technology. 
So I am pleased to support this bill, along with my colleague, the 
chairman of the subcommittee, Senator Bond. This is a bipartisan bill. 
This is not a Democratic bill or a Republican bill. This is a red, 
white, and blue bill. We hope it moves expeditiously through the Senate 
with a few of the amendments we are proposing.
  I yield the floor.


                           Amendment No. 2150

  Mr. BOND. I call up an amendment at the desk and ask for its 
immediate consideration.
  The PRESIDENT pro tempore. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond], for himself and Ms. 
     Mikulski, proposes an amendment numbered 2150.

  Mr. BOND. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  Mr. BOND. Mr. President, this amendment before us is the one I 
described in my opening statement which will save 22,000 manufacturing 
jobs in 23 States. Let me repeat so that all will know what we are 
debating today, and that is whether we will decide to kill 22,000 
manufacturing jobs in 23 States across America.
  With this amendment, we will decide whether to close at least three 
American manufacturing plants. We will decide today whether we will 
send thousands of jobs to China. We will decide today whether we will 
kill thousands of jobs of manufacturing parts suppliers. We will decide 
today whether we will kill thousands of jobs of those dependent on a 
manufacturing paycheck. We will decide all of this with this very 
important amendment. Our answers must be a resounding no to killing 
22,000 manufacturing jobs. Our answer must be a resounding no to 
sending more jobs to China by a State regulation. Our answers must be a 
resounding no to closing manufacturing plants. A ``no'' vote on this 
proposal and the underlying proposal is a vote to send thousands of 
jobs abroad.
  Why are these jobs at risk? Quite simply a single agency in a single 
State has its own ideas of how to solve problems in the environment. 
The problem is they do so without a care in the world as to the 
consequences of their actions--the loss of jobs and the danger that it 
entails.
  At issue is the desire of the California Air Resources Board to 
impose new air pollution reductions by imposing a massive redesign on 
small engines used in lawnmowers, generators, blowers, chain saws, and 
marine vessels. The California redesign would be so massive that it 
will force the use of expensive and dangerous technologies like super 
hot catalytic converters on hand-held equipment.
  The California market and those States that may follow suit will be 
forced to do so because major chains that sell these small engines will 
not be able to make one kind of engine for a California market and 
another kind of engine for other markets. Instead of manufacturers 
rebuilding plants in the United States, they will rebuild them in China 
where it is cheaper and fill them with cheap labor. These workers will 
not be subject to U.S. wage, work, or environmental regulations.
  This is not a question of what the company does in terms of its 
profit and loss statement. They can maintain the same profits by 
probably raising prices and sending their manufacturing to China. This 
is a question of U.S. jobs of the men and women who work in those 
plants.
  I visited workers at a Poplar Bluffs, MO, plant which makes small 
engines. They are good people, hard-working people. They are supporting 
their families and their communities. They cannot understand why we 
would let a regulation of one State send their jobs to China. But they 
are not alone. Closure of these plants will have a ripple effect across 
the country.
  When you include the direct loss from parts suppliers and payroll 
dependents, 22,000 jobs in 23 States from Minnesota to Florida, from 
Massachusetts to Texas and Arizona will be lost.
  This map shows where those losses occur. They are significant 
losses--not only in my State but in Wisconsin, in Georgia, in Illinois, 
in Alabama, and in Texas. These are the States that will bear the 
burden.
  I ask my colleagues: Can we afford to lose more than 22,000 
manufacturing jobs? I think the answer is no.
  The need to save these 22,000 jobs is so important that I have made 
changes in my small engines provision to address concerns of 
stakeholders and members. I believe and trust that these changes are 
appropriate and will assure that we have targeted our amendment to meet 
the real dangers.
  First, the requirement that EPA establish new small engine standards 
to achieve additional pollution reduction for small engines.
  Let me make it clear: EPA, under the Clean Air Act, already regulates 
small engines and has done at least two rounds of small engine air 
pollution reductions.
  In this amendment, we direct them to within a year do another round 
of new standards so that the entire Nation benefits from cleaner small 
engines. In other words, we are going to get the cleanup that 
California wants in California, and which other States in the Nation 
need in their States. My own State of Missouri needs pollution 
reductions in Kansas City and St. Louis. In Missouri, we can't issue 
those regulations. I say to the occupant of the Chair, North Carolina 
can't issue those regulations on its own. But by directing EPA to 
enforce those standards nationally, we will get the cleanup that we 
need in every single one of our States. All 50 States will benefit from 
nationwide air pollution reductions.
  While we are concerned about the loss of 22,000 jobs, changes in the 
amendment will also address vital safety concerns with the California 
rule. Safety professionals and the organizations they serve fear that 
the California rule will force unsafe changes to small engines that 
will increase the risk of fire, burn, and even explosion. This 
California regulation contains the requirement that would force small 
engine makers to install superheated catalytic converters.
  Anybody who has been around them should know that catalytic 
converters reach extremely high temperatures when chemically breaking 
down air pollution. In fact, catalytic converters meeting California's 
standard can reach temperatures of 1,100 degrees Fahrenheit or more. 
Dry grass burns at just over 500 degrees Fahrenheit, and certainly 
human skin burns at much lower temperatures.
  Keep in mind that were this California regulation to go into effect, 
you would be required to hold an 1,100-degree Fahrenheit catalytic 
converter attached to your weed whacker, chain saw, or lawnmower only 
inches from your hands and legs.
  Keep in mind the California regulation would require you to wave 
around a 1,100-degree catalytic converter in the dry grass you are 
mowing or the dry brush you are cutting or in the dry leaves you are 
blowing. This is a safety hazard. There are basic safety warnings--
avoiding the use of hot mufflers or use of equipment in dry grass or 
brush conditions must be avoided. The California rule ignores them. Not 
only did they not address these concerns, but in one example they 
provided misleading information to their own California Fire Chiefs 
Association. Initially, the California Fire Chiefs believed that the 
California combination of leaking fuel from overly pressurized tanks 
and excessive temperatures from a hot catalyst is a disaster waiting to 
happen. The fire chiefs thought the rule poses an unacceptable risk to 
the people of their State.
  After promises from the Air Regulation Board were made to the fire 
chiefs that they change their regulations, the fire chiefs dropped 
their concerns. Unfortunately, they were misled, according to the fire 
chiefs.

[[Page 28540]]

  This is an enlarged copy of the letter that was sent by the 
California Fire Chiefs Association. It documents how the operation of 
this new regulation would be a great danger.
  I ask unanimous consent a copy of the letter be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                   California Fire


                                           Chiefs Association,

                                  Rio Linda, CA, November 6, 2003.
     Hon. Christopher Bond,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Bond: The California Fire Chiefs Association 
     represents fire chiefs from over 1,100 fire departments 
     operating in the state of California. Member organizations 
     consist of municipal fire service agencies, fire districts, 
     state and federal government agencies, and corporate fire 
     brigades.
       Earlier this year in oral and written communications to the 
     California Air Resources Board (CARB), our association 
     expressed serious concerns about the CARB's plans to require 
     catalytic converters on lawnmowers and other lawn and garden 
     power equipment. Firefighters have far too much experience 
     suppressing fires caused by catalytic converters on 
     automobiles carelessly parked on combustible grass and 
     leaves.
       After this past month of fighting wildland fires, we are 
     almost too tired to think about catalytic converters on 
     lawnmowers which, after all, are intended for use on grass. 
     California does not need yet another way of igniting fires.
       Several weeks ago, the CARB's staff informed our 
     representative, Assistant Chief Jim Medich of the West 
     Sacramento Fire Department, that the catalytic converter 
     requirement had been removed and the outdoor power equipment 
     industry was now in support of the measure. Believing that 
     statement to be true, we had no further objection to the CARB 
     rule and have since been quoted in support of the regulation.
       Unfortunately, we were misled. The catalytic converter 
     provision was not dropped, and we cannot find any evidence of 
     industry support. As such, we wish to go on record that we 
     categorically do not support the proposed regulation, because 
     we believe it will lead to a substantial increase in 
     residential and wildland fires.
       These are complex issues that are not simply solved by 
     manufacturers according to an arbitrary regulatory schedule. 
     Similar challenges exist with catalytic converters on board 
     boats, and it may be years before they are resolved.
       We are saddened an agency that exists only to protect the 
     health and safety of Californians would choose to ignore fire 
     safety and misrepresent the facts. Our hope is that, as this 
     matter proceeds to the federal government, it will be managed 
     with more integrity. As always, we stand ready to work with 
     our many friends in the environmental protection community 
     who so well understand that effective fire prevention saves 
     lives and protects the environment.
           Sincerely,
                                        Chief William J. McCammon,
                                                        President.

  Mr. BOND. Madam President, the California Fire Chiefs Association say 
they categorically do not support the proposed regulation because it 
will lead to a substantial increase in residential and wildland fires.
  They state:

       We are saddened an agency that exists only to protect the 
     health and safety of Californians would choose to ignore fire 
     safety and misrepresent the facts.

  Not surprisingly, other agencies are very much concerned.
  The National Association of State Fire Marshals remains very 
concerned that the California rule cannot be safely met.
  The United States Consumer Products Safety Commission has concerns 
over the potential for burn fire material hazards that remain 
unaddressed.
  The Missouri State Fire Marshal remains concerned that the California 
rules create a significant threat to the safety of people, property, 
and the environment.
  The National Marine Manufacturing Association is concerned that 
California's activities create marine safety issues that must be 
evaluated further before they are imposed on industry. That is right. 
This rule can even make boats unsafe. Generators and engines kept in 
boats in enclosed spaces with poor ventilation requiring these 
superheated catalytic converters is a boating disaster waiting to 
happen.
  I ask unanimous consent that copies of these letters be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         National Association of State Fire Marshals, Executive 
           Committee,
                                  Washington, DC, October 7, 2003.
     Re California's new emission regulations for lawn and garden 
         equipment and request for a safety study.

     Mr. Jeffrey R. Holmstead,
     U.S. Environmental Protection Agency, Pennsylvania Avenue, 
         NW., Washington, DC.
       Dear Mr. Holmstead: The National Association of State Fire 
     Marshals (NASFM) represents the most senior fire safety 
     officials in the 50 states and the District of Columbia. Our 
     mission is to protect life, property and the environment from 
     fire and other hazards. We receive virtually all of our 
     resources from federal and state government agencies.
       NASFM became aware of the proposed emission regulation 
     being proposed by the California Air Resources Board (CARB) 
     for lawn and garden equipment earlier this summer. Out of 
     concern that the very hot catalytic converters and 
     pressurized fuel tanks required by this rule would pose a 
     risk for additional garage fires, wildland fires and operator 
     burns, NASFM submitted the enclosed July 29, 2003, and 
     September 12, 2003, correspondence to CARB. In this 
     correspondence, NASFM urged the CARB Board ``not to proceed 
     with [its proposed emission] regulation at this time, given 
     the high probability that lives and property will be at risk 
     if catalytic converters and pressurized fuel tanks are 
     required before all critical safety parameters have been 
     identified and before the industry can implement the proper 
     safety measures.''
       NASFM urged CARB to participate in a safety test program to 
     evaluate and respond to the unresolved safety concerns with 
     CARB's proposal to apply extremely hot catalysts and 
     pressurized fuel systems to lawn and garden equipment. We are 
     aware that a similar safety study is being undertaken with 
     U.S. EPA, the U.S. Coast Guard and industry to research the 
     effects of applying catalytic converters to marine engines. 
     However, by moving forward with the adoption of regulations 
     at its Board hearing on September 25, the CARB Board has 
     effectively rejected the proposed safety study, thus denying 
     NASFM (and other safety organizations) the needed time and 
     therefore the ability to participate as a stakeholder in the 
     CARB regulatory development process. Additionally, CARB has 
     failed to identify and objectively explain to the public the 
     risks and substantially unresolved safety issues associated 
     with its regulatory program. For example, CARB's August 8 
     Staff Report failed to mention--or even cite to--the 
     correspondence submitted to CARB by the California Fire 
     Chiefs Association on July 18, comments of NASFM submitted on 
     July 29, or the correspondence from the U.S. Consumer Product 
     Safety Commission, all of which raised valid safety concerns 
     with CARB's proposal.
       CARB has indicated that manufacturers will simply respond 
     to the increased heat from catalysts by adding more heat 
     shielding and insulation--despite documentation by 
     manufacturers that the installation of additional heat 
     shielding and insulation to protect the operator from burns 
     will inherently result in much longer cool-down periods, 
     increasing the risk of fires during refueling and fires from 
     retained grass clippings after the equipment is parked in the 
     garage.
       NASFM remains very concerned that the requirements adopted 
     by the CARB Board at its September 25 Hearing cannot safely 
     be met, particularly by the relatively small, unsophisticated 
     equipment manufacturers that dominate the lawn and garden 
     industry. Consequently, NASFM's suggested safety study is 
     needed more than ever to accurately determine how much heat 
     catalysts will generate; whether the added heat from a 
     catalyst exhaust system can safely be mitigated through heat 
     shielding; and how much pressurization a fuel tank can safely 
     withstand.
       NASFM also is concerned that other states are likely to 
     ``opt into'' the California program if they are authorized by 
     U.S. Environmental Protection Agency (U.S. EPA) under Section 
     209(e) of the Clean Air Act. Because of fundamental 
     unresolved safety issues, the U.S. EPA must ensure that 
     consumers across the country are adequately protected as 
     required by the Clean Air Act. We urge U.S. EPA to evaluate, 
     accurately identify for the public, and address the 
     substantial unresolved safety issues presented by the CARB 
     regulation. If EPA authorizes the CARB regulation without 
     conducting a thorough and meaningful safety evaluation, then 
     NASFM and its members will request substantial additional 
     federal funding to respond to a dramatic expected increase in 
     fires in and around people's homes, as well as an increase in 
     operator burn injuries. We believe the additional costs in 
     fire suppression--and the potential loss of life and 
     property, as well as damage to the environment--that will 
     result from CARB's regulations as currently written would 
     dwarf the relatively small costs of conducting a meaningful 
     safety study prior to the EPA decision on whether to 
     authorize the regulations.
       NASFM has established relationships with the EPA as well as 
     with environmental nongovernmental organizations, other fire 
     service organizations and the Building and Fire Research Lab 
     at the National Institute of

[[Page 28541]]

     Standards and Technology. We stand ready to participate in a 
     safety study on this issue if authorized by EPA.
       Thank you for your consideration.
           Sincerely,
                                                  Donald P. Bliss,
     President.
                                  ____

                                             U.S. Consumer Product


                                            Safety Commission,

                                   Washington, DC, August 4, 2003.
     Alan C. Lloyd, Ph.D.,
     Chairman, Air Resources Board, California Environmental 
         Protection Agency, Telstar Avenue, El Monte, CA.
       Dear Dr. Lloyd: A staff representative of the U.S. Consumer 
     Product Safety Commission (CPSC) attended the Small Off-Road 
     Engine Workshop held by the California Air Resources Board 
     (CARB) in Sacramento on July 2, 2003. Part of that workshop 
     included the discussion of potential safety issues associated 
     with proposed air quality requirements in California. We 
     understand that these proposed air quality requirements might 
     require additional emissions control equipment on outdoor 
     power equipment such as lawn mowers. The CPSC staff has 
     conducted an initial review of potential safety issues that 
     may arise as a result of the promulgation of these 
     requirements and believes that these issues merit further 
     consideration and discussion in the regulatory process 
     conducted by CARB. Specifically, the CPSC staff recognizes 
     the potential for burn, fire, or materials hazards that 
     additional emissions control equipment could present.
       The CPSC engineering staff requests an opportunity to 
     discuss proposed emissions control requirements for outdoor 
     power equipment with the appropriate CARB staff to learn more 
     about the proposed requirements and their implications on 
     consumer product safety. Hugh McLaurin, the Director for 
     Engineering Sciences at the CPSC, will contact the 
     appropriate authority at CARB to arrange further discussions.
           Sincerely,
                                                 Jacqueline Elder,
     Assistant Executive Director.
                                  ____

                                                   National Marine


                                    Manufacturers Association,

                                                   Washington, DC.
     Hon. Kay Bailey Hutchison,
     U.S. Senate, Russell Building,
     Washington, DC.
       Dear Senator Hutchison: The National Marine Manufacturers 
     Association (NMMA) is the nation's largest recreational 
     marine trade association representing manufacturers of 
     recreational boats, marine engines and marine accessories. 
     NMMA has over 1500 members, many which are either located or 
     conduct business in the state of Texas.
       NMMA would like to inform you of recent actions by the 
     California Air Resources Board that raises marine safety 
     issues for recreational vessels equipped with generator sets. 
     The recent rules for spark-ignited small off-road engines 
     adopted by the California Air Resources Board would impose 
     both new exhaust and evaporative controls on vessels equipped 
     with these devices. This action was taken without 
     consultation with NMMA, its members or the U.S. Coast Guard.
       NMMA, the California Air Resources Board and the U.S. Coast 
     Guard have a test program underway at Southwest Research in 
     San Antonio to test catalysts on sterndrive/inboard engines. 
     The purpose of this test program is to assure the 
     performance, durability and safety of catalysts in this 
     application. Nevertheless, California adopted regulations 
     that would require catalysts on marine generators before 
     completion of this study. The California rules would also 
     require changes to the fuel systems on any vessel equipped 
     with a marine generator. NMMA, our fuel tank and boat builder 
     members and the U.S. Coast Guard have been actively engaged 
     with the U.S. Environmental Protection Agency for several 
     years in the development of regulations to control 
     evaporative emissions from recreational vessels. It is our 
     understanding that the requirements included in California's 
     rules are similar to those which have raised safety issues in 
     the EPA rulemaking. Like the exhaust rules, these 
     requirements were adopted without consultation with the U.S. 
     Coast Guard, and the boat building industry.
       NMMA is concerned that California's activities create 
     marine safety issues that must be evaluated further before 
     they are imposed on this industry. For this reason, NMMA 
     urges you to support Sen. Bond's provision included in the 
     VA-HUD FY 2004 Appropriations bill which would limit 
     California's ability to impose requirements on these devices 
     and marine vessels.
           Sincerely yours,
                                               Thomas J. Dammrich,
     President.
                                  ____

                                      Department of Public Safety,


                                      Division of Fire Safety,

                             Jefferson City, MO, October 24, 2003.
     Senator Christopher S. Bond,
     U.S. Senate,
     Washington, DC.
       Dear Senator Bond: I write both as Missouri State Fire 
     Marshal and as a director of the National Association of 
     State Fire Marshals (NASFM). NASFM represents the most senior 
     fire safety official in each of the 50 states and District of 
     Columbia. NASFM's mission is to protect life, property and 
     the environment from fire and other hazards. We receive 
     virtually all of our resources from state and federal 
     government sources, although we pride ourselves on the many 
     productive relationships with industries that share our 
     commitment to public safety.
       First, I wish to thank you for giving serious consideration 
     to serving as a sponsor of the American Home Fire Safety Act. 
     This legislation has the potential to save two lives a day 
     from the leading causes of fire in the home. As you know, I 
     have lost family members in a fire involving the products 
     contained in this bill. It would mean a lot to the Missouri 
     fire service if you would help in this worthy effort.
       But just as we seem to conquer one fire safety challenge, 
     others take their place. We are especially concerned that a 
     proposed California environmental regulation might move 
     forward nationally and create a significant threat to the 
     safety of people, property and the environment.
       The issue is whether we have a sufficient understanding of 
     how air emissions requirements for the small engines used 
     with lawn-mowers, snow-blowers and other small-engine outdoor 
     power equipment might affect the number and severity of fires 
     in residential garages and in rural communities most affected 
     by wildland fires. We do not regard these potential fire 
     hazards to be more important than air quality, but they 
     certainly are no less important.
       We stand ready to work with you, the environmental 
     protection authorities and the manufacturers of these 
     products to determine a common-sense approach to a complex 
     series of questions about how best to have outdoor power 
     equipment that is safe and clean. This is an attainable goal 
     if we work together.
       Most recently, the California Air Resources Board (CARB) 
     has proposed air emission rules for these purposes. In 
     cooperation with the California Fire Chiefs Association, and 
     after consultation with the outdoor power equipment 
     manufacturers and others with knowledge of these issues, 
     NASFM urged CARB to give greater consideration to fire 
     safety. While CARB acknowledged the concerns, the proposed 
     rule does not.
       The scenario is not hard to imagine--especially given the 
     many garage and wildland fires that take lives, destroy 
     property and spoil the environment every year. The CARB has 
     not adequately examined the probability of increased gasoline 
     leakage of the pressurized fuel tanks its rule will require. 
     Nor has CARB considered the very high temperatures emitted by 
     catalytic converters its rule will mandate.
       Regulators have lost so much credibility over the years by 
     forcing people to do illogical things. The combination of 
     leaking fuel tanks and high temperatures is not something we 
     wish to introduce into a residential garage with a gas water 
     heater, discarded newspapers and rags, and combustible paints 
     and solvents. Nor do we wish to see such power equipment left 
     idle for even a minute on top of combustible vegetation. The 
     forest fires that consume hundreds of thousands of acres and 
     scores of homes can be ignited by a single, discarded 
     cigarette. This could be far worse, and for that reason we 
     have alerted the United States Department of the Interior to 
     look into this matter.
       As we understand the process, the CARB may proceed if it 
     receives a federal waiver from the United States 
     Environmental Protection Agency (US EPA), and that such 
     waivers may be granted with little oversight. Once a waiver 
     is granted, other states are likely to follow the CARB's 
     lead. Even with the federal government's help, we cannot 
     purchase enough fire apparatus and equipment or train enough 
     firefighters to protect the public from the fires we now 
     have. Prevention is the only answer. Creating new hazards--
     through regulation, no less--is unacceptable.
       We will appeal directly to US EPA to give this matter very 
     serious attention, but we would encourage you to use your 
     good offices to encourage the US EPA to use this opportunity 
     to protect the environment and human life from residential 
     and wildland fires in the future. NASFM is not against 
     states' acting to protect the environment from harmful 
     emissions.
       However, these fire safety issues will be a factor no 
     matter where such measures are considered, and they are best 
     dealt with on a national level for the benefit of all.
           Best personal regards,
     William Farr,  
       Missouri State Fire Marshal, and
     Board of Directors,
       National Association of State Fire Marshals.

  Mr. BOND. Madam President, in the face of all of these concerned 
safety groups, I asked California to provide any kind of evidence or 
any kind of testing or any kind of analysis that these safety concerns 
were not true. They could not.
  CARB failed to provide safety data or testing results using test 
procedures approved or witnessed by safety efforts.

[[Page 28542]]

  CARB failed to provide any data testing or analysis of the danger of 
liquid or vapor fuel released from a pressurized tank used to comply 
with the rule lighting on fire after coming in contact with superheated 
catalytic converters used to comply with the rule.
  CARB admitted that grass clippings can ignite if they come into 
contact with surfaces above 518 degrees Fahrenheit. CARB failed to 
provide any data showing that the shields were capable of protecting 
against temperatures of 1,026 degrees Fahrenheit. They admitted they 
failed to conduct standard testing applied to all internal combustion 
engines. This is a problem requiring us to act to solve it.
  We are being asked to do something to protect 22,000 jobs, 3 
manufacturing plants being moved to China. My provision would enable 
those jobs to stay in the United States. We are asking to prevent the 
risk of burn, fire, and explosion to millions of consumers, fires in 
our homes and in our wildlands. The provision to have EPA do a national 
rule instead of California will ensure that national environmental 
issues are met and that it will take into concern issues such as the 
safety in achieving the pollution reductions we need.
  I made several changes in my amendment to address Member concerns. We 
made it clear that this would not have prevented their States from 
regulating existing or end-use engines. We made it clear this provision 
only applies to new engines. Some Members thought the initial language 
would prevent States from regulating diesel engines. We have specified 
these are limited to spark-only engines. They do not cover diesel 
engines because the State of California could continue to regulate 
them, and we have also seen that the EPA has issued regulations with 
respect to diesel engines.
  Some Members were concerned that the original language would prevent 
their State from regulating mid- and large-sized engines such as 
airport tugs, forklifts, and cranes. We have no intention of limiting 
those. The amendment specifically applies only to small engines under 
50 horsepower.
  These are numerous changes that are well worth saving 22 
manufacturing jobs. We will protect the environment. We are providing 
the air quality improvements to all 50 States. We are protecting public 
safety by assuring that the concerns of all of the safety interested 
groups I have indicated are taken into account by EPA in issuing their 
regulations. I don't want to be the one to go home and tell our workers 
we are sending their jobs to China. I don't want to tell our families 
they cannot have a breadwinner earning a good living in those 
factories. We want to tell communities that we will not cripple their 
tax base, their school systems, and cripple their services. We will 
protect the environment. We will protect public safety and the jobs.
  I urge my colleagues to support this amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. DORGAN. Madam President, as a member of the Appropriations 
Committee, let me compliment my colleague from Missouri and my 
colleague from Maryland, the chair and ranking member of this 
subcommittee. They have offered the Senate a good piece of legislation. 
While there may be some areas for discussion where we might have some 
disagreements about one level or another that has been proposed, by and 
large, Senator Bond and Senator Mikulski have done an excellent job 
bringing this appropriations subcommittee bill to the Senate. I 
appreciate their work.
  The amendment just offered will spark some significant debate this 
morning. I believe my colleague from Idaho is also preparing to offer 
an amendment, and my hope is to be involved in that discussion when my 
colleague from Idaho offers his amendment this morning.
  I would like to make a comment about another appropriations bill we 
will be dealing with this afternoon. I don't want to be in violation of 
the rule.
  The PRESIDING OFFICER. Without objection, it is so ordered.


           Transportation/Treasury Appropriations Conference

  Mr. DORGAN. Madam President, this afternoon at 5 o'clock, the 
Transportation, Treasury, and General Government appropriations 
conference will meet. I am one of the conferees on that conference. We 
meet at 5 o'clock this afternoon.
  In the appropriations bill that comes from both the House and the 
Senate to that conference at 5 o'clock this afternoon, there are 
provisions that deal with travel to Cuba. I mention that because 
something important will happen today. We have identical amendments in 
the House and the Senate bills that prohibit the enforcement of the 
provision that prohibits travel to Cuba by the American citizens. No 
money in the bill shall be used to enforce that travel ban.
  I am particularly interested in this because, for example, the 
Treasury Department earlier this year denied a license to the Farm 
Bureau and other farm organizations to help organize a trade show in 
Cuba to promote the sale of U.S. agricultural products.
  I find that unfathomable. Why would we want to prohibit the promotion 
of the sale of U.S. agricultural products to Cuba? Cuba must pay cash 
for those products they have been purchasing from our country because 
of an amendment I was involved in getting passed that allows U.S. 
companies to sell agricultural products to Cuba. There was a 40-year 
embargo, but we are now able to sell in Cuba. But inexplicably, the 
farm organizations, including the Farm Bureau, were denied a license to 
go to Cuba to promote the agricultural sales. That makes no sense to 
me. I hope we will have people who think more clearly about that.
  What prompted me to talk about it this morning is a visit I had 
yesterday from a young woman who came to talk to me about a problem she 
has. I am going to show a picture of the young woman. Her name is Joni 
Scott. She went to Cuba 4 years ago. She is from Indiana. She went to 
Cuba 4 years ago, and she distributed free Bibles in Cuba. She and a 
group of folks from her church traveled to Cuba to distribute free 
Bibles. Last month, 4 years later, she received from the U.S. 
Government a fine of $10,000 for having traveled to Cuba to distribute 
free Bibles.
  Yes, that is right, the Office of Foreign Assets Control at the 
Department of the Treasury tracked her down. It took them 4 years. I 
don't know why it took 4 years. They tracked her down and said: For the 
act that you have committed, traveling to Cuba to distribute free 
Bibles, we will fine you $10,000.
  I have written to the Department of Treasury saying this does not 
make any sense. Is there no reservoir of common sense there, or at 
least some level below which they will not sink? Fining somebody 
$10,000 for distributing free Bibles in Cuba, what on Earth are we 
thinking about? This woman went with a church group to distribute 
Bibles free of charge to the Cuban people. Now she is being tracked 
down by our Government and levied a $10,000 fine. It makes no sense.
  I also was contacted recently by another organization, the Disarm 
Education Fund. They donate medicine and medical supplies to Cuban 
health clinics. But more importantly, they send United States doctors 
to Cuba to teach advanced medical techniques to Cuban doctors. One of 
their projects involves a procedure called something called mandibular 
distraction, building new jaws for kids born without jaws. This is 
highly technical surgery. They have been not only doing this for 
children but teaching Cuban doctors the techniques of this intricate 
surgery.
  This year, Disarm had to discontinue its programs because OFAC at the 
Treasury Department would not renew the license they had held since 
1994. This went on for 6 months and they could not go to Cuba to help 
these children by distributing medicine and by performing intricate 
surgery and teach and train Cuban doctors.
  On October 17, less than a month ago, after 6 months of 
consideration, OFAC issued a new license that allows the Disarm 
Education Fund to resume some of its programs in Cuba. However, the new 
license specifically prohibits this organization's doctors from 
training Cuban doctors. Do you know why?

[[Page 28543]]

Because OFAC says training of Cuban doctors in this very intricate 
surgery constitutes an export of service to Cuba.
  So they can now go down and perform this surgery on Cuban children. 
It is very intricate surgery. They can perform the surgery, but they 
cannot have a Cuban doctor around to be trained because OFAC recently 
decided that educating Cuban doctors is illegal. What in the world is 
this Administration thinking?
  Mr. CRAIG. Will the Senator yield?
  Mr. DORGAN. I will be happy to yield.
  Mr. CRAIG. On the legislation that became law a couple years ago, 
with your backing and my backing, that is that agricultural goods and 
medical supplies could be traded and sold to Cuba without United States 
taxpayer credit, maybe we need to add the words and ``related medical 
services.''
  That is really picking the flyspecks out of the pepper here down at 
the Department of the Treasury. Shame on them for standing in the way 
of a humanitarian effort to make kids healthier.
  But behind you is the picture of Miss Scott. She also visited my 
office yesterday. I must say to this administration: Do not fight us on 
this issue. We are giving you the right way out. The House and the 
Senate, in a strong bipartisan voice--the loudest and the strongest 
vote we have ever had here on the floor of the Senate--said: Let's 
begin to back away from this travel embargo with Cuba. It does not work 
any longer. It is a 40-year-old failed policy. Now you are being 
arbitrary. Now you are being selective. We ought to get away from that.
  So I hope this afternoon in conference the House and the Senate's 
bipartisan voice is heard. Frankly, the administration ought to view it 
as a gift. We are not abolishing the law that puts in that embargo. We 
are simply disallowing the expenditure of levying a $10,000 fine 
against a woman passing out Bibles because she trafficked through 
Canada and did not fill out the right form. That is what we are doing.
  Let OFAC track down drug traffickers and terrorists and leave Ms. 
Scott alone. That is what we ought to be about. Somehow this has gotten 
very confused and very skewed.
  I thank the Senator for bringing up this point. Please prevail in 
conference this afternoon.
  Mr. DORGAN. Mr. President, the Senator from Idaho was part of a 
group, a bipartisan group, in the Senate. Then-Senator John Ashcroft, 
for example, was also a key part of that group. We changed the law with 
respect to trade with Cuba so that we could sell agricultural products 
into the Cuban marketplace. We did not open it very wide, but we opened 
it.
  Last year, for the first time in 42 years, 22 train carloads of dried 
peas left North Dakota to go to the Cuban people. Cuba paid cash for 
it. Our farmers were able to sell into the Cuban marketplace. Good for 
them.
  But this issue of travel and denying farm organizations, including 
the Farm Bureau, the right to go to Cuba to promote food sales is just 
unbelievable.
  There are times, not very often, but there are times when I am 
profoundly embarrassed by the actions of this Government. Yesterday was 
one of them, when this young lady came to see me to say: I am really 
concerned and upset about this because I went to Cuba to distribute 
free Bibles, and now my Government is slapping me with a $10,000 fine.
  That is an unforgivable policy, in my judgment. But it is not just 
her. It is not just this young lady who thought she was doing the world 
some good, and clearly she was. She was pursuing her faith and her 
interest in distributing Bibles to the Cuban people.
  There is so much more than just her. I mentioned the doctors who have 
been denied the opportunity to travel to Cuba to do this intricate 
facial surgery on Cuban children and to train Cuban doctors to do the 
same surgery. Now, after 6 months, they are able to go do the surgery, 
but they are not able to train the Cuban doctors because that is the 
prohibited export of a service to Cuba. Again, that is an embarrassing 
decision on the part of this Government.
  But let me just describe a couple more, if I might.
  This young lady is named Joni Scott. She traveled to Cuba, as I said, 
4 years ago. It took them 4 years to track her down.
  Cevin Allen, from the State of Washington, wanted to bury the ashes 
of his father, who was a Pentecostal minister in prerevolutionary Cuba. 
He died, and his last wish was that his ashes would be buried on the 
church grounds where he served in Cuba. Well, his son, true to the 
faith in his father, took his ashes to Cuba to bury them, and what 
happened to him was he received a notice from the Federal Government. 
They were fining him $20,000 for taking the ashes of his dead father to 
be buried on the church grounds where he served as a minister in 
prerevolutionary Cuba.
  Marilyn Meister was a 72-year-old Wisconsin schoolteacher. She 
bicycled in Cuba. She received a $7,500 fine.
  I have shown the picture previously of Joan Slote, whom I also know. 
She is a Senior Olympian. She bicycles all around the world. She is in 
her midseventies. She went with a Canadian bicycle group to take a 
bicycle trip to Cuba. She was fined $7,630. I said to OFAC: You ought 
to be embarrassed about that. OFAC then reduced her fine to $1,900, and 
she paid it. I don't think she should have, but she paid it. Then she 
got a note from the Department of the Treasury, after she paid it, that 
they were going to garnish her Social Security, and they sent a 
collection agency after her because, they said: Well, we never received 
it. She had the canceled check.
  It is one thing for an agency to be incompetent; it is another thing 
for it to make fundamentally bad judgments about what it is going to do 
with its time. OFAC's should be chasing terrorists, not visitors to 
Cuba.
  This is not a Republican or a Democrat issue; this went on under 
Democratic administrations as well, although I must say it has been 
ratcheted up--over double the effort--under this administration. And 
the President just announced, a month ago, on October 10: I have 
instructed the Department of Homeland Security to increase inspections 
of travelers and shipments to and from Cuba. He said: We will also 
target those who travel to Cuba illegally through third countries. He 
talks about using the investigative capability of the Department of 
Homeland Security to track down American travelers so we can levy fines 
against them.
  My colleague from Idaho is right. It is ludicrous for OFAC to be 
tracking down some young woman who has distributed free Bibles in Cuba, 
so we can levy a fine. This is not, in my judgment, injuring Fidel 
Castro. This policy is attempting to take a slap at Fidel Castro, and 
it injures Americans and their right to travel freely.
  I hope this afternoon, at 5 o'clock, when we go to this conference, 
with the identical provisions coming from the House and the Senate, 
that my colleagues, Republicans and Democrats, will support this policy 
of allowing travel to Cuba.
  We long ago concluded with China, a Communist country, and Vietnam, a 
Communist country, that trade and travel and engagement is a 
constructive way to move forward. I believe that. I believe that is 
true with Cuba. The only voice Cubans hear is Fidel Castro's voice. I 
would much prefer they hear the voice of this young lady who travels to 
Cuba to talk to them about her faith and to talk to them about the 
Bible. I would much prefer they hear the voice of thousands and 
thousands of tourists who tell the Cubans what is happening in the rest 
of the world. The Cuban people deserve that. That is the quickest and 
the most effective way, I believe, to effect a change in the Government 
in Cuba.
  So at 5 o'clock this afternoon, in the conference of Transportation-
Treasury Appropriations bill, we will be making a very important 
decision, and because there are identical provisions in both the House 
and the Senate bills which will prohibit the enforcement of this travel 
ban in the future, I hope the conference will keep those provisions.
  But the White House, as they have done in other areas, threatens a 
veto. I

[[Page 28544]]

do not think they would veto this appropriations bill over this issue. 
But let them threaten. I believe very strongly, as my colleague from 
Idaho just suggested, that we ought to hold tight on this provision in 
conference this afternoon.
  My intention of bringing this up now, and describing this young lady 
and her experience, is to ask my colleagues again: Let's do the right 
thing. Let's not be embarrassed by actions of the Government that fine 
the American people for traveling someplace to distribute free Bibles. 
That is outrageous, and it has to stop.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Madam President, I rise to respond to the comments 
made by the Senator from Missouri, the chairman of the committee, in 
placing legislation, a rider, if you will, into the appropriations 
bill.
  If ever there was a special interest provision in an appropriations 
bill, this is the mother and father of such a rider. I rise in 
opposition to what is called the small engine provision in the 2004 VA-
HUD appropriations bill. I note that the Senator from Missouri did not 
send to the desk an amendment he plans to introduce to change the 
underlying amendment that was introduced in the Appropriations 
Committee markup. So I am going to try to address both pieces of 
legislation and indicate my opposition to both. Although the amendment 
that he says he is going to introduce is better than the language in 
the underlying bill, it is still unacceptable because it would 
effectively block any State regulation of small road engines anywhere 
in America. This provision was inserted into the chairman's mark at the 
request of a single engine manufacturing company, Briggs & Stratton 
from Missouri.
  As originally written, the underlying bill would effectively preempt 
any State regulation of pollution from off-road engines smaller than 
175 horsepower. I understand the Senator from Missouri now wants to 
narrow his provision to block any regulation of spark engines under 50 
horsepower and not include diesel engines. This new provision is better 
but, as I said, still unacceptable.
  Since the beginning, section 209 of the Clean Air Act has recognized 
that States, with extraordinary or extreme pollution, need flexibility 
to reduce pollution and protect public health. A California law 
actually served as the model for the original Clean Air Act. I think 
that is interesting. As a result, the Clean Air Act has always allowed 
California to set its own standards for some sources of pollution. 
Later changes in the law allowed other States to adopt the California 
standards, if they so chose.
  The 1990 Clean Air Act amendments gave California the right to 
regulate emissions from off-road engines smaller than 175 horsepower, 
except for agricultural and construction equipment. So other States are 
currently free to adopt the California standards or not. The right of 
States to regulate small engines would quickly be taken away if the 
Bond provision is allowed to remain in this bill. Mr. President, 
individual States should have the right to regulate these small engines 
as they choose.
  That is what States rights is all about. Many States have benefitted 
from the process established in section 209, and California's 
regulations often serve as models for the rest of the Nation. The small 
engine provision would amend section 209 and remove important rights 
from States. I oppose using the appropriations process to take away 
States rights under the Clean Air Act. This kind of change to a major 
law like the Clean Air Act deserves a full debate, hearing, and review 
in the Environment and Public Works Committee. It has had none of the 
above.
  It is important for all of my colleagues to understand that one 
company is behind this so-called small engine provision. We are having 
this debate simply because Briggs & Stratton disagrees with a recently 
adopted California regulation which, incidentally, does not go into 
effect for another 5 years. I will explain why that becomes relevant 
later.
  On September 25 of this year, California adopted a regulation 
reducing emissions from off-road engines smaller than 25 horsepower, 
mainly lawn and garden equipment. This is the interesting thing: This 
regulation is the equivalent of removing 1.8 million automobiles from 
California's roads by 2020. That is how big an item this is in my 
State. Once again, let me make it clear that we are talking about the 
equivalent of 1.8 million automobiles.
  But the issue here is not whether we should support any particular 
regulation from the California Air Resources Board. The issue is 
whether we should permanently take away States rights to regulate these 
engines, period. Briggs & Stratton is using opposition to a single 
California regulation to block every State's efforts to regulate these 
engines anywhere in the future. I do not believe we should take such 
important changes to the Clean Air Act lightly, especially when such 
changes have been included in an appropriations bill without having 
adequately looked at the crucial stakes involved.
  Briggs & Stratton has made a series of arguments in opposition to the 
California regulation. We heard the Senator from Missouri say the 
regulation would force the company to close plants, threaten thousands 
of American jobs, and for jobs to be moved to China. I don't know how 
the Senator from Missouri knows that they would move jobs to China 
unless Briggs & Stratton have told him that is what they plan to do.
  At the very same time that Briggs & Stratton is lobbying this Senate 
to preempt California regulations, the company was telling the 
Securities and Exchange Commission an entirely different thing. On 
September 11 of this year, while lobbying the Senate in support of the 
small engine provision, Briggs & Stratton filed their annual 10-K 
report with the Securities and Exchange Commission. Here is what they 
say in their report:

       While Briggs & Stratton believes the cost of the proposed 
     regulation on a per engine basis is significant, Briggs & 
     Stratton does not believe that the [California Air Resources 
     Board] staff proposal will have a material effect on its 
     financial condition or results of operations, given that 
     California represents a relatively small percentage of Briggs 
     & Stratton's engine sales and that increased costs will be 
     passed on to California consumers.

  So point 1, California is just a small part of the Briggs & Stratton 
market. Point 2, it will not affect the financial viability of that 
market. And point 3, they would only pass on the costs of retrofitting 
these engines to whomever would buy it, something that is fairly 
typical. Now why all this talk about moving 22,000 jobs to China if, in 
fact, what they said on their SEC statement is correct? The SEC 
statement is the be-all-and-end-all for a company's integrity and 
credibility.
  If you lie on your SEC statement, you get into a lot of trouble with 
the Securities and Exchange Commission.
  Section 209 of the Clean Air Act gives California the right to 
regulate these engines. The company is free to pass along these costs 
to Californians. My State will accept those costs because we need 
cleaner air. As far as I am concerned, this is the way regulations 
should work.
  Since we brought the annual report to the attention of the public, 
Briggs & Stratton has argued that the annual report was simply 
discussing the company's bottom line and that sending jobs overseas 
would not affect the bottom line. But that is not what the company's 
annual report says. The report says, again, California is but a small 
share of the Briggs & Stratton market. Increased costs will simply be 
passed along to California consumers. It does not say that any 
increased costs will force jobs overseas.
  So Briggs & Stratton is telling the Securities and Exchange 
Commission that everything is fine and at the same time telling the 
media, the public, and this body that the sky is falling.
  Senator Boxer and I have asked the Securities and Exchange Commission 
to investigate whether Briggs & Stratton has broken any securities laws 
by telling such drastically different stories. We are still waiting for 
a response.

[[Page 28545]]

  In terms of jobs, my colleagues should also know that Briggs & 
Stratton's SEC report is referring to the original regulation proposed 
by the Air Resources Board. Since the SEC report was filed, the 
California Air Resources Board has continued to work with the industry 
to modify the regulation to correct fire safety concerns and to reduce 
costs, and I believe they will get there. They have 5 years to do so.
  Madam President, what I am going to be doing in this portion of my 
remarks is essentially showing that Briggs & Stratton really is an 
isolated company asking for this. By so asking for it, they are going 
to cause additional costs to other industries. So I hope to make that 
argument now.
  Last month, the Outdoor Power Equipment Institute, the small engine 
industry's leading trade group of which Briggs & Stratton is a member 
issued a press release which said that the industry's input into the 
adopted regulation made the regulation acceptable. This press release 
details the concessions made by the State and said that the Air 
Resources Board largely adopted the industry's counterproposal. In 
other words, the industry trade council, of which Briggs & Stratton is 
a member, had their counterproposal adopted by the State Air Resources 
Board and yet Briggs & Stratton is still opposing the action.
  I quote the release:

       For the past 2 years, the Outdoor Power Equipment Institute 
     has been working proactively with the staff of the California 
     Air Resources Board to improve proposed catalyst base exhaust 
     standards for real problems.

  The press release goes on to say:

       In direct response to the Outdoor Power Equipment 
     Institute's advocacy, the California Air Resources Board 
     unanimously adopted on September 25 a modified framework 
     which, one, relaxes the stringency of the California Air 
     Resources Board's staff's proposed tier 3 exhaust standards 
     and, secondly, substantially improves the overall general 
     framework for the still-to-be-defined evaporative 
     regulations.

  I ask unanimous consent that the text of the Outdoor Power Equipment 
Institute's press release be printed in the Record at the conclusion of 
my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mrs. FEINSTEIN. Additionally, I have a September 26, 2003, letter 
from Alan Lloyd, the chairman of the California Air Resources Board, to 
the Senator from Missouri, detailing revisions that were made to the 
regulation. Referring to the modified regulation, Mr. Lloyd states as 
follows:

       I believe the action taken by the Air Resources Board is a 
     win/win situation. We achieved our emission reduction goal. 
     The adopted regulation, based on an industry proposal, will 
     reduce costs, simplify compliance and avoid job losses.

  So the Air Resources Board took the industry's proposal, the industry 
association of which Briggs & Stratton is a member. That is why this 
thing is so unfair.
  I ask unanimous consent that the text of this letter from Mr. Lloyd 
to the Senator from Missouri be printed in the Record following my 
statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mrs. FEINSTEIN. Briggs & Stratton also raised concerns about fire 
safety. The Senator from Missouri has placed a November 6 letter from 
the California Association of Fire Chiefs in the Record. That letter 
expressed concerns about the proposed California regulation. I take 
these concerns very seriously. The last thing I want to do is increase 
the risk of fire. So we need to make sure these engines are safe, and 
the regulation has 5 years to make adjustments before it goes into 
effect, ample time to make such changes as replacing heat shields and 
doing whatever else is necessary to ensure these engines are fire safe.
  There is apparently some miscommunication between the fire chiefs and 
the Air Resources Board. I have just received a letter dated November 
11. I want to read from this letter:

       The fire safety issues we raised [and that would be the 
     November 6 letter that Senator Bond printed in the Record] 
     need more attention and require independent assessment before 
     engineering and production decisions are made [which they 
     have not been up to this time]. In our most recent 
     discussions with [the Air Resources Board], they support the 
     idea of an independent study, and have proposed moving 
     forward with a study, much the same as what is now underway 
     with catalytic converters being used in marine applications. 
     We enthusiastically support this idea, and will be working 
     closely with [the California Air Resources Board], the State 
     Fire Marshal, and the U.S. Environmental Protection Agency to 
     ensure that all fire safety concerns are addressed. We wish 
     to make clear that we regard fire safety and environmental 
     quality as being equally important, and wish to make it clear 
     that we support without reservation the air quality goals of 
     the proposed requirements. We support the regulation moving 
     forward as we have received assurances from CARB [the 
     California Air Resources Board] that our safety concerns will 
     be addressed through this independent study.

  So I think the concerns of the Senator from Missouri are a bit 
overstated in view of the fact that the fire chiefs, the fire marshal, 
and anyone else will work closely with CARB in the ensuing 5 years to 
correct any safety problems that might exist. The letter goes on, and 
this is important:

       Finally, we understand that, as a separate matter, the 
     Senate is debating the question of whether States are free to 
     develop safety and environmental standards. We were never 
     asked to comment on this matter but, for the record, we do 
     not support legislation that would interfere with a State's 
     ability to protect its own citizens. To the contrary, we have 
     had to count on the State of California to develop fire 
     safety standards for upholstered furniture, mattresses and 
     bedding, because the Federal Government has failed to do so. 
     The issues of air quality, as they relate to outdoor power 
     equipment, can be addressed, and I believe that working 
     closely with the Air Resources Board, we will find a solution 
     that will provide a high degree of fire safety while 
     maintaining the Board's goals for air quality.

  I would like to work with the Senator from Missouri, the Air 
Resources Board, fire safety officials, and the small engine industry 
to make sure the California regulation is fire safe. We have 5 years do 
so. It is possible to do so. But what we cannot do is take away the 
State's rights to be concerned about its citizens, and that is exactly 
what Senator Bond is trying to do.
  He gives jurisdiction, for the regulation of small engines, to the 
EPA. What the fire chiefs have just said is the EPA has refused to move 
on areas such as bedding and other areas which cause fires, so the 
State has had to do it for themselves.
  States rights are a major part of this issue and I thought these 
rights were part of everything we believed in--letting a State, where 
it can, regulate for itself. Again, I think it is unfortunate that 
Briggs and Stratton is using safety concerns about a single regulation 
to block all future efforts to reduce pollution from these engines in 
any State.
  Let me tell you why this is so big for California. We have the worst 
air quality in the Nation. We have seven ozone nonattainment areas. 
That is more than any other State. Los Angeles is the Nation's only 
extreme ozone nonattainment area. The San Joaquin Valley is not far 
behind. This year has been the worst year for smog in southern 
California since 1997, and the San Joaquin Valley is in a similar 
situation.
  This pollution has severe consequences for public health and for our 
economy in California. Let me tell you what the Air Resources Board 
says will be the result of the efforts of the Senator from Missouri. 
They say Senator Bond's provision could lead to 340 premature deaths 
per year in California due to deteriorating air quality.
  I believe States with serious pollution problems need to be able to 
reduce emissions wherever possible. This small engine provision would 
place a very important source of pollution off limits to State 
regulation.
  I understand a modifying amendment is going to be introduced on 
behalf of Senator Bond that will change the current bill language, 
which currently blocks the regulation of off-road engines smaller than 
175 horsepower. All told, these engines alone emit as much pollution as 
18 million automobiles. Can you believe that? Small off-road engines 
are emit as much pollution as

[[Page 28546]]

18 million automobiles. That is a big number for California and any 
reduction in this pollution would benefit California greatly.
  The narrower version of this provision, which has yet to be 
introduced but I trust will be, would still block State regulation of 
spark engines smaller than 50 horsepower, which represents the majority 
of small engines that exist and operate in my home State. According to 
the California Air Resources Board, engines under 50 horsepower emit as 
much pollution as 4 million cars, just in California. This is more than 
100 tons of smog-forming pollutants per day in my State alone.
  The modifying amendment that we understand will be sent to the desk 
will essentially mandate 1,500 more tons of smog-producing pollutants a 
day in California--all to benefit one company that is not telling the 
truth on its SEC statement. These off-road engines are also among the 
least regulated and dirtiest engines around.
  According to the California Air Resources Board again, operating the 
average gas-powered lawnmower for just 1 hour produces as much 
pollution as driving a car for 13 hours. I would hazard a guess that no 
one in this Senate knew that operating a lawnmower for 1 hour produces 
as much smog as operating a car for 13 hours. Keep in mind that the 
lawnmower is only about 5 horsepower and the car engine is far larger.
  Even running a small string trimmer for an hour produces as much 
pollution as driving a car for 8 hours. Again, I hazard a guess that no 
one in this Senate knows that operating a small string trimmer for an 
hour produces as much pollution as 8 hours of driving a car. The bottom 
line: These are very dirty engines.
  California is already struggling to comply with national air quality 
standards. We need every industry to do their fair share. According to 
the Air Resources Board, the State has to reduce emissions from these 
engines in order to achieve compliance with national air quality 
standards. In other words, if California is not allowed to proceed with 
the regulations they put forward on September 25, we will be violating 
clean air standards. What happens if we do it? What happens is that 
California loses $2.4 billion in highway transportation moneys. That is 
how important this issue is for the State of California and that is how 
dastardly this amendment--an authorization on an appropriations bill--
really is.
  California cannot afford to remain out of compliance with national 
standards. We also can't afford to take tools away from States that are 
in this situation. If we can't reduce emissions from off-road engines, 
then we will have to cut pollution from other sources. What does that 
mean? Other sources are already facing heavier regulation, so cutting 
their pollution will be more expensive and place more burden on other 
industries.
  On this point I would like to quote a September 25 letter from the 
Environmental Council of the States. That is an organization that 
represents environmental agencies in all 50 States. Let me read what 
they say:

       Removal of this ability to regulate a substantial part of a 
     State's inventory, means that States will have to obtain 
     reductions from the stationary source area [key, from the 
     stationary source area], an area that is already heavily 
     regulated at substantially higher cost. Businesses facing 
     global competition will opt to either shift work to off-shore 
     facilities or to simply close, with concomitant negative 
     consequences on the local and national economy.

  It is critical that this language be eliminated from the HUD-VA 
appropriations bill.
  This is the environmental council to which every State belongs.
  What does this mean? This means that every oil refinery will have to 
have tough requirements and that every utility will have to have tough 
requirements. The cost of gas will rise, and the cost of energy will 
rise. Every stationary source, if we can't tackle this area because it 
is so big, will have to have their standards tightened.
  This is all for one company. Every other company that makes small 
engines has said they can comply, except one company in Missouri that 
says in their SEC report, no problem, and comes here and says, we are 
going to move our jobs to China. A whole series of companies will be 
disadvantaged, but one Missouri company will suffer no financial 
consequences.
  I ask unanimous consent that the full text of this September 25 
letter from the Environmental Council of States be printed in the 
Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 3.)
  Mrs. FEINSTEIN. Mr. President, the debate over the small engine 
provisions is focused on California for this point. But it is also 
clear that the effects go far beyond California.
  Remember that under the Clean Air Act, once California passes the 
regulation, other States can then replicate that to any degree they so 
choose. This is where it begins to affect a number of other States. The 
small engine provision in the VA/HUD appropriations bill is a problem 
for every State and for every Senator who believes individual States 
should be able to adopt their own rules and regulations on issues such 
as these. States with serious pollution problems include Texas, 
Tennessee, Pennsylvania, Illinois, North Carolina, New York, New 
Jersey, Maryland, and many others know they need to be able to reduce 
pollution from every possible source. Some States have already moved 
forward with regulations affecting off-road engines.
  This legislation--the underlying bill, as well as the amendment that 
we understand will be sent to the desk shortly--will cut this off, 
remove the right from a State and give it to the EPA that historically 
has been a slow mover in this area.
  According to the associations representing State and local pollution 
control officials, the original version of the small engine provision 
would have blocked the current program in seven States--Alaska, 
Connecticut, Massachusetts, Nevada, Texas, and Wisconsin.
  The 175-horsepower engine would also block programs in at least eight 
States that are considering future regulations: Alabama, Illinois, 
Nebraska, New Jersey, Pennsylvania, South Carolina, Tennessee, and 
Virginia, in addition to the District of Columbia.
  The States recognize this threat to their rights. I have already 
quoted a letter from Environmental Council of the States. We have also 
received letters in opposition to the Bond provision from the National 
Conference of State Legislatures, the Southeastern State Air Resources 
Managers representing State air pollution control agencies in Alabama, 
Florida, Georgia, Kentucky, Mississippi, North Carolina, South 
Carolina, and Tennessee, and the associations representing State and 
local air pollution control officials from all 50 States.
  I ask unanimous consent that the letters from these organizations be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                           Southeastern States Air


                                      Resource Managers, Inc.,

                               Forest Park, GA, November 20, 2003.
     Re Bond Provision of S. 1584--Fiscal Year 2004 VA, HUD and 
         Independent Agencies Appropriations Bill.

     Hon. Zell Miller,
     Dirksen Senate Office Building,
     Washington, DC.
       Dear Senator Miller: Southeastern States Air Resource 
     Mangers, Inc. (SESARM), representing the directors of the 
     southeastern state air pollution control agencies in Alabama, 
     Florida, Georgia, Kentucky, Mississippi, North Carolina, 
     South Carolina, and Tennessee, is writing this letter to 
     encourage your support of the removal of a provision 
     introduced by Senator Bond in S. 1584, the Fiscal Year 2004 
     VA, HUD and Independent Agencies Appropriations Bill. The 
     provision would amend Section 209(e)(1)(A) of the Clean Air 
     Act to curtail state's authority to reduce emissions from 
     diesel and gasoline off-road equipment and engines.
       While Senator Bond's proposed provision regarding the off-
     road engines apparently was intended to address rules adopted 
     only in California, it will limit the ability of all states 
     to solve serious public health-related air quality problems. 
     Senator Bond's proposal revises a very important provision of 
     the Clean Air Act which allows states to

[[Page 28547]]

     adopt engine emission standards more stringent than the 
     federal standards as long as appropriate federal review 
     processes are followed. Congress wisely put this provision 
     into the Act to give states the ability to deal with serious 
     air quality problems across the country. SESARM opposes the 
     impact of the Bond proposal on this important provision.
       Please note that other compromise amendments which fall 
     short of fully restoring Section 209(e)(1)(A) are, in our 
     opinion, unacceptable and will constrain states as discussed 
     above. SESARM and your state air pollution control agency 
     would appreciate your support of removal of the Bond 
     Amendment from S. 1584.
           Sincerely,
                                                 Hon. E. Hornback,
     Executive Director.
                                  ____

                                            National Conference of


                                           State Legislatures,

                                 Washington, DC, October 29, 2003.
     Re S. 1584, FY2004 VA, HUD and Independent Agencies 
         Appropriations Clean Air Act Amendment.

       Dear Senator: On behalf of the National Conference of State 
     Legislatures, I write to urge your support for amendments 
     that would strike a provision of S. 1584 that amends Section 
     209(e)(1)(A) of the Clean Air Act and curtails state 
     authority to regulate diesel and gasoline off-road equipment 
     and engines. Emissions from off-road sources contribute to 
     ozone and fine particulate matter pollution. They pose a 
     threat to public health and to state achievement and 
     maintenance of national ambient air quality standards for 
     ozone and particulate matter.
       NCSL strongly believes that federal environmental policy 
     should be addressed in substantive committee deliberations 
     and not made through riders to appropriations bills. The 
     amendatory language in S. 1584 would strip states of long-
     standing authority to exceed federal standards. It 
     compromises state and local government capacity to determine 
     the most effective means to address specific air pollution 
     problems. It also has implications for agriculture and 
     natural resource management none of which are addressed 
     through the use of an appropriations rider.
       The Clear Air Act appropriately recognizes that states are 
     best suited to determine which sources, including off-road 
     equipment and engines, contribute most significantly to air 
     pollution and which strategies are most effective in 
     addressing pollution-related problems. I again urge your 
     support of amendments that strike the aforementioned off-road 
     provision from S. 1584. Thank you for your consideration of 
     NCSL's concerns.
           Sincerely,
                                                    William Pound,
                                               Executive Director.

  Mrs. FEINSTEIN. Mr. President, the States also propose compromise 
language that would still place some of these engines off limits. To 
quote the letter from the Southeastern States Air Managers:

       Please note that other compromise amendments which fall 
     short of fully restoring section 209(e)(1)(a) are, in our 
     opinion, unacceptable and will constrain States as discussed 
     above. This association and your State air pollution control 
     agencies would appreciate your support of removal of the Bond 
     amendment from S. 1584, the HUD VA appropriations bill.

  Many other States are just beginning to realize the importance of 
this small engine provision. As we move forward with more protective 
air quality standards, more and more States will need to reduce 
emissions to comply with national standards. Those States will also 
need to reduce pollution from these very engines because there are so 
many of them and they are so very dirty. I strongly believe we should 
protect a State's right to do so.
  We should not use this appropriations bill to take rights away from 
the States without knowing what we are doing, without a hearing, and 
without review by the authorizing committee.
  As I said, this rider is the mother and father of all riders because 
it authorizes a major reduction in States rights with no hearings 
whatsoever, no ability to question Briggs & Stratton, and no ability to 
ask them why they said on their SEC report that this would cause no 
financial disadvantage to the company, that California is such a small 
portion of their market, and they would just pass on any additional 
costs to the consumer.
  Why would they tell the Senate or the Senator from Missouri they 
would move jobs to China if this passed? The statements of Briggs & 
Stratton make me very suspicious.
  The Clean Air Act has long recognized that States with serious air 
pollution problems need to be able to set strong standards to protect 
public health. The hard-fought 1990 Clean Air Act amendments give the 
States the ability to regulate these off-road engines.
  With respect to the California regulation, I will work with fire 
officials, air resources boards, the industry, and the Senator from 
Missouri to ensure that the final regulation is safe. But I believe it 
is clear that this should not be a debate about a specific State 
regulation. That is our problem. We will handle it. California is 
entirely able and capable of handling this problem. We don't need 
someone else to tell us what to do.
  This is a debate about making sure the States have the flexibility 
necessary to protect the public health.
  It is hard for me to understand why anyone would do this on an 
appropriations bill when the consequences are so dire, with over 300 
premature deaths likely to be caused by worsening air pollution, or if 
the State moves to further tighten stationary sources and really send a 
whole magnitude of companies offshore.
  I don't think in an appropriations bill we should take well-earned 
States rights away from every State in this Union to benefit one 
company. Remember, every other manufacturer of small engines is going 
along with what California is doing. They have all said they could do 
it. They have all said they could adapt these standards into their 
manufacturing. They have all said they could change. They have all said 
they can add adequate heat shields.
  Furthermore, the pollution from these engines under 175 horsepower 
accounts for 17 percent of California's mobile smog emissions. This is 
not minor. We are talking about 17 percent of a State that has seven 
nonattainment areas in it, 17 percent of their pollution, and an Air 
Resources Board that has accepted the industry's proposal, an industry 
trade council, to which Briggs & Stratton belongs, submitted a proposal 
they could live with to the Air Resources Board. The Air Resources 
Board accepted it. And now Briggs & Stratton is coming back and saying: 
We do not agree; we will get our Senator to put a rider in a bill--with 
no hearing, without understanding the consequences that this provision 
will move the right for every single State to protect its citizens.
  That is truly wrong. This morning, I ask my colleagues to stand up 
for their states rights. I ask them to stand up and protect public 
health. I ask them to oppose this special provision on this 
appropriations bill put there to benefit one company when every other 
company says they can comply.

                               Exhibit 1

              [From the Outdoor Power Equipment Institute]

OPEI Succeeds in Dramatically Improving California Emission Regulations

       For the last two years, OPEI has been working proactively 
     with the staff of the California Air Resources Board (CARB) 
     to improve proposed catalyst-based Tier III exhaust standards 
     for wheeled products, as well as new evaporative emission 
     regulations, based on the use of carbon canisters and/or 
     sealed fuel tanks, as well as less-permeable fuel tank 
     materials and fuel lines. On August 8, 2003, CARB staff 
     issued a proposed regulation that would have required wheeled 
     products to install high-efficiency/high-heat generating 
     catalysts in order to meet exhaust standards that were 50% 
     more stringent than the current Tier II standards. CARB's 
     August 8th proposal would also have required all lawn and 
     garden equipment to be subject to shed-based performance 
     testing to demonstrate that the entire piece of equipment 
     complied with an overall evaporative/diurnal emission 
     standard. CARB's August 8th proposal evaporative compliance 
     program and exhaust stand would have: (1) imposed enormous 
     compliance and product integration problems for both engine 
     companies and OEMs; and (2) resulted in significant safety 
     concerns as well, principally because of the substantial heat 
     generated from the high-efficiency catalysts. Through written 
     correspondence, the U.S. Congressional House Committee on 
     Government Reform, the California Fire Chiefs Associations 
     (CFCA), the National Association of State Fire Marshals 
     (NASFM), and the U.S. Consumer and Product Safety Commission 
     (CPSC) have gone on record as strongly opposing CARB's August 
     8th proposal because of the unresolved safety issues with 
     high-efficiency/high-heat generating catalysts and 
     pressurized fuel systems.
       In direct response to OPEI advocacy, the California Air 
     Resources Board (CARB) unanimously adopted on September 25th 
     a modified alternative framework which: (1) relaxes the 
     stringency of CARB Staff's proposed Tier III exhaust 
     standards; and (2) substantially improves the overall general

[[Page 28548]]

     framework for the still-to-be-defined evaporative emission 
     regulations. The CARB Board has adopted industry's proposed 
     exhaust standards which are roughly 25% less stringent for 
     Class I engines (less than 225 cc displacement) and 33% less 
     stringent for Class II engines (greater than 225 cc 
     displacement). Based on an economic study prepared for OPEI, 
     the compliance costs of the industry counterproposal should 
     be roughly one-third less than the costs associated with the 
     August 8th CARB proposal. CARB's August 8th exhaust and 
     evaporative proposed standards would have increased the 
     average compliance cost for lawn mowers by $106 and the 
     average compliance cost for riding mowers by $321. CARB's 
     adopted less stringent exhaust and more flexible evaporative 
     program are expected to result in an average total compliance 
     cost increase of $73 for walk-behind-mowers and $189 for 
     riding mowers.
       The provisions in OPEI/EMA's counterproposal (as generally 
     adopted by the CARB Board) also establish a much more 
     straightforward and less burdensome, design-based (rather 
     than shed-testing) program (for all products others than 
     walk-behind-mowers) to demonstrate compliance with the 
     evaporative requirements. OPEI has also persuaded CARB to 
     allow the use of smaller and less-expensive carbon canisters. 
     The provisions in OPEI's/EMA's counterproposal (as generally 
     adopted by the CARB Board) provide industry with much longer 
     lead-time compared to the August 8th CARB proposal. 
     Specifically, industry has more than five years of additional 
     lead time to achieve the ultimate evaporative emission 
     requirements. This additional lead time should allow 
     manufacturers with adequate time to develop and use new low-
     permeation barriers (such as co-extruded materials) in 
     constructing their fuel tanks.
       The Outdoor Power Equipment Institute (OPEI) is the major 
     international trade association representing the 
     manufacturers and their suppliers of consumer and commercial 
     outdoor power equipment such as lawnmowers, garden tractors, 
     utility vehicles, trimmers, edgers, chain saws, snow 
     throwers, tillers, leaf blowers and other related products. 
     Founded in 1952, the Institute is dedicated to promoting the 
     outdoor power equipment industry by undertaking activities 
     that can be pursued more effectively by an association than 
     by individual companies.
                                  ____


                               Exhibit 2


                                          Air Resources Board,

                               Sacramento, CA, September 26, 2003.
     Hon. Christopher S. Bond,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Bond: Thank you for your September 24, 2003, 
     letter commenting on the proposed regulation to reduce 
     pollution from small engines below 25 horsepower. Your letter 
     was received prior to the California Air Resources Board 
     (ARB) public hearing on this regulation, and read by each of 
     my fellow Board members.
       Your letter urged the Board to reach ``a comprehensive 
     agreement with the entire small engine industry that saves 
     jobs while also protecting the environment and public 
     safety.'' I'm pleased to report that on September 25, 2003, 
     the Air Resources Board unanimously adopted a revised 
     regulation that I am confident addresses all the issues 
     raised in your letter on behalf of the small engine industry. 
     In particular, the regulation we adopted:
       1. Removes any question regarding safety;
       2. Results in the use of commonly available technologies 
     which will not require engine redesign;
       3. Prevents the possible loss of jobs referred to in your 
     letter; and
       4. Achieves nearly the same emission reductions.
       The revised regulation is based on proposals we had 
     requested and received in the past two weeks from members of 
     the small engine industry. ARB staff used these proposals to 
     design and include in the regulation two alternative methods 
     of compliance. One of the alternatives closely reflects the 
     proposal of the Engine Manufacturers, Outdoor Power Equipment 
     Institute, and Briggs and Stratton.
       The most important feature of the regulatory alternatives 
     we adopted is a less stringent exhaust emission standard 
     (offset by better evaporative emission controls). The new 
     standard will reduce the heat generated by the engine's 
     exhaust. Honda testified that with the revised exhaust 
     emission standards, safety is no longer a concern. A 
     representative of the California Fire Chiefs Association 
     testified the revised regulation appeared to address their 
     concerns. Similarly, a representative of the California Fire 
     Marshall's office told our staff he believes ARB adequately 
     handled the safety issues with the revised regulation. I am 
     confident that the testimony of these experts assures us 
     there will be no new safety issues resulting from 
     implementing this regulation.
       No testimony was presented to the Board regarding job 
     losses and plant closures. However, I am aware that Briggs 
     and Stratton has said the company will have to shut down some 
     or all of its plants because major engine redesign would be 
     required to meet California's proposal to reduce small engine 
     emissions. I believe that statement referred to the original 
     proposed regulation and no longer applies. Testimony at our 
     hearing yesterday confirmed that relatively simple changes to 
     engine components would allow these small engines to meet the 
     revised emission standards we adopted. Better hoses and fuel 
     tanks would prevent fuel vapors from leaking into the 
     atmosphere where they form smog. A simple catalyst, similar 
     to the ones used on over 15 million small motorcycles and 
     mopeds worldwide, would reduce exhaust emissions without 
     creating a heat hazard to the user. The testimony was clear 
     that these simple changes were effective and no engine 
     redesign that might cause job losses would be needed. Honda 
     testified on the record that the regulations would not reduce 
     its employment or production.
       I believe the action taken by the ARB is a win-win 
     situation. We achieved our emission reduction goal. The 
     adopted regulation, based on an industry proposal, will 
     reduce costs, simplify compliance and avoid job losses. Fire 
     experts stated there is no safety problem.
       As you stated in your letter to me, addressing these issues 
     should obviate the need for Congressional action. We have 
     successfully addressed all the issues you raised. 
     Accordingly, I now request that you remove the expansive 
     state preemption language from the HUD/VA budget bill, so in 
     cooperation with small engine manufacturers, we can get on 
     with the job of protecting the health of 35 million 
     Californians.
           Sincerely,
                                              Alan C. Lloyd, Ph.D,
     Chairman.
                                  ____


                               Exhibit 3

         Environmental Council of the States, State and 
           Territorial Air Pollution Program Administrators, 
           Association of Local Air Pollution Control Officials,
                                                 October 24, 2003.
       Dear Senator: We write to you today on behalf of the 
     Environmental Council of the States (ECOS), the State and 
     Territorial Air Pollution Program Administrators (STAPPA) and 
     the Association of Local Air Pollution Control Officials 
     (ALAPCO) to urge your support for amendments to strike a 
     provision of the VA, HUD, and Independent Agencies FY 2004 
     appropriations bill that would amend Section 209(e)(1)(A) of 
     the Clean Air Act to curtail states' authority to clean up 
     diesel and gasoline off-road equipment and engines.
       Emissions from off-road engines contribute significantly 
     and increasingly to ozone and fine particulate matter 
     (PM2.5) pollution and are responsible for a 
     variety of serious public health impacts. As state and local 
     environmental agencies work to develop strategies for 
     attaining and maintaining health-based National Ambient Air 
     Quality Standards for ozone and PM2.5, they will 
     look to the regulation of off-road engines as a means for 
     achieving their clean air goals.
       The provision in the VA-HUD appropriations bill to amend 
     Section 209 would have broad adverse consequences with 
     respect to the ability of states to seek emission reductions 
     from off-road engines. First, the provision would prevent not 
     only California, but all other states as well, from setting 
     new emission standards or enforcing existing standards for 
     all off-road engines under 175 horsepower (hp), including, 
     among others, those used in lawn and garden equipment, 
     generators, forklifts, airport ground support equipment and 
     mining equipment. Second, the provision would also preclude 
     states from regulating off-road engines above 175 hp if the 
     engines are certified in the same engine ``family'' as 
     certain off-road engines under 175 hp. Third, the provision 
     would prevent states from pursuing ``retrofit'' programs to 
     clean up older, dirtier engines. In short, if this provision 
     to amend Section 209 of the Act is retained in the VA-HUD 
     appropriations bill, states' clean air efforts will be 
     thwarted and they will be forced to seek further, likely less 
     cost effective, reductions in emissions from other sources 
     that are already well controlled, including small businesses.
       As the Clean Air Act appropriately recognizes, states are 
     best suited to determine which sources contribute most 
     significantly to air pollution in their respective 
     jurisdictions and which programs will be most effective in 
     addressing their specific problems. ECOS, STAPPA and ALAPCO 
     urge that you support amendments to strike this off-road 
     provision from the VA-HUD appropriations bill and preserve 
     states' rights to pursue healthier air for our nation.
           Sincerely,
     R. Steven Brown,
       Executive Director, ECOS.
     S. William Becker,
       Executive Director, STAPPA and ALAPCO.

  Mrs. FEINSTEIN. Madam President, I thank the Senator from Maryland 
for her comments. She is a superior ranking member. When she is 
chairman of

[[Page 28549]]

the subcommittee, she is a superior chairman of the subcommittee. I do 
not know any Senator who loves her assignment more than the Senator 
from Maryland. If we hear one thing from her, it is about her VA-HUD 
bill. She does a super job. I am just so grateful for her service to 
our country, to our veterans, and to housing. It has just been 
exemplary.
  I yield the floor.
  The PRESIDING OFFICER. Senator Craig.


                Amendment No. 2156 To Amendment No. 2150

  Mr. CRAIG. On behalf of Senator Bond and Senators McConnell, Talent, 
Chambliss, Miller, and Craig, I send the Bond amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Idaho, [Mr. Craig], for Mr. Bond, Mr. 
     McConnell, Mr. Talent, Mr. Chambliss, Mr. Miller, and Mr. 
     Craig, proposes amendment numbered 2156 to amendment No. 
     2150.

  The amendment reads as follows:

(Purpose: Clarify the current exemption for certain nonroad agriculture 
     and construction engines or vehicles that are smaller than 50 
 horsepower from air emission regulation by California and require EPA 
                    to develop a national standard)

       Page 106, strike lines 16 to 20 and insert in lieu thereof 
     the following:
       ``Section 209(e)(1) of the Clean Air Act (42 U.S.C. 
     7543(e)(1)) is amended by--
       (a) striking the words ``either of''; and
       (b) in paragraph (A), adding before the period at the end 
     the following: ``, and any new spark-ignition engines smaller 
     than 50 horsepower''.
       Not later than December 1, 2004, the Administrator of the 
     Environmental Protection Agency shall propose regulations 
     containing new standards applicable to emissions from new 
     nonroad spark-ignition engines smaller than 50 horsepower.''.

  Mr. CRAIG. I will speak only briefly. I didn't think I had a dog in 
this fight, only a lawnmower and a weed eater.
  Most of what the Senator from California said I agree with. But I 
also know when you have a large manufacturer that builds literally tens 
of thousands of engines a year spread out across the country and are 
allied to a variety of tools that are built by other companies, there 
does need to be uniformity in law.
  The amendment requires EPA to establish that kind of uniformity for 
50 horse and under. Of course, I can appreciate that. I have dealt with 
situations before, including when we had the lawsuit over Yellowstone 
Park. It said that snowmobiles in Yellowstone Park had to meet a 
certain standard. We said, wait a minute, let's build a standard so all 
snowmobiles meet, nationwide, both the issue of sound and air 
pollution.
  That is exactly what is happening now. Most industries, when you can 
build a nationwide uniformity of standard, work obviously to meet it or 
they go out.
  Briggs & Stratton is the last remaining large manufacturer of small 
engines in the country. I understand that California has made some 
exceptions, carving out for Honda and others to meet certain compliance 
issues.
  I hope in this amendment we do recognize when you have a producer of 
this magnitude that sells worldwide and nationwide that we build or 
work to build uniformity across those standards. I believe that is the 
intent of the amendment.
  The Senator is right, it has been reduced to 50 horsepower and does 
address EPA, requiring them to address this problem.
  Mrs. FEINSTEIN. Will the Senator yield?
  Mr. CRAIG. I am happy to yield.
  Mrs. FEINSTEIN. Or we can go back and forth through the Chair if the 
Senator is in agreement. The problem is that because of the severe 
conditions in the State, 7 nonattainment zones, this is 17 percent of 
mobile sources. If we do not deal with it, we cannot meet the clean air 
standards and we jeopardize our highway funds.
  There is the rub, so to speak. States do not have to follow. Clearly, 
States have followed, a large number of them. I don't know what else to 
do. Every State's air, as we have discussed with forests, Senator, is 
different. Pollution comes from different kinds of sources in every 
State. That is why this ability of a State, particularly one as large 
as California, fifth largest economic engine on Earth, should have the 
right to protect its people.
  The concern is that EPA, (a) won't move fast enough; (b) will not do 
enough to severely reduce the pollution to enable California to come 
within its containment standards.
  Mr. CRAIG. Regaining my time in trying to respond to that because I 
am not the expert in this area and I have not dealt with this issue per 
se, obviously, I recognize the need of California. Other States have 
that need. What this amendment does is it addresses EPA to move rapidly 
into that area to build a uniform national standard that meets those 
needs. Of course, EPA does have a broader test when it develops 
regulation. It does have an economic factor test involved in looking at 
regulations that some States are not required or simply do not have 
because they set their own standards.
  It is a fine line between allowing States to move forward and 
developing uniform national standards. There have been exceptions. The 
Senator has spoken to those exceptions.
  When a market has a magnitude of sales large enough, sometimes those 
exceptions are effectively made and economically companies can survive. 
In this instance, what we have seen in this particular market, because 
of costs of retooling, retrofitting, and bringing assembly lines 
online, oftentimes it is easier to move offshore--not that you will 
change the requirement--but you can, therefore, build the new plant for 
less cost, you drive down your costs because of labor, and that is what 
the Senator from Missouri is concerned about.
  He is also concerned about pollution. That is why the amendment 
addresses EPA and says get at the business of dealing with this 50 
horsepower and up issue. That is a major problem.
  Mrs. FEINSTEIN. Will the Senator yield?
  Mr. CRAIG. I am more than happy to yield.
  Mrs. FEINSTEIN. The bulk of our problem, I am told by the Air 
Resources Board, otherwise I would not know, is under 50 horsepower. So 
it takes that right away.
  Additionally, Senator, I guess what got my dander up, was the SEC 
filing of a company when they say this is not a financial problem. 
Actually, the finances drive everything in the country. We know that 
very well. This is not a financial problem. They will pass on added 
cost. California is a small part of the market. If the company is 
saying that is a 10(k) I would tend to believe the 10(k). Wouldn't you?
  Mr. CRAIG. Mr. President, regaining my time, I obviously cannot 
address that issue. I am here for the purpose of introducing the 
amendment on behalf of Senator Bond. Senator Bond is in markup on 
surface transportation and will be back to the floor in a while to 
engage the Senator in these questions, I am sure, and he knows a great 
deal more about this issue than I.
  What I would like to do at this moment, if the Senator from 
California would accept it, is to lay the amendment aside temporarily 
for the purpose of the introduction of another amendment, and when 
Senator Bond gets back to the floor he can bring this amendment back 
for the purposes of addressing it with the Senator. Would the Senator 
object to that?
  Mrs. FEINSTEIN. Not at all.
  Mr. CRAIG. I thank the Senator from California.
  I ask unanimous consent that the Bond amendment be set aside.
  The PRESIDING OFFICER (Mr. Graham). Without objection, it is so 
ordered.


                Amendment No. 2158 To Amendment No. 2150

  Mr. CRAIG. With that, I send to the desk an amendment for the 
Senate's consideration.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:
  The Senator from Idaho, [Mr. Craig], for himself, Mr. Harkin, Mr. 
Cochran, Mr. Conrad, Mr. Chambliss, Mr. Coleman, Mr. Crapo, Mr. Lugar, 
Mr. Breaux, Mr. Roberts, and Mr. Fitzgerald, proposes an amendment 
numbered 2158 to amendment No. 2150.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')

[[Page 28550]]


  Mr. CRAIG. Mr. President, I have brought an amendment to the floor 
today that has been worked on for a long period of time in a bipartisan 
way, Democrats and Republicans, VA-HUD subcommittee, Senate Agriculture 
Committee, and others, to deal with pesticide registration and the fees 
of that registration.
  For the last several years, the VA-HUD appropriations bill has, on an 
analyzed basis, advanced these fees automatically. We have done it 
through the appropriating process.
  The administration basically said let's resolve this issue. A broad 
coalition of environmental organizations and chemical companies 
basically came together in the past several months to reach consensus 
on a permanent pesticide fees package. Through several long hours, an 
agreement was reached late this summer through a truly bipartisan 
effort that produced identical legislation in both the Senate amendment 
I have just sent forward with the 20-plus cosponsors and House H.R. 
3188. So the House and Senate are now working in tandem on this issue.
  The package includes a unique cross section of support from industry, 
labor, farmers, and the environmental community. Such groups as the 
Natural Resource Defense Council, the American Farm Bureau, the Sierra 
Club, the CropLife America group, and the Northwest Coalition for 
Alternatives to Pesticides now fully endorse this bill.
  Cumulatively, there are over 20 agricultural organizations supporting 
this amendment, and they have asked for ``stable, effective and 
predictable pesticide regulation'' that is explicitly created in this 
legislation.
  The amendment guarantees long-term stable funding to EPA that 
provides and expedites the pesticide registration process by using a 
performance-based approach. Additionally, the amendment provides a 
protection for small business and minor use products while funding 
efforts to protect workers.
  The legislation ensures that EPA use sound science in its evaluation 
of products, and that existing rigorous standards are maintained, while 
reducing the timelag between approval and availability of these 
products to farmers and retailers who sell them.
  The amendment is consistent with other user fees legislation, such as 
the successful Prescription Drug User Fee Act.
  Congress has addressed the pesticide fees issue for several years, as 
I have mentioned, by simply rolling it over in appropriations bills. 
But it is truly an issue that deserves the full consideration of all 
parties involved and finality brought to it. And this amendment offers 
that.
  I had offered it in the subcommittee, but because of our 
consideration of not dealing with legislation in the subcommittee, we 
chose, and I chose, to bring it to the floor on behalf of a very broad 
bipartisan group of Senators.
  As in the past, the House and the Senate VA-HUD bills, as I said, 
spoke to a temporary approach, a 1-year fix for the issue.
  Now, of course, I hope we can gain acceptance of this amendment on 
all sides so that we have a long-term solution so Congress can fully 
resolve the issue.
  My amendment, our amendment, has the same budget impact as the 1-year 
rider currently in both the House and the Senate 2004 appropriations 
bills. Now is the time, I do believe, to provide a long-term fix to the 
pesticide fee program at the EPA by including this consensus 
legislation on an appropriations bill moving forward.
  The diverse stakeholder coalition--from the agricultural industry, 
environmental groups, workers, and the consumer community--has worked 
long and hard to forge a consensus and is fully supportive of the terms 
of this amendment.
  So I hope when we get consideration of this--it is possible there may 
be others who wish to speak to it--that we can bring it on this 
legislation and adopt it, hopefully, by consensus of the Senate.
  Mr. President, I ask unanimous consent to add Senator Pryor as a 
cosponsor of my amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. I know Senator Dorgan, who supports the initial 
legislation, has some concern about other issues and is on his way to 
the floor to speak to those.
  With that, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DORGAN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DORGAN. Mr. President, my understanding is that the pending 
amendment is an amendment offered by Senator Craig from Idaho dealing 
with pesticide registration fees. Is that correct?
  The PRESIDING OFFICER. That is correct.


                Amendment No. 2159 To Amendment No. 2158

 (Purpose: To permit the Administrator of the Environmental Protection 
                Agency to register a Canadian pesticide)

  Mr. DORGAN. Mr. President, that is a first-degree amendment. I will 
offer a second-degree amendment. I send the amendment to the desk and 
ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from North Dakota [Mr. Dorgan] proposes an 
     amendment numbered 2159 to amendment No. 2158.

  Mr. DORGAN. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  Mr. DORGAN. Mr. President, I have visited with my colleague, Senator 
Craig, about this second-degree amendment. I have also visited with 
those who are running the Agriculture Committee.
  This is an amendment to the pesticide registration fee amendment 
offered by Senator Craig. Let me point out, I support the underlying 
amendment. I believe it is an important amendment that Senator Craig 
has offered. I intend to vote for it. I will not insist on a vote. In 
fact, I will ask to withdraw my amendment following my presentation. 
But I did want to have a dialog with my colleague from Idaho about an 
issue that is related to the issue of pesticide registration. It deals 
with the issue of harmonization with Canada, something that was 
promised when we did the free trade agreement with Canada, that we 
would harmonize pesticides and herbicide pricing and policies.
  The fact is it has not been done. A group of us in the Senate, a 
bipartisan group, including Senator Craig and Senator Burns, myself, 
and others, have continued to work on this issue because we have a 
circumstance on the northern border where chemical prices are 
substantially different between the United States and Canada, even 
though in many cases the chemical itself is nearly identical--perhaps 
tweaked with one piece or another of the formula, but otherwise nearly 
identical.
  For example, a chemical that is put on canola in Canada and then the 
canola is sent to our country to be crushed at the crushing plant and 
put into our food supply is a chemical our farmers cannot go get in 
Canada and bring back, despite the fact this chemical is substantially 
similar to one used on canola in the United States but is priced much 
lower in Canada. So we have had this promise of chemical harmonization 
for some long while dealing with Canada.
  The current circumstance we believe is unfair to American farmers. 
The bipartisan legislation that is in the second-degree amendment I 
offer gives the EPA 60 days to approve or deny the registration of a 
Canadian pesticide if it has similar use and makeup as a pesticide 
registered in the United States.
  It allows the EPA, if the EPA so chooses, to delegate portions of the 
registration workload to the States to aid the EPA in completing the 
registration process. But the Environmental Protection Agency, under 
this

[[Page 28551]]

approach, is ultimately responsible for this process. According to a 
study done by the North Dakota State University, we still have 
significant price disparities between chemicals that are almost 
identical. If those disparities had been eliminated with harmonization, 
North Dakota producers would have saved $20 million last year. That is 
a substantial amount.
  We have worked with State agriculture commissioners in the various 
States. As I indicated, Republicans and Democrats in the Senate have 
worked together. As a result of that, we are anxious to move this 
legislation. We did have a hearing on a different version of it 
previously. We have now changed that version because of some objections 
to it. We would like to have a hearing and a markup. I understand there 
are some perhaps in the industry who do not support this. But on behalf 
of American farmers, we really need to do it.
  I have offered it as a second-degree amendment. I have learned 
moments ago that the chairman of the Senate Agriculture Committee will 
commit to doing a hearing on this next February. That is a couple of 
months away. That is significant progress. I appreciate very much his 
cooperation, and I know the Senator from Idaho is a member of that 
committee. My hope would be, although there is not a commitment at this 
point, that that hearing, in which we demonstrate bipartisan support 
for this issue, would be followed by a markup. We really do need to 
move this legislation.
  My only purpose for offering the second-degree amendment today is 
that my colleagues and I are frustrated that we have not been able to 
get this done previously. There are many reasons for it, but we do need 
to now take action. That is the purpose of this.
  I say to my colleague from Idaho, as a member of the Agriculture 
Committee, I know he and Senator Cochran, leader of the committee, and 
others believe strongly that we need to have proper hearings on these 
issues. I know my colleague from Idaho is a strong supporter. I ask him 
how he feels about this legislation, the second-degree amendment I have 
offered.
  Mr. CRAIG. If the Senator from North Dakota will yield, Mr. 
President, what the Senator speaks to is a very real problem, 
especially in border States such as his and mine, where farmers across 
that line that is often invisible--economically, environmentally, and 
climactically, but not jurisdictionally, certainly not from a national 
standpoint--can't understand why a product that appears to be the 
same--and as the Senator from North Dakota said, there may be some 
slight difference because it is not licensed in this country--cannot 
cross the border and find a substantial savings and bring it back for 
application on his agricultural crops in the lower 48. Yet product 
raised in Canada, harvested in Canada, can be trafficked into our 
markets, refined, and moved into our food stream.
  There does clearly need to be a resolution of this problem, from an 
economic standpoint, from an environmental standpoint, and from a food 
safety standpoint. That was spoken to in the Canadian free trade 
agreement, the North American Free Trade Agreement. It is something we 
ought to resolve.
  I am pleased that the chairman of the Agriculture Committee is 
willing to hold hearings early next year to review it. I will certainly 
encourage that. I will encourage that we move the next step, to a 
markup, to resolve this issue once and for all. There are remnants left 
of difficulties between the United States and Canada in a variety of 
areas as a result of the free trade agreement. I didn't support that 
agreement initially, but it is the law of the lands involved: Canada, 
the United States, and Mexico.
  We ought to try to resolve these kinds of difficulties that create 
great problems. Twenty million dollars spread across the national 
economy is not so much money; $20 million in a State such as North 
Dakota or Idaho, on individual farmers who are, at best, breaking even 
in some of these crops and in many years below cost of production--that 
savings in itself is a very substantial reduction in the overall cost 
of doing business.
  That is what harmonization was about: Environmentally, regulatorily, 
and certainly as a cost of product, and for food safety and all of 
those things within the food chain. This is an issue that cries out for 
resolution. I am pleased that the Senator is willing to withdraw his 
second degree and that that probably then allows us, hopefully, to go 
forward with the other one, maybe by a voice vote or an acceptance of 
the chairman and the ranking member of the committee.
  I thank the Senator for bringing this issue to the floor. I am 
certainly an advocate of his position and will work to help him resolve 
it.
  Mr. DORGAN. Mr. President, I thank my colleague from Idaho. He has 
been a strong supporter of this approach.
  Perhaps for the record, I might add what farmers are upset about is 
the following. We see Canadian grain coming into our country. It is 
treated with their chemicals but their chemicals are deemed unfit here, 
not because it has the wrong ingredient or it would be unhealthy for 
us. It is just the way it is labeled in order to prevent it from being 
sold in this country.
  On the chemical Liberty for use in canola, there is a $4.40 per-acre 
price difference between the United States and Canada for essentially 
the same chemical.
  On Glyphosate, commonly known as Roundup, there is only about a $2 
per-acre price differential; On a chemical Puma, $11 million more to 
apply just for North Dakota farmers. The chemical Stinger, which is 
sold as Lontrel in Canada--both are similar pesticides, use the same 
active ingredient--there is almost a $10 per-acre difference between 
the chemicals. That is what upsets farmers. They see that they can't 
buy the nearly identical chemicals for $10 an acre less, but they see 
the grain come in from Canada that has been treated with the same 
chemical. That is why the United States-Canada free trade agreement had 
a provision in it that called for harmonization in these areas, and yet 
almost no progress has been made. It is why a group of us are trying to 
do something about it.
  I thank my colleague from Idaho and my colleague from Montana and my 
colleagues on this side of the aisle. I thank Senator Cochran, and 
especially his staff on the Senate Agriculture Committee, on the 
commitment to hold a hearing, in the next couple of months, on this, in 
the month of February. Also, my colleague's belief that we need to move 
along, and he will be pushing for a markup, gives me some hope that we 
will be able to move this legislation.
  Let me conclude by saying again the first-degree amendment offered by 
my colleague from Idaho is one that is needed. It is very important, 
and I strongly support it. It provides the fees for pesticide 
registration. This Congress needs to pass that legislation. I support 
doing it as a first-degree amendment offered by my colleague from 
Idaho.


                      Amendment No. 2159 Withdrawn

  Mr. DORGAN. Mr. President, I ask unanimous consent to withdraw my 
second-degree amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DORGAN. I hope we will adopt the first-degree amendment of my 
colleague from Idaho by voice vote. Certainly, this appropriations bill 
is going to become law. Whether it is on the floor of the Senate with 
action or part of some omnibus bill, this is going to the President for 
signature. Having my colleague's first-degree amendment part of the 
bill, doing something that needs to get done now, not later, makes a 
lot of sense. I am pleased to be supportive of the amendment.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, it is my understanding, under the 
agreement, that Senator Byrd will be on the floor at noon to speak for 
a period of time. Following that, I understand we will resume 
consideration of the VA-HUD appropriations bill.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.

[[Page 28552]]

  The bill clerk proceeded to call the roll.
  Mr. CRAIG. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Sununu). Without objection, it is so 
ordered.
  The PRESIDING OFFICER. Under the previous order, the hour of 12 
having arrived, the Senator from West Virginia, Mr. Byrd, shall be 
permitted to speak for up to 30 minutes.
  Mr. CRAIG. That is the order. I understand we will then recess from 
12:30 until 2:15 for the purpose of the Democrat policy luncheon.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. CRAIG. I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. How much time do I have remaining.
  The PRESIDING OFFICER. The Senator from West Virginia has 29 minutes 
remaining.
  Mr. BYRD. Mr. President, I thank the Chair. I will not use all of the 
remaining time.


                Department of Defense Authorization Bill

  Mr. BYRD. Mr. President, on May 22 of this year, 2003, I cast my vote 
in opposition to the fiscal year 2004 Defense authorization bill. I 
cast that vote to protest the errant course of the defense 
establishment in seeking larger and larger regular defense budgets. The 
budget for the Department of Defense is exploding, even if we do not 
count the vast sums being used to maintain our troops in Iraq and 
Afghanistan.
  The regular defense budget, not including the costs of the war on 
terrorism in Afghanistan or the other war, the war in Iraq which we 
started, has gone up by 31 percent since 2000. I will say that again. 
The regular defense budget, not including the costs of the war on 
terrorism in Afghanistan or the other war which we started in Iraq, has 
gone up by 31 percent since 2000.
  In 2000, Congress authorized $304.1 billion to fund the routine day-
to-day operations of our military. The conference report before the 
Senate today authorizes $401.3 billion to pay the routine bills for our 
defense establishment. As I say, I am not even speaking of the costs of 
Iraq on the one hand or the costs of Afghanistan. So if we were to just 
ignore Afghanistan and Iraq in looking at the costs of the military, we 
are authorizing today in the conference report $401 billion to pay the 
routine bills for our defense establishment as against the $304.1 
billion that Congress authorized in the year 2000--in other words, 
roughly $100 billion more today than we authorized in 2000, just 
ignoring Iraq, on the one hand, and Afghanistan on the other.
  The growth of the so-called peacetime budget of the Department of 
Defense is expected to continue into the foreseeable future. The 
Pentagon estimates that it will request $502.7 billion for routine 
defense operations in the year 2009. Think of that. That is more than a 
half trillion dollars. The Pentagon estimates it will request $502 
billion for routine defense operations in 2009. But a request for half 
a trillion dollars--as we will be undertaking in 2009--should be 
anything but routine, especially if not one red cent of those funds 
would be for any contingency military operation.
  Instead, these growing defense budgets are proof that there is no 
longer any real effort to provide a smarter defense plan that will 
modernize our forces for the 21st century while eliminating the 
vestiges of a cold war era military force. Nearly 3 years ago, Defense 
Secretary Donald Rumsfeld announced he would conduct a series of top-
to-bottom reviews of the Pentagon. I lauded him for doing that. I 
applauded him publicly and in private conversations. I applauded the 
Secretary of Defense. Those reviews were supposed to get rid of old 
weapons systems, field new ones, and refocus the defense establishment 
to get more bang for the taxpayers' buck.
  I, along with many others, supported those efforts as announced by 
the Secretary of Defense. But any hope of modernizing our Armed Forces 
while maintaining fiscal discipline has gone--gone out the window. The 
defense transformation effort which began as a frontal assault on 
irresponsible spending at the Pentagon has been replaced by the quest 
for flexibility--``flexibility,'' the latest buzzword to describe 
efforts to consolidate greater and greater and greater power into the 
hands of a select few at the top of the executive branch.
  I voted against the Defense authorization bill on May 22 of this 
year. Why did I do that? I was the only one, the only Senator who voted 
against it. Why did I do that? I voted against that bill in order to 
voice my protest to spiraling defense budgets when the American people 
are expecting smarter spending by their Government, and I will vote 
against the conference report today to this bill for the very same 
reason, as well as because it gives rubberstamp approval to 
consolidating new, broad powers in the Secretary of Defense.
  This conference report creates the ``National Security Personnel 
System,'' so-called, which gives the Secretary of Defense, Donald 
Rumsfeld, unchecked powers--unchecked powers to rewrite civil service 
rules for civilian employees of the Pentagon. The conference report 
includes sweeping authorities--sweeping authorities to allow the 
Secretary of Defense, Donald Rumsfeld, to waive landmark environmental 
protection laws with a stroke of the pen.
  The conference report establishes new ``flexibilities''--
flexibilities for the Pentagon to use to develop and deploy an unproven 
national missile defense system. That is a sinkhole, a sinkhole for 
your money, the taxpayers' money.
  The conference report grants new multiyear authority to transfer 
appropriations--now, get this. Hear me! The conference report grants 
new multiyear authority to transfer appropriations of unlimited sums. 
This is not chickenfeed we are talking about. We are talking about 
unlimited sums of ``your money,'' the taxpayers' money, from numerous 
accounts in order to increase spending on Navy cruiser conversions and 
overhauls.
  These are but a few examples of the new powers granted to the 
executive branch, downtown, at the other end of the avenue, in this 
bill--this bill. I am not reading from ``Alice in Wonderland.'' I am 
reading from this conference report.
  Our country continues to be threatened by Osama bin Laden. Our troops 
are under fire in Iraq in the aftermath of a preemptive war, a 
preemptive war that we started, a preemptive war that our President, as 
Commander in Chief, started.
  Fie on us, the Congress! For shifting that power to the President 
last October, last October 11. Twenty-three Senators in this body voted 
against shifting that power to the President. I was one of those 23. I 
was against shifting that power to this President or to any President. 
It doesn't make any difference to me what his politics--what his 
political party is, or would be, so help me, God. I would stand against 
that with any President. Fie on us! Only 23 Members in this body stood 
firm for the Constitution of the United States under which, power to 
declare war is vested in the legislative branch. Soldiers are fighting 
and dying half a world away and the wealth of this great country is 
being diverted from the United States Treasury in order to carry out an 
experiment in nation building in Iraq.
  If there were ever a time to demand more accountability and 
efficiency in how taxpayer dollars are spent on our military, this is 
it. But instead of holding the feet of the Secretary of Defense to the 
fire, Congress gives the Secretary vast new powers to hire and fire 
workers as he sees fit.
  Instead of turning the screws--the screws, instead of turning the 
screws--on this Defense Secretary to straighten out this mess, the 
accounting nightmare at the Pentagon, Congress grants the Pentagon more 
flexibility over how it can use funds appropriated to it. We cut the 
strings by which Congress limits the use of taxpayers' money. Instead 
of demanding greater accountability over how our military is preparing 
to meet the military threats of the coming decades, Congress creates 
new loopholes. The inescapable conclusion, is that Congress has been 
distracted from the most important issues

[[Page 28553]]

facing our military posture. Instead, Congress is asked to take action 
on peripheral matters, and even then we simply pass the buck by closing 
our eyes and hoping that the Defense Department can straighten itself 
out if it is invested with enough new powers and ``flexibilities.''
  If the leadership of the Pentagon thinks that ``defense 
transformation'' means getting Congress to stick its head in the sand, 
count me out. My idea of transformation means spending smarter to build 
a stronger military, not turning a blind eye to Executive Branch power 
grabs.
  It is our fault. I can understand how the executive branch seeks to 
grab power. The executive branch is operating 24 hours a day every day, 
365 days a year. Everywhere its imprint is seen throughout the globe, 
Congress sleeps.
  The flexibilities in this bill are the antitheses of accountability. 
For each new ``flexible authority'' that Congress hands over to the 
Secretary of Defense--any Secretary of Defense--Congress signs away one 
more lever that should be used to compel the Secretary to build a 
smarter defense plan.
  The Commander in Chief beats his chest and throws down the gauntlet, 
saying, ``Bring them on,'' in front of the TV cameras, but pictures of 
the fallen dead coming home to Dover are not allowed.
  Oh, we don't want to display the pictures of bringing back the 
caskets at Dover, DE. No. The American people must not see that side of 
the war. This is a stubborn course that we have chosen that could tie 
down our forces in Iraq for months and months and months, and years 
even to come, and it is a course that I oppose today. It is a course I 
have opposed from the beginning. This ill-advised invasion and 
occupation of a Middle Eastern country stands to sap--sap--our military 
power through the attrition of our brave men and women in uniform. The 
effects of such a toll could affect our national security for decades 
to come.
  The United States cannot afford to shelve--to place on the shelf--
efforts to leap forward a generation in military power by investing in 
a smarter defense plan. If our country does not prioritize efforts to 
change our military to respond to the asymmetric warfare of the 21st 
century--whether those threats emanate from North Korea, or a 
belligerent China, or Iran--the long-term toll of the adventure in Iraq 
could weaken our military for years to come, just as our Armed Forces 
were found to be hollow in the years after Vietnam.
  I will vote against the conference report to the Defense 
authorization bill. It transfers vast unchecked powers to the Defense 
Department while avoiding any break with the business-as-usual approach 
to increasing defense spending. It dodges the most important issues 
facing our national defense posture, and I cannot support such a bill.
  I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BYRD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________




                                 RECESS

  The PRESIDING OFFICER. Under the previous order, the Senate stands in 
recess until 2:15 p.m.
  Thereupon, the Senate, at 12:30 p.m., recessed until 2:16 p.m. and 
reassembled when called to order by the Presiding Officer (Mrs. Dole).

                          ____________________




  NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2004--CONFERENCE 
                            REPORT--Resumed

  The PRESIDING OFFICER. Under the previous order, the hour of 2:15 
having arrived, the Senate will proceed to the consideration of the 
conference report to accompany H.R. 1588, which the clerk will report.
  The assistant legislative clerk read as follows:

       Conference report to accompany H.R. 1588, an act to 
     authorize appropriations for fiscal year 2004 for military 
     activities for the Department of Defense, for military 
     construction, and for defense activities of the Department of 
     Energy, to prescribe personnel strength for such fiscal year 
     for the Armed Forces, and for other purposes.

  The PRESIDING OFFICER. Under the previous order, there will be 20 
minutes equally divided prior to a vote on the conference report.
  Mr. REID. Madam President, if the manager will yield, it is my 
understanding the leadership is going to extend the time for the vote 
another 10 minutes.
  Mr. WARNER. Madam President, the distinguished minority leader is 
correct that the time has been extended. The vote is to occur, I 
understand, at 2:45. The 30 minutes intervening is under the control 
equally of the distinguished Senator from Michigan, Mr. Levin, and 
myself.
  Mr. REID. Madam President, I ask consent that that be the order. We 
have a caucus going on now.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. Madam President, I encourage any and all Senators who 
desire to address this bill to avail themselves of the opportunity. To 
the extent that I have control over the 15 minutes, I am happy to 
accommodate Senators as they come to the floor.
  I yield such time as the distinguished Senator may require. I hope it 
will be around 5 or 6 minutes.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. Madam President, I apologize to our distinguished 
chairman for not having been down here during this discussion. As he 
well knows, I chair the Environment and Public Works Committee. I am 
proud to say we were able to get a bill out, the reauthorization bill. 
I feel very good about that. It will be coming to the floor. It is a 
good compromise but it required my attendance.
  I want to be on record to say that our chairman and the ranking 
member have done a very good job. We have worked closely together 
during the development of the authorization bill. We are making great 
headway. We are turning in the right direction. I particularly applaud 
those who participated in the ultimate compromise that we agreed on 
having to do with the lease program, the 767s. We all understand we 
have a crisis in our tanker fleet. Our KC-135s are getting old and 
there is controversy over how much longer they can be used. 
Nonetheless, our pilots who are performing this significant mission of 
refueling need to have the very best. We are addressing that problem.
  In the area of TRICARE, we have made some advancements that are long 
overdue. I know in my State of Oklahoma, we probably have one of the 
highest populations of retired military, many of them in Lawton and 
scattered throughout the State. I know there are very serious concerns 
we have gone a long way to meet.
  Environmental issues bother me a great deal, and maybe I am more 
concerned about what has happened to our ability to train our troops, 
because I happen to also chair the Environment and Public Works 
Committee. So we deal with the environmental issues.
  But it is very disheartening when you go down to your part of the 
country and see what has happened in some of the endangered species 
programs and how we are addressing those.
  In Fort Bragg, in Camp Lejeune, for example, we are spending such an 
inordinate amount of money protecting the suspected habitat of the red-
cockaded woodpecker that it is having a very deteriorating effect on 
our ability to train. This is something that does concern me greatly, 
and we are starting to address that, I know, in relation to the issue 
of endangered species. We have clarified the law that is going to 
perhaps, hopefully, stop some of the injunctions that have been taking 
place. I think we are making some progress there.
  I am glad we are addressing end strength--not as much as I would like 
to or our chairman would like to because this is a compromise 
situation, but we have to recognize that we allowed our end strength to 
deteriorate, in terms of numbers, to the point that

[[Page 28554]]

we are OPTEMPO of our regular services, we are OPTEMPO for our Guard 
and the Reserves. It is at an unacceptably high rate.
  I do not think there is one Member of this Senate who does not go 
home and talk to his Guard and Reserve units, only to find out that 
critical MOS, military occupation specialties, are being lost because 
they are just overworked. You cannot expect someone who is in a 
citizens militia to have to be full time. Essentially, that is what is 
happening right now.
  So we are starting to address that, and I think we need to go much 
further in the future. When I see that we did have a problem all during 
the 1990s, that I articulated on this Senate floor, when we had a 
lowering in the amount of attention that was given to our military in 
terms of end strength, in terms of modernization, in terms of national 
missile defense, these things were very disturbing to me. I know we are 
now recognizing it.
  I hate to say it in this way, but I really think those who subscribe 
to the idea--or did subscribe to the idea prior to 9/11--that the cold 
war is over and we need not have the size military we once did are just 
dead wrong. I look wistfully back at those days when we knew what our 
enemies had. We had one major superforce out there, and that superforce 
was predictable.
  Now we have the proliferation of both weapons of mass destruction 
throughout the world and the delivery system. We know what countries 
have a delivery system that could reach us here in Washington, DC. We 
need to make up for what was lost during that period of time.
  Lastly, I would agree with Secretary Rumsfeld who at one of our 
earlier meetings suggested that throughout the entire 20th century, the 
percentage of our GDP that went to defense was about 5.7 percent, and 
that dropped down in the 1990s to about 2.7 percent. We are up to 3.4 
percent approximately.
  I think we need to stop and rethink that as an overall picture of a 
plan for the future, perhaps it should be somewhere around 4, 4.5, or 5 
percent because the nature of the threat that is out there is more 
expensive. I think we need to address it. So I think this bill goes a 
long way in that direction.
  I am very pleased with the product we have. We have a long way to go, 
and I hope we can join hands and do that in the future.
  Again, I applaud our chairman and the ranking member for the efforts 
they have put forth in making this legislation a reality.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Madam President, I thank my distinguished colleague for 
his steadfast service on our committee these many years, and 
particularly in this past year when we were confronted with a number of 
very serious issues. And I recognize the consideration of this 
conference report coincides with his markup in the Environment and 
Public Works Committee on which I am privileged to serve with him. But, 
I say to the Senator, you manage to do both quite well.
  Mr. INHOFE. I thank the Senator.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, I thank Senator Inhofe also for his 
service, his work on the committee. He travels to visit with our 
troops. He is totally dedicated to our troops and the national defense. 
I thank him for his kind words, but also for that commitment.


                              Section 336

  Mr. HATCH. Mr. President, I was hoping that my friend, the 
distinguished chairman of the Armed Services Committee, might yield for 
a question.
  Mr. WARNER. I would be happy to yield to my friend.
  Mr. HATCH. As I was reading the Defense authorization bill, I noticed 
that under section 336, entitled ``Pilot Program for Best-Value Source 
Selection for Performance of Information Services,'' the conference 
committee had modified the normal examination procedures for 
determining the source, either public or private, for the performance 
of information technology services. My question therefore is: Does 
section 336 modify, change or interfere, in any way with provisions of 
Title 10 Sec. 2460, Sec. 2464, or Sec. 2466 commonly referred to as 
``Core'' and ``50/50''?
  Mr. WARNER. I thank the Senator for his question. The answer is no. 
It was not the intent of the conference committee to make any 
modification to Title 10 Sec. 2460, Sec. 2464, and Sec. 2466 which 
address the requirements for the Department of Defense to maintain an 
organic core logistics capability and ensure that at least 50 percent 
of depot level maintenance is performed by employees of the Department 
of Defense. The Department of Defense must still abide by these 
statutory provisions when they make any decision or action provided for 
in section 336.
  Mr. HATCH. I thank the Senator for that answer.


                            tanker provision

  Mr. McCAIN. Madam President, I would like to review with my 
colleagues section 135 of the National Defense Authorization Act for 
fiscal year 2004. Under the leadership of Senate Armed Services 
Committee Chairman Warner, and Ranking Member Levin, Congress recently 
agreed to modify the manner in which the Air Force may acquire Boeing 
767 aerial refueling tankers. This compromise is contained in section 
135.
  In the words of Chairman Warner on October 23, 2003, this compromise 
sought to put this program back into the traditional budget, 
procurement, and authorization process. Section 135 replaces the 
current authorization for the Air Force to lease 100 aircraft, with an 
authorization for the Air Force to lease no more than 20 tankers, and 
to buy no more than 80 aircraft using multiyear procurement authority 
and incremental funding. The original proposal to lease 100 tankers 
would have cost taxpayers $6.7 billion more than buying them outright, 
according to the Congressional Budget Office.
  Mr. WARNER. The Senator from Arizona's understanding is correct. By 
providing for the lease of only 20 planes, and by putting the bulk of 
this acquisition back into the traditional budget, procurement and 
authorization process, this compromise is estimated to save taxpayers 
over $4 billion.
  I would like to take this opportunity to correct the legislative 
record. In a colloquy in the House among Chairman Hunter and 
Congressmen Dicks and Tiahrt, it was stated that this compromise 
codified an agreement with the administration as set forth in a 
November 5, 2003, letter to me from Deputy Secretary Wolfowitz. For the 
record, the compromise does not endorse or codify any such agreement. 
The compromise is intended to ensure that Defense Department acquires 
tankers in a manner that meets its own needs, but also the needs and 
interests of taxpayers. While the Air Force maintained that its 
original lease proposal achieved this goal, it clearly did not. I fully 
expect the Defense Department to execute the terms of this compromise 
in a manner that fully protects American taxpayers' interests.
  Mr. McCAIN. I am grateful to the Senator form Virginia for his 
leadership on this issue. Three of the four defense committees that 
were required to approve the original proposal to lease 100 tankers, 
did so without sufficiently examining the proposal or its effects on 
taxpayers. It was the Senate Armed Services Committee that put the 
brakes on that costly and misguided procurement plan.
  By buying those tankers that it requires rather than leasing them, 
the Air Force can realize very significant savings. The Air Force can 
avoid paying the cost of borrowing the funds from the private market to 
build and acquire the planes, as originally proposed. The Air Force can 
also avoid paying the lease-specific costs that were apparently 
included in the price that it had previously agreed to pay for the 
tankers. Documents we have reviewed suggest that these lease-specific 
costs could be as high as $5.5 million per tanker. Arranging for a 
purchase of the tankers will also allow the Defense Department to 
question many of the other terms and conditions of the Air Force's 
original lease proposal, such as the maintenance and training costs,

[[Page 28555]]

and whether the planes we are buying should be FAA-certified.
  Mr. WARNER. I thank the Senator from Arizona for his steadfast 
leadership and vigilance on this critical issue. There could be no 
doubt as to the Senator's sincerity in always protecting the interests 
of taxpayers.
  Mr. NICKLES. Mr. President, I commend the Senators from Arizona and 
Virginia for their leadership on this important issue. When the Air 
Force's original proposal to lease 100 tankers looked like a done deal 
a couple of months ago, both of these Senators stood up and made us 
consider the proposal in ways that we likely would not have, but for 
their commitment for the interests of both the warfighter and the 
taxpayer. In so doing, we now have before us, among other things, 
Section 135 of the National Defense Authorization Act for Fiscal Year 
2004. As I understand this provision, the Air Force will be authorized 
to use the special non-confirming lease methodology to lease no more 
than 20 tankers, and buy the balance, not to exceed 80, under a 
multiyear procurement/incremental funding methodology.
  Mr. McCAIN. The Senator is correct.
  Mr. NICKLES. The Senator's rationale for agreeing to this compromise, 
whereby the total number of tankers to be leased was reduced by 80 
percent, relied on the Congressional Budget Office's conclusion that 
the fewer planes that the Air Force leased, the greater the savings to 
taxpayers.
  Mr. McCAIN. The Senator is correct. The intent was to maximize 
savings to taxpayers. If the Defense Department, in the words of 
Senator Warner, puts this program in the traditional budget, 
procurement, and authorization process, the taxpayer will see 
significant savings.
  Mr. NICKLES. I understand that the Congressional Budget Office has 
concluded that if the Air Force implements the compromise by acquiring 
the tankers under two separate contracts, gets budget authority at the 
time it orders its planes, and pays progress payments, taxpayers will 
see $5.3 billion in savings over the Air Force's original proposal to 
lease 100 tankers.
  Mr. McCAIN. Yes. On the other hand, if the Air Force executes under a 
single contract--presumably under the current proposed contract--and 
pays at delivery, taxpayers will see savings cut nearly in half, 
according to Congressional Budget Office estimates. Unfortunately, I 
have every reason to believe that the Air Force will proceed in this 
manner, which fundamentally belies the compromise proposal. By 
proceeding accordingly, the Air Force succeeds in deferring having to 
make hard budget decisions to acquire tankers it says it ``urgently'' 
needs, Boeing locks the Air Force into a contract to acquire 100 
tankers, and the investment bank gets its cut for setting up any 
financing and providing other financial services associated with the 
deal. All of this is done at an unnecessarily high cost to taxpayers--
just as under the original proposal.
  Mr. NICKLES. I agree. If the Defense Department proceeds accordingly, 
namely under the current contact, it will be attempting to meet its 
priorities through very many of the same convoluted means that were 
proposed under the original agreement--means that would cost more than 
necessary, thereby further increasing the deficit to unnecessarily high 
levels. Unfortunately, in the absence of a guarantee from the Defense 
Department that it will not implement Section 135 as suggested by the 
Defense Deputy Secretary's letter of November 5, 2003 and the recent 
colloquy in the House, I share your concern.
  Additionally I want to reinforce your statement that it is not the 
intention of Congress, nor does this legislation reflect an agreement 
for the Air Force Secretary to implement the current contract on 
acquiring 100 tankers. We have heard testimony and the Institute of 
Defense Analysis has reported, and I quote, ``We believe that the 
$120.7 million is a conservative, robust estimate of a reasonable 
purchase price for the KC-767A aircraft . . . and . . . should satisfy 
Boeing and its shareholders.'' We should not agree to a purchase price 
of $138.4 million which is significantly higher, because it includes 
lease unique costs.
  I take the opportunity to highlight for our colleagues that the 
Congressional Budget Office has scored this transaction as an $18 
billion direct purchase, requiring full budget authority up front. 
Ordinarily, under these circumstances, I would make a budgetary point 
of order. I will not raise that point of order now. But, what I will do 
is call upon the Secretary of Defense to implement the compromise 
provision in a way that accurately reflects the intent of the 
conference--acquire its tankers for the Air Force in a way that 
maximizes savings to taxpayers. It is anomalous that the Congress would 
have intended to have taxpayers see only half the savings and not touch 
the $6.4 billion maintenance and training contract--a contract that was 
never competed for. In the spirit of compromise, under Section 135, the 
Congress has provided the Department with tools to acquire the tankers 
responsibly and in a way that protects the interests of taxpayers.
  At the end of the day, whatever legislation comes out of this body, 
the administration is responsible for implementing it as the Congress 
intended. After months of investigation, inquiry and debate, there can 
be little doubt that the intent here is to best protect the interests 
of the taxpayer.
  Mr. McCAIN. I thank the Senator for his continuing, active concern on 
this most important issue.
  Mr. FITZGERALD. Mr. President, I understand that preliminary 
estimates suggest that buying no more than 80 tankers in a way that 
avoids lease-specific costs could save taxpayers as much as $5.3 
billion over the Air Force's original proposal to lease 100 tankers.
  Mr. McCAIN. The anticipated savings under the compromise as described 
in Section 135 of the National Defense Authorization Act for Fiscal 
Year 2004 are very significant. The original proposal to lease 100 
tankers was extraordinarily costly, and the compromise allows us to 
avoid those costs. For example, the original proposal would have had us 
pay $7.4 million per plane in private construction financing costs. The 
compromise provides for the Air Force to make progress payments to 
build the planes, and in so doing, to avoid this significant and 
unnecessary cost.
  One of the reasons that the compromise authorizes the Air Force 
Secretary to use incremental funding to buy no more than 80 tankers is 
to allow the Air Force to get the tankers it needs in a manageable way 
that protects taxpayers.
  Senator Warner has said that, contrary to the statements of our House 
colleagues, the compromise does not codify or endorse the tanker 
acquisition plan that Deputy Secretary Wolfowitz described in his 
November 5, 2003, letter. The reason the compromise does not codify 
this approach is because paying for the tankers on delivery as the 
Deputy Secretary proposes could be very costly and could dramatically 
slash the savings that this compromise intends to provide--an outcome 
that is unacceptable.
  Mr. FITZGERALD. As I stated during a Commerce Committee hearing on 
September 2, 2003 regarding this issue, the original lease transaction 
is nothing more than a complex, byzantine transaction that obscured the 
true cost of the tankers, reduced the transparency of the arrangement, 
and would unnecessarily cost American taxpayers billions of dollars. I 
commend the Senator from Arizona for his watchful eye over the 
negotiation and execution of this tanker deal. I also commend Senators 
Warner and Levin for brokering the compromise agreement and putting the 
public interest ahead of a powerful special interest.
  Mr. HATCH. Mr. President, today I rise in support of the fiscal year 
2004 Defense authorization conference report. This report is not only a 
tribute to the Congress's hard work, in particular that of my good 
friend, Chairman John Warner, but it is also a reaffirmation of our 
commitment to meet the challenges of this War on Terror.
  The conference report contains a number of provisions designed to 
alleviate some of the burdens placed on

[[Page 28556]]

our fighting men and women. For example, I am proud to state that the 
report deals directly with a concern of many service members, including 
Utah National Guard and Utah-based Reserve families, by continuing 
payment through December 31, 2004, of special pay for duty while 
subject to hostile fire or imminent danger in the amount of $225 a 
month and $250 a month for family separation allowance. Additionally, 
all service members will receive at least a 3.7 percent pay raise. In 
order to help retain our mid-career service members, their pay will be 
increased between 5.25 and 6.25 percent. The burden for many of our 
Reserve forces will also be lifted regarding healthcare. The report 
provides TRICARE coverage for members, and their families, of the 
Selected Reserve of the Ready Reserve and each member of the Individual 
Ready Reserve, if they do not already have health insurance.
  Keeping our word to our Nation's veterans is vital to maintaining the 
honor of our country. No other issue is as important to our veterans as 
that of concurrent receipt, that is, simultaneously paying veterans a 
military pension and providing them with disability benefits. Under the 
current law, many veterans' retirement pay is reduced or offset dollar-
for-dollar for any disability benefit they receive. Unfortunately, 
proposals to remedy this situation remain controversial due to cost. 
Therefore, I must commend and congratulate Chairman Warner  once again 
for devising a compromise plan that boldly expands upon his previous 
efforts by providing full concurrent receipt for those veterans 
suffering disabilities from combat or combat-related operations and by 
phasing in this benefit, over a 10-year period for those retirees whose 
disability is rated at 50 percent or greater.
  This legislation is also important because it reaffirms our 
transformation policy. Many at home will ask what is ``transformation'' 
and what does it mean to the future of our Nation's military? Simply 
put, transformation is a process of reform that will revolutionize the 
way the military conducts operations. We saw a glimpse of this emerging 
reality during the Iraqi conflict where information was gathered from a 
variety of sensors, whether on the ground or in the air, and that 
information was transmitted very quickly to commanders who could then 
exploit the weakness of our enemy. It was a remarkable operation and it 
reflects the high level of competence and expertise of our Nation's 
service men and women.
  This Defense bill will accelerate transformation and ensure that our 
forces maintain their decisive edge. It is an important accomplishment 
and the chairman, ranking minority member and all the members of the 
committee deserve our thanks. Their efforts to make military 
transformation a reality have led them to fund the research and 
development of such revolutionary systems as the Army's Future Combat 
System, or FCS. FCS will allow our forces to deploy an army brigade 
anywhere in the world within 96 hours. The DDX and the Littoral Combat 
Ship will also be revolutionary in their stealth characteristics, 
automation systems, and command and control capabilities. The committee 
is also continuing its support for the Joint Strike Fighter, which will 
bring a stealth fighter to all of our air and naval/marine air forces.
  That being said, I was disappointed to see that the President's 
request for full funding of the F/A-22 did not occur, although the 
report did authorize the President's request for the procurement of 22 
F/A-22s. This is a system that is a transformational aircraft at its 
core. The F/A-22's supercruise engines allow for extended supersonic 
flight--a magnitude longer than its after-burner predecessors. Using 
stealth capabilities, the F/A-22 is able to penetrate an opponent's 
airspace and engage enemy aircraft at great ranges. Additionally, 
unlike our current air superiority fighter the F-15C, the F/A-22 will 
be able to engage integrated surface-to-air missile systems. Once again 
using stealth technology, the F/A-22 will be able to approach these 
missile sites and destroy them, utilizing internally carried GPS-guided 
bombs. The F/A-22, using this bombing capability, will also have the 
ability to track and launch attacks against ground-fixed and mobile 
targets. However, the truly transformational aspect of the aircraft is 
that it can accomplish all of these missions almost simultaneously. 
Paraphrasing the Air Force's motto, no aircraft comes close to the F/A-
22's capabilities. I cannot say how proud I am and the rest of the 
State of Utah is that the sustainment and maintenance work on this 
extraordinary aircraft will be handled at Hill Air Force Base/Ogden Air 
Logistics Center.
  I am also grateful that the committee was able to maintain the 
momentum toward transformation regarding our industrial policies. 
Instead of reverting to a protectionist posture, the report enables the 
Department of Defense and Congress to gather information on this issue. 
I believe that as the cost of research and development of our Nation's 
weapons systems continues to grow that it will become increasingly in 
our interests to harness the strengths of other nations in joint 
ventures. The future belongs to programs such as the Joint Strike 
Fighter, where the United States has been joined by the United Kingdom, 
Canada, the Netherlands, Italy, Turkey, Singapore and Israel to develop 
this stealthy and capable aircraft that will protect the forces of 
freedom at an affordable price. I commend the committee for its 
foresight on this matter.
  As I close, once again I wish to congratulate my colleagues on the 
Armed Services Committee, especially Chairman Warner, on this fine 
piece of legislation. It was a hard road, but once again the committee 
has risen to the challenge and supported our men and women in uniform. 
The Nation is in their debt.
  Mr. HOLLINGS. Mr. President, I rise today to commend the chairman and 
ranking member of the Armed Services Committee for bringing the 2004 
Defense Authorization Conference Report to the floor today. The 
conference report before us comes at a critical time in our national 
history with our troops engaged in conflict throughout the world.
  The committee's leaders have demonstrated patience and grace under 
pressure, navigating a difficult legislative process. I know firsthand 
how difficult this process can be; I have walked a mile in their shoes. 
I have served as the chairman of the Committee on Commerce, Science, 
and Transportation and now serve as its ranking member. It is in this 
capacity that I rise to express my dismay to learn that the bill agreed 
to by the conference committee includes significant changes to 
legislation under Commerce Committee jurisdiction--the Marine Mammal 
Protection Act, MMPA. The changes include modifications to some of the 
most fundamental standards providing protection of marine mammals under 
the MMPA.
  I am proud to have been one of the original authors of the MMPA back 
in 1972. Overall, it has worked extremely well in balancing the need to 
protect marine mammals while allowing other important activities, 
including the defense of our Nation, to move forward.
  I firmly believe that the U.S. is capable of having both the 
strongest military force in the world, and at the same time, some of 
the best conservation laws of any country. I have been a great 
supporter of our Nation's military, having served on the Defense 
Appropriations Subcommittee for three decades.
  The Committee on Commerce, Science, and Transportation, on which I 
currently serve as the ranking member, has jurisdiction over issues 
relating to marine mammals, including authorizations for and oversight 
of the MMPA. The Commerce Committee plans to take up reauthorization of 
the entire MMPA this Congress. Towards this effort, we have held 
hearings and numerous briefings with the many different entities who 
have an interest in the MMPA, including the Department of Defense, the 
National Oceanic and Atmospheric Administration, NOAA, the Fish and 
Wildlife Service, private

[[Page 28557]]

industry, the scientific research community, and nongovernmental 
organizations. Many of these entities have offered comments, including 
some serious concerns, with respect to the MMPA language now included 
in the DOD authorization bill.
  I regret to say that many of the provisions included in the bill 
before us simply don't make sense. For example, we have had testimony 
from respected scientists this year in hearings before our committee, 
as well as before the Senate Armed Services Committee, that the 
standard for ``harassment'' of marine mammals, now included in this 
bill, is scientifically indefensible. Moreover, some of the provisions 
included in the bill go far beyond DOD activities, including all 
research done by or on behalf of the Federal Government. Although no 
changes to the MMPA were in the bill that passed the Senate, the Senate 
leadership on the conference committee apparently felt that such 
changes would be acceptable.
  The National Marine Fisheries Service, which along with the Fish and 
Wildlife Service, implements the MMPA, estimates that about 38 percent 
of all of the ``small take'' permits that it has issued under the MMPA 
were issued to the Department of Defense. That is over one-third of all 
such activities, and we know that there are numerous other defense 
activities for which no permit has even been sought. Yet not once did 
the leadership of the Senate Armed Service Committee reach out to 
consult with me or my staff on these provisions that will affect over 
one-third of the activities that it regulates.
  We still plan to take up reauthorization of the MMPA in our 
committee, and we still have oversight of its implementation. I intend 
to work with my colleagues on the committee to carefully monitor how 
these changes are interpreted, to ensure that activities that could 
have real impacts on marine mammals do not fall off the radar screen, 
as it were. MMPA was written the way it was because we are still 
learning about how various activities may impact marine mammals. We 
must ensure that under these new standards, the lack of perfect science 
is not used as a basis to avoid the mitigation of potential impacts.
  Mrs. MURRAY. Madam President, as we work to complete the Defense 
authorization bill, we are reminded of our obligation to the brave men 
and women of our military. They are protecting us at home and abroad.
  Congress must make sure they have the equipment and resources they 
need.
  Two years ago, our country was attacked. Suddenly, we have to project 
sustained military force around the world, and we had to protect our 
skies at home--and we had to do it quickly.
  But as our tanker fleet embarked on more than 30,000 air refueling 
missions, we found that our 43-year-old tanker fleet was outdated, too 
often down for repairs, and too expensive to maintain.
  This conference report provides the Air Force with the ability to 
begin recapitalizing this crucial fleet, with 100 new KC-767 air 
refueling tankers. These tankers will enable our air crews to do their 
jobs more effectively, more efficiently and more safely.
  Success has many authors, and I thank my colleagues, including: 
Chairman Warner and Senator Levin for their vigilance on this issue and 
their willingness to work with my Senate colleagues and me to ensure 
the Air Force gets these 100 tankers: Senators Stevens, Inouye, 
Cantwell, Roberts, Brownback and Conrad for their unwavering support 
for this program over the last 2 years; and, on the House side, I thank 
Congressmen Dicks, Larsen, and Murtha, as well as Chairman Hunter and 
Speaker Hastert.
  Fairchild Air Force Base outside of Spokane, Washington is home to 
the 92nd Air Refueling wing.
  I have been to Fairchild. I have visited with the families and talked 
with the brave men and women who fly these tankers. I know the 
difficult missions these crews handle for each of us every day.
  I promised to give them the best equipment we could, and today we're 
delivering on that promise.
  After 2 years of work, I am proud that this legislation provides the 
authority needed for the Air Force to enter into a contract for 100 KC-
767s.
  Section 135, of this conference report authorizes the Air Force to 
enter into a contract for the combined lease and purchase of 100 tanker 
aircraft under the terms and conditions of Section 8159 of the FY02 
Defense Appropriations Act.
  This section specifically authorizes the Air Force to enter into one 
contract for 100 aircraft, 20 by lease and 80 by purchase, or if 
necessary, more than one contract for the same combination of aircraft.
  In their joint report language, the conferees agree that this section 
would--quote--``authorize the secretary to enter into a multiyear 
procurement program, using incremental funding'' for the 100 aircraft 
pilot program.
  This language means the multiyear procurement program authorized by 
Section 135 would allow the Air Force to make payments as agreed to in 
the contract.
  Furthermore, the language states that the Air Force would not be 
required to have the full budget authority required to purchase an 
aircraft in order to place an order for that aircraft under the 
contract.
  I would like to point out that Section 135 was written after 
extensive negotiations between the Congress and the Department of 
Defense.
  The agreement reached on Section 135 is based in part upon a letter 
sent on November 5, 2003 to the chairman and ranking member of the 
Senate Armed Services Committee by the Deputy Secretary of Defense, Mr. 
Wolfowitz.
  The language included in Section 135 of this conference report 
represents a common understanding between the conferees, the Congress 
and the Administration on the agreement under which the Air Force will 
execute this 100 aircraft pilot program.
  In closing, I again thank my colleagues for their help in fulfilling 
the promise I made to the brave men and women of the 92nd Air Refueling 
Wing.
  Within 3 short years, Fairchild Air Force Base will be home to the 
first four of the 100 KC-767 air refueling tankers authorized in this 
bill.
  Fairchild will get another 16 of these state-of-the-art aircraft just 
1 year later.
  I ask unanimous consent that the Wolfowitz letter be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                               Washington, DC,

                                                 November 5, 2003.
     Hon. John Warner,
     Chairman, Committee on Armed Services,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: Thank you again for your consideration 
     of the Department of Defense's proposal to lease 100 KC-767A 
     aircraft. As you know, there has been a vigorous debate on 
     the best way to get this program started. Your most recent 
     amendment would allow the Air Force to lease no more than 20 
     of the 100 tankers. The Air Force has developed a proposal to 
     implement that arrangement, and I hope that you will find it 
     acceptable.
       Our proposal strikes a necessary balance between the 
     critical need for new air-refueling tankers and the 
     constraints on our budget. As reflected in the enclosed 
     chart, we intend to lease the initial 20 aircraft and then 
     buy aircraft at a steady rate of 11 to 13 aircraft per year 
     until delivery of the 100th. We commit to add $2.4B, in 
     Fiscal Years (FYs) 2008 through 2010, to the funding profile 
     for the original proposal to lease 100 aircraft. We also will 
     add $1.4B in FY 2012 to 2013. The combination of these added 
     funds achieves an immediate start to the program and allows 
     us to purchase the last 80 aircraft at time of delivery.
       I appreciate the support that you have provided in the past 
     and look forward to working you in the future. If you require 
     further information, please do not hesitate to contact me. A 
     similar letter has been sent to the chairmen and ranking 
     minority members of each of the defense committees.
           Sincerely,
                                                   Paul Wolfowitz,
                                      Deputy Secretary of Defense.

  Ms. MIKULSKI. Mr. President, I am here to stand up for our troops. I 
am going to vote for the Defense Authorization Act because it will give 
our troops the tools they need to fight the battles today and in the 
future. Every day our soldiers are fighting a war on

[[Page 28558]]

many fronts, including in Iraq and Afghanistan. In Iraq soldiers are 
risking their lives every day, while their loved ones at home are 
praying for their safe return. Our troops are making grave sacrifices, 
some losing their lives in service to our Nation. Their families, their 
husbands and wives, parents and children, are also making sacrifices. 
It is the responsibility of Congress to provide the weapons, vehicles, 
and tools that our soldiers need to be an effective fighting force.
  But I also stand up for those who are protecting the United States of 
America--our brave, our gallant Federal employees who are out there 
every day on the front line. I am here to defend the rights of hard-
working civilian employees in the Department of Defense. When I stand 
up for America, I want to be able to stand up for what America believes 
in. And that includes basic rights for workers.
  I think it is terrible that the DOD is using it's budget, which is so 
vital for our troops, as a cover for undermining the basic rights of 
dedicated employees. This bill creates a completely new--and completely 
unfair--personnel system for civilian Defense Department employees. The 
new system undermines the collective bargaining rights of civilian 
personnel. It weakens the rights of DOD employees to appeal personnel 
decisions to an independent body. It rejects the current salary system, 
and seeks to replace it with one that will leave workers vulnerable to 
the whims of their supervisors. It even takes away the guarantee of 
overtime, weekend, holiday, and hazardous duty pay. We should not put a 
system in place that distracts Federal employees from doing their jobs 
and requires them to play office politics.
  This new civilian personnel system will seriously undermine morale, 
and opens the door to cronyism and political patronage. I am tired of 
the attempts by this administration to replace our effective civil 
service system with one that rejects the rights of workers. The 
thousands of civilian Federal employees at the Department of Defense 
are concerned about the security of our country, and work hard every 
day to ensure that our fighting forces are the best in the world. Many 
have served on the front line in the war on terrorism, and have lost 
their lives in the terrorist attacks of September 11, 2001. I am 
ashamed that the Defense Department wants to take away their basic 
rights as workers.
  I think it is terrible that I must choose between supporting our 
troops and supporting our civilian Federal employees. I am tired of the 
cynical manipulation of this process. I feel like I am being set up--
that if we stand up for the workers, we are somehow or another getting 
in the way of national security. I am going to support the 2004 
Department of Defense Authorization because it is important to our 
Armed Forces. You can count on me to continue to fight for everyone who 
is making sacrifices for our Nation. Our troops and our civilian 
Federal employees deserve no less.
  Mr. KENNEDY. The Defense authorization bill contains many provisions 
that provide essential support for our military personnel, especially 
when we are asking so much from them in Iraq and around the world.
  We have demonstrated our great appreciation for them by providing an 
across-the-board military pay raise of 3.7 percent, and a larger raise 
for mid-career personnel, raising the average increase to 4.1 percent. 
The separate increases already available for imminent danger pay and 
the family separation allowance are extended through December 2004.
  The bill also recognizes the contributions of our Reserve personnel, 
by authorizing an allowance of up to $1,000 per month for Active and 
Reserve personnel who experience unusually high deployments. We expand 
commissary privileges for Guard and Reserve family members and we 
expand health care coverage both for Guard and Reserve personnel and 
for their families.
  The bill increases benefits for families whose loved ones have made 
the ultimate sacrifice, by doubling the death benefit to $12,000 and by 
authorizing Survivor Benefit Plan annuities for surviving spouses of 
Guard and Reserve personnel who die on inactive duty training.
  The bill recognizes the toll of these deployments on children, by 
providing $35 million in supplemental impact aid to assist schools with 
large numbers of children of military families.
  The legislation also eases the path to citizenship for immigrants who 
serve in our Armed Forces and provides immigration benefits to 
surviving family members of those killed in service. 37,000 men and 
women in the Army, Navy, Marines, Air Force, and Coast Guard have the 
immigration status of permanent residents serving in our Armed Forces. 
Another 12,000 permanent residents are in the Reserves and the National 
Guard.
  The legislation also improves access to naturalization for lawful 
permanent residents serving in the military. It provides expedited 
naturalization for members of the Selected Reserves during military 
conflicts. It protects spouses, children, and parents of soldiers 
killed in action, by preserving their ability to file for permanent 
residence in the United States.
  Over a dozen immigrant soldiers have been killed in Iraq and these 
benefits are well deserved. These immigration provisions in the bill 
are a tribute to the sacrifices that these future Americans are already 
making for their adopted country. They deserve recognition for their 
bravery and loyalty to the basic ideals and freedoms of our country. 
Unfortunately, although the bill provides many needed benefits for our 
men and women in uniform, it lets down their civilian counterparts.
  Many of us are extremely disappointed that the bill undermines 
fundamental protections for the 700,000 civilian employees of the 
Department of Defense.
  Specifically, the report undermines collective bargaining, premium 
pay, the pay and classification system, third party review, and the 
appeals process. Many of the provisions are disguised as improvements, 
when in fact they undermine years of civil service protections.
  Nearly 40 percent of Defense Department employees affected are 
veterans who have served the nation proudly. More than 8,000 are 
activated reservists serving in Iraq and other parts of the world. They 
are protecting us and we owe it to these patriotic Americans to protect 
their rights. They take pride in their work, their love their country, 
and they have served it with distinction, often for decades.
  The Bush administration has demonstrated its intention to undermine 
workers' again and again. They have proposed privatizing up to half the 
Federal workforce. They have created a Department of Homeland Security 
that doesn't allow its employees to join a union.
  Earlier this year, the administration stripped clerical and other 
workers in the Department of Justice and the U.S. Attorney's offices of 
their long-held union membership. They have even proposed taking 
overtime protections away from more than 8 million hard-working men and 
women.
  It is an affront to these dedicated Federal workers to deprive them 
of their rights, even though no restrictions are placed on the rights 
of employees of government contractors performing similar jobs. Under 
the administration's proposal, we could well see Federal workers 
working alongside private workers with the Federal workers denied the 
same fundamental rights and protections that the private workers 
continue to have.
  These workers repair planes, ships, and tanks. They manage the 
storage and distribution of weapons and supplies. They manage computer 
networks, provide training, analyze intelligence, investigate crimes, 
acquire major weapons systems, perform research on cutting-edge 
technologies, test munitions, care for children, operate hospitals and 
laboratories, and treat patients. Defense employees deserve civil 
service and collective bargaining rights, just as other Federal workers 
do. The administration is wrong to use this must-pass bill as a vehicle 
to deny these workers their basic rights, and I intend to do all I can 
to see that Congress repeals this unfair

[[Page 28559]]

assault on these dedicated civilian workers of the Department of 
Defense.
  Mr. FEINGOLD. Mr. President, first and foremost, I want to thank the 
members of the United States Armed Forces for their service to our 
country. These service men and women are performing admirably in the 
global fight against terrorism and the war in Iraq. They and their 
families are making great sacrifices for the American people. I am 
voting for this authorization legislation to support these people who 
are serving the country with such courage.
  But this is not an easy vote for me. This legislation contains a 
number of good provisions, such as much-deserved pay raises for our men 
and women in uniform, expansion of TRICARE health insurance to some of 
the members of our Guard and Reserve, concurrent receipt for disabled 
veterans, 12 WMD Civil Support Teams, and ``Buy American'' provisions. 
However, the bill also contains two particularly bad policies: the 
elimination of civil service protections for Department of Defense, or 
DOD, civilian employees, and the environmental exemptions granted to 
DOD.
  I am deeply troubled by the provisions included in the conference 
report that will effectively eliminate existing civil service 
protections for the more than 746,000 civilian Department of Defense 
employees. While I think we all can agree that some reforms are needed 
to the civil service system, I am concerned about the administration's 
approach to dismantling this system, in a seemingly department by 
department manner. I opposed the weakening of the civil service system 
during consideration of the bill that created the Department of 
Homeland Security, and I would have opposed the provisions in this bill 
if the Senate had considered them independently of this conference 
report.
  The civil service system was put into place in order to end the 
corrupt patronage system that had permeated Government hiring and 
advancement. The provisions included in this conference report will put 
salary decisions into the hands of managers, which could be a slippery 
slope back to the bad old days of cronyism. I am also concerned that 
this new system will limit appeal rights.
  Some in the administration have argued that the civil service system 
is rigid and could prevent the administration from acting quickly in 
the face of an imminent threat. This is not the case. The existing 
civil service system already provides the administration with broad 
flexibility, while at the same time ensuring that Federal workers have 
a consistent framework of basic protections, including appeal rights.
  In addition, I support the right of workers to join a union, and I am 
troubled by the implication that union membership is somehow a threat 
to our national security. The conference report that we are considering 
today will undermine existing union representation and collective 
bargaining agreements by allowing the Secretary to create a new labor 
relations system.
  The expected enactment of these provisions, coupled with the ongoing 
implementation of the new employment system that was created for the 
Department of Homeland Security, will result in more than half of the 
Federal civilian workforce not being covered by the basic protections 
of the civil service system.
  I am equally troubled by the provisions included in the conference 
report that exempt the DOD from several environmental laws. The Senate 
version of this bill struck a fair balance between the need to protect 
the environment and the need for military readiness. It allowed for 
some exemptions to the Endangered Species Act if the Secretary of 
Interior found that the DOD's resource management plan effectively 
conserved the threatened or endangered species and that DOD would fund 
the plan. The conference version destroys this balance by merely 
requiring that the DOD's management plan confer ``a benefit'' to 
threatened or endangered species. There is no mention of the need for 
DOD to fund its management plan. The new language means that the DOD 
will get exemptions from the ESA merely by having an integrated 
management plan on paper. The purpose of the critical habitat 
designation provisions of the ESA is to attempt full recovery of 
species by preserving habitat. The current bill falls short of that 
promise.
  The assault on our environmental laws goes further. This conference 
report exempts the DOD from key provisions of the Marine Mammal 
Protection Act, MPPA. It allows, among other things, the Secretary of 
Defense to waive its provisions for 2 years if the Secretary believes 
it necessary for national security.
  I am committed to supporting a strong Endangered Species Act, 
particularly because of the successes Wisconsin has had in 
rehabilitating endangered and threatened wildlife and plants. Recent 
news accounts of sensitive whale population deaths caused by high-
frequency Navy sonar systems also trouble me. Our troops in Afghanistan 
and Iraq were expertly trained at DOD facilities that complied with 
environmental laws. It is my understanding that the DOD has never 
requested an exemption to the Endangered Species Act. DOD already has 
the authority to request exemptions from the ESA for national security 
reasons and this new provision in the conference report is unnecessary. 
I agree with Senator Jeffords that the Defense appropriations bill is 
not the appropriate place to have this debate.
  The administration sought even more environmental exemptions than are 
contained in this authorization bill. Although I am disappointed with 
the included exemptions, I am thankful that my colleagues were able to 
limit the damage.
  I will vote for this bill and for the good provisions it contains for 
our men and women in uniform and their families. However, I remain 
deeply concerned about the administration's policy on civil service 
reform and protection of the environment. I will support this flawed 
bill, but I do so with some reluctance and in the hope that the Senate 
will revisit these seriously flawed provisions next year in the proper 
committees.
  Mr. BIDEN. Mr. President, the fiscal year 2004 Department of Defense 
Authorization Conference Report provides important benefits as our 
military personnel continue to do battle in Iraq, Afghanistan, the 
Balkans, South America, and elsewhere. It is not, however, a perfect 
bill. I voted for it because I believe that in a time of war we need to 
take care of our military personnel and our veterans. But, I am 
concerned that this bill unnecessarily undercuts important 
environmental protection measures and civil service protections. I am 
also troubled by some of the nuclear weapons provisions of the bill. 
First let me describe some of the key provisions that I do support in 
this bill.
  This bill provides a 3.7 percent across-the-board pay increase and, 
because of some of the targeted pay raises for mid-career personnel, an 
average pay raise of 4.1 percent. It also authorizes increases in the 
critical pay bonus areas of family separation, hostile fire, and 
imminent danger pay from October of this year until next December. 
These increases are much needed and well-deserved.
  I am also pleased that the bill would allow the Army to add 2,400 
additional personnel. I supported adding 10,000 and would still like to 
see the number grow, but this is, at least, a start.
  Perhaps most important as we create new veterans daily, this bill 
starts to live up to our promises to our veterans. I have long believed 
that the commitment we make to the retirement benefits of a veteran and 
the commitment we make to care for those veterans injured while serving 
should not be mutually exclusive. This bill takes a very real step 
toward allowing veterans full concurrent receipt. Military retirees 
with 20 years of service, active duty or Reserve Component, and a 
Purple Heart or a combat related disability will be eligible for full 
concurrent receipt as of January 1, 2004. The remaining retirees who 
are disabled at 50 percent and above will get full concurrent receipt 
phased in over the next 10 years.
  In addition to the important personnel benefits of this bill, I am 
also

[[Page 28560]]

pleased that the bill makes a common sense commitment on strategic 
airlift. The bill prohibits any decision to retire C-5 As until an A-
model is completely modernized under the Avionics Modernization Program 
and Reliability and Re-Engining Program and then tested for its 
operational capability. This will allow decisionmakers to have the 
facts about what capability can be gained from the modernization 
programs. In addition, the Senate has required a March report updating 
the military's strategic airlift requirement. We know that the old 
requirement, defined pre-9-11, pre-Afghanistan, and pre-Iraq, is too 
low. Until we have a more accurate sense of what is really needed, it 
will be hard for Congress and the military to determine the best way to 
meet the need.
  Let me now detail my concerns with the environmental and civil 
service provisions of this legislation. I believe it is important to 
balance our national security needs with the rights of our children and 
grandchildren to live in a country that has clean air and water. 
America is the home to tremendous natural bounty and diversity. Those 
natural treasures are something we hold in trust, not something we 
should allow destroyed for expediency. As the Nation has advanced, we 
have striven to find ways to balance environmental protection with our 
economic and military needs. We have done this in our environmental 
protection laws, most of which carry national security waiver 
provisions. It is still not clear to me why the conferees felt it was 
appropriate to make changes to two key environmental protection laws 
without taking into account the advice and wisdom of those who oversee 
that legislation daily.
  Let me start by saying that I believe realistic military training is 
absolutely critical to the survival of our military personnel. Until 
now, we have managed to balance that need with our desire to safeguard 
our environment. This bill allows the Department of Defense to get 
around the Endangered Species Act, ESA, and to make enforcement of 
Marine Mammal Protection Act, MMPA, extremely difficult. With respect 
to ESA it is particularly troubling since, again, there is a national 
security waiver provision in that law. In the Senate, we were able to 
craft a compromise that allowed the Defense Department to avoid making 
any new critical habitat designations on installations that had 
Integrated Natural Resources Management Plans that the Secretary of the 
Interior had determined would in fact conserve the species on the 
installation and would be adequately resourced. This bill does not 
provide that safeguard.
  In the case of MMPA, this bill provides a weaker definition of 
``harassment.'' More extraordinary than that, the new weaker definition 
applies not just to military activities, but rather to any scientific 
research conducted by or on behalf of the Federal Government. We have 
been given no rationale or justification for making it easier for 
federally funded scientists to harm marine mammals. The bill makes it 
easier for the Navy to get permits if their activities will have no 
more than a ``negligible impact'' on marine mammals. I also do not see 
why legitimate Naval activities should not receive the same full 
scrutiny they have always received. Again, we were not given good 
justifications for making such a change. At the end of the day, I am 
very disappointed that the conferees agreed to basically allow the 
Department of Defense to begin making their own environmental rules. 
While they have done a very good job managing many environmental 
issues, their track record is not one that suggests complete self-
regulation is warranted or desirable. Their job is to fight and win our 
nation's wars. As a democracy, it is our job to provide them the legal 
framework that allows them to do their job while not sacrificing the 
nation's natural treasures. This bill is a step backwards.
  In the area of civilian personnel reform at the Department of 
Defense, I am again troubled that this bill opens the door to cronyism 
and discrimination, things from which we have long sought to insulate 
our civil service. While I am open to the notion that civil service 
reform may be in order, I am again concerned that it is being done in 
an ad hoc fashion and without the proper input from the committees that 
oversee the entire civil service. I believe that we must be wary of the 
potential politicization of our workforce. The employees of the Defense 
Department are highly dedicated professional, and they must be free 
from political pressure. I will be taking a close look at how the 
administration goes forward with its new authorities. I will be 
watchful that the employees are free from political retaliation and 
secure in their jobs so that they can perform their vital tasks to the 
highest of professional standards.
  Finally, let me say a few words about some of the nuclear weapons 
provisions in this bill. This conference report does a good job, on 
balance, of providing for our cooperative threat reduction and non-
proliferation assistance programs in the former Soviet Union. It 
provides roughly the funding requested by the President and, in 
particular, a needed Presidential waiver provision so that we can 
continue to help build a chemical weapons destruction facility in 
Shchuch'ye, Russia. It requires the Secretary of Energy to study and 
report on the possibility of purchasing and safeguarding excess 
weapons-grade uranium and plutonium from the independent states of the 
former Soviet Union, so as to ensure that such dangerous material 
cannot be diverted to rogue states or terrorists. And it allows the 
President to use some Nunn-Lugar and non-proliferation funds for 
projects outside the former Soviet Union, if he determines that this 
will assist in the resolution of a critical emerging proliferation 
threat or permit the United States to achieve long-standing 
nonproliferation goals.
  I regret that the Congress agreed to repeal the Spratt-Furse 
prohibition of work on low-yield nuclear weapons. I am pleased, 
however, that the conference report states that such work may not 
commence the engineering development phase, or any subsequent phase, of 
a low-yield nuclear weapon unless specifically authorized by Congress. 
I am also pleased that the Secretary of Energy is barred from 
commencing the engineering development phase, phase 6.3, of the nuclear 
weapons development process, or any subsequent phase, of a Robust 
Nuclear Earth Penetrator weapon unless specifically authorized by 
Congress.
  Again, I voted for this bill because it contains many important 
provisions, particularly in this time of war. But I am very concerned 
that some of the provisions agreed to by the conferees are ill-advised 
and premature. I hope that we will be able to reconsider them next 
year.
  Ms. SNOWE. Mr. President, I rise today to speak briefly on the fiscal 
year 2004 National Defense Authorization conference report.
  I want to acknowledge the leadership of the senior Senator from 
Virginia, Senator John Warner, Chairman of the Armed Services Committee 
in bringing this bill to final passage. Of course, I must also 
recognize the ranking member, Senator Carl Levin. I had the privilege 
of working with them on the Committee for several years and I can 
attest that each year they work together tirelessly to pass the defense 
authorization bill because they understand how absolutely vital this 
legislation is to the effectiveness and well-being of our armed forces.
  For that matter, let me also recognize every Senator on the committee 
for their efforts because this conference report authorizes the 
equipment, the training, and the operational funds necessary to support 
our troops who are right now operating across the globe to make our 
Nation and the world more secure.
  It also reflects the service and sacrifice of our troops by making a 
solid investment in their quality of life by increasing their pay and 
enhancing educational and health care opportunities for our active duty 
military members, our National Guard and Reserve troops and their 
family members. And that is only right, for today we are asking a great 
deal of our gallant young men and women as they guard our Nation at 
home and abroad and, of course,

[[Page 28561]]

risk their lives every day to restore freedom and prosperity to the 
oppressed peoples of Iraq and Afghanistan.
  This legislation also recognizes that we owe a continuing debt to 
those who have served honorably by phasing-in for those with a service 
connected disability rated at 50 percent or more the same benefit 
available to every other retired Federal employee--the ability to 
collect full retirement pay and disability entitlements without 
offsets. There is much work to be done before we achieve the full 
equity of concurrent receipt for all disabled military retirees and I 
will continue to support these efforts until we finally achieve the 
goal of full concurrent receipt.
  This $401.3 billion dollar authorization provides $74.3 billion for 
the critical procurement accounts. In particular, this bill makes some 
significant strides by providing almost $12 billion in an area that is 
critical to the security of the Nation--our shipbuilding capacity. It 
has become more and more apparent that as we engage the forces of 
terrorism around the world we have become increasingly dependent on the 
ability of our Navy to not only deliver troops and munitions to the 
fight, but to act as the sea base from which our forces can operate 
without restrictions virtually anywhere in the world.
  Yet, as a former Chair of the Seapower Subcommittee, I remain 
concerned about the Navy's shipbuilding program, particularly with 
respect to the surface combatant force. As part of the 2001 Quadrennial 
Defense Review, the Navy and DoD approved a plan for maintaining a 310-
ship Navy including 116 surface combatants--cruisers, destroyers and 
frigates. Partly because of continuing concerns about the Navy's 
uncertainty regarding plans for future surface combatants, last year's 
authorization directed that the Navy notify Congress should the number 
of active and reserve surface combatant ships drop below 116 and 
provide an operational risk assessment based on that number.
  By the end of fiscal year 2003, the Navy's surface combatant fleet 
had fallen to 106 ships and in the latest report submitted by the Navy 
in June of this year, the Navy notified Congress that by the end of 
fiscal year 2004, it was their intent to reduce the force of surface 
combatants to 103 ships. According to the Navy, accelerating the 
decommissioning of Ticonderoga- and Spruance-class ships will free up 
funds for next-generation destroyer programs without appreciably 
raising the operational risk level to our Naval forces because they are 
``significantly less capable than the more modern and survivable AEGIS-
equipped DDG-51 class ships that are replacing them.''
  Therefore, I am encouraged that this authorization provides $3.2 
billion for the construction of three DDG-51 Arleigh-Burke class 
destroyers for it is these ships, along with cruisers and frigates, 
that provide protection to the carriers and amphibious ships deployed 
to the Persian Gulf and around the world to prosecute the war on 
terrorism. Moreover, it adds $20 million for the DDG Modernization 
program to begin the insertion of advanced technologies that will 
dramatically reduce operation and support costs to the fleet and 
mitigate the risk of back-fitting these technologies on older ships. 
Above all, we must pursue every path necessary to provide technologies 
to our sailors that will ease their workload, enhance their training 
opportunities and increase the survivability of their ships.
  In 2005, the Navy will complete the DDG-51 acquisition program, and 
the next generation of surface combatants, the DD(X) and the Littoral 
Combat Ship (LCS) are being funded in the research and development 
accounts. Although this authorization provides $1 billion for the 
continued development of the DD(X) and $183 million for the continued 
development of the LCS in the RDT&E accounts, there is a looming gap in 
the Shipbuilding and Conversion, Navy account for surface combatants. 
Without a focused effort on the part of the Navy to commit and invest 
in a robust surface combatant program, I am concerned not only about 
the ability of the Navy's surface combatant force to maintain current 
operating tempos but the continuing viability of our shipbuilding 
industrial base.
  This trend not only applies to surface combatants but to our attack 
submarine fleet as well. Although the Navy and the Department of 
Defense has established a requirement of 55 attack submarines, the 
current inventory numbers only 54 of those ships. To compound the 
problem, the Navy continues to place submarines such as the USS 
Jacksonville on the list of submarines to be inactivated rather than 
funding their refueling as a solution to this force structure gap. The 
Senate wisely added $248 million for the refueling of that submarine 
and I am pleased this report sustained that effort.
  I am also disappointed that the conferees have included Section 319 
in this bill, on Military Readiness and Marine Mammal Protection. Under 
the Senate Rules, the Committee on Commerce, Science, and 
Transportation has jurisdiction over issues relating to marine mammals, 
including authorizations for and oversight of the Marine Mammal 
Protection Act (MMPA). The Subcommittee on Oceans, Fisheries, and Coast 
Guard, which I chair, intends to work on reauthorizing the MMPA in its 
entirety this Congress, and we have held a hearing and numerous 
briefings with all concerned marine mammal interests, including the 
Navy and the National Oceanic and Atmospheric Administration.
  By including Section 319 in this bill, the conferees have disregarded 
our jurisdiction and work on the reauthorization of the Marine Mammal 
Protection Act, and they have seriously altered marine mammal policy in 
the United States. I have serious concerns about their changes to the 
definition of harassment, the Department of Defense exemption from the 
MMPA, and the incidental takings language. Changes of this magnitude on 
behalf of the military requires oversight and review by the Commerce 
Committee, and the implications of these changes for other regulated 
parties and interested MMPA stakeholders must be fully understood. Our 
Subcommittee will address these changes and many other marine mammal 
conservation issues as we proceed with full, comprehensive 
reauthorization of the MMPA.
  Importantly, this bill sets aside $63.4 billion in the research and 
development accounts to develop the advanced technologies our troops 
will use to maintain their technological superiority over their 
adversaries. Significantly, conferees authorized $11 billion for the 
critical science and technology programs which brings us close to the 
goal of setting aside 3 percent of the defense budget to invest in the 
``seed corn'' of our future military capability.
  Much of that S&T investment will be executed at universities and 
colleges throughout America. For example, the University of Maine 
system has been on the forefront of the development of chemical and 
biological sensors and decontamination systems. The bill provides them 
with $1 million this year to begin the development of an 
environmentally-friendly photo-catalytic decontamination agent that 
holds much promise for the safe and rapid decontamination of exposed 
personnel as well as for the remediation of chemical agent and 
manufacturing and storage facilities.
  In addition, this bill also authorizes $4 million for continued 
research at the University of Maine into the structural reliability of 
fiber-reinforced polymers composites in ship assemblies that will help 
define and ultimately control the significant property variations found 
in composite plates used in Navy ship construction.
  One of the hallmarks of the Department of Defense is the interwoven 
nature of the military and civilian personnel who work together as our 
national security team. Civilian workers at DOD work alongside their 
military counterparts every single day, sometimes in the most hazardous 
conditions. For example, at the Portsmouth Naval Shipyard in Kittery, 
ME, workers hold a memorial service every year for the gallant crew of 
the USS Thresher, lost at sea in April, 1963 with 112 sailors and 17 
fellow civilian workers from the shipyard. The civilian workers at the 
Department of Defense work

[[Page 28562]]

and sacrifice to keep this Nation secure and we should recognize their 
dedication and professionalism.
  While there are many positive provisions included in the bill, I am 
disappointed that the conferees did not include all of the personnel 
reform provisions put forward by my colleagues, Senators Collins, 
Levin, Sununu and Voinovich, instead adopting many of the provisions 
put forth by the Department. The current civilian personnel system was 
established over a period of decades in order to protect the rights of 
the civilian worker in areas such as merit-based hiring practices, 
equal pay for equal work, appeals of adverse personnel actions and 
collective bargaining. As the new National Security Personnel System 
established in this bill is set in place, the Department must keep 
faith with its civilian employees and provide for third-party appeals, 
third-party dispute resolution as part of the collective bargaining 
process and a credible, transparent performance rating system.
  I will be watching closely as the Department institutes this new 
personnel system to ensure that Federal employee's rights are not 
abrogated and that the highly-skilled civilian defense workforce can 
continue to stand arm-in-arm with their military counterparts to 
provide for the security of our Nation.
  Finally, and most importantly, the bill continues our commitment to 
the men and women in the armed forces and their families through the 
enactment of several important pay and benefits provisions. First, it 
includes an across-the-board pay raise of 3.7 percent for all military 
personnel and once again provides an additional targeted pay raise of 
5.25 percent to 6.25 percent for the senior non-commissioned officers 
and mid-career personnel who are the backbone of our military.
  There are also a number of provisions that will directly aid the 
families of service members such as an increase in the family 
separation allowance from $100 to $250 per month and an increase in the 
special pay for those subject to hostile fire and imminent danger from 
$150 to $225 per month.
  This authorization rightly recognizes that our reservists and 
National Guard troops play an increasingly vital role in the war on 
terrorism, and extends to them expanded benefits in critical areas such 
as medical care and special pay rates. For example, reservists and 
their families will now be provided access to enhanced TRICARE coverage 
including non-mobilized reservists and their families who are either 
unemployed or whose employers do not provide health coverage. In 
addition, reservists and their families will be granted the same 
commissary privileges as active duty personnel.
  Overall, this authorization provides the men and women of our armed 
forces with the equipment they need to accomplish their mission, the 
quality of life they have earned and security for their families. I 
support this legislation and urge my colleagues to pass this conference 
report unanimously because in a year when our Nation is facing 
unprecedented security challenges and dangers, we can do no less.
  Mr. LIEBERMAN. Mr. President, I am disappointed that some provisions 
in this legislation giving the Department of Defense additional 
personnel flexibility go too far in weakening the legal protections of 
DoD civilian employees, who are critical to the military's performance 
and to its fighting men and women. I pledge to actively monitor DoD's 
implementation of its new authority to guard against abuse.
  Throughout the development of this legislation, the administration 
has tried to push a regressive agenda to do away with important worker 
safeguards--and, in the process, to risk opening up the workplace to 
politicization and unfair treatment and to close off important channels 
of communication between labor and management. Congress rejected much 
of this, but some risks remain.
  On the Governmental Affairs Committee, where I serve as Ranking 
Member, we worked hard and forged a sensible bipartisan compromise on 
these issues for the department. This legislation, S. 1166, was 
approved by our committee by a 10 to 1 vote. The provisions of S. 1166 
were considered by the conferees, and some of our compromises were 
incorporated into this conference report. However, at the insistence of 
House majority conferees and the administration, the conference 
agreement also includes a number of provisions that risk opening up the 
workplace to cronyism and arbitrariness and undermining established 
means for fairly resolving issues between labor and management, so it 
is important that Congressional intent be closely adhered to.
  For example, in the area of collective bargaining, the conference 
agreement included the provision of S. 1166 stating that the Secretary 
of Defense has no authority to waive chapter 71 of civil service law, 
which governs labor-management relations. The conferees also retained 
an amendment, which I had offered in our committee, assuring that the 
Secretary of Defense cannot choose to bargain only with large national 
unions and refuse to bargain with others that do not represent large 
numbers of Defense Department employees.
  However, the conferees also agreed to a new provision authorizing the 
Secretary of Defense, together with the Director of the Office of 
Personnel Management, to establish a ``labor relations system'' for the 
Department of Defense to address the ``unique role'' of the 
Department's civilian workforce. As the conference report makes chapter 
71 non-waivable, this new provision overrides chapter 71 only where the 
new provision and chapter 71 are directly inconsistent with each other. 
The new provision authorizing establishment of a labor relations system 
does not conflict with the statutory rights duties, and protections of 
employees, agencies, and labor organizations set forth in Chapter 71--
including, for example, the selection by employees of labor 
organizations to be their exclusive representatives, the determination 
of appropriate bargaining units, the rights and duties of unions in 
representing employees, the duty to bargain in good faith, the 
prevention of unfair labor practices, and others--and such rights, 
duties, and protections will remain fully applicable at the department. 
The conference agreement provides that, in establishing a labor 
relations system, the Secretary will be authorized to ``provide for 
independent third party review of decisions, including defining what 
decisions are reviewable by the third party, what third party would 
conduct the review, and the standard or standards for that review.'' 
The Secretary may use this provision to expedite the review of 
decisions, but not to alter the statutory rights, duties, and 
protections established in chapter 71 or to compromise the right of 
parties to obtain fair and impartial review of decision. The mutual 
trust required for productive labor-management relations requires a 
level playing field.
  The conference report also includes other provisions, which weaken a 
number of safeguards that we had included in S. 1166, including the 
statutory mandate that DoD meet standards for the quality of its system 
for rating employee performance and that the department phase in its 
new personnel system to enable the department to get fair and objective 
processes in place. The conferees also included new provisions that 
would give the Secretary of Defense latitude to waive premium pay for 
employees working irregular schedules or in dangerous situations, and 
to disregard statutory checks against cronyism and politicization in 
promoting, reassigning, and laying off employees.
  Finally, even aside from the weakened employee protections in the 
legislation itself, I am very concerned that the department may try to 
impose its new personnel authorities without adequate preparation and 
funding. Under the new system, the department wants to use employee 
performance, rather than seniority, to determine salary increases. To 
avoid arbitrary pay decisions, however, the department must establish 
personnel systems that can make meaningful distinctions in employee 
performance based on appropriate criteria, and managers must be 
adequately trained to use these new authorities. In evaluating this 
legislation last summer, GAO warned that the

[[Page 28563]]

vast majority of DoD's systems for appraising employee performance are 
not well-enough established to take on the task of supporting a 
meaningful performance-based pay system. Moreover, successful projects 
where pay is based on performance must be adequately funded, or else 
pay levels will be determined by budget constraints rather than by the 
competency and efforts of employees; and colleagues will be pitted 
against each other in competition for limited funding for performance 
pay, thereby disrupting unit cohesion and teamwork.
  An experienced supervisor at the Defense Department, quoted in a news 
article today about this legislation, well expressed these risks in the 
following terms: ``The changes are going to be swift and we're going to 
go into this thing blind,'' he said. ``The worst thing we can do to the 
employees of the DoD . . . is to come in and demoralize them by putting 
in new pay systems that can't be financed or executed.''
  As the department, together with the Office of Personnel Management, 
proceeds to develop the regulations and the personnel systems to 
implement this legislation, I intend to watch closely. I expect the 
department to provide a fully open process, in close collaboration with 
its employees, for developing the regulations necessary to implement 
the new personnel authorities. And the department should not implement 
pay-for-performance or other authorities until personnel systems are in 
place, managers are trained, and funding is available, so that the 
risks of favoritism, politicization, and a demoralized workforce 
inherent in this legislation are kept to a minimum.
   Mrs. BOXER. Mr. President, I support the fiscal year 204 Department 
of Defense authorization bill.
   With so many of our young men and women deployed in Iraq, 
Afghanistan and throughout the world, it is very important that 
Congress support our troops and the important pay increases and 
personnel benefits in this bill.
   This legislation authorizes a 3.7 percent across the board pay 
increase for all uniformed members of the armed services and targeted 
pay raises of 5.25 percent to 6.25 percent for mid-career 
servicemembers. I strongly support these provisions of the bill. These 
pay increases are well earned.
   I am also pleased that imminent danger pay at the level of $225 per 
month and family separation pay of $250 per month was extended until 
December 31, 2004. With United States troops bearing so much of the 
burden in Iraq, many military families are having a difficult time 
making ends meet. Extending these benefits is the least we can do.
   But let me be clear. This $401 billion Defense authorization bill 
contains many troubling provisions that will make us less secure and 
that I oppose.
   First, this legislation repeals a 1989 ban on the research and 
development of low-yield nuclear weapons and provides funding for 
research into new bunker-busting nuclear weapons. Developing new and 
low-yield nuclear weapons will not make us safer--it will only lead to 
a dangerous escalation in the arms race. These provisions send the 
wrong message to the rest of the world and are based on a flawed 
strategy developed by President Bush that contemplates scenarios for 
the preemptive use of nuclear weapons.
   Second, this legislation significantly rolls back environmental 
safeguards on our military bases. The bill prohibits the Secretary of 
Interior from designating critical habitat under the Endangered Species 
Act on any lands owned or controlled by the Department of Defense if 
the lands are subject to a management plan developed by the military 
that provides a ``benefit'' to the species. the conference report also 
gives the military greater leeway to conduct activities that might 
disturb marine mammals, such as whales. Under this bill, the Secretary 
of Defense may exempt any action or category of actions from the 
requirements of the Marine Mammal Protection Act, if the Secretary 
deems it is necessary for national defense. These environmental 
rollbacks are unfortunate. I urge the Department of Defense to take 
extra care not to abuse these new broad authorities.
   Finally, I am concerned this bill did not do more to limit sole-
source contracting by the Department of Defense. During Senate 
consideration of this bill, I offered an amendment stating that the 
Department of Defense should meet its own goal of replacing 
Halliburton's sole-source contract to reconstruct Iraq's oil industry 
with a fully competitive contract by August 31, 2003.
   It is now November and Halliburton's sole source contract is still 
in place and a new competitive contract has not been awarded. I 
appreciate that the final bill contains a provision requiring a report 
within 30 days on why this sole-source contract has been allowed to 
continue. However, it is regrettable that conferees did not establish a 
deadline for the termination of Halliburton's sole-source contract.
   Despite these concerns, I want to thank the chairman and the ranking 
member of the Senate Armed Services Committee for their hard work on 
this legislation. It is a bill that will help our military men and 
women who are serving to protect our Nation.
  Ms. CANTWELL. Mr. President, I rise today to express my support for 
the Department of Defense authorization conference bill before us 
today. The bill will strengthen our Nation's military readiness, 
procure vitally important weapons systems and provide for our veterans. 
At the same time, I wish to highlight my concerns about provisions in 
the bill relating to civilian defense workers and the environment.
  I am pleased that the bill allows the U.S. Air Force to move forward 
with the KC-767 Global Tanker Transport program. By allowing the 
modernization of our aging tanker fleet, the bill promotes our national 
security and the security of our friends and allies.
  I became involved in this issue more than 2 years ago after visiting 
Fairchild Air Force Base in Washington State, which is one of the 
premier basing locations for the Air Force's KC-135 refueling tankers. 
It was clear to me then, and it is clear to me now, that these aging 
planes need to be replaced.
  With an average age of over 40 years, the KC-135s are the oldest 
planes in the Air Force, older than most of the pilots that fly them 
and older than virtually all large commercial aircraft.
  The bill authorizes a program that will provide the Air Force one 
hundred KC-767 aircraft by leasing the first twenty planes and 
purchasing the remaining eighty. This arrangement is the result of a 2-
year effort to find the best way to provide our pilots with the 
equipment that they desperately need, while protecting the interests of 
taxpayers. This has been accomplished.
  I want to congratulate my colleagues, Senator Warner and Senator 
Levin, for their leadership on the Senate Armed Services Committee to 
develop a solution that will reach our goals. I also want to thank the 
Air Force and the Department of Defense for working to find the funds 
that will carry out this program.
  I am particularly proud that the Air Force was able to improve our 
military capability by procuring an American product. Boeing has been 
the industry leader in the tanker market for fifty years and it has 
helped ensure our military's air power dominance.
  The 767 is built by thousands of men and women in my home State and 
is sold around the world. I am excited to see that because of this 
legislation, the Boeing 767 tanker will keep our military flying in the 
21st century.
  I am also pleased that the bill provides for our Nation's veterans. I 
am profoundly grateful for the service of America's veterans and for 
the sacrifices they have made to defend our Nation and our freedom. We 
have an important responsibility to ensure that our veterans are 
provided benefits and assistance that they deserve.
  Specifically, the bill authorizes that the full concurrent receipt 
will be phased in over a 10-year period for disabled military retirees 
and National Guard and Reservists who have at least 20 years of 
service. In each of the next 10 years, service members will receive an 
additional 10-percent increase, until the full concurrent receipt is 
reached in 2014.

[[Page 28564]]

  The bill also expands the Combat-Related Special Compensation Program 
that was enacted as part of the Fiscal Year 2003 National Defense 
Authorization Act. This year's bill provides concurrent receipt to 
military retirees, National Guard and Reservists who have at least 20 
years of service, any retiree who was awarded the Purple Heart, or any 
retiree with a service-connected disability incurred as a direct result 
of armed conflict, while engaged in hazardous service, in the 
performance of duty under conditions simulating war, or through an 
instrumentality of war.
  A strong national defense depends on active duty forces, Guard and 
Reserve personnel, a civilian workforce, military contractors and 
military communities. Civilian workers in my State play a key role in 
ensuring that the U.S. military is the best-trained and best-equipped 
in the world. Over 16,000 highly skilled and dedicated workers in the 
International Association of Machinists Local 160, the Bremerton Metal 
Trades Council, and other unions and organizations in Kitsap County 
help ensure that our sailors have the ships and equipment they need to 
combat terrorism and protect our security.
  Accordingly, I am concerned about provisions in the bill that would 
erode existing protections for civilian DOD workers. These provisions 
will set back our efforts to ensure a fair and effective civil service 
system. Specifically, these provisions could weaken collective 
bargaining rights at the local level, reduce due process protections 
for DOD workers, and scale back appeals rights along with protections 
against favoritism in hiring in the workplace.
  Given the recent contributions of our civilian workers in the war 
effort in Iraq and Afghanistan, we should not be taking away long-
standing protections that have helped make the U.S. military the 
strongest in the world. I intend to work to ensure effective 
congressional oversight of the implementation of these controversial 
personnel provisions.
  I am also troubled by provisions in the bill that would weaken 
current environmental protections for marine mammals and other species. 
For several decades, the military services have demonstrated a strong 
commitment to natural resource conservation while fulfilling their 
primary missions. Puget Sound is home to many military installations 
and sensitive species. Based on our experience in Washington State, I 
believe that we can have both the highest levels of military readiness 
and natural resource conservation.
  However, I am very troubled that the bill would weaken both the 
Marine Mammal Protection Act (MMPA) and the Endangered Species Act 
(ESA). Both of these acts currently provide significant environmental 
protections, while providing the military the flexibility to conduct 
training and other exercises. Because species recovery efforts pose 
unique challenges, I believe that amendments to these acts are best 
considered by the Commerce Committee and the Environment and Public 
Works Committee.
  On balance, however, this bill marks a major step forward in support 
of America's soldiers, sailors, marines and air force personnel and our 
Nation's security. I am pleased to vote for it.
  Mr. LIEBERMAN. Mr. President, I rise to express my support for the 
fiscal year 2004 Defense Authorization bill. At the same time, I am 
compelled to state for the record my dissatisfaction with the process 
that first delayed the conference report for months, and then presented 
the conferees with a conference report and a deadline for filing that 
precluded Senators from familiarizing themselves adequately with the 
final product.
  Despite my concerns about the process, and my opposition to three 
specific provisions in this bill, the men and women in uniform 
protecting the United States need the support this bill provides. I 
commend Senator Warner and Senator Levin for their dedication and 
leadership in bringing this difficult process to a successful 
conclusion. Our security depends upon the unrivaled strength of 
America's military and the unmatched skills, dedication and bravery of 
America's servicemen and -women, which they are demonstrating on a 
daily basis. This defense blueprint ensures that we will be able to 
continue to give our troops in the field the best possible equipment, 
while at the same time preparing them for future challenges. The funds 
authorized in this bill will allow our military to continue to conduct 
operations with the intensity and effectiveness that the worldwide 
fight against terror requires. Secondly, and no less important, our 
military services will be able to continue transformation at the pace 
necessary to meet the challenges they will face in the coming decades.
  There are many important provisions in this bill. I want to briefly 
highlight ones that I think are particularly important. First, the 
strength of our military depends primarily on the men and women who are 
serving with such dedication and courage. They deserve fair 
compensation and adequate support for their families. This bill 
authorizes critical increases in pay and improvements in their quality 
of life that are so important to America's soldiers and their families. 
This bill increases base pay by 4.1 percent, increases family 
separation allowance, increases hostile fire pay, authorizes the first 
increment of concurrent receipt for disabled retirees, expands 
commissary access for Selected Reserve members and their families, and 
enhances health care benefits for reservists. I am particularly pleased 
that we have made progress in increasing the benefits for our 
reservists and their families, because they are bearing an important 
share of the sacrifices our military is making for our defense.
  We have also included important provisions to maintain the momentum 
in transforming our military services. The Airland Subcommittee, where 
I have the honor of serving as Ranking Member, under the able 
leadership of Senator Sessions, has fully supported the critical 
programs for transforming the Army and Air Force, such as the Army's 
interim brigades and the Future Combat System, and the Air Force F-22 
fighter and the Joint Strike Fighter. I am also pleased that we have 
included a provision to improve the Department of Defense's capacity to 
expand high speed high bandwidth capabilities for network centric 
operations, which is critical for our military to expand it's military 
dominance.
  Despite my approval of the bill, I oppose some of the labor/personnel 
and environmental provisions contained in the legislation, and I did 
not sign the conference report to signal my disagreement with these 
provisions. I am disappointed that some provisions giving the 
Department of Defense additional personnel flexibility went too far in 
weakening the legal protections of DOD civilian employees who are 
critical to the military's performance and to its fighting men and 
women and that key work of the Government Affairs Committee, which has 
primary jurisdiction, was ignored in propounding these provisions. I 
intend to describe at another time my concerns with the personnel 
provisions in this bill.
  On the environmental front, I am disappointed that the conference 
bill contains unnecessarily broad exemptions for the Department of 
Defense from an array of environmental protections, most of which 
originated in the House of Representatives. Without question, we can 
protect our troops and conserve our natural resources--especially our 
wildlife and marine mammals--at the same time. We have built the 
strongest military force in the world while the Department of Defense 
has complied with the same environmental laws as everyone else. This 
bill undermines the protections for wildlife under the Endangered 
Species Act by allowing an Integrated Natural Resources Management Plan 
certified in writing to confer an undefined ``benefit'' on species to 
substitute for critical habitat designation. Unlike the Senate's bill, 
the conference bill does not require the Department of Defense to fund 
or dedicate resources to implement or monitor the plan; or the 
Department of Interior to determine that the plan will effectively 
conserve species within the lands it covers. While I would hope that 
the Department of Defense would

[[Page 28565]]

feel obliged to dedicate sufficient resources, the country would be 
better served to have required it.
  The bill's changes to the Marine Mammal Protection Act for military 
readiness and federally funded scientific research activities were not 
part of the Senate's bill. Quite simply, they may have disastrous 
consequences for whales and other species living off our Nation's 
coasts. For example, the Marine Mammal Protection Act's core 
prohibition against taking actions with the potential to injure or 
disturb marine mammals has been severely weakened. Now, only acts that 
injure or have the significant potential to injure marine mammals, or 
that are likely to disturb their behavioral patterns to the point of 
abandonment or significant alteration, are prohibited. And these 
changes also are an unnecessary intervention into the work of the 
committee with expertise. They come just as the Senate and House 
committees with jurisdiction over these questions have begun their work 
of reauthorizing the Marine Mammal Protection Act. I only hope the 
committees will revisit these provisions in the reauthorization of that 
legislation.
  In closing, let me express my concerns about how the conference was 
managed. It is unfortunate, in my view, that on an issue as important 
as this--the very essence of our Nation's ability to wage the current 
war against terrorism and at the same time prepare for unknown 
challenges in the future--that it took months to reach a consensus on 
this bill and that the final conference report was presented to all 
members with inadequate time to review the final product prior to 
filing. Such an important bill should not be handled in this manner.
  Mr. LEVIN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. WARNER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. Madam President, between now and the hour of 2:45, I 
yield such time as I have to the distinguished Senator from Nevada.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. ENSIGN. Madam President, I rise today to make some brief comments 
about the Defense authorization bill.
  First, I compliment the chairman and ranking member for working hard 
on this legislation. I also thank the professional staff, both on the 
committee as well as the personal staffs. It was my first year on the 
committee, and it was an incredible process. There were many 
controversial and complex issues on which we worked together.
  In the end, we have done a lot for the members of our military, our 
Armed Forces serving in this country and around the world. With the 
global war on terrorism, these issues have become more important than 
ever: To make sure they have the resources to fight the global war on 
terrorism and to ensure a quality of life so we can maintain the all-
volunteer professional armed services we have.
  Several issues covered in my subcommittee, the Readiness 
Subcommittee, were very important. We have a problem with our ranges. 
Dealing with readiness, we have to have the proper training facilities. 
This bill helps us address some of those issues. The military does such 
a fabulous job protecting the environment on its training ranges that 
the use of those ranges almost became threatened. This bill makes sure 
that the training ranges and the environment are protected, while the 
military can still use the training ranges. That was a very important 
part of this Defense authorization bill.
  I also think about what we have done for military families. That 
cannot be overemphasized because of the sacrifices they make for this 
country. It is not just the people in uniform, but it is the families 
and the sacrifices they make for the country. It is important that we 
take care of their quality of life. I am very proud of the work we have 
done in this Defense authorization bill.
  I hope next year we can complete this bill earlier in the year, 
before Defense appropriations is done, because it is a better way to do 
it. The issues are complex. Many times they are controversial. But we 
have to be willing to put our personal interests, our party's interests 
behind the interests of our Nation and the interests of our military.
  The Defense authorization bill is one place where we can join hands 
across the aisle, as we have done on so many issues this year, and 
continue to work to make sure our military is so far superior to any 
other military in the world that if there is ever a question whether we 
go into battle, we know we have the upper hand.
  Madam President, I thank the chairman for all the great work he has 
done.
  I yield the floor.
  Mr. WARNER. Madam President, I thank my distinguished colleague for 
his remarks and, more importantly, his active participation in our 
committee's work throughout this year.
  Mr. LEVIN. Madam President, I ask unanimous consent that the Senator 
from Arkansas be recognized for 2 minutes immediately prior to the 
vote.


                           Order of Procedure

  Mr. REID. Reserving the right to object, Madam President, we have the 
military construction conference report coming up right after the vote, 
and there is no time set for the two managers to speak.
  I ask unanimous consent that there be 4 minutes equally divided for 
the two managers of the bill to speak prior to that vote.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Is there objection to the extra 2 minutes? Without objection, it is 
so ordered.
  The Senator from Arkansas.
  Mr. PRYOR. I thank the Chair.
  Madam President, I rise today in support of the 2004 Defense 
authorization conference report. Even though there are some provisions 
I am disappointed in--some of the environmental matters and how those 
issues got worked out, and a few other issues, and I don't want to 
dwell on the negative--there are two reasons I signed on to the 
conference report and why I encourage my colleagues to vote for this 
conference report.
  Those two reasons are sitting right in the front, Senator John Warner 
and Senator Carl Levin. They have demonstrated a true spirit of 
bipartisanship. It has been a great model for me as a new Senator to 
sit on this committee and watch these two Senators fight for their 
causes but do it in a very fair and open manner and deal with each 
other in such a constructive way. I thank them for their leadership.
  They worked through dozens and dozens of very difficult issues. 
Nobody got their way completely. But they showed great leadership and 
great stewardship. I want to publicly acknowledge them and thank them, 
especially Chairman Warner because he has been extremely fair to the 
minority.
  Again, we don't always get our way, but I think he has demonstrated 
the camaraderie and the comity that we should have in the Senate.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Madam President, I thank our colleague for his kind 
remarks. I simply say, spoken like the true son of a great United 
States Senator, with whom I was privileged to serve and who emulated 
all of the characteristics the Senator from Arkansas has bestowed on 
me, undeserving as they may be, one David Pryor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, I thank our dear friend, Mark Pryor. 
Senator Warner and I came together and we came with his father at the 
same time. His dad and his mother, Barbara, have been dear friends of 
ours. Mark Pryor has made an extraordinary contribution as a new 
Senator to this body and to our Armed Services Committee. He has made a 
great contribution. We are grateful for that and for his remarks this 
afternoon.
  Mr. President, I rise once again to join with Senator Warner in 
urging

[[Page 28566]]

the Senate to adopt the conference report on H.R. 1588, the National 
Defense Authorization Act for fiscal year 2004.
  As we stand on the floor of the Senate today, America's armed forces 
are engaged in military operations around the world on a scale unknown 
since the end of the Vietnam war nearly three decades ago. According to 
the latest reports, we have 132,000 troops deployed in Iraq with an 
additional 87,000 serving in support roles outside of Iraq. We have 
9,000 troops in Afghanistan, with an additional 35,000 serving in 
support roles. Tens of thousands more soldiers, sailors airmen and 
marines are deployed elsewhere around the world.
  In the last 2 years, we have also seen the largest sustained callups 
of National Guard and Reserve components since the Vietnam war. We have 
seen units deployed for extended periods, and repeated deployments of 
the same units. Throughout this period, our men and women in uniform 
have shown extraordinary ability, professionalism, and dedication, 
conclusively demonstrating once again that they are by far the best 
trained, best equipped, best disciplined, most highly skilled and 
motivated military force in the world. Nonetheless, there are 
indications that the unprecedented demands we have been placing on our 
Armed Forces are starting to have an impact on morale.
  I will vote for this conference report because it contains so many 
important provisions for our national security and for our men and 
women in uniform.
  It includes an across-the-board military pay increase, along with a 
series of other increased pays and benefits for our men and women in 
uniform and their families. The conference report includes Senator 
Harry Reid's amendment on concurrent receipt; Senator Daschle's 
amendment on TRICARE; Senator Kennedy's amendment on expedited 
citizenship for lawful immigrants serving in the military; and an 
increase in Army troop strength on which Senator Jack Reed played a 
leading role. It includes important Senate provisions that authorize an 
expansion of our cooperative threat reduction programs to countries 
outside the former Soviet Union.
  The provision authorizing the establishment of a new National 
Security Personnel System did not come out entirely the way I would 
have liked, but the Senate was able to include a number of important 
protections for civilian employees at the Department of Defense. 
Senator Collins' strong commitment to a bipartisan, fair, and balanced 
approach to this issue made this a far better provision than it would 
otherwise have been.
  The conference report contains a number of other provisions that 
concern me. For example, I believe that provisions addressing the 
Endangered Species Act and the Marine Mammal Protection Act go beyond 
what is needed to address the legitimate needs of the Department of 
Defense. I am also disappointed by the outcome of the conference on 
nuclear weapons issues, which take the United States in a dangerous new 
direction.
  Despite my concerns about these issues, I will vote for this 
conference report because it contains so many other provisions that are 
so important for our national defense and for our men and women in 
uniform. I urge my colleagues to join me in supporting this conference 
report, which will help provide our military the training and equipment 
that they need and the compensation and benefits that they deserve.
  Thanks again to Senator Warner and both our staffs, who we 
specifically thanked last night for all their work which made this 
conference report possible.
  The PRESIDING OFFICER. All time has expired. The question is on 
agreeing to the conference report.
  Mr. WARNER. Madam President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second. The clerk will call the 
roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards) and the Senator from Massachusetts (Mr. Kerry) are necessarily 
absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 95, nays 3, as follows:

                      [Rollcall Vote No. 447 Leg.]

                                YEAS--95

     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (FL)
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchison
     Inhofe
     Inouye
     Johnson
     Kennedy
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner
     Wyden

                                NAYS--3

     Akaka
     Byrd
     Jeffords

                             NOT VOTING--2

     Edwards
       
     Kerry
  The conference report was agreed to.
  Mr. WARNER. Madam President, I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________




   MILITARY CONSTRUCTION APPROPRIATIONS ACT, 2004--CONFERENCE REPORT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to the consideration of the conference report to accompany H.R. 
2559, which the clerk will report.
  The bill clerk read as follows:

       The Committee of Conference on the disagreeing votes of the 
     two Houses on the amendment of the Senate to the bill (H.R. 
     2559) making appropriations for military construction, family 
     housing, and base realignment and closure for the Department 
     of Defense for the fiscal year ending September 30, 2004, and 
     for other purposes, having met have agreed to recommend and 
     do recommend to their respective Houses as follows:
       That the House recede from its disagreement to the 
     amendment of the Senate, and agree to the same with an 
     amendment, signed by all of the conferees on the part of both 
     Houses.

  (The conference report is printed in the proceedings of the House in 
the Record of November 4, 2003.)
  The PRESIDING OFFICER. There are now 4 minutes, equally divided.
  Mrs. HUTCHISON. Madam President, I am pleased to present the fiscal 
year 2004 military construction appropriations conference report for 
the Senate's consideration. This bill provides $9.316 billion for 
military construction, family housing, and base realignment and closure 
activities for the Department of Defense for fiscal year 2004.
  The negotiations over this conference report were 
uncharacteristically long and difficult for a military construction 
bill. This difficulty stemmed from two sources. First, and quite 
simply, there is less money this year for military construction. The 
administration's request was $1.6 billion below the amount appropriated 
last year. Even with an allocation slightly above the President's 
request, this conference agreement provides $1.4 billion less than last 
year.
  Compounding this difficulty were two very different points of view 
about military construction on the part of the Senate and House this 
year. The administration is in the midst of the most sweeping 
restructuring of our overseas basing structure since the end of World 
War II. This restructuring will

[[Page 28567]]

involve the closure of hundreds of installations, the construction or 
expansion of perhaps dozens more, the return of significant numbers of 
U.S. troops to the continental United States, and major changes to the 
way our Nation stations and deploys its armed forces. This plan is 
still very much a work in progress. In testimony and briefings by 
Defense Department officials and military commanders this year--at this 
time--the scope, timing, and cost are not yet determined.
  In the face of this uncertainty, the Senate was unwilling to commit 
prematurely to all of the new construction proposed for U.S. facilities 
in Europe and Korea, and instead chose to shore up badly needed 
investment in U.S. military facilities in the United States.
  The House chose a different approach, voicing many of the same 
concerns as the Senate but agreeing nevertheless to fund most of the 
overseas construction. To pay for that construction the House made 
significant cuts to the President's priorities for domestic military 
construction spending, including nearly $50 million from already 
underfunded programs for the National Guard. These different priorities 
set the stage for the difficult conference we have just concluded.
  Fortunately, I believe we have crafted a conference agreement that 
accommodates the most pressing authorities of both chambers and the 
administration within the funding we were allocated. The Senate agreed 
to reinstate a number of projects in Europe for which our commander 
there, General Jones, made personal appeals. After hearing from General 
LaPorte, we also provided funding for two additional barracks projects 
in Korea on the condition that a facilities master plan and cost-
sharing arrangements with the Korean government are completed before 
construction on these projects begins. Funding for domestic projects 
was decreased somewhat but we were successful in reinstating $108 
million in cuts made by the House to the President's budget request, 
including over $42 million for sorely needed Guard projects. The 
conferees also agreed to create a commission that will study the 
structure of our overseas bases in light of changing political and 
military circumstances and provide Congress an independent assessment 
of our future basing requirements overseas.
  In short, the conference agreement represents what conference 
agreements usually do--a respectable compromise among competing 
priorities.
  I would like to express my deepest appreciation to the ranking member 
on the military construction appropriations subcommittee, Senator 
Dianne Feinstein of California. We have worked extraordinarily closely 
throughout this process--and through two supplemental appropriations 
bills passed this year--and I have appreciated her counsel as we have 
faced these difficult issues. Her staff, Christina Evans and B.G. 
Wright, worked hand in hand with my staff, Dennis Ward and his 
assistant, Sean Knowles. I don't think a better cross-party working 
relationship exists in the Senate. This truly has been bipartisan 
effort. They have worked together to make the very best military 
construction bill that could possibly be made.
  I thank Senator Feinstein for her engagement and willingness to work 
together for our military.
  I am pleased to present the fiscal year 2004 Military Construction 
appropriations conference report and recommend its adoption by the 
Senate.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Madam President, I thank the chairman of the 
committee with whom I have had the pleasure of working now for a number 
of years. I want to say this: She has done a fine job. There was a very 
difficult conference situation. The House and the Senate bills were 
very different. In the first place, we received $1 billion less in 
allotment to work from; that is, 14 percent less. In the second place, 
the House bill went in one direction and our bill went in another. It 
is really thanks to the chairman for her very shrewd bargaining with 
the House that we have a bill and that we have a bill as good as this 
bill is.
  This is a difficult time. We try to do the most we can with barracks 
and schools and centers for our troops both in this country and abroad.
  I want to say to those Members who had adds and had to have those 
adds cut that I am very sorry. We had to reconcile the two bills, and 
that was very difficult.
  But Senator Hutchison did a super job. I thank her very much.
  At a time when American troops are continuing to fight the enemy in 
Iraq and Afghanistan, it is imperative that Congress do its part and 
provide the funds necessary to support the infrastructure requirements 
of our service members and their families.
  I wish we could do more. The 2004 military construction conference 
report provides $9.3 billion for a myriad of mission-critical and 
quality-of-life construction projects in the United States and 
overseas, including barracks, schools, hospitals, and family housing 
units. That is the good news. The bad news is that this conference 
report is more than $1 billion below the amount Congress appropriated 
for military construction last year. And yet, as old infrastructure 
continues to deteriorate and new missions require new facilities, the 
military's infrastructure requirements are growing, not declining.
  In the process of completing this bill, the Senate conferees had to 
balance a number of meritorious projects against available funds and 
military priorities, and we had to make some tough cuts. Because of the 
scarcity of resources made available by the administration for military 
construction, and the differing philosophies between the House and 
Senate military construction subcommittees, this has been an especially 
difficult year. However, the House and Senate conferees were able to 
bridge most of their differences and provide the best package possible 
under the circumstances, and I commend Senator Hutchison for her 
perseverance in achieving that goal.
  There are many good items in this legislation. The conference report 
provides more than $5 billion for military construction, including $730 
million for the Guard and Reserve components, nearly double what the 
President had requested. The bill includes $1.2 billion for barracks, 
$176 million for hospitals and medical facilities, and $3.8 billion for 
family housing construction and maintenance.
  The legislation also establishes an Overseas Basing Commission to 
assess the adequacy of U.S. military installations overseas and to 
review the Defense Department's planned restructuring of the deployment 
of U.S. forces overseas. This could not be a more timely initiative, 
given the Defense Department's plans to make sweeping changes in the 
U.S. military footprint in Europe and Korea.
  Overseas basing issues were among the most difficult that the 
conference had to deal with this year. In the middle of the budget 
cycle, the Defense Department announced a sweeping restructuring of 
U.S. installations in Europe and Korea. I support the Defense 
Department's review of our overseas installation requirements--it is 
probably long overdue--but there are many, many elements to a 
restructuring of the magnitude envisioned by the Secretary of Defense, 
and it is not something that should be rushed. Senator Hutchison and I 
have discussed this issue at length, and I believe we both have strong 
reservations about committing billions of U.S. taxpayer dollars to a 
new overseas basing structure that is a radical departure from the 
existing footprint without first seeing a comprehensive plan for the 
redeployment of U.S. troops, and the impact it will have on 
installations here at home.
  Given the current precarious state of America's diplomatic relations 
with a number of our traditional allies, I also think the 
administration should redouble its efforts to work with governments in 
Europe and Korea to gain their support--both political and financial--
for such a massive reshuffling of U.S. bases before embarking on this 
effort.
  Even with those reservations, this conference report includes $354 
million for projects at enduring installations

[[Page 28568]]

in Europe, $169 million for the NATO Security Investment Program, which 
provides the U.S. share of funding for NATO construction projects, and 
$89 million for U.S. military projects in Korea.
  As I said before, I wish we had more resources to devote to 
infrastructure requirements for our military. The need is real, and I 
hope that the administration will request more money for military 
construction next year, so that we do not have to continue to juggle 
priorities and postpone funding urgently needed facilities.
  Again, I thank Senator Hutchison for her leadership on this 
subcommittee, and I also thank the subcommittee staff, including 
Christina Evans and B.G. Wright of the minority staff, Dennis Ward and 
Sean Knowles of the majority staff, and Chris Thompson of my staff.
  I urge my colleagues to support this measure, and I yield the floor.
  Mr. NICKLES. Mr. President, the conference report to accompany H.R. 
2559, the 2004 Military Construction appropriations bill, provides $9.4 
billion in discretionary budget authority and $10.3 billion in 
discretionary outlays in fiscal year 2004 for Military Construction and 
Family Housing appropriations. The $10.3 billion in outlays includes 
outlays from previously enacted legislation.
  The bill is $112 million in budget authority and $38 million in 
outlays above the Subcommittee's 302(b) allocation. These totals result 
from the $112 million in non-emergency funds enacted in P.L. 108-106, 
the 2004 Iraq supplemental, that count against the bill's 302(b) 
allocation. The bill provides $193 million more in budget authority and 
$15 million more in outlays than the President's budget request. The 
bill provides $1.3 billion in budget authority less and $226 million in 
outlays more than the 2003 enacted level.
  I ask unanimous consent that a table displaying the Budget Committee 
scoring of the bill be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

H.R. 2559, MILITARY CONSTRUCTION APPROPRIATIONS, 2004.--SPENDING TOTALS--
                            CONFERENCE REPORT
                     [Fiscal Year 2004, $ millions]
------------------------------------------------------------------------
                                     General
             Category                purpose     Mandatory      Total
------------------------------------------------------------------------
Conference report:\1\
    Budget authority.............        9,428            0        9,428
    Outlays......................       10,285            0       10,285
Senate 302(b) allocation:
    Budget authority.............        9,316            0        9,316
    Outlays......................       10,247            0       10,247
2003 level:
    Budget authority.............       10,751            0       10,751
    Outlays......................       10,059            0       10,059
President's request:
    Budget authority.............        9,235            0        9,235
    Outlays......................       10,270            0       10,270
House-passed bill:\1\
    Budget authority.............        9,308            0        9,308
    Outlays......................       10,320            0       10,320
Senate-passed bill:\1\
    Budget authority.............        9,308            0        9,308
    Outlays......................       10,311            0       10,311
 
  CONFERENCE REPORT COMPARED TO
 
Senate 302(b) allocation:
    Budget authority.............          112            0          112
    Outlays......................           38            0           38
2003 level:
    Budget authority.............       -1,323            0       -1,323
    Outlays......................          226            0          226
President's request:
    Budget authority.............          193            0          193
    Outlays......................           15            0           15
House-passed bill:
    Budget authority.............          120            0          120
    Outlays......................          -35            0          -35
Senate-passed bill:
    Budget authority.............          120            0          120
    Outlays......................          -26            0          -26
------------------------------------------------------------------------
\1\Includes $112 million in BA and $38 million in outlays of non-
  emergency spending (provided by the Emergency Supplemental for Iraq
  and Afghanistan, PL 108-106) that the President did not request and
  the Congress did not designate as a contingent emergency as is
  required by section 502(c) of H. Con. Res. 95, the 2004 Budget
  Resolution.
 
Note.--Details may not add to totals due to rounding. Totals adjusted
  for consistency with scorekeeping conventions.

  Mrs. HUTCHISON. Madam President, I call the question and ask for the 
yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the conference report.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards) and the Senator from Massachusetts (Mr. Kerry) are necessarily 
absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 98, nays 0, as follows:

                      [Rollcall Vote No. 448 Leg.]

                                YEAS--98

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (FL)
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner
     Wyden

                             NOT VOTING--2

     Edwards
     Kerry
       
  The conference report was agreed to.
  Mr. BOND. I move to reconsider the vote.
  Mr. REID. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Missouri.

                          ____________________




 DEPARTMENTS OF VETERANS AFFAIRS AND HOUSING AND URBAN DEVELOPMENT AND 
        INDEPENDENT AGENCIES APPROPRIATIONS ACT, 2004--Continued

  Mr. BOND. Madam President, is the pending business now the VA-HUD 
appropriations bill?
  The PRESIDING OFFICER. Yes.
  Mr. BOND. Madam President, there are about 45 seconds worth of things 
that we need to clear up, pending amendments. Then I intend to turn to 
the distinguished minority whip for the offering of an amendment, on 
which we will have a very short time limit.
  I see my colleague, Senator Mikulski, is in the Chamber.


                           Amendment No. 2156

  Madam President, I believe we have had a full debate on the Bond 
amendment. I call up the Bond amendment and ask for its adoption.
  The PRESIDING OFFICER. There are two Bond amendments pending.
  Mr. BOND. This is the Bond amendment on small engines.
  The PRESIDING OFFICER. Amendment No. 2156 is now pending.
  Mr. BOND. Madam President, I ask for its adoption.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered. The amendment is agreed to.
  The amendment (No. 2156) was agreed to.
  Mr. BOND. Madam President, I ask unanimous consent to add, as 
cosponsors, Senators McConnell, Talent, and Chambliss.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 2158

  Mr. BOND. Next, Madam President, I call up the Craig amendment on 
pesticides.
  The PRESIDING OFFICER. Amendment No. 2158 is now pending.
  Is there further debate?
  Mr. BOND. Madam President, I think we have had a full debate on that 
amendment. I know of no other debate.
  The PRESIDING OFFICER. If not, without objection, the amendment is 
agreed to.
  The amendment (No. 2158) was agreed to.

[[Page 28569]]


  Mr. HARKIN. Madam President, I am pleased to have joined Mr. Craig in 
offering this amendment to add the Pesticide Maintenance Fees 
Reauthorization Act of 2003 to the VA-HUD appropriations bill.
  The authority for the Environmental Protection Agency to collect 
these maintenance fees for the reregistration of pesticides expired 2 
years ago. Since that time, authority has been extended through riders 
on the VA-HUD appropriations bill. This amendment would provide a long-
term authorization that has been agreed to by the Senate and House 
Agriculture Committees and a broad array of stakeholders, including 
environmental and agricultural groups.
  This proposal ensures that EPA continues to collect fees from the 
industry of an estimated $20 million per year. This will cover the 
costs of reevaluating chemicals first registered prior to 1984, 
including the cost of 200 EPA employees engaged in this important work. 
The EPA has no alternative but to collect these fees or sharply reduce 
their commitment to oversight of these chemicals. A slowdown in 
consideration of these applications is neither in the interest of the 
environment, nor of the farmers or chemical manufacturers.
  This is a bill that has broad support, and it is important to get 
this done this year, so that it is in place for next year's budget. 
Adoption of this amendment will ensure that EPA has resources to 
evaluate and approve safer, more effective chemicals, and that older 
pesticides are reviewed for safety in accordance with the Food Quality 
Protection Act of 1996. I urge my colleagues to support this amendment.


                           Amendment No. 2167

  Mr. BOND. Madam President, I am going to send a very brief amendment 
to the desk that removes the emergency designation. The committee has 
reallocated funds to us so that our bill now comes within the 
allocation offered by our committee.
  Madam President, the amendment was with us in the cloakroom. I 
apologize to my colleague in the chair. Here it is. This is it.
  Madam President, I send this amendment to the desk and ask for its 
immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond] proposes an amendment 
     numbered 2167.

  The amendment is as follows:

   (Purpose: To remove the emergency designation on VA Medical Care)

       Beginning on page 9, line 20, strike ``: Provided, That'' 
     and all that follows through ``Congress'' on line 5, page 10.

  Mr. BOND. Madam President, it simply strikes the emergency clause. I 
think there is no debate on that. I ask for its immediate adoption.
  The PRESIDING OFFICER. Is there further debate?
  The Senator from Maryland.
  Ms. MIKULSKI. Madam President, I thank Senator Bond and Senator 
Stevens for working very closely with us to ensure that promises made 
to veterans are promises kept. This $1.3 billion is a dire need. I am 
ready to give my consent to this amendment, and the veterans of America 
will be happy because of it.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  If not, without objection, the amendment is agreed to.
  The amendment (No. 2167) was agreed to.
  Ms. MIKULSKI. I move to reconsider the vote.
  Mr. REID. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. BOND. Madam President, I thank my colleagues.
  Madam President, I also ask unanimous consent to add Senator Miller 
of Georgia as a cosponsor to amendment No. 2156.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Madam President, I have spoken to the two managers of the 
bill. The distinguished Senator from New Jersey, Mr. Lautenberg, has 
agreed to allow the Senators from New York and Wyoming to go forward. 
Senators Clinton and Enzi have an amendment to offer. They have agreed 
to 20 minutes equally divided, followed by a vote on or in relation to 
that amendment, with no second-degree amendments in order. I ask 
unanimous consent that be the case.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from New York.


                           Amendment No. 2152

  Mrs. CLINTON. Madam President, I thank the minority whip and the 
chairman and ranking member of the subcommittee for an opportunity to 
discuss this very important amendment.
  I call up amendment No. 2152.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from New York [Mrs. Clinton], for herself, Mr. 
     Enzi, Ms. Cantwell, Mr. Grassley, Mrs. Murray, Mr. Smith, Mr. 
     Schumer, Mr. Wyden, Mr. Harkin, Ms. Stabenow, Mr. Kerry, Mr. 
     Dodd, and Mr. Lieberman, proposes an amendment numbered 2152.

  Mrs. CLINTON. Madam President, I ask unanimous consent that reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To permit the use of funds for the Capital Asset Realignment 
for Enhanced Services (CARES) initiative of the Department of Veterans 
  Affairs for purposes of enhanced services while limiting the use of 
 funds for the initiative for purposes of the closure or reduction of 
services pending a modification of the initiative to take into account 
long-term care, domiciliary care, and mental health services and other 
                                matters)

       At the end of title I, add the following:
       Sec. 116. (a) Limitation on Use of Funds for CARES 
     Initiative.--No funds appropriated or otherwise made 
     available for the Department of Veterans Affairs for a fiscal 
     year before fiscal year 2005 may be obligated or expended to 
     take any actions proposed under the Capital Asset Realignment 
     for Enhanced Services (CARES) initiative that would result in 
     the closure of a Department of Veterans Affairs health care 
     facility, or reduction in services at such a facility, until 
     the Secretary of Veterans Affairs--
       (1) modifies the Capital Asset Realignment for Enhanced 
     Services initiative national planning procedures to require 
     that no changes be made in long-term care, domiciliary care, 
     or mental health services without a completed and separate 
     Capital Asset Realignment for Enhanced Services planning 
     process intended to assess the future demand for such 
     services;
       (2) modifies the Capital Asset Realignment for Enhanced 
     Services initiative national planning process to take into 
     account the impact that any transfer of health care services 
     under the initiative will have on the access of veterans to 
     primary outpatient care, inpatient hospital care, and 
     tertiary hospital care in rural and frontier population 
     areas, as defined by the Census Bureau, taking into 
     consideration such travel matters as road conditions, numbers 
     of lanes on roads, and seasonal changes in and other factors 
     relating to the weather;
       (3) modifies the Capital Asset Realignment for Enhanced 
     Services initiative national planning process to permit 
     veterans to testify at hearings of the Capital Asset 
     Realignment for Enhanced Services Commission and reconvenes 
     the Commission for further hearings on the initiative in 
     regions where the Commission has held hearings without 
     permitting veterans to testify;
       (4) modifies the Capital Asset Realignment for Enhanced 
     Services initiative national planning process to hold at 
     least one hearing regarding the realignment of services under 
     the initiative within 30 miles of each Department of Veterans 
     Affairs facility that would experience a realignment of 
     services under the national plan for the initiative; and
       (5) submits to Congress a report on the Capital Asset 
     Realignment for Enhanced Services initiative national 
     planning process that sets forth the results of the 
     modifications under paragraphs (1), (2), (3), and (4).
       (b) Availability of CARES Initiative Funds for Enhanced 
     Services.--Notwithstanding any other provision of law, 
     neither subsection (a) nor any other provision of law shall 
     be construed to limit the obligation or expenditure of funds 
     under the Capital Asset Realignment for Enhanced Services 
     initiative for the provision of enhanced services as long as 
     the provision of such services does not involve the closure 
     of a Department health care facility or a reduction in 
     services as such a facility.

  Mrs. CLINTON. Madam President, my cosponsor and I, Senator Enzi of 
Wyoming, are offering this amendment

[[Page 28570]]

today, which is a bipartisan amendment. The sponsors include Senators 
Murray, Grassley, Cantwell, Smith, Wyden, Schumer, Harkin, Stabenow, 
Kerry, Dodd, Lieberman, and Levin.
  Our amendment would prevent any spending directed toward closing or 
reducing services under the so-called CARES plan until this plan 
considers long-term care, domiciliary care, and mental health care, as 
well as rural health care issues.
  It would also offer veterans, many of whom have not been able to 
offer their views, a meaningful opportunity to participate in the CARES 
process.
  This amendment is supported by the American Legion, the Eastern 
Paralyzed Veterans, the Vietnam Veterans of America, and the American 
Federation of Government Employees.
  I want to be absolutely clear, this amendment does not affect, in any 
way, the CARES Commission or the VA moving forward on enhancing or 
increasing services for our veterans. It contains explicit language 
that allows enhancements under CARES to go forward.
  I know the Secretary of the Veterans' Administration, a very 
distinguished gentleman, certainly has made the case strongly to 
veterans service organizations and to my colleagues that this amendment 
would stop enhancements.
  It absolutely does not. The clear language makes it absolutely 
positive that we are not stopping enhancements. But what we are doing 
is saying: Wait a minute. The process that has ended up with 
recommending the closure of many of our VA hospitals, three of them in 
the State of New York alone, and the fact that in testifying, as my 
colleague Senator Schumer and I did before the CARES commission in 
Canandaigua, one of the hospitals that is on the target list to be 
closed, the commissioners had to admit they did not take into account 
mental health services, domiciliary services, and long-term services.
  I am hoping this amendment will help us get a handle on some of these 
decisions that appear to be ill-advised and not part of a larger plan 
aimed at helping our veterans and that, in fact, the Department would 
go back to the drawing board to develop a plan through a fair process 
that would explicitly take into account mental health, domiciliary, and 
long-term care.
  There is much to be said about this important amendment.
  I ask unanimous consent to print in the Record a letter of support 
from the American Legion.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                          The American Legion,

                                Washington, DC, November 10, 2003.
     Hon. Hillary Rodham Clinton,
     U.S. Senate, Russell Senate Office Building,
     Washington, DC.
       Dear Senator Clinton: The American Legion supports your 
     proposed amendment to S. 1584, to limit the use of funds for 
     the Capital Asset Realignment for Enhanced Services (CARES) 
     initiative of the Department of Veterans Affairs, pending a 
     modification to take into account long-term care, domiciliary 
     care, mental health care and other issues.
       As for the CARES initiative in general, The American Legion 
     supports the program. However, in doing so we continue to 
     monitor the process, share dialogue with the CARES 
     Commission, and have several times expressed concern over the 
     very issues set forth in the amendment.
       We appreciate the fact that you and your colleague, Senator 
     Mike Enzi, share the Legion's concerns on these important 
     matters.
           Sincerely,
                                              John A. Brieden III,
                                               National Commander.

  Mrs. CLINTON. The bottom line is that this process, which holds such 
promise to make sure we have the right mix of services for our 
veterans, is seriously flawed.
  On Sunday, I was with a group of veterans served by the Manhattan VA. 
Their concerns range from the blinded veteran who suffered a service-
connected loss of hearing and sight in the Vietnam war, who cannot 
possibly get to any other VA because of transportation problems, to the 
closure of important research that is being done on that campus in 
conjunction with the New York University Medical School, to the very 
serious problems raised by veterans who are getting superb mental 
health services and cannot get them anywhere else if these facilities 
are closed or the services reduced.
  I wish the VA would hear us on this. I know they are opposed to it. I 
know they are concerned about it. But the exclusion of factors 
affecting mental health and long-term care is absolutely unacceptable. 
In fact, the VA has told us that next year in the strategic plan, they 
will get to those important services. How can we be closing facilities 
and not having taken into account those services?
  I ask unanimous consent to print in the Record a letter of support 
from the Vietnam Veterans of America and the American Federation of 
Government Employees.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                  Vietnam Veterans of America,

                             Silver Spring, MD, November 12, 2003.
     Hon. Hillary Rodham Clinton,
     U.S. Senate, Russell Senate Office Building,
     Washington, DC.
       Dear Senator Clinton: On behalf of Vietnam Veterans of 
     America (VVA), I wish to thank you and Senator Michael B. 
     Enzi for your bi-partisan efforts to ensure that vitally 
     needed veterans health care facilities are not closed in a 
     precipitous manner. Your amendment to be offered to the FY04 
     VA-HUD Appropriations bill is a much needed modification of 
     the Capital Asset Realignment for Enhanced Services (CARES) 
     process that will provide for a cooling off period and full 
     public consideration before any Department of Veterans 
     Affairs (VA) medical facility is closed or services further 
     reduced. As long as the needed enhancements and new 
     construction contained in the CARES plan can proceed, VVA 
     strongly supports this amendment.
       The process of devising a mathematical formula for CARES 
     had been underway for several years before anyone in the 
     veterans service organization community knew about this 
     effort. The CARES process is ostensibly designed as a data-
     driven system. VVA has objected for more than a year to the 
     data used, and to the civilian formula that is being 
     inappropriately applied to veterans health care needs using 
     that data. The data is not a needs assessment, but rather a 
     snapshot of what services are left after six to seven years 
     of reductions in staff in the core VA area of specialized 
     services, most particularly in mental health. The original 
     civilian formula still in use does not address the special 
     medical needs of the veterans' community.
       All who served in the military practiced a very dangerous 
     occupation. Our wounds, toxic exposures, and even mental 
     health needs are dramatically different in prevalence and in 
     kind from those of the general civilian populace. The VA was 
     created to be a veterans' health care system that addresses 
     those special needs of veterans, and not just general health 
     care that happens to be for veterans. The formula that VA is 
     using estimates one to three presentations (illnesses, 
     medical conditions, or maladies) per individual, whereas 
     veterans using the VA system average five to seven 
     presentations per person. As a result, the current formula 
     will always underestimate the resources needed to properly 
     care for veterans. Although there were some adjustments made, 
     separate from the formula, to increase facilities for Spinal 
     Cord Injury (SCI) and for Blind and Visually Impaired 
     Rehabilitation, no such adjustment was made for mental 
     health.
       The formula simply does not properly address mental health 
     care needs of veterans, nor long-term care, nor the needs of 
     veterans returning from Iraq and Afghanistan. It is not 
     surprising that a disproportionate number of the targeted 
     facilities are psychiatric facilities. VVA believes that what 
     is needed is development of a veterans health care formula, 
     and a true needs assessment of the entire veterans' community 
     by geographic area.
       VVA believes in the concept of stewardship, that it is the 
     task of each of us to leave things better than we found them. 
     VVA understands and supports the impetus of Senators Bond and 
     Mikulski to force the VA to plan for future needs before 
     providing any further construction funds for facilities that 
     might be abandoned in just a few years. This is what led to 
     the CARES process.
       VVA also is grateful to Secretary of Veterans Affairs 
     Anthony J. Principi for his response to the concerns of the 
     veterans' community about CARES. VVA is also grateful to 
     CARES Commission Chair Everett Alvarez and the other 
     distinguished members of that body for their work in trying 
     to ameliorate the results of the inappropriate formula and 
     bad data. We also recognize that the process is not yet over.
       However, even though the CARES process is not yet finished, 
     the fact that mental

[[Page 28571]]

     health facilities have been so prominently and 
     inappropriately targeted for closure is ample cause for 
     alarm. It is important to note that the chair of VA Advisory 
     Committee on Serious Mental Illness testified before the 
     CARES Commission hearing held in the Russell Senate Office 
     Building in September 2003 that 65 percent of the 
     organizational capacity that VA possessed in 1996 for mental 
     health care is now gone.
       It is also important to note that the dire shortage of 
     funding of the veterans health care system, which has become 
     a structural shortfall that is widening with each passing 
     year, is contributing to the distortions of plans for proper 
     care for all eligible and much deserving veterans in the 
     nation, both rural and urban residents. After adding 
     additional funds to the VA-HUD Appropriations bill for 2004, 
     currently under consideration, we urge that the Senate work 
     with the President to move to address this gross and growing 
     scarcity of resources at VA medical facilities.
       In summary, VVA supports the amendment you plan to propose, 
     along with Senators Enzi, Kerry, Dodd, Lieberman, Cantwell, 
     Grassley, Murray, Smith, Schumer, Wyden, Harkin, Stabenow, 
     Kerry, Levin, and others that would have the effect of 
     preventing any closures until further consideration can be 
     given as to whether these proposed closures or diminishment 
     of staff are indeed in the best interest of our nation's 
     veterans. It is our understanding that this amendment does 
     not mean that any of the enhancements, remodeling, or 
     construction in the proposed CARES plan will be delayed or 
     stopped.
       Again, thank you and Senator Enzi for your strong 
     leadership on this issue.
           Sincerely,
                                                  Thomas H. Corey,
     National President.
                                  ____

                                            American Federation of


                                Government Employees, AFL-CIO,

                                Washington, DC, November 12, 2003.
       Dear Senator: On behalf of the American Federation of 
     Government Employees, AFL-CIO, which represents 600,000 
     government employees, including 150,000 employees in the 
     Department of Veterans' Affairs (VA), I strongly urge you to 
     support the bipartisan amendments on CARES offered by Senator 
     Hillary Rodham Clinton (D-NY) and Senator Michael Enzi (R-
     WY).
       Under VA's planning process--Capital Assets Realignment for 
     Enhanced Services--known as CARES, the VA is proposing to 
     close VA nursing homes, domiciliaries, and inpatient mental 
     health care beds without fully considering how the VA will 
     meet the surging long-term care needs of elderly veterans or 
     the needs of homeless veterans. The Clinton-Enzi amendment 
     would allow the VA to spend funds to improve and repair 
     facilities but would hold in abeyance the expenditure of 
     funds to close or reduce services at VA facilities until the 
     CARES process addresses VA's needs for nursing home care 
     facilities, domiciliaries and mental health care delivery.
       VA's own data projections indicate that in order to meet 
     the current and future health care needs of elderly veterans 
     the VA will need roughly 17,000 additional nursing home beds 
     by 2022. The current CARES proposals target nursing home beds 
     for closure without considering how the VA will meet the 
     surging demand for veterans' nursing home and adult day care.
       Veterans deserve access to quality care. Congress must make 
     sure that VA plans for current and future veterans' demand 
     for nursing home care, mental health services and supportive 
     environments like domiciliaries.
       AFGE strongly urges you to vote yes for the Clinton-Enzi 
     amendment on CARES. If you have any questions, please contact 
     Linda Bennett at 202-639-6456.
           Sincerely yours,

                                                   Beth Moten,

                                                         Director,
                      Legislative and Political Action Department.

  Mrs. CLINTON. In summary, I am offering this amendment because I 
believe that the Draft National CARES Plan and the process used to 
develop it are deeply flawed. The Plan has not adequately taken into 
account the impact of these proposals on long term care, domiciliary 
care and mental health services. The Development of Veterans Affairs 
needs to go back to the drawing board and develop its plan through a 
fair process that takes into account all relevant factors and allows 
veterans to fully participate in the plan's development.
  At this time in our nation's history, with U.S. troops bravely 
serving in Iraq, Afghanistan and elsewhere, it sends exactly the wrong 
message to propose such drastic changes in veterans' health care 
without proper throught and deliberation. Our troops are fighting 
overseas to defend our values and way of life. We owe it to our current 
and future veterans to make sure that we provide the best health care 
possible for them and not rush to implement recommendations that 
provide our veterans with less adequate health care.
  As a starting point, our bottom-line goal should be the delivery of 
high quality health care services to our veterans, delivered as 
efficiently as possible. Unfortunately, the hasty procedures that the 
Department of Veterans Affairs followed to develop these 
recommendations are fundamentally flawed.
  Veterans' health care is too important an issue to require an 
adherence to artificial deadlines and hasty recommendations. With 
literally the lives of veterans at stake, the Commission should not 
engage in a rush to judgment over closing VA facilities.


   failure to consider long term, domiciliary and mental health needs

  As a result of the flawed CARES process, several important factors 
that are critical to veterans' health care have been neglected. In this 
rushed process, the impact of the proposed changes to long-term care, 
domiciliary care and mental health needs were not considered. The 
exclusion of these important factors taints the recommendations of the 
draft national plan. For example, the Draft National CARES Plan states 
that its mental health outpatient psychiatric provisions are 
``undergoing revision'' and ``should be available for next year's 
strategic planning cycle.'' As you can see from this panel, we found a 
speech on the VA web site in which then-Deputy Secretary Mackay 
admitted in April that ``As you are also aware, there have been aspects 
of care that have been left out of his CARES plan. Long-term care, 
domiciliary care, and outpatient mental health care were all determined 
to need more work before reliable forecasts could be made.''
  Incredibly, despite this admission, the Draft National CARES Plan 
proposes reductions in beds in facilities that provide mental health 
services. Similarly, there is widely expected to be an increase in the 
demand for long term beds for veterans over the next 20 years. However, 
the Draft National Plan does not contain any analysis of how many long-
term beds are needed in the coming decades and yet still recommends 
closing facilities with long-term beds.
  During a meeting between members of the New York delegation and VA 
Secretary Anthony Principi a few weeks ago, Secretary Principi 
acknowledged that a plan for long-term psychiatric needs has not yet 
been developed. With all due respect to Secretary Principi and the 
Commission, it seems to me that developing a Draft National Plan before 
developing a plan for mental health needs is getting it exactly 
backwards. A plan for addressing mental health care should have been 
developed before the Draft National Plan was released, not after.
  The Draft National Plan's failure to consider long-term mental health 
care has disastrous implications for veterans around the country, 
including thousands in New York. One of the facilities targeted by the 
CARES plan is the VA hospital in Canandaigua. I have visited the VA 
Hospital at Canandaigua and was greatly impressed by the quality of 
care provided at the facility as well as the overwhelming support that 
the VA hospital has in the community. And indeed, it is a cruel irony 
that Canandaigua has been recommended for closure in the same year that 
it received the highest facility rating in patient satisfaction in the 
country.
  The omission of mental health care needs from the Draft National Plan 
is particularly striking because of the effect that the closure of the 
Canandaigua VA will have on the veterans with mental health care needs 
who are currently receiving care at the facility. Veterans at 
Canandaigua receive a specialized level of treatment for mental health 
illness that is not readily available at other facilities. Further, if 
the Canandaigua VA were to close, many veterans would be forced to 
drive long distances for care. As my colleague Senator Enzi has pointed 
out, the CARES national plan has not adequately taken into account the 
impact of the recommendations on rural health care.

[[Page 28572]]

  The Draft National CARES Plan for VISN 3 recommends eliminating all 
inpatient services at Montrose VA hospital and transferring most of 
these services to the Castle Point VA hospital. A decision to follow 
through on this recommendation would be a serious blow to veterans who 
currently rely on the Montrose VA hospital for their care.
  As I mentioned previously, the need for long term beds has not been 
properly assessed and current projections forecast that there will be a 
significant increase in the need for psychiatry beds through 2012. In 
order to ensure adequate capacity to handle the projected case load, 
local veterans organizations support retaining all services at Montrose 
and Castle Point.
  Moving inpatient services from Montrose to Castle Point will require, 
by VA's own admission between $85 and $100 million and take at least 5 
and maybe as many as 10 years to accomplish. However, the Draft 
National CARES plan provides no explanation for what will happen to 
services at Montrose in the meantime. Further, there is no analysis of 
how veterans will get services if future budgets do not include enough 
funds for the transition. The often substantial waiting periods that 
veterans living in this region already experience at the Montrose and 
Castle Point Campuses and their satellite facilities underline the 
strain the system is experiencing.
  The Draft National CARES Plan will also have a significant impact on 
the Castle Point VA. Wait times at Castle Point are already too long. 
With the closure of Montrose and the shifting of veterans to Castle 
Point, the wait times are likely to get even worse. In addition, many 
area veterans have questioned the adequacy of space available for 
expansion at Castle Point.
  The CARES Draft National Plan recommends developing ``a plan to 
consider the feasibility of consolidating inpatient care [from 
Manhattan] at Brooklyn.'' Yet, once again there is no requirement that 
the development of this ``plan'' solicit the input of veterans. 
Further, the proposal does not properly take into account how the 
consolidation of inpatient care in Brooklyn will impact the 
relationship between the New York University School of Medicine (NYU) 
and the Manhattan VA. The NYU-Manhattan VA relationship, and the high 
quality of care for veterans it produces, would be imperiled by the 
potential closure of the Manhattan VA.
  Finally, the practical matter of transportation deserves an important 
role in your deliberations. The high quality tertiary services at the 
Manhattan VA attract veterans from New York, and other states including 
New Jersey and Pennsylvania. One of the reasons the Manhattan VA is 
able to serve these veterans is its amazing accessibility, located, as 
it is, in the heart of Manhattan, at the center of a mass transit 
system that is unmatched anywhere else in the Nation.
  Since the release of the CARES Draft National Plan, a frequent 
complaint that I have heard from area veterans has been that the VA has 
not been listening to their concerns. Veterans who contributed to the 
VISN 2 market plan, which called for no closures in VISN 2, feel 
betrayed by the decision to overrule the market plan and call for this 
facility's closure.
  Further, the VA did not hold hearings near many facilities on the 
closure list around the nation. Our amendment would require new 
hearings within 30 miles of a facility where a reduction in services is 
proposed and require that veterans be allowed to testify.
  In meeting with the veterans of New York, I have learned a tremendous 
amount about the value of the New York VA facilities and the quality of 
health care that is delivered there. And as letters to my office from 
veterans who use the facility demonstrate, the veterans' community in 
New York is united behind keeping these facilities open.
  One veteran who wrote to me explained that he suffered a massive blow 
to the head while serving in the Marines and suffers from Organic Brain 
Syndrome and Organic Affective Disorder. He currently uses the 
Canandaigua VA's day treatment program. He wrote to me that ``I have a 
lot of difficulty with my short term memory and the thought of losing 
one of the places that I am most familiar with bother me. . . . [I]t 
has taken a long time but I have finally reached a little bit of 
independence. By losing this hospital, I will be losing that 
independence. Also, the place that I live is very rural and there are 
no other facilities in my area. The idea of sitting around the house 
day after day depresses me.''
  Another veteran from Rockland County wrote to me about the potential 
closure in Montrose stating that ``I was wounded in 1944 during World 
War II by shrapnel in the mouth causing the loss of several teeth. In 
early 1945, I was captured by German soldiers and held as a POW until 
the end of World War II. . . if [Montrose] were to close, I would have 
to travel an additional 45 minutes to one hour depending on weather for 
treatment at Castle Point VA Hospital. I am 84 years old and 
transportation is getting more difficult for me. As you know there is 
no public transportation to this facility.''
  Our Nation's veterans have served their country with distinction. Our 
nation made a pact with those who serve their country in the Armed 
Forces--a commitment that those who served would have access to quality 
health care through the VA hospital system. Yet this ill-considered and 
rushed Draft National CARES Plan threatens to undermine our commitment 
to our nation's veterans. That is we are this offering legislation in 
the Senate to halt any spending towards closure or reduction in 
services until long-term, domiciliary, mental health care and rural 
care are adequately considered and veterans are allowed to fully 
participate in the CARES process. If this amendment passes, the 
Department of Veterans Affairs and the CARES Commission can begin anew 
by taking into account the proper factors and input from veterans. I 
urge my colleagues to support the Clinton-Enzi amendment.
  I also ask unanimous consent to print the letter from the Eastern 
Paralyzed Veterans Association.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                 Eastern Paralyzed


                                         Veterans Association,

                                                November 10, 2003.
     Hon. Hillary Rodham Clinton,
     U.S. Senate,
     Washington, DC.
       Dear Senator Clinton: The Eastern Paralyzed Veterans 
     Association strongly supports your proposed amendment to S. 
     1584, the FY 2004 VA-HUD Appropriations Bill to prohibit the 
     Department of Veterans Affairs (VA) use of appropriated funds 
     for the implementation of the VA's Capital Asset Realignment 
     for Enhanced Services (CARES) initiative until CARES 
     addresses such vitally important issues as mental health 
     care, long term care, domiciliary care, and other outstanding 
     issues. We have closely monitored the CARES process since its 
     inception and, while we agree with VA that infrastructure 
     analysis is necessary, we cannot support the National plan 
     currently being considered for implementation until these 
     concerns are addressed, as would be required by your 
     legislation.
       From the outset, VA has claimed that CARES would be a data 
     driven process with sound and justifiable conclusions and 
     proposals. Unfortunately this has not been the case. VA has 
     refused to run data on its mental health programs and has 
     maintained that CARES would not impact on this population. 
     Despite these claims, 12 of the 14 VA facilities slated for 
     closure or discontinuation of in-patient services have a 
     major psychiatric service component. Additionally, the CARES 
     National plan includes nothing with regard to long term and 
     domiciliary care; two services that VA is Congressionally 
     mandated to provide over the next twenty years. Finally, the 
     data that was used to formulate the National plan completely 
     excluded veterans in Priority Groups 7 and 8 from the twenty-
     year projected usage data. By excluding Priority 7 and 8 
     veterans from the CARES projections, VA is creating a system 
     that will be unable to treat these veterans. This cannot be 
     allowed to occur.
       While CARES was well intentioned, the fact that this 
     process has so many flaws on so many levels forces us to 
     oppose it until these issues are addressed. Your amendment 
     would require just that. Eastern Paralyzed Veterans 
     Association is grateful that you, together with Senator Mike 
     Enzi, will introduce this amendment to insure that these 
     issues are dealt with before allowing the process to advance. 
     Thank you.
           Sincerely,
                                                  Gerard M. Kelly,
                                               Executive Director.


[[Page 28573]]

  Mrs. CLINTON. I see my colleague and partner Senator Schumer. I yield 
to him such time as he needs.
  Mr. SCHUMER. I thank my colleague from New York and all of those who 
have worked so hard. I plead to my colleagues, the CARES Commission had 
a good idea. Let's study and see how we can make health services better 
for veterans. But looking at what they recommended in New York State, 
something went amuck; to close the Canandaigua Hospital makes no sense 
whatsoever. It is desperately needed by so many veterans. It is a 
fountain point of the community, and it does special work in mental 
health and psychological services that no hospital within miles and 
miles and miles around, tens of miles, hundreds of miles around, can 
do.
  All we are asking is a chance. Let the CARES Commission go back to 
the drawing board and figure out what they did wrong. Let them look at 
what they have done wrong in New York in terms particularly of 
Canandaigua but also of Montrose and the Manhattan VA hospital where 
anyone who looks at it up close sort of scratches their head in 
wonderment and says: How did they come up with these recommendations? 
This is a bipartisan bill. It does not stop any kind of restructuring 
except for the fact that it says: Go back and look at other factors 
they seem to have missed.
  It is desperately needed in many parts of the country. The veterans 
groups of America are totally for this amendment.
  This Chamber and the other just voted for $87 billion for Iraq. 
Whatever one's opinion of that was, how can we at the same time turn 
our backs on so many of those veterans who fought in other wars? I know 
the intentions of the commission may have been good, but the effect, at 
least in our State, is to do just that. It is to turn its back on tens 
of thousands of veterans who served their country, many of whom were 
wounded in the course of battle.
  This is a pro-veteran amendment, supported by veterans throughout the 
country. I urge my colleagues to support it.
  I thank my colleague from New York for the great job she has done. We 
have worked as a team to try to prevent this from happening. This 
amendment gives us a good opportunity to go back and reargue. We hope 
our colleagues will support it.
  Mrs. CLINTON. Madam President, this is an issue that affects veterans 
across our country. My cosponsor, Senator Enzi, is concerned 
particularly about the impact on his veterans who live in rural areas 
and are not going to be able to travel the long distances that will be 
required if services are reduced, if facilities are closed. I know my 
colleagues from Iowa, Michigan, Washington, Oregon, Texas, in addition 
to Wyoming, have asked for similar relief.
  I hope my colleagues who are in States that, under this process, are 
in line to get enhancements and increases will vote for this because it 
doesn't affect your enhancements. It does not affect your increase, but 
it gives those of us who have mental health needs, who have rural 
health needs, who have domiciliary and long-term health needs the 
opportunity to get this process right and to fix the problems that 
would lead to the closure and reduction of services that are so needed 
in so many States for so many veterans.
  I hope this amendment will find favor with my colleagues and will 
give those of us who are particularly on shaky ground because of the 
recommendations of this commission a chance to have a more rational 
process that really takes into account the needs of our veterans.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. ENZI. Mr. President, I am pleased to be a cosponsor of this 
amendment and I hope to clarify some of the reasons I believe every 
Senator should support our efforts.
  I think everyone in this Chamber agrees on the importance of our 
national veterans community. Just yesterday ceremonies throughout the 
Nation and speeches here on the Senate floor paid tribute to those who 
have been willing to sacrifice so much. When young men and women 
volunteer their lives for the fight for freedom and democracy we, as a 
nation, promise to take care of them.
  The amendment Senator Clinton introduced today addresses the Capital 
Asset Realignment for Enhanced Services or CARES process from the 
Department of Veteran's Affairs.
  I believe the intent of the CARES process is good. If we can clear up 
some of the unused space in the VA health care system and remove 
redundancy in services, we can save money and put it towards effective 
health care for our veterans. I do not believe, however, that rushing 
into changes for the sake of making changes is a good policy. How can 
we expect good changes to come from a broken system?
  There is no doubt in my mind that the CARES Commissioners have the 
best interests of veterans at heart. I believe that given enough time 
and proper information, they will be able to make changes in veterans 
health care that will fully benefit current and future veterans for 
years to come. I must admit, however, that they currently have neither 
the time nor the proper information to make good changes.
  Now, let's be clear about what this amendment does and does not do. 
It does not prevent the CARES process from moving forward. It does not 
prevent improvements from being made or new hospitals from being built. 
It does not kill the CARES initiative.
  It does require the VA to commit to a separate process for long-term 
care, domiciliary care, and mental health care needs. It does require 
the VA to confirm that they have examined local travel factors such as 
road and weather conditions. It does require the CARES Commission to 
hold hearings within 30 miles of each facility targeted for a closure 
or a reduction of services and it requires veteran participation in 
these hearings.
  Let me touch on a couple of these requirements. One is that there be 
a CARES Commission hearing within 30 miles of every facility facing a 
realignment of services under the national plan.
  We recently had a CARES hearing in Cheyenne, WY near the Cheyenne VA 
Medical Center. I think the hearing went extraordinarily well. The 
veterans who attended where given an opportunity to understand more 
about the future of their health care. Likewise, the CARES 
Commissioners were able to hear the veteran's concerns through the 
veterans service organizations. Just holding a hearing in Denver about 
reducing services in Cheyenne--a town more than 100 miles away--would 
have sent a strong statement to Wyoming veterans that the VA cared 
neither for their health nor their opinions.
  I believe each facility and community should have the opportunity to 
have this same interaction. Each community should be able to understand 
what the changes will mean for them and what differences in services 
the veterans will face. I now the burden falls to the CARES 
Commissioners to attend and consider the testimony at these additional 
hearings, but I believe they will then be better informed about the 
decisions they will need to make.
  I also want to point out the travel issue in the amendment. I think 
we all realize the difficult nature of taking weather into 
consideration nationally. After all, northern Wyoming's winter and 
southern Florida's winter are hardly the same. What this part of the 
amendment intends to do is ensure that the local factors were 
considered when drafting the national plan. Distance cannot be the only 
factor considered--we all know that even in Washington, DC, 30 miles 
travel distance doesn't mean 30 minutes travel time.
  Let me say again, this amendment does not stop the CARES process. It 
merely requires the VA to consider a couple of factors that we believe 
should have been considered from the very beginning.
  I know letters from some veterans service organizations may have 
raised concerns for my colleagues about our amendment. these 
organizations were

[[Page 28574]]

able to meet with the Secretary of Veterans Affairs and had many of 
their worries addressed. the Secretary told them that no services would 
be reduced until replacement services are fully available. He also 
stressed that no net changes would be made in long-term care, 
domiciliary care, or mental health care.
  I think this meeting was a great idea. It is, however, a shame that 
it took news of this amendment to get the VA, moving. I am very glad 
that the veterans organizations had the opportunity to meet with the 
Secretary. Through this amendment we are trying to make sure the VA 
addresses the concerns of Congress. We are just trying to make sure 
that the promises made are promises kept.
  Again, I want to reiterate my support for the CARES Commissioners 
themselves. They are doing their best to make good decisions in a 
broken system. I appreciate their patience and most of all their 
willingness to serve America's veterans. I urge my colleagues to 
support the amendment.
  Mr. REID. Madam President, I rise to speak against this amendment, 
and in support of the CARES process.
  As many Senators are aware, Nevada has experienced unprecedented 
growth over the last decade. In Clark County alone, the home of Las 
Vegas, 14 new schools are constructed each year to keep up with the 
approximately 8,000 people that move to the county each month.
  The growth in our veterans population has been just as rapid. With 
approximately 245,000 veterans, Nevada has the second highest 
concentration of veterans in the country. Only Alaska ranks higher.
  About 176,000 of Nevada's veterans have served in a war: 18 percent 
in the Gulf War, 49 percent in Vietnam, 21 percent in Korea, and 21 
percent in World War II. Many of our veterans even served in multiple 
wars.
  Therefore, Nevada's veterans have been combat-tested. And 
regrettably, the average age of our veterans' population is growing 
older each year. The rising average age, coupled with the many years of 
often very harsh service to defend our Nation's freedom, has placed a 
tremendous strain and great demand on the veterans health care system 
in Nevada.
  More than 70,000 veterans are enrolled in the Reno and southern 
Nevada VA health care facilities, with more coming in each day. We have 
an excellent VA hospital in Reno, but other parts of northern Nevada 
are underserved. And the Las Vegas area continues to be one of the most 
densely populated regions of the country for veterans seeking quality 
health care and one of the most severely underserved.
  In the past several years, the VA has not kept pace with the demand 
and growth in our State. Long lines, prolonged waiting times, old and 
crowded facilities: this is no way to provide health care to our 
courageous veterans, and it is no way to deal with the population 
explosion in Nevada.
  So when this subcommittee called for a new plan and independent 
commission to examine the VA's resources and reallocate resources based 
on the greatest demand, I applauded that action. I also welcomed VA 
Secretary Tony Principi's active role and interest in supporting 
Nevada. He has been an honest advocate for our Nation's veterans, and a 
bright spot in the President's cabinet.
  It came as no surprise to me that the CARES plan, which is the 
subject of this debate, found Nevada to be dramatically underserved by 
the VA.
  The draft CARES plan contains $130 million in upgrades to improve 
health care facilities for the veterans who live in Nevada.
  The plan also calls for the construction of a major medical center, 
clinic and nursing home in the Las Vegas area. This new hospital is 
only one of two hospitals recommended in the entire VA plan. I credit 
our hardworking VA staff in Nevada and the thousands of veterans 
themselves for making sure that the CARES Commission got the message 
about Nevada's desperate needs.
  Therefore, I must oppose any effort to delay, derail or diminish the 
CARES process and the money and resources that would flow to the 
veterans in my State under the draft plan.
  I have the greatest respect and admiration for the Senator from New 
York. I understand her concerns, and the concerns of other senators, 
about certain CARES recommendations that will impact other States. But 
these concerns should be addressed directly with the VA, and not by 
cutting off appropriations to the VA for the CARES process to continue.
  The veterans of Nevada can't wait much longer for the upgrades and 
new facilities that they desperately need and deserve.
  I therefore will vote against this amendment, and I would urge my 
colleagues to do the same.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Madam President, how much time remains?
  The PRESIDING OFFICER. There are 10 minutes in opposition.
  Mr. BOND. Madam President, I yield myself 7 minutes, and I reserve 
time for my colleague.
  I rise in strong opposition to the Clinton-Enzi amendment. It would 
deny up to $1 billion in funds to support our Nation's veterans. I 
especially object to the amendment because it would likely extend 
waiting lines for veterans already waiting for medical care.
  Before I go into further explanation, I ask unanimous consent to 
print in the Record letters from the Veterans of Foreign Wars, Amvets, 
Disabled American Veterans, and the Paralyzed Veterans of America.
   There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                          Veterans of Foreign Wars


                                         of the United States,

                                 Washington, DC, November 6, 2003.
     To: All Members of the U.S. Senate.
     From: Robert E. Wallace, Executive Director, VFW Washington 
         Office.
     Re: Clinton/Enzi amendment to H.R. 2861.

        On behalf of the 2.6 million members of the Veterans of 
     Foreign Wars of the United States (VFW) and our Ladies 
     Auxiliary, I would like to take this opportunity to urge you 
     to oppose the Clinton/Enzi Amendment to H.R. 2861, the FY 
     2004 VA/HUD Appropriations bill.
        This amendment would limit the use of funds for the 
     Capital Asset Realignment for Enhanced Services (CARES) 
     initiative. The VFW is concerned that if this amendment 
     passes, the CARES process will essentially be put on 
     indefinite hold.
        We share Senators Clinton's and Enzi's concerns regarding 
     long-term care, domiciliary care, and mental health services; 
     however, it is our understanding that the CARES Commission is 
     currently reviewing the data to include these services. 
     Therefore, at this stage, we believe it is important to move 
     ahead as the location and mission of some VA facilities need 
     to change to improve veterans' access; to allow more 
     resources to be devoted to medical care, rather than the 
     upkeep of inefficient buildings; and to adjust to modern 
     methods of health care service delivery. Our nation's 
     veterans deserve no less.
        Again, I urge you not to support the Clinton/Enzi 
     Amendment regarding the limiting of funds for the VA CARES 
     initiative.
                                  ____

                                                           AMVETS,
                                     Lanham, MD, November 7, 2003.
     To: All Members of the U.S. Senate.
     From: S. John Sisler, National Commander.
     Re: Consideration of CARES amendment in VA/HUD appropriations 
         bill.

        It is our understanding that Sen. Hillary Rodham Clinton 
     may offer an amendment to S. 1584, the VA/HUD appropriations 
     bill, that would block the Department of Veterans Affairs 
     from spending any money to enact the CARES Commission 
     recommendations.
        On behalf of the nationwide membership of AMVETS (American 
     Veterans), I write to express our strong opposition to Sen. 
     Clinton's proposed amendment aimed to stop progress of the 
     Department of Veterans Affairs National Capital Asset 
     Realignment for Enhanced Services (CARES) Plan.
        The CARES initiative is clearly needed to assess what 
     facilities will best meet the healthcare needs of America's 
     veterans. AMVETS believes that adoption of the amendment 
     would further delay moving forward with construction projects 
     that are obviously essential to patient safety and that will 
     eventually pay for themselves as a result of modernization.
        AMVETS agrees with the Department of Veterans Affairs that 
     many of their facilities need to be upgraded or replaced. We 
     also agree with the Department that part of the solution for 
     providing high quality health care to America's veterans is 
     upgrading some facilities and replacing others with new

[[Page 28575]]

     and modern medical care treatment facilities.
        AMVETS and I ask that you oppose any amendment that would 
     cause the VA National CARES process to be used as an excuse 
     to defer vital infrastructure maintenance and construction 
     projects.
                                  ____



                                   Disabled American Veterans,

                                 Washington, DC, November 7, 2003.
     Hon. Hillary Rodham Clinton,
     U.S. Senate,
     Washington, DC.
       Dear Senator Clinton: On behalf of the more than one 
     million members of the Disabled American Veterans (DAV), we 
     write to express our concern over your proposed amendment to 
     limit the use of funds for the Department of Veterans Affairs 
     (VA) Capital Asset Realignment for Enhanced Services (CARES) 
     initiative, pending modification of the initiative to include 
     long-term care, domiciliary care, and mental health services 
     in addition to reconvening the Commission for further 
     hearings.
       Intially, please know that preservation of the integrity of 
     the VA health care system is of the utmost importance to the 
     DAV and our members, and we greatly appreciate your efforts 
     and insistence that long-term care, domiciliary care, and 
     mental health services are included in the CARES initiative. 
     These specialized programs are an integral part of providing 
     sick and disabled veterans comprehensive health care. 
     However, we are concerned your amendment may completely stall 
     the CARES process and prohibit VA from making the necessary 
     changes to improve its health care system and enhance access 
     and services for veteran patients.
       As you are aware, over the past seven years, following 
     national trends, VA's Veterans Health Administration 
     converted from a primarily hospital-based system to an 
     outpatient focused health care delivery model. With these 
     sweeping changes, there clearly came a need to reassess VA's 
     physical structures and the need to realign, renovate, and 
     modernize VA facilities to meet the changing health care 
     needs of veterans today and well into the future. Many VA 
     medical facilities have an average age of 54 years and are in 
     critical need of repair. Unfortunately, VA's construction 
     budget has decreased sharply over the last several years with 
     political resistance to fund any major projects before a 
     formal plan was developed. VA responded with the CARES 
     initiative. However, many desperately needed construction and 
     maintenance projects, including seismic repairs that could 
     potentially compromise patient safety, have been 
     unnecessarily delayed. DAV strongly believes that CARES 
     should not distract VA or Congress from its obligation to 
     protect its physical assets whether they are to be used for 
     current capacity or realigned.
       On a national level, DAV firmly believes that realignment 
     of capital assets is critical to the long-term health and 
     viability of the entire VA health care system. We do not 
     believe that restructuring is inherently detrimental to the 
     VA health care system. However, we will remain vigilant and 
     press VA to focus on the most important element in the 
     process, enhancement of services and timely delivery of high 
     quality health care services to our nation's sick and 
     disabled veterans.
       VA Secretary Anthony J. Principi met with DAV and other 
     veterans service organizations this morning and gave us his 
     personal commitment that there would be no realignment or 
     reduction in services as a result of CARES for mental health 
     or long-term care until a definitive plan is developed and in 
     place to absorb the workload for these specialized services. 
     His promise to us satisfies our over-arching concern about 
     the inclusion of these essential programs. Therefore, we 
     believe the CARES process should be allowed to proceed at 
     this critical juncture.
       Again, we want to thank you for your efforts on CARES and 
     for your strong leadership and support of veterans' issues. 
     We very much look forward to continuing a positive and 
     meaningful working relationship with you regarding matters of 
     great importance to veterans. We hope that you will 
     reconsider your position on this issue based on these new 
     developments.
           Sincerely,

                                              David W. Gorman,

                                               Executive Director,
     Washington Headquarters.
                                  ____



                                Paralyzed Veterans of America,

                                 Washington, DC, November 7, 2003.
     Members,
     U.S. Senate,
     Washington, DC.
       Dear Senators: On behalf of the Paralyzed Veterans of 
     America (PVA) I am writing to express our concerns regarding 
     an amendment we understand will be offered by Senator Hillary 
     Rodham Clinton to the VA, HUD, Independent Agencies 
     Appropriation bill. As we understand, this amendment 
     addresses the Department of Veterans Affairs' Capital Asset 
     Realignment for Enhanced Services (CARES) process and, if 
     passed, will limit the expenditure of funds for the process 
     greatly delaying necessary improvements to the VA's medical 
     care system.
       While PVA concurs with Senator Clinton that the CARES 
     process inadequately addresses issues of long-term care, 
     mental health services and rural health care we believe that 
     the amendment will so severely restrain the process that the 
     many beneficial aspects of CARES will be seriously harmed. 
     Delay of CARES projects that will benefit veterans, and in 
     particular veterans with spinal cord injury or dysfunction, 
     can only serve to weaken the VA health care system upon which 
     our members and millions of other veterans rely.
       Veterans' service organizations have received assurances 
     from Secretary of Veterans Affairs Anthony Principi that no 
     VA beds will be closed or capacity reduced until appropriate 
     alternative health care resources have been identified and 
     put in place. Additionally, the Secretary has assured us that 
     long term care and mental health services will be included in 
     the planning process with specificity to be provided as to 
     who will be involved, how the process will operate and what 
     timelines will be put in place. Finally the Secretary has 
     indicated that the issue of inter-VISN (Veterans Integrated 
     Service Network) planning and cooperation will be addressed.
       In light of these assurances and the need to proceed with 
     the positive findings, to date, of the CARES process, PVA 
     believes any restrictions on funding for the CARES process 
     can only serve to delay improvements in capacity and access 
     of VA health care. We request that no limitation be placed on 
     appropriated dollars for the Department of Veterans Affairs 
     and that the CARES process be allowed to expeditiously move 
     forward.
           Sincerely,
                                              Delatorro L. McNeal,
                                               Executive Director.

  Mr. BOND. These organizations all oppose the Clinton-Enzi amendment 
because they understand the problem the VA has.
  In 1999, the General Accounting Office found that VA could spend 
billions of dollars operating hundreds of unneeded buildings over the 
next 5 years. The GAO reported that the VA wastes more than $1 million 
per day on medical care funds for unneeded infrastructure instead of 
direct patient care. This money could be used to provide medical care 
to over 100,000 veterans.
  Our committee, the VA-HUD committee, after the GAO report, directed 
the VA to do something about it, to develop a comprehensive strategy. 
Thus, in 1999, under the Clinton administration, the VA created the 
CARES Commission to address this concern.
  I have traveled around the State of Missouri. I have seen firsthand 
the need for construction funds to update surgical and intensive care 
units. By the way, I gave at the office. One of the first closures the 
VA instituted was of a surgery center in the State of Missouri because 
they weren't doing enough surgeries to be proficient. I believed our 
veterans needed the best care. So now we have a primary care facility 
and we send them to a surgical hospital where they do enough surgeries 
to be proficient and safe.
  We know we have different needs from veterans than when the VA was 
set up many years ago. The Clinton-Enzi amendment would deny over $600 
million in construction funds to build new hospitals in States such as 
Nevada, Florida, and Colorado. It would deny funds to address safety, 
seismic and other deficiencies for facilities in Kentucky, California, 
Colorado, Ohio, Pennsylvania, and others. It would deny construction of 
48 new community-based outpatient clinics.
  It would deny funding for 37 nursing home investments, such as 
construction of new nursing homes in West Virginia and Pennsylvania. 
This is not a fatally flawed process. I cannot agree with the assertion 
of the Senator from New York. In an October 27 letter to all Senators, 
this year Secretary Principi outlines the great extent to which he has 
gone to ensure that the process and review be thorough at every stage. 
Local veterans groups, union officials, as well as affiliate 
representatives participated directly in the development of these 
plans.
  The CARES Commission received more than 169,000 public comments. I 
take exception to the characterization of the plan as a ``cost 
cutting'' plan. The draft proposes to spend $4.6 billion in 
construction funds to expand services. It preserves more than 97 
percent of the current bed capacity. Further, the draft plan provides 
for no reduction in VA capacity to provide domiciliary or long-term 
care, including long-term mental health care. Let me repeat that. The 
draft plan provides for no reduction in VA capacity to provide 
domiciliary or long-term care, including long-term mental health care.

[[Page 28576]]

  In some areas, the draft plan would increase overall bed capacity. In 
New York State, the realignment would increase overall bed capacity by 
about 10 percent. The CARES Commission has held field hearings, and the 
Senator from New York has attended two of them. The CARES Commission 
held 38 field hearings with over 700 witnesses and made 68 site visits. 
Clearly, Secretary Principi and the CARES Commission have been 
thorough, responsive, fair, and open.
  This is a process that still is in its development stage. The Senate 
authorizing committee, chaired by Senator Specter, is working on 
legislation to establish funding for CARES, which will provide Congress 
an opportunity to review the final CARES plan before it can be 
implemented. The VA Committee held a hearing with Secretary Principi 
and the CARES Commission chair, Everett Alvarez, to provide oversight 
on the process.
  I am committed to and fully supportive of CARES because we need to 
support veterans' medical care over unneeded buildings. To keep 
unneeded or excess buildings in operation deprives veterans of the care 
they need. There has been much opposition to this.
  Mr. President, to reiterate, I oppose vigorously the Clinton-Enzi 
amendment to stop the VA's Capital Asset Realignment for Enhanced 
Services or CARES process. The amendment would deny up to $1 billion in 
funds to support our Nation's veterans. I object to this amendment 
because I believe in putting the needs of veterans ahead of the costs 
of keeping open unneeded buildings. I especially object to this 
amendment because it would likely extend the waiting lines for veterans 
already waiting for medical care. It is imperative that the CARES 
process moves forward so that the VA can move its outdated medical care 
infrastructure into the 21st Century.
  Before I explain my reasons for opposing this amendment, I ask that 
letters from the Veterans of Foreign Wars, AMVETS, Disabled American 
Veterans, and the Paralyzed Veterans of America be added to the Record. 
As the largest veterans' service organizations in the Nation, they all 
oppose the Clinton-Enzi amendment because of its negative impact on 
veterans.
  Why does the amendment hurt veterans? In 1999, the General Accounting 
Office (GAO) performed a study of the VA's medical care infrastructure 
and found that the VA ``could spend billions of dollars operating 
hundreds of unneeded buildings over the next five years.'' The GAO 
reported that the VA wastes $1 million per day in medical care funds on 
unneeded infrastructure, instead of direct patient care. Therefore, 
instead of wasting some $400 million annually on unneeded buildings, 
the VA could use these funds to provide medical care to over 100,000 
needy veterans.
  In response to the GAO's report, our committee directed VA to develop 
a comprehensive strategy to realign its medical care facilities so that 
it can deliver health care in a more accessible and effective manner. 
Thus, in 1999, the VA created the CARES initiative during the Clinton 
Administration to address this concern.
  The amendment also hurts veterans by denying much-needed construction 
funds to areas that need modernized facilities to serve its veteran 
population. In my travels around my own home State of Missouri, I have 
seen first-hand the need for construction funds to update surgical 
suites and intensive care units, among other things. For those Senators 
who have veterans in rural areas, they know that there is a critical 
need for outpatient clinics so veterans do not have to travel hundreds 
of miles to the nearest hospital. With an aging veteran population, 
there is a significant need to build nursing homes and long-term care 
facilities. The Clinton-Enzi amendment will deny over $600 million in 
construction funds to these places. It will deny funds to build new 
hospitals in States such as Nevada, Florida, and Colorado. It will deny 
funds to address safety, seismic, and other deficiencies for facilities 
in States such as Kentucky, California, Colorado, Ohio, and 
Pennsylvania. It will deny the construction of 48 new community based 
outpatient clinics throughout the country. It will deny funding for 37 
nursing home investments, such as the construction of new nursing homes 
in States such as West Virginia and Pennsylvania.
  Another reason why I oppose the Clinton-Enzi amendment is that the 
CARES process is still in its developmental stage and it is premature 
to pull the plug. Yet, Senator Clinton has already concluded that the 
CARES process is ``fundamentally flawed'' and the CARES Commission has 
``neglected'' the important health care issues facing our veterans. 
Further, she characterizes CARES as a ``cost-cutting'' plan.
  I do not agree with the Senator's assertions and I think it is 
unfortunate that she has been so critical of Secretary Principi who has 
been extremely responsive to the Congress's concerns. To Secretary 
Principi's credit, he has made the CARES process open and fair for all 
affected parties, including veterans to participate.
  In an October 27, 2003 letter sent to all Senators, Secretary 
Principi outlines the great extent he has gone through to ensure that 
``the process and review be thorough at every stage.'' Local veterans 
groups, local officials, union officials as well as affiliate 
representatives participated directly in the development of local 
plans. Since the announcement of the Draft National CARES Plan, the 
CARES Commission has received more than 169,000 public comments. 
According to the VA, all comments will be made a part of the official 
record and will be considered by the CARES Commission during its 
deliberations.
  I take great exception to Senator Clinton's characterization of CARES 
as a ``cost-cutting plan.'' The Draft plan proposes to spend $4.6 
billion in construction funds to expand services. It preserves more 
than 97 percent of VA's current bed capacity. Ninety-seven percent. It 
increases outpatient capacity by more than 12 million visits a year. It 
creates 48 new community-based outpatient clinics and at least 2 new 
hospitals. Further, the Draft plan provides for no reduction in VA 
capacity to provide domiciliary or long-term care, including long-term 
mental health care. Let me repeat that last sentence. The Draft plan 
provides for no reduction in VA capacity to provide domiciliary or 
long-term care, including long-term mental health care. Moreover, in 
some areas, the Draft plan's realignment would increase overall bed 
capacity. For example, in New York State, the realignment would 
increase overall bed capacity by about 10 percent. The Draft plan 
provides for all of these enhanced services and additional facilities 
despite the VA's projections that the veteran population is expected to 
decline by more than 25 percent over the next 20 years. I ask my Senate 
colleagues, does this sound like a cost-cutting plan?
  Further, the CARES Commission has held a number of field hearings and 
site visits across the Nation to listen first-hand to the concerns of 
interested parties. In fact, Senator Clinton participated in two CARES 
hearings. In total, the CARES Commission held 38 field hearings that 
included over 700 witnesses and made 68 site visits. In some instances, 
the Commission altered its schedule to respond to local interests such 
as in New York.
  Clearly, Secretary Principi and the CARES Commission have been 
thorough, responsive, fair, and open in moving the process. For 
example, at Senator Schumer's request, Secretary Principi agreed to 
visit the Canandaigua VA hospital before making any final decision.
  I also stress again that the CARES process is still in its 
developmental stage. The Commission has not completed its work. No 
final decisions have been made. The current plan is only a draft and is 
an interim step to the overall process. Delaying or stopping this 
process is premature and ends up hurting more than helping our 
veterans. The CARES Commission must complete the plan and the Secretary 
and the Congress must approve it.
  The Senate authorizing committee, chaired by Senator Specter, is 
working on legislation that establishes criteria for funding CARES 
projects,

[[Page 28577]]

 which will provide the Congress an opportunity to review the final 
CARES plans before it can be implemented. In fact, the Veterans Affairs 
Committee held a hearing with Secretary Principi and the CARES 
Commission Chair Everett Alvarez to provide oversight on the process 
and to ensure that the process was moving in a public and deliberative 
manner. The Committee also recently passed legislation that was 
originally sponsored by Senator Bob Graham and co-sponsored by nine 
other senators, including Senator Clinton that would give the Congress 
60 days to approve before any VA facility could be closed. If enacted, 
this legislation ensures that the Congress is involved in the 
implementation of the CARES plan.
  I am committed and fully supportive of CARES because I believe in 
supporting veterans medical care needs over unneeded buildings. I 
believe that CARES is the most important initiative in the VA and it 
must be done. We cannot afford any more delays. For too long, the VA 
was unable to rationalize its infrastructure and millions of medical 
care dollars were wasted on empty, obsolete, or redundant buildings 
instead of focusing those dollars on medical care for our veterans. 
Now, after nearly 4 years of work on CARES, the VA is developing a 
national plan that will ensure that the medical care needs of our 
Nation's veterans come first and they will receive the best care in 
modernized 21st Century facilities. We owe it to our veterans to move 
away from the old medical model of hospital-centered medicine to the 
contemporary, modern patient-centered medicine model.
  The veterans also agree with my view and oppose this amendment. The 
VFW's November 6, 2003 letter states, ``we believe it is important to 
move ahead as the location and mission of some VA facilities need to 
change to improve veterans' access; to allow more resources to be 
devoted to medical care, rather than the upkeep of inefficient 
buildings and to adjust to modern methods of health care service 
delivery. Our Nation's veterans deserve no less.''
  The sponsors of this amendment have tried to assuage the concerns of 
Senators who expect to receive new medical facilities in their State by 
limiting the amendment to facilities where closures may occur. However, 
I tell my colleagues, do not be fooled. This amendment would still 
prevent new hospitals, clinics, and nursing homes to be constructed 
because the VA cannot break up its CARES plan into separate pieces. 
There is only one plan for the Nation. It is a National Plan and it 
cannot be separated into pieces. In addition, many new construction 
projects under CARES cannot be financed unless some obsolete facilities 
are closed. In some areas, such as Chicago and Pennsylvania, 
construction for new facilities will be financed by the proceeds of 
leases of the closed facilities. Finally, this amendment continues the 
wasteful practice of spending medical care funds on unnecessary and 
empty buildings. Under CARES, these funds would be re-focused on direct 
patient care, the construction of new outpatient clinics, and operating 
costs for new hospitals, such as the proposed facilities in Las Vegas 
and Orlando. Implementing CARES will allow the VA to serve more 
veterans and especially ensure that our most vulnerable veterans will 
not be forced to wait for several months or years to obtain medical 
care.
  I urge my colleagues to place the needs of veterans ahead of unneeded 
facilities. Efforts to delay the CARES process will cause significant 
harm to our veterans. Outside of funding for VA medical care, CARES is 
my highest priority for VA. I have supported CARES from its inception 
in 1999, including the implementation of the pilot program in VISN 12. 
I strongly urge my colleagues to oppose the Clinton-Enzi amendment and 
allow the VA to move the CARES process forward.
  The PRESIDING OFFICER (Mr. Cornyn). Who yields time?
  Ms. MIKULSKI. Mr. President, first, I compliment our two colleagues 
from New York on their advocacy for veterans and the attempt to work to 
form a bipartisan coalition and for being concerned about mental health 
services and long-term care, as well as the rural needs.
  I say to my two colleagues, we on the VA Committee have to be 
concerned that we are in the veterans health care business and not in 
the veterans health real estate business. So we want to advocate for 
services, not for buildings.
  I think the Senator is also aware that we just had to work very hard 
to forage to come up with the $1.3 billion to meet the compelling needs 
for our veterans. I ask the Senator from New York, with her very strong 
advocacy and the support of a bipartisan list of cosponsors, would she 
consider a different approach--that, perhaps, report language be in the 
bill acknowledging the validity of the concerns raised by her, Senator 
Enzi, and others, talking about the need for long-term care, and pay 
attention to this as well as the rural health care?
  I say to my dear and esteemed colleague, the CARES project or process 
is due December 3. To make these recommendations, some of which are 
quite excellent--inclusion, participation, et cetera--would derail 
CARES. It could affect our spinal injury programs or more outpatient 
clinics. I know it could have unintended consequences.
  Would the Senator consider an alternative other than having the vote 
on the amendment?
  Mrs. CLINTON. Mr. President, I appreciate greatly the understanding 
of my friend and colleague. I am somewhat concerned, however. We have 
many charts, but I will not go into them, under the circumstances. They 
are very clear that there has not been adequate conversation on mental 
health and the other needs. I respect what the Senator from Missouri 
said. If you look overall, there may not be a loss of services defined 
in a certain way, but that is not necessarily tied to where the 
veterans need the services, or where the high-quality services have 
historically been given.
  I also add that Senator Enzi, my esteemed cosponsor, is at this 
moment chairing a hearing. We were, obviously, unprepared to get this 
up and get it out. But he told us to go ahead. I would like the 
opportunity to discuss this with my cosponsor. I don't want to make a 
decision without his awareness of what the Senator's idea is.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that this 
colloquy be extended for another 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. CLINTON. Mr. President, I suggest that we at least have an 
opportunity to discuss this with not only the prime cosponsor, but all 
the other cosponsors because many of us feel very strongly about the 
way this CARES process proceeds.
  Could the managers of the bill tell us what the plan is, and whether 
we are going to have votes on this bill when we finish the 30 hours? 
Where do we stand in the process? That would give me a better idea as 
to how to respond to the offer of the Senator from Maryland.
  Mr. BOND. Mr. President, in order to get this bill completed, we are 
going to have to wrap it up one way or the other by 6 o'clock tonight. 
It can either walk out or go out feet first. I will join my colleague 
from Maryland in saying if she wants to withdraw the amendment, I 
understand her concerns. I am sympathetic to the concerns. We would be 
delighted to put it in report language and work with the Secretary of 
the VA to make sure her concerns are fully addressed.
  But in the meantime, unless the Senator is ready to acquiesce, I ask 
unanimous consent that this amendment and the yeas and nays be set 
aside temporarily until we can have further discussions with the 
Senator from New York and the other sponsors.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________




            BASIC PILOT PROGRAM EXTENSION AND EXPANSION ACT

  Mr. BOND. Mr. President, I have been asked by the leadership to bring 
up Calendar No. 374, S. 1685, the Immigrant Pilot Program. I believe it 
has been cleared on both sides.
  I ask unanimous consent that the Senate proceed to its immediate 
consideration.

[[Page 28578]]

  The PRESIDING OFFICER. The clerk will state the bill by title.
  The legislative clerk read as follows:

       A bill (S. 1685) to extend and expand the basic pilot 
     program for employment eligibility verification, and for 
     other purposes.

  There being no objection, the Senate proceeded to consider the bill, 
which had been reported from the Committee on the Judiciary, with an 
amendment to strike all after the enacting clause and inserting in lieu 
thereof the following:
  [Strike the part shown in black brackets and insert the part shown in 
italic.]

                                S. 1685

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     [SECTION 1. SHORT TITLE.

       [This Act may be cited as the ``Basic Pilot Program 
     Extension and Expansion Act of 2003''.

     [SEC. 2. EXTENSION OF PROGRAMS.

       [Section 401(b) of the Illegal Immigration Reform and 
     Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is 
     amended by striking ``6-year period'' and inserting ``11-year 
     period''.

     [SEC. 3. EXPANSION OF THE BASIC PILOT PROGRAM.

       [(a) In General.--Section 401(c)(1) of the Illegal 
     Immigration Reform and Immigrant Responsibility Act of 1996 
     (8 U.S.C. 1324a note) is amended by striking ``in,'' and all 
     that follows through the semicolon and inserting ``in all 
     States;''.
       [(b) Conforming Amendments.--Section 402(c) of the Illegal 
     Immigration Reform and Immigrant Responsibility Act of 1996 
     (8 U.S.C. 1324a note) is amended--
       [(1) in paragraph (2)(B), by striking ``or entity 
     electing--'' and all that follows through ``(ii) the citizen 
     attestation pilot program'' and inserting ``or entity 
     electing the citizen attestation pilot program'';
       [(2) by striking paragraph (3); and
       [(3) by redesignating paragraph (4) as paragraph (3).]

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Basic Pilot Program 
     Extension and Expansion Act of 2003''.

     SEC. 2. EXTENSION OF PROGRAMS.

       Section 401(b) of the Illegal Immigration Reform and 
     Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is 
     amended by striking ``6-year period'' and inserting ``11-year 
     period''.

     SEC. 3. EXPANSION OF THE BASIC PILOT PROGRAM.

       (a) In General.--Section 401(c)(1) of the Illegal 
     Immigration Reform and Immigrant Responsibility Act of 1996 
     (8 U.S.C. 1324a note) is amended by inserting after ``United 
     States'' the following: ``, and the Secretary of Homeland 
     Security shall expand the operation of the program to all 50 
     States not later than December 1, 2004''.
       (b) Report.--Section 405 of the Illegal Immigration Reform 
     and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a 
     note) is amended--
       (1) by striking ``The'' and inserting:
       ``(a) In General.--The'', and
       (2) by adding at the end the following new subsection:
       ``(b) Report on Expansion.--Not later than June 1, 2004, 
     the Secretary of Homeland Security shall submit to the 
     Committees on the Judiciary of the House of Representatives 
     and the Senate a report--
       ``(1) evaluating whether the problems identified by the 
     report submitted under subsection (a) have been substantially 
     resolved; and
       ``(2) describing what actions the Secretary of Homeland 
     Security shall take before undertaking the expansion of the 
     basic pilot program to all 50 States in accordance with 
     section 401(c)(1), in order to resolve any outstanding 
     problems raised in the report filed under subsection (a).''
       (c) Conforming Amendments.--Section 402(c) of the Illegal 
     Immigration Reform and Immigrant Responsibility Act of 1996 
     (8 U.S.C. 1324a note) is amended--
       (1) in paragraph (2)(B), by striking ``or entity electing--
     '' and all that follows through ``(ii) the citizen 
     attestation pilot program'' and inserting ``or entity 
     electing the citizen attestation pilot program'';
       (2) by striking paragraph (3); and
       (3) by redesignating paragraph (4) as paragraph (3).
       (d) Additional Technical and Conforming Amendments.--Title 
     IV of the Illegal Immigration Reform and Immigrant 
     Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended 
     by striking ``Attorney General'' each place that term appears 
     and inserting ``Secretary of Homeland Security''.

  Mr. BOND. Mr. President, I ask unanimous consent that the Leahy-
Brownback amendment at the desk be agreed to; the committee substitute, 
as amended, be agreed to; the bill, as amended, be read the third time 
and passed; the motions to reconsider be laid upon the table en bloc; 
and any statements relating to the bill be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 2170) was agreed to, as follows:


                           amendment no. 2170

  (Purpose: To extend the duration of the immigrant investor regional 
  center pilot program for 5 additional years, and for other purposes)

       At the end, add the following:

     SEC. 4. PILOT IMMIGRATION PROGRAM.

       (a) Processing Priority Under Pilot Immigration Program for 
     Regional Centers to Promote Economic Growth.--Section 610 of 
     the Departments of Commerce, Justice, and State, the 
     Judiciary, and Related Agencies Appropriations Act, 1993 (8 
     U.S.C. 1153 note) is amended--
       (1) by striking ``Attorney General'' each place such term 
     appears and inserting ``Secretary of Homeland Security''; and
       (2) by adding at the end the following:
       ``(d) In processing petitions under section 204(a)(1)(H) of 
     the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(H)) 
     for classification under section 203(b)(5) of such Act (8 
     U.S.C. 1153(b)(5)), the Secretary of Homeland Security may 
     give priority to petitions filed by aliens seeking admission 
     under the pilot program described in this section. 
     Notwithstanding section 203(e) of such Act (8 U.S.C. 
     1153(e)), immigrant visas made available under such section 
     203(b)(5) may be issued to such aliens in an order that takes 
     into account any priority accorded under the preceding 
     sentence.''.
       (b) Extension.--Section 610(b) of the Departments of 
     Commerce, Justice, and State, the Judiciary, and Related 
     Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) is 
     amended by striking ``10 years'' and inserting ``15 years''.

     SEC. 5. GAO STUDY.

       (a) In General.--Not later than 1 year after the date of 
     enactment of this Act, the General Accounting Office shall 
     report to Congress on the immigrant investor program created 
     under section 203(b)(5) of the Immigration and Nationality 
     Act (8 U.S.C. 1153(b)(5)).
       (b) Contents.--The report described in subsection (a) shall 
     include information regarding--
       (1) the number of immigrant investors that have received 
     visas under the immigrant investor program in each year since 
     the inception of the program;
       (2) the country of origin of the immigrant investors;
       (3) the localities where the immigrant investors are 
     settling and whether those investors generally remain in the 
     localities where they initially settle;
       (4) the number of immigrant investors that have sought to 
     become citizens of the United States;
       (5) the types of commercial enterprises that the immigrant 
     investors have established; and
       (6) the types and number of jobs created by the immigrant 
     investors.

  The committee amendment, as amended, was agreed to.
  The bill was read the third time and passed, as follows:

                                S. 1685

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Basic Pilot Program 
     Extension and Expansion Act of 2003''.

     SEC. 2. EXTENSION OF PROGRAMS.

       Section 401(b) of the Illegal Immigration Reform and 
     Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is 
     amended by striking ``6-year period'' and inserting ``11-year 
     period''.

     SEC. 3. EXPANSION OF THE BASIC PILOT PROGRAM.

       (a) In General.--Section 401(c)(1) of the Illegal 
     Immigration Reform and Immigrant Responsibility Act of 1996 
     (8 U.S.C. 1324a note) is amended by inserting after ``United 
     States'' the following: ``, and the Secretary of Homeland 
     Security shall expand the operation of the program to all 50 
     States not later than December 1, 2004''.
       (b) Report.--Section 405 of the Illegal Immigration Reform 
     and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a 
     note) is amended--
       (1) by striking ``The'' and inserting:
       ``(a) In General.--The'', and
       (2) by adding at the end the following new subsection:
       ``(b) Report on Expansion.--Not later than June 1, 2004, 
     the Secretary of Homeland Security shall submit to the 
     Committees on the Judiciary of the House of Representatives 
     and the Senate a report--
       ``(1) evaluating whether the problems identified by the 
     report submitted under subsection (a) have been substantially 
     resolved; and
       ``(2) describing what actions the Secretary of Homeland 
     Security shall take before undertaking the expansion of the 
     basic pilot program to all 50 States in accordance with 
     section 401(c)(1), in order to resolve any outstanding 
     problems raised in the report filed under subsection (a).''
       (c) Conforming Amendments.--Section 402(c) of the Illegal 
     Immigration Reform and Immigrant Responsibility Act of 1996 
     (8 U.S.C. 1324a note) is amended--
       (1) in paragraph (2)(B), by striking ``or entity electing--
     '' and all that follows through

[[Page 28579]]

     ``(ii) the citizen attestation pilot program'' and inserting 
     ``or entity electing the citizen attestation pilot program'';
       (2) by striking paragraph (3); and
       (3) by redesignating paragraph (4) as paragraph (3).
       (d) Additional Technical and Conforming Amendments.--Title 
     IV of the Illegal Immigration Reform and Immigrant 
     Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended 
     by striking ``Attorney General'' each place that term appears 
     and inserting ``Secretary of Homeland Security''.

     SEC. 4. PILOT IMMIGRATION PROGRAM.

       (a) Processing Priority Under Pilot Immigration Program for 
     Regional Centers to Promote Economic Growth.--Section 610 of 
     the Departments of Commerce, Justice, and State, the 
     Judiciary, and Related Agencies Appropriations Act, 1993 (8 
     U.S.C. 1153 note) is amended--
       (1) by striking ``Attorney General'' each place such term 
     appears and inserting ``Secretary of Homeland Security''; and
       (2) by adding at the end the following:
       ``(d) In processing petitions under section 204(a)(1)(H) of 
     the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(H)) 
     for classification under section 203(b)(5) of such Act (8 
     U.S.C. 1153(b)(5)), the Secretary of Homeland Security may 
     give priority to petitions filed by aliens seeking admission 
     under the pilot program described in this section. 
     Notwithstanding section 203(e) of such Act (8 U.S.C. 
     1153(e)), immigrant visas made available under such section 
     203(b)(5) may be issued to such aliens in an order that takes 
     into account any priority accorded under the preceding 
     sentence.''.
       (b) Extension.--Section 610(b) of the Departments of 
     Commerce, Justice, and State, the Judiciary, and Related 
     Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) is 
     amended by striking ``10 years'' and inserting ``15 years''.

     SEC. 5. GAO STUDY.

       (a) In General.--Not later than 1 year after the date of 
     enactment of this Act, the General Accounting Office shall 
     report to Congress on the immigrant investor program created 
     under section 203(b)(5) of the Immigration and Nationality 
     Act (8 U.S.C. 1153(b)(5)).
       (b) Contents.--The report described in subsection (a) shall 
     include information regarding--
       (1) the number of immigrant investors that have received 
     visas under the immigrant investor program in each year since 
     the inception of the program;
       (2) the country of origin of the immigrant investors;
       (3) the localities where the immigrant investors are 
     settling and whether those investors generally remain in the 
     localities where they initially settle;
       (4) the number of immigrant investors that have sought to 
     become citizens of the United States;
       (5) the types of commercial enterprises that the immigrant 
     investors have established; and
       (6) the types and number of jobs created by the immigrant 
     investors.

                          ____________________




 DEPARTMENTS OF VETERANS AFFAIRS AND HOUSING AND URBAN DEVELOPMENT AND 
        INDEPENDENT AGENCIES APPROPRIATIONS ACT, 2004--Continued

  Mr. BOND. Mr. President, I see the distinguished Senator from New 
Jersey in the Chamber. I believe he has an amendment, and if the 
pricetag is reasonable, we may be able to accept it.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. LAUTENBERG. I appreciate the manager's interest in permitting me 
to offer this amendment. I will try to do it as quickly as I can.
  Mr. President, I ask unanimous consent that the pending amendment be 
set aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                Amendment No. 2171 to Amendment No. 2150

  Mr. LAUTENBERG. Mr. President, I send an amendment to the desk and 
ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from New Jersey [Mr. Lautenberg], for himself, 
     Ms. Mikulski, Mr. Jeffords, Mrs. Boxer, Mr. Corzine, Mr. 
     Schumer, Mr. Leahy, Mr. Lieberman, Mr. Kerry, Mr. Kennedy, 
     Mr. Edwards, Ms. Cantwell, and Mr. Durbin, proposes an 
     amendment numbered 2171.

  Mr. LAUTENBERG. Mr. President, I ask unanimous consent that the 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

   (Purpose: To maintain enforcement personnel for the Environmental 
            Protection Agency at the fiscal year 2003 level)

       On page 98, line 5, before the period at the end, insert 
     the following: ``, of which, in addition to any other amounts 
     provided under this heading for the Office of Enforcement and 
     Compliance Assurance, $5,400,000 shall be made available for 
     that office''.

  Mr. LAUTENBERG. Mr. President, I rise to offer this amendment on 
behalf of myself and Senator Mikulski. We are pleased to have as 
cosponsors Senators Jeffords, Kerry, Lieberman, Boxer, Schumer, Leahy, 
Corzine, Durbin, Cantwell, Kennedy, and Edwards.
  This appropriations bill cuts the number of enforcement officers in 
EPA's Office of Enforcement and Compliance Assurance by 54 positions. 
The amendment I am offering would restore those 54 positions so that 
EPA would have the same number of enforcement officers in fiscal year 
2004 that the agency had in 2003.
  Maintaining the current level of enforcement capacity is the least we 
ought to do in view of the reductions in enforcement staffing we have 
seen made in recent years.
  An EPA report that was released earlier this year on the Nation's 
enforcement of the Clean Water Act paints a disheartening picture. It 
shows additional officers are critically needed. Without this 
amendment, the total staffing reductions made since fiscal year 2001 
will equal 100 enforcement positions. That is equivalent to eliminating 
all of EPA's enforcement personnel for both the Northeast and Southeast 
regions.
  The cost of the 54 positions my amendment would retain would be 
approximately $5.4 million. This cost, as the Senator from Missouri 
noted, will be offset by a tiny reduction of .003, or three one-
thousandths of a percent, in EPA's $22.2 billion environmental programs 
and management account. Again, these positions are only going to keep 
the level of enforcement staffing where it presently is.
  Our colleagues in the House have already approved a similar 
amendment. In July, they voted to add 54 enforcement positions back 
into the bill at the same cost using the same offset as the amendment 
before us.
  The cuts in enforcement are taking a heavy toll, and the facts are 
these: Between 1999 and 2001, 76 percent of the country's major 
facilities with significant environmental violations received no formal 
enforcement action whatsoever. Inspections are down. There has been a 
45-percent decrease in enforcement actions, and the penalties that are 
levied averaged a paltry $6,000. We have practically hung out a sign 
that tells polluters it is all right to flaunt the law, and the fines 
are hardly a deterrent to businesses generally.
  The damage they do, however, is not free, and society will pay the 
price for the mounting violations, additional fish advisories, higher 
asthma rates, more trips to the hospital, and worse.
  An internal EPA survey that was leaked to the press in January 
painted a dismal and frightening picture of what is happening at some 
of the largest facilities across the country. Fifty percent of major 
facilities are exceeding their permitted toxic release limits by 100 
percent, 21 percent of the facilities are exceeding their toxic release 
limits by 500 percent, and 13 are exceeding toxic limits by an alarming 
1,000 percent.
  These are alarming statistics, and they portray a terrible picture.
  I am pleased my colleagues will be considering what it means to these 
families who live downriver or downwind from these plants. None of us 
in this Chamber would ever knowingly subject our families to 
concentrations of mercury, dioxins, or other deadly toxins in our lakes 
and rivers that are 10 times the safe level. But we are doing that. If 
we don't stop companies from violating our environmental laws, we will 
continue to do that.
  To my colleagues, I say we are not powerless; we can stop these 
dangerous violations, or at least keep them contained to a no larger 
level, which is an important first step this amendment takes care of.
  I submit this amendment for consideration by the ranking member, the 
distinguished Senator from Maryland, and the chairman, the 
distinguished

[[Page 28580]]

Senator from Missouri. I understand there has been a review of my 
amendment.
  Ms. MIKULSKI. Mr. President, there has been a review of the Senator's 
amendment.
  Mr. BOND. Mr. President, I believe we can accept this amendment. This 
is an increase, obviously. Our budget has been short in every area. We 
share the concern of the author of this amendment in ensuring EPA 
enforcement is strong enough.
  There is no objection on this side.
  Ms. MIKULSKI. Mr. President, I am an enthusiastic cosponsor of the 
Lautenberg amendment. He is absolutely right. This money is needed 
because it essentially restores funding for the environmental cops on 
the beat. We wanted to do this in our bill, but circumstances shackled 
us from doing so.
  This is a good amendment. We are happy to accept it. I thank the 
Senator for his longstanding advocacy in this area.
  The PRESIDING OFFICER. Is there further debate on this amendment?
  Mr. BOND. Mr. President, a request has been made by the distinguished 
ranking member of the Appropriations Committee that we have a voice 
vote and not just accept these amendments without objection. It would 
be in order to ask for a voice vote.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  If not, the question is on agreeing to amendment No. 2171.
  The amendment (No. 2171) was agreed to.
  Mr. LAUTENBERG. I move to reconsider the vote.
  Ms. MIKULSKI. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. BOND. Mr. President, Senator Ensign has a statement he wishes to 
make, but in the meantime we have a number of amendments that have been 
cleared on both sides.


                Amendment No. 2172 to Amendment No. 2150

  Mr. BOND. Mr. President, I send an amendment to the desk on behalf of 
Senator Hollings and Senator Graham of South Carolina. This is an 
amendment permitting the Secretary of VA to enter into an enhanced-use 
lease for the Medical University Hospital Authority in Charleston.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond], for Mr. Graham of 
     South Carolina, for himself and Mr. Hollings, proposes an 
     amendment numbered 2172 to amendment No. 2150.

  Mr. BOND. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To authorize the Secretary of Veterans Affairs to enter into 
an enhanced-use lease at the Charleston Department of Veterans Affairs 
              Medical Center, Charleston, South Carolina)

       At the end of title I, add the following:
       Sec. 116. Notwithstanding paragraph (2) of section 8163(c) 
     of title 38, United States Code, the Secretary of Veterans 
     Affairs may enter into an enhanced-use lease with the Medical 
     University Hospital Authority, a public authority of the 
     State of South Carolina, for approximately 0.48 acres of 
     underutilized property at the Charleston Department of 
     Veterans Affairs Medical Center, Charleston, South Carolina, 
     at any time after 30 days after the date of the submittal of 
     the notice required by paragraph (1) of that section with 
     respect to such property. The Secretary is not required to 
     submit a report on the lease as otherwise required by 
     paragraph (4) of that section.

  Mr. BOND. Mr. President, I believe this amendment has been cleared on 
both sides.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
2173.
  The amendment (No. 2173) was agreed to.
  Mr. BOND. I move to reconsider the vote.
  Ms. MIKULSKI. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                Amendment No. 2173 to Amendment No. 2150

  Mr. BOND. Mr. President, I send to the desk an amendment by Senator 
Mikulski which provides for the Corporation National Service to refrain 
from disclosing any information. I ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond], for Ms. Mikulski, for 
     herself and Mr. Bond, proposes an amendment numbered 2173 to 
     amendment No. 2150.

  Ms. MIKULSKI. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

   (Purpose: To require notice and comment rulemaking, and prohibit 
 disclosure of selection information, by the Corporation for National 
                         and Community Service)

       On page 92, line 22, strike the period and insert the 
     following: ``: Provided further, That, for fiscal year 2004 
     and every year thereafter, the Corporation shall make any 
     significant changes to program requirements or policy only 
     through public notice and comment rulemaking:  Provided 
     further, That, for fiscal year 2004 and every year 
     thereafter, during any grant selection process, no officer or 
     employee of the Corporation shall knowingly disclose any 
     covered grant selection information regarding such selection, 
     directly or indirectly, to any person other than an officer 
     or employee of the Corporation that is authorized by the 
     Corporation to receive such information.''.

  Ms. MIKULSKI. Mr. President, this amendment is simple and 
straightforward. It does two things. It says the Corporation for 
National Community Service must change the rules. It protects the 
integrity of the grant process by preventing corporation officials from 
disclosing sensitive grant information and insists that any changes for 
rules for volunteer programs must have public comment.
  One of my guiding principles is that people have a right to know, to 
be heard and to be represented. The Mikulski-Bond amendment upholds 
this principle. It ensures that the public gets a meaningful chance to 
comment on decisions that affect their communities and the volunteers 
who serve them.
  Recently, National Service tried to change the rules for AmeriCorps. 
I was very troubled by the corporation's actions for two reasons: the 
process and the policy. My first concern was the process or actually 
the lack of a process. The corporation acted behind closed doors 
without input from Congress, volunteer advocates, or the communities 
they serve. States, communities, and advocates were told they had just 
1 business day to review sweeping new rules, to ask questions about 
them, and to offer suggested changes. The corporation ``jackpotted'' 
advocates, volunteers, States, and local communities.
  My second concern is policy. The AmeriCorps rules changes would hurt 
communities who depend on volunteers by eliminating support for long-
standing, successful volunteer programs and by increasing financial and 
administrative burdens on communities and volunteer organizations.
  I commend the board of directors for stepping in to stop the 
corporation. But it is clear that the corporation needs specific 
direction to ensure that the public has a right to be heard. The 
corporation doesn't have a Senate-confirmed CEO. We are working on a 
bipartisan basis to get David Eisner confirmed as the new CEO, but the 
staff must not make rule changes without leadership and public comment.
  This amendment is good process, and good policy. It makes sure that 
the public has an opportunity to comment on any changes to National 
Service programs. And the amendment protects the integrity of the 
National Service grant process.
  I thank Senator Bond for working with me on this amendment. I urge my 
colleagues to support it.
  I thank the Senator from Missouri for his strong efforts to reform 
the fiscal and sloppy practices that are at the corporation. The 
volunteers are terrific, and now with the new CEO, I think we will be 
able to move ahead.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. I thank my colleague from Maryland for her very thoughtful 
and well-crafted amendment. She has

[[Page 28581]]

been regarded as really one of the greatest defenders of the concept of 
AmeriCorps national service. Nobody has been a stronger champion of 
volunteer service. I have been pleased to be a junior partner to her in 
this effort. She has it just right. The volunteers are wonderful. The 
purpose is wonderful. We have had more than a few bumps in the road in 
terms of how the program has been administered, but we have high hopes 
that the new administration in that agency, with the new head, the 
financial officer, the chairman, will be on the right track.
  I urge my colleagues to adopt this amendment.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  If not, the question is on agreeing to amendment No. 2173.
  The amendment (No. 2173) was agreed to.
  Mr. BOND. Mr. President, I move to reconsider the vote.
  Ms. MIKULSKI. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. BOND. Mr. President, I now see my distinguished colleague from 
Nevada is in the Chamber. I yield the floor to him for such comments as 
he wishes to make.
  The PRESIDING OFFICER. The Senator from Nevada.


                           Amendment No. 2152

  Mr. ENSIGN. Mr. President, I rise in opposition to the Clinton-Enzi 
amendment.
  First, I ask unanimous consent that letters from the Disabled 
American Veterans, Veterans of Foreign Wars, AMVETS, and the Paralyzed 
Veterans of America, all expressing their opposition to the Clinton-
Enzi amendment, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                   Disabled American Veterans,

                                 Washington, DC, November 7, 2003.
     Hon. Hillary Rodham Clinton,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Clinton: On behalf of the more than one 
     million members of the Disabled American Veterans (DAV), we 
     write to express our concern over your proposed amendment to 
     limit the use of funds for the Department of Veterans Affairs 
     (VA) Capital Asset Realignment for Enhanced Services (CARES) 
     initiative, pending modification of the initiative to include 
     long-term care, domiciliary care, and mental health services 
     in addition to reconvening the Commission for further 
     hearings.
       Initially, please know that preservation of the integrity 
     of the VA health care system is of the utmost importance to 
     the DAV and our members, and we greatly appreciate your 
     efforts and insistence that long-term care, domiciliary care, 
     and mental health services are included in the CARES 
     initiative. These specialized programs are an integral part 
     of providing sick and disabled veterans comprehensive health 
     care. However, we are concerned your amendment may completely 
     stall the CARES process and prohibit VA from making the 
     necessary changes to improve its health care system and 
     enhance access and services for veteran patients.
       As you are aware, over the past 7 years, following national 
     trends, VA's Veterans Health Administration converted from a 
     primarily hospital-based system to an outpatient focused 
     health care delivery model. With these sweeping changes, 
     there clearly came a need to reassess VA's physical 
     structures and the need to realign, renovate, and modernize 
     VA facilities to meet the changing health care needs of 
     veterans today and well into the future. Many VA medical 
     facilities have an average age of 54 years and are in 
     critical need of repair. Unfortunately, VA's construction 
     budget has decreased sharply over the last several years with 
     political resistance to fund any major projects before a 
     formal plan was developed. VA responded with the CARES 
     initiative. However, many desperately needed construction and 
     maintenance projects, including seismic repairs that could 
     potentially compromise patient safety, have been 
     unnecessarily delayed. DAV strongly believes that CARES 
     should not distract VA or Congress from its obligation to 
     protect its physical assets whether they are to be used for 
     current capacity or realigned.
       On a national level, DAV firmly believes that realignment 
     of capital assets is critical to the long-term health and 
     viability of the entire VA health care system. We do not 
     believe that restructuring is inherently detrimental to the 
     VA health care system. However, we will remain vigilant and 
     press VA to focus on the most important element in the 
     process, enhancement of services and timely delivery of high 
     quality health care services to our nation's sick and 
     disabled veterans.
       VA Secretary Anthony J. Principi met with DAV and other 
     veterans service organizations this morning and gave us his 
     personal commitment that there would be no realignment or 
     reduction in services as a result of CARES for mental health 
     or long-term care until a definitive plan is developed and in 
     place to absorb the workload for these specialized services. 
     His promise to us satisfies our over-arching concern about 
     the inclusion of these essential programs. Therefore, we 
     believe the CARES process should be allowed to proceed at 
     this critical juncture.
       Again, we want to thank you for your efforts on CARES and 
     for your strong leadership and support of veterans' issues. 
     We very much look forward to continuing a positive and 
     meaningful working relationship with you regarding matters of 
     great importance to veterans. We hope that you will 
     reconsider your position on this issue based on these new 
     developments.
           Sincerely,

                                              David W. Gorman,

                                               Executive Director,
     Washington Headquarters.
                                  ____



                                            American Veterans,

                                     Lanham, MD, November 7, 2003.


                               memorandum

     To: All Members of the U.S. Senate.
     From: S. John Sisler, National Commander.
     Re: Consideration of CARES amendment in VA/HUD appropriations 
         bill.

       It is our understanding that Sen. Hillary Rodham Clinton 
     may offer an amendment to S. 1584, the VA/HUD appropriations 
     bill, that would block the Department of Veterans Affairs 
     from spending any money to enact the CARES Commission 
     recommendations.
       On behalf of the nationwide membership of AMVETS (American 
     Veterans), I write to express our strong opposition to Sen. 
     Clinton's proposed amendment aimed to stop progress of the 
     Department of Veterans Affairs National Capital Asset 
     Realignment for Enhanced Services (CARES) Plan.
       The CARES initiative is clearly needed to assess what 
     facilities will best meet the healthcare needs of America's 
     veterans. AMVETS believes that adoption of the amendment 
     would further delay moving forward with construction projects 
     that are obviously essential to patient safety and that will 
     eventually pay for themselves as a result of modernization.
       AMVETS agrees with the Department of Veterans Affairs that 
     many of their facilities need to be upgraded or replaced. We 
     also agree with the Department that part of the solution for 
     providing high quality health care to America's veterans is 
     upgrading some facilities and replacing others with new and 
     modern medical care treatment facilities.
       AMVETS and I ask that you oppose any amendment that would 
     cause the VA National CARES process to be used as an excuse 
     to defer vital infrastructure maintenance and construction 
     projects.
                                  ____

                                          Veterans of Foreign Wars


                                         of the United States,

                                 Washington, DC, November 6, 2003.
     To: All Members of the U.S. Senate.
     From: Robert E. Wallace, Executive Director, VFW Washington 
         Office
     Re: Clinton/Enzi Amendment to H.R. 2861.

       On behalf of the 2.6 million members of the Veterans of 
     Foreign Wars of the United States (VFW) and our Ladies 
     Auxiliary, I would like to take this opportunity to urge you 
     to oppose the Clinton/Enzi Amendments to H.R. 2861, the FY 
     2004 VA/HUD Appropriations bill.
       This amendment would limit the use of funds for the Capital 
     Asset Realignment for Enhanced Services (CARES) initiative. 
     The VFW is concerned that if this amendment passes, the CARES 
     process will essentially be put on indefinite hold.
       We share Senators Clinton's and Enzi's concerns regarding 
     long-term care, domiciliary care, and mental health services; 
     however, it is our understanding that the CARES Commission is 
     currently reviewing the data to include these services. 
     Therefore, at this stage, we believe it is important to move 
     ahead as the location and mission of some VA facilities need 
     to change to improve veterans' access; to allow more 
     resources to be devoted to medical care, rather than the 
     upkeep of inefficient buildings; and to adjust to modern 
     methods of health care service delivery. Our Nation's 
     veterans deserve no less.
       Again, I urge you not to support the Clinton/Enzi Amendment 
     regarding the limiting of funds for the VA CARES initiative.
                                  ____



                                Paralyzed Veterans of America,

                                 Washington, DC, November 7, 2003.
     Members,
     U.S. Senate,
     Washington, DC.
       Dear Senator: On behalf of the Paralyzed Veterans of 
     America (PVA) I am writing to express our concerns regarding 
     an amendment we understand will be offered by Senator Hillary 
     Rodham Clinton to the VA, HUD, Independent Agencies 
     Appropriation bill. As we understand, this amendment 
     addresses the Department of Veterans Affairs' Capital Asset 
     Realignment for Enhanced Services (CARES) process and, if 
     passed, will limit the expenditure of funds for the process

[[Page 28582]]

     greatly delaying necessary improvements to the VA's medical 
     care system.
       While PVA concurs with Senator Clinton that the CARES 
     process inadequately addresses issues of long-term care, 
     mental health services and rural health care we believe that 
     the amendment will so severely restrain in the process that 
     the many beneficial aspects of CARES will be seriously 
     harmed. Delay of CARES projects that will benefit veterans, 
     and in particular veterans with spinal cord injury or 
     dysfunction, can only serve to weaken the VA health care 
     system upon which our members and millions of other veterans 
     rely.
       Veterans' service organizations have received assurance 
     from Secretary of Veterans Affairs Anthony Principal that no 
     VA beds will be closed or capacity reduced until appropriate 
     alternative health care resources have been identified and 
     put in place. Additionally, the Secretary has assured us that 
     long term care and mental health services will be included in 
     the planning process with specificity to be provided as to 
     who will be involved, how the process will operate and what 
     timelines will be put in place. Finally the Secretary has 
     indicated that the issue of inter-VISN (Veterans Integrated 
     Service Network) planning and cooperation will be addressed.
       In light of these assurance and the need to proceed with 
     the positive findings, to date of the CARES process, PVA 
     believes any restrictions on funding for the CARES process 
     can only serve to delay improvements in capacity and access 
     of VA health care. We request that no limitation be place on 
     appropriated dollars for the Department of Veterans Affairs 
     and that the CARES process be allowed to expeditiously move 
     forward.
           Sincerely,
                                              Delatorro L. McNeal,
                                               Executive Director.

  Mr. ENZI. As we observed Veterans Day yesterday, and remembered the 
sacrifices each and every veteran has made to grant us our current 
freedoms, Congress should be doing all it can to help modernize and 
improve the VA healthcare system at the earliest possible time. This 
amendment would derail this effort.
  Congress should be finding new and innovative ways to get healthcare 
services delivered in a more timely and convenient way to our former 
servicemen and women. This amendment would postpone this effort.
  Finally, Congress needs to ensure that the foundation and future of 
the VA healthcare system is stable and secure, giving our veterans the 
peace of mind that they will receive high quality and accessible 
healthcare whenever it is required. This amendment would hinder this 
effort.
  The VA will soon finalize its 20-year Capital Asset Realignment for 
Enhanced Services initiative, better known as the CARES plan, for 
updating medical facilities. Starting in the last administration and 
continuing in the present one, VA evaluated its future need for 
healthcare facilities, matched projected needs against current 
facilities, and developed a plan to match resources to needs.
  The amendment being proposed would impose unnecessary conditions 
before VA could go forward with this vital plan.
  Through CARES, VA is examining where its facilities are located, 
where veterans are projected to be living in the next 20 years, and 
what their health needs will be. Nationwide, VA provides medical care 
to almost 5 million veterans.
  VA's legacy facilities are old, with the average age over 50 years, 
many dating back all the way to World War I or even earlier. These 
initial facilities were designed to provide medicine as it was 
practiced a half century ago, and in most cases, are poorly located to 
serve veterans where they live today or are expected to live in the 
future.
  CARES will enable VA to leverage scarce resources by directing 
funding from the maintenance of obsolete facilities and applying that 
funding to the direct provision of healthcare services and staffing. It 
calls for construction of new facilities where the veteran population 
is growing, such as the southeastern and western United States. 
Additionally, it provides for the realignment of facilities that are 
redundant, out of date, or poorly located.
  The Draft National CARES Plan contains over $4.6 billion in capital 
investments, including 11 million square feet of renovation, 9 million 
square feet of new construction, 2 new hospitals, 48 new high priority 
community based outpatient clinics, 2 new blind rehabilitation centers, 
and 4 new spinal cord injury units.
  The Draft National CARES Plan, completed in August in this year, is a 
comprehensive integrated national proposal. The CARES process has been 
thorough and inclusive, combining a set of national assessment 
standards with planning at the local and regional levels.
  This plan is now under review by the independent CARES commission, 
established by Secretary Principi to objectively examine the plan, to 
obtain comments and conduct public hearings to ensure stakeholder views 
are considered. The CARES commission conducted 38 hearings, heard from 
over 700 witnesses; including employees, local government officials and 
veterans; and took over 180,000 comments.
  The bottom line is that the Draft National CARES Plan has been 
exposed to lengthy and close public analysis, and those observations 
will be included within the final plan. Next month, the CARES 
commission will submit their independent and comprehensive plan 
recommendations to the Secretary, which he will accept or reject as a 
whole.
  Placing further conditions on an already well-detailed plan, which 
this amendment would do, would hold up, and even disrupt, VA's long 
delayed modernization process.
  For example, the House and Senate Appropriations Committees have 
declined to provide more than minimal funding for VA medical 
constructions until VA provides a nationwide plan for managing its 
medical facilities. CARES is that plan.
  Further, this amendment would inherently prevent VA from implementing 
many critical components of the CARES plan. Anything less than full 
implementation of the CARES plan recommendations will lead to 
inequitable access to care. It cannot go forward with only parts of the 
plan. CARES is a comprehensive national plan, and it must be accepted 
in its totality to be effective.
  Knowing this to be true, four of the major national veterans' service 
organizations: the Disabled American Veterans, the Veterans of Foreign 
Wars, the Paralyzed Veterans of America, and AMVETS, have come out in 
either strong opposition or have raised serious concerns about the 
Clinton-Enzi amendment.
  I believe it is critically important that we consider the red flags 
raised by these organizations that represent almost 4 million veterans 
nationwide.
  Let us consider the actions taken by the committee of jurisdiction 
over the CARES initiative, the Senate Veterans' Affairs Committee. As a 
member of this committee, I have been intimately involved in the step-
by-step process of analyzing this initiative, and I believe the VA 
committee has dedicated more than ample time and resources to the study 
of this plan.
  The committee held an extensive hearing on the CARES initiative just 
this past September, receiving updates from top VA officials and the 
Secretary himself, on the progress of the plan.
  Ultimately more important, the VA committee in September voted 
unanimously to give the Secretary the authority to implement the Draft 
National CARES plan once it is completed. In doing so, the committee 
outlined very specific priorities for the implementation of this plan.
  First, and what is paramount for the CARES process to be viable, any 
medical facility that is closed must be replaced with a facility that 
adequately serves the healthcare needs of the region. Second, any 
locality that is in need of a full-service hospital must receive one. 
And third, any region that is in need of an outpatient clinic to 
provide basic care services must receive one.
  These priorities, as agreed to by every member of the VA committee, 
emphasize, in my belief, that we support the CARES initiative and want 
it to move forward as quickly as possible. This amendment, without 
question, would not allow this to happen
  In my opposition to this amendment, I do understand the concerns of 
the sponsors. However, I believe that they have been more than 
adequately addressed.

[[Page 28583]]

  The sponsors believe that the CARES process has neglected to address 
the areas of long-term care, domiciliary care and mental health, mainly 
in rural areas. I strongly disagree with these assertions.
  By design, the VA seeks to provide long-term care services in the 
least restrictive setting that is compatible with a veteran's medical 
condition and personal circumstances. This allows VA to reserve nursing 
home care for veterans who can no longer be safely cared for in home- 
and community-based settings.
  VA expects to meet most of the future growth for long-term care 
services through non-institutional settings that keep veterans close to 
spouse, home and friends.
  Since there are critical renovation and replacement nursing home 
needs that have been recognized, the plan includes several needed 
nursing home renovations and replacements that are believed to be 
within the projected outcomes of the new model.
  In planning for CARES, the networks were to develop options taking 
care to preserve current bed levels for nursing home and inpatient 
long-term mental health programs.
  More recent data is now available and suggest that both disability 
among the elderly and nursing home utilization rates have diminished. 
The discrepancy between projected needs from the current planning model 
and actual current demand prompted VA, earlier this year to commence in 
an intensive review and refinement of the long-term care planning 
model.
  However, because the new data could not be incorporated into a new 
planning model for the current cycle of the CARES process, VA chose to 
treat the long-term care issues neutrally; that is, there will be no 
major changes or negative impact on care or capacity in long-term care. 
Once the data from the new model is available and analyzed, it will be 
used for future strategic planning activities.
  On the issue of rural coverage, VA is, in fact, very sensitive to the 
healthcare needs of rural and frontier veterans. It was a principal 
factor for several of the CARES commission hearings to be located in 
rural locales. Additionally, the Draft National CARES plan calls for 
the designation of critical access hospitals, recognizing the vital 
role that many of VA's small facilities fulfill in providing access to 
acute hospital care in rural or less densely populated areas. Moreover, 
it recommends 48 new sites for community-based outpatient clinics, many 
of those in rural areas.
  The amendment before us is really nothing more than a solution in 
search of a problem. The VA has gone to great lengths to incorporate 
every stakeholder, especially our veterans, in the CARES process 
throughout.
  I believe they have done an excellent job in creating a realistic and 
practical vision for the future of VA healthcare services, and we in 
the United States Senate should help them make that vision a reality.
  What this all boils down to is how do we best serve the immediate and 
growing needs of our Nation's veterans. No one here is saying that the 
draft plan is perfect. However, we need to possess the wisdom and 
foresight to say we have all the necessary components in place to make 
a positive change and we should move forward.
  Many injured or ill Vietnam veterans were disillusioned and critical 
when treated at VA medical facilities designed and built to treat their 
World War II fathers or even World War I grandfathers. Veterans of Iraq 
and Afghanistan are now returning to many of those same facilities.
  It is time to take the first step toward bringing the level of care 
for all our veterans into the 21st century. They have waited long 
enough, and we need to act now to improve the lives of each and every 
veteran in America.
  In summary, we all have made commitments to our veterans that we 
should take care of them. These are the men and women who have donned 
the uniform of the United States and have made incredible sacrifices so 
that we can live in freedom. We live in the greatest country, I 
believe, in the history of the world, with the most freedoms of any 
people in the history of the world. This country of ours has only 
remained free because people have been willing to lay their lives down 
to ensure those freedoms for us, our children, and our grandchildren.
  The amendment that has been proposed today would violate the 
commitment to our U.S. veterans. I say that because the veterans are 
moving away from the old rust belt. We should be taking the health 
care, which is their primary issue, to our veterans. Services, need to 
follow where the veterans are moving. We should not be trying to prop 
up institutions, instead, we should be moving the healthcare services 
where those veterans are relocating.
  Secretary Principi is doing a wonderful job of trying to put the 
priorities of the veterans over process, over other constituencies, and 
maybe over a congressional district. He is trying to reform the system, 
recognizing that veterans are moving and that the money should follow 
so that the services are provided to those veterans.
  I live in the fastest growing State and the fastest growing 
metropolitan area in the United States. It must have the kind of 
quality of lifestyle that veterans like because they are moving there 
in droves. Per capita, our State now has the most veterans in the 
United States. Yet, for instance, the Las Vegas metropolitan area that 
has 1.6 million people does not have a VA hospital. There are a couple 
hundred thousand veterans living in the area and we have no VA 
hospital. We have VA clinics but no VA hospital. So when our veterans 
need surgery or have complicated procedures, they have to travel away 
from their families down to southern California to get those services.
  We can understand it in smaller population areas, maybe, but in a 
major metropolitan area, where veterans are choosing to live, that is 
not keeping the commitment we have made to our veterans.
  So I rise in strong opposition to this amendment and will fight 
against its passage. If there is a vote on it, we will fight against 
the votes to pass it, or if it is tried to be snuck in the omnibus 
bill, if this bill does not actually get passed today, we will fight 
against putting it in the omnibus bill. The reason why is because it is 
so important that we look the men and women in the face who are serving 
in our military today and say we are going to keep the commitment we 
are making to them today.
  They already made the sacrifices, and now we need to keep our 
commitment to them. In the future, we will keep our commitment to them 
and they can count on that.
  Secretary Principi and the administration, I believe, are trying to 
do the right thing. They are trying to say that as the veterans are 
moving, we recognize that. For a long time the VA has needed updating 
and changing, and they finally have the courage to start doing that. As 
a legislative body, let us not stop that process.
  My colleague Senator Reid and I have worked very hard on improving 
the services for veterans in our State, both in northern and southern 
Nevada, as all Senators try to do for their State. The bottom line is 
we should not hurt the services in the fastest growing areas of our 
country where the waits are so long, where people have to travel out of 
State to get the proper medical services. Let us look at our veterans 
and say no matter where they move in the United States, they are going 
to get the kind of services they have earned. And make no mistake about 
it, they have earned those services.
  Anybody who has taken a look at what I believe is this ill-conceived 
amendment will say this would, in effect, do harm to many veterans in 
this country and they deserve better than that.
  I thank the manager of the bill and the ranking member for the time, 
and I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.


                Amendment No. 2174 to Amendment No. 2150

  Mr. BOND. Mr. President, I thank the Senator from Nevada. We are 
working on some possible amendments from the Senator from Illinois. 
Also, Senator Mikulski has a major amendment. I would like to move very 
quickly to do some amendments that I believe will

[[Page 28584]]

not require any extended discussion. First for myself, I send an 
amendment to the desk and ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Missouri (Mr. Bond) proposes an amendment 
     numbered 2174.

  Mr. BOND. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

 (Purpose: Increase funds for the Office of Federal Housing Enterprise 
  Oversight to conduct audits, investigations and examinations and to 
                   provide for additional emergency)

       On page 61, beginning on line 7, strike out 
     ``$32,415,000,'' and all that follows through the period on 
     line 16 and insert in lieu thereof ``$39,915,000, to remain 
     available until expended, to be derived from the Federal 
     Housing Enterprise Oversight Fund: Provided, That not less 
     than 60 percent of total amount made available under this 
     heading shall be used for licensed audit personnel and audit 
     support: Provided further, That an additional $10,000,000 
     shall be made available until expended, to be derived from 
     the Federal Housing Enterprise Oversight Fund only upon a 
     certification by the Secretary of the Treasury that these 
     funds are necessary to meet an emergency need: Provided 
     further, That not to exceed such amounts shall be available 
     from the general fund of the Treasury to the extent necessary 
     to incur obligations and make expenditures pending the 
     receipt of collections to the Fund: Provided further, That 
     the general fund amount shall be reduced as collections are 
     received during the fiscal year so as to result in a final 
     appropriation from the general fund estimated at not more 
     than $0.''.

  Mr. BOND. At the request of the administration, this amendment would 
increase funding for the Office of Federal Housing Enterprise 
Oversight, OFHEO, for this year by $7.5 million. These funds are 
intended to strengthen OFHEO's examination, legal and human resources 
functions, and the fund's special investigation. The amendment includes 
an additional $10 million that is available only upon certification by 
the Secretary of the Treasury that there is an emergency need for 
additional funds.
  There is, I believe, a compelling need to reform the regulatory 
structure governing Fannie Mae and Freddie Mac. At a minimum, the 
senior management of OFHEO must be replaced, and replaced now.
  Senior management, in my view, has repeatedly failed to meet the most 
basic requirements of OFHEO's missions. For example, it took over 10 
years for OFHEO to issue its risk-based capital standards, despite the 
fact that this is OFHEO's primary mission and key to its regulatory 
oversight of the GSEs.
  This failing became even more evident when OFHEO publicly praised 
Freddie Mac's management just days before Freddie Mac's management was 
removed for accounting irregularities.
  I applaud the work of the Banking Committee in the Senate and in the 
House, Senator Shelby, Congressman Baker, and the ranking members for 
making regulatory reform of OFHEO a priority. I look forward to working 
with them next year to help develop the right regulatory system.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. I concur with my colleague.
  The PRESIDING OFFICER. Is there further debate? If not, the question 
is on agreeing to the amendment.
  The amendment (No. 2174) was agreed to.
  Mr. BOND. Mr. President, I move to reconsider the vote.
  Ms. MIKULSKI. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                Amendment No. 2175 To Amendment No. 2150

  Mr. BOND. I send to the desk an amendment on behalf of Senator 
Stevens relating to the Native American Housing Assistance and 
Determination Act.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond], for Mr. Stevens, 
     proposes an amendment numbered 2175 to amendment No. 2150.

  The amendment follows:

(Purpose: To provide an allocation of funding under the Native American 
Housing Assistance and Self-Determination Act of 1996 for the State of 
                                Alaska)

       On page 86, between lines 11 and 12, insert the following:

     SEC. 2__. NATIVE AMERICAN HOUSING.

       Allocation of Funding.--Of the amounts made available to 
     carry out the Native American Housing Assistance and Self-
     Determination Act of 1996 (25 U.S.C. 4101 et seq.) for fiscal 
     year 2004, there shall be made available to each grant 
     recipient the same percentage of funding as each recipient 
     received for fiscal year 2003.

   Mr. BOND. This is an amendment dealing with Native American housing. 
It is a simple amendment.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  Ms. MIKULSKI. Mr. President, I have no objection. This has been a 
longstanding issue raised by our colleague from Alaska. It is a very 
compelling situation.
  The PRESIDING OFFICER. If there is no further debate on the 
amendment, the amendment is agreed to.
  The amendment (No. 2175) was agreed to.


                Amendment No. 2176 To Amendment No. 2150

  Mr. BOND. On behalf of the Senators from Illinois, Mr. Durbin and Mr. 
Fitzgerald, I send an amendment to the desk dealing with the North 
Chicago VA Medical Center, making it available to the maximum extent 
feasible. I ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond], for Mr. Durbin, for 
     himself and Mr. Fitzgerald, proposes an amendment numbered 
     2176 to amendment No. 2150.

  Mr. BOND. I ask unanimous consent the reading of the amendment be 
dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

    (Purpose: To insert a provision relating to VA-Navy sharing of 
             facilities at North Chicago VA Medical Center)

       At the appropriate place, insert the following:
       Sec.  . Notwithstanding any other provision of law, the 
     Secretary of Veterans Affairs shall make the North Chicago VA 
     Medical Center available to the Navy to the maximum extent 
     feasible. The Secretary shall report to the Senate 
     Appropriations Committee by June 30, 2004, regarding the 
     progress in modifying North Chicago VA Medical Center's 
     surgical suite and emergency and urgent care centers for use 
     by veterans and Department of Defense beneficiaries. Further, 
     the Secretary shall consider having the new joint VA/Navy 
     ambulatory care center to serve both veterans and Department 
     of Defense beneficiaries sited on or adjacent to the North 
     Chicago VA Medical Center and shall consult with the 
     Secretary of the Navy to select the site for the center. The 
     Secretary of Veterans Affairs shall report to the Senate 
     Appropriations Committee on the site selection by June 30, 
     2004.

  Mr. BOND. I yield for any statement by the Senator from Illinois.
  Mr. DURBIN. I thank the chairman and the ranking Democrat for 
accepting this amendment on behalf of Senator Fitzgerald and myself. We 
are trying to encourage the cooperation of the North Chicago Veterans 
Hospital and the Great Lakes Training base for the benefit of the 
veterans, the sailors, and the taxpayers.
  Ms. MIKULSKI. This is an excellent amendment. We concur.
  Mr. BOND. This is something we need to do throughout the system, and 
we need to have a better integration of the health care facilities of 
the active military and the Veterans Affairs. I commend the Senators 
from Illinois and hope this model can be adopted elsewhere.
  Mr. DURBIN. Mr. President, I want to thank the bill managers for 
accepting the amendment that I am offering today, along with Senator 
Fitzgerald, to encourage further sharing of health care facilities 
between the Department of Veterans Affairs and the Navy in North 
Chicago, IL.
  The Illinois delegation has worked in a bipartisan manner for four 
years to encourage sharing between the North Chicago VA Medical Center 
and the Great Lakes Naval Training Center

[[Page 28585]]

(NTC) because of the proximity of the medical facilities. The Navy's 
hospital is 1\1/2\ miles from the North Chicago VA Medical Center, and 
the VA property adjoins Great Lakes NTC. The aim of the delegation was 
to keep the North Chicago VA Medical Center open, improve options for 
medical care for the Navy, improve training options for VA and Navy 
medical personnel, reduce costs, and improve access to health care for 
veterans and Department of Defense beneficiaries.
  The VA's process to consolidate veteran's health care facilities in 
the Chicago area allowed the North Chicago VA Medical Center to stay 
open, but with the proviso that more sharing between the VA and the 
Navy would take place.
  The Navy agreed to use the North Chicago VA Medical Center facilities 
as much as possible, in lieu of the Navy's outdated hospital, but 
renovation of a currently closed ward at the North Chicago VA Medical 
Center is required for a surgery suite, and the emergency and urgent 
care centers must be upgraded. The VA is planning to award a design 
contract for this work at the end of this year.
  For its part, the Navy has agreed to build a new ambulatory care 
center that could be used for active duty military personnel as well as 
for veterans. It will be paid for out of the Navy's budget, but I 
believe that the VA should have input into the site selection. Having 
the ambulatory care center on or adjacent to the North Chicago VA 
Medical Center would make sense. The center will be used by both 
veterans and military personnel, and having it on or adjacent to the VA 
facility would ease veterans' access to it. The North Chicago VA 
Medical Center sits on a large tract of land, and, while the Naval base 
is accessible, it still requires gaining entry through the enhanced 
security procedures of a military base, making it more difficult for 
veterans if the center were physically on the base.
  The amendment that Senator Fitzgerald and I offer today requires a 
report regarding the progress in modifying North Chicago VA Medical 
Center's surgical suite and emergency and urgent care centers for use 
by veterans and Department of Defense beneficiaries, demonstrating 
continued Congressional interest that these plans stay on track and on 
schedule. The amendment also requires that the Secretary of Veterans 
Affairs consult with the Secretary of the Navy to select the site for 
the ambulatory care center, in order to ensure a role for the Secretary 
of Veterans Affairs in negotiations with the Secretary of the Navy on 
site selection.
  I appreciate the efforts of the bill managers to work with us on this 
amendment and to include it in the managers' package.
  The PRESIDING OFFICER. Is there further debate? If not, the question 
is on agreeing to the amendment.
  The amendment (No. 2176) was agreed to.
  Mr. BOND. Mr. President, I move to reconsider the vote.
  Ms. MIKULSKI. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                Amendment No. 2177 To Amendment No. 2150

  Mr. BOND. Mr. President, I send another amendment to the desk on 
behalf of Senator Murkowski relating to rural teacher housing, amending 
the Denali Commission Act to provide the ability of the Commission to 
make grants and loans to public school districts serving remote 
incorporated cities and unincorporated communities in Alaska.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond], for Ms. Murkowski, 
     proposes an amendment numbered 2177 to amendment No. 2150.

  Mr. BOND. I ask unanimous consent the reading of the amendment be 
dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

 (Purpose: To provide housing for teachers, administrators, and other 
  school staff in remote areas of Alaska since such housing is often 
extremely substandard, if it is even available at all, and rural school 
districts in Alaska are facing increased challenges, including meeting 
  the mandates of the No Child Left Behind Act, and in recruiting and 
          retaining employees due to a lack of housing units)

       At the appropriate place, insert the following:

     SEC. __. RURAL TEACHER HOUSING.

       Section 307 of the Denali Commission Act of 1998 (42 U.S.C. 
     3121 note) is amended by adding at the end the following:
       ``(e) Rural Teacher Housing.--The Commission may make 
     grants and loans to public school districts serving remote 
     incorporated cities and unincorporated communities in Alaska 
     (including Alaska Native Villages) with a population of 6,500 
     or fewer persons for expenses associated with the 
     construction, purchase, lease, and rehabilitation of housing 
     units in such cities and communities. Unless otherwise 
     authorized by the Commission, such units may be occupied only 
     by teachers, school administrators, and other school staff 
     (including members of their households).''.

  Mr. BOND. This is carrying on our efforts to provide the best 
possible services to people in underserved areas of Alaska. I urge its 
adoption.
  The PRESIDING OFFICER. Is there further debate?
  Ms. MIKULSKI. I concur with the amendment.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The amendment (No. 2177) was agreed to.
  Mr. BOND. Mr. President, I move to reconsider the vote.
  Ms. MIKULSKI. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                Amendment No. 2178 To Amendment No. 2150

  Ms. MIKULSKI. Mr. President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Maryland [Ms. Mikulski] proposes an 
     amendment numbered 2178 to amendment No. 2150.

  Ms. MIKULSKI. I ask unanimous consent the reading of the amendment be 
dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

        (Purpose: To provide for certain capitalization grants)

       On page 104, between lines 14 and 15, insert the following:
       For an additional amount for capitalization grants for 
     State revolving funds, $3,000,000,000, to remain available 
     until expended, of which $1,850,000,000 shall be for 
     capitalization grants from State water pollution control 
     revolving funds established under title VI of the Federal 
     Water Pollution Control Act (33 U.S.C. 1381 et seq.) and 
     $1,150,000,000 shall be for capitalization grants from State 
     drinking water treatment revolving loan funds under section 
     1452 of the Safe Drinking Water Act (42 U.S.C. 300j-12): 
     Provided, That the entire amount made available under this 
     paragraph is designated by Congress as an emergency 
     requirement under section 502(c) of H. Con. Res. 95 (108th 
     Cong.).

  Ms. MIKULSKI. Mr. President, I rise to offer an amendment to increase 
funding for our communities for our Nation's waste system. My amendment 
is simple and straightforward. It adds $3 billion to the VA-HUD bill 
for a total of $5.2 billion for water and sewer infrastructure. My 
amendment increases funding in the EPA clean water State revolving loan 
fund to $3 billion, over $1.3 billion. My amendment also increases 
funding in the EPA drinking water revolving fund from $850 million to 
$2 billion.
  When I offer this amendment, I want to be very clear. I am in no way 
critical of the effort the committee has made. I have been part of the 
effort. I congratulate Senator Bond for his robust funding for water 
and sewer systems. I thank him for his hard work on this issue. But we 
simply did not have enough money in our allocation. The budget cut $500 
million from the President's budget from the clean water State 
revolving loan fund. Senator Bond and I worked together to restore that 
$500 million, and we are very grateful for that. But the Nation calls 
out for more.
  Our Nation's communities are facing enormous needs in their effort to 
provide clean water and safe water and to

[[Page 28586]]

comply with Federal environmental mandates. The need for better water 
and sewer systems is much greater than the amount that we now have in 
the Federal checkbook.
  There have been studies, and studies after that, and the needs have 
been real and valid and have been validated by independent research.
  The Federal Government must do more to help meet these needs. Failure 
to do so places a great burden on the local taxpayers because it shifts 
the responsibility to them. We have created an unfunded Federal 
mandate. At the same time, the lack of proper water and sewer threatens 
public health and environmental safety. Our State and local governments 
are also revenue-starved to meet these mandates.
  Let me tell you about some of the studies.
  In fiscal year 2000, the Water Infrastructure Network said our water 
and sewer systems will face a funding gap of $12 billion over the next 
20 years. GAO said the cost to really do our water and sewer systems 
the way they need to meet not only environmental but public health 
concerns will be $300 billion over 20 years. There is study after study 
after study that validates this.
  In my own State of Maryland, there is $4 billion in unmet needs. This 
isn't Senator Barbara Mikulski talking; this is the State of Maryland 
speaking. Our Eastern Shore and rural communities are trying hard to 
reduce harmful nutrients that pollute the Chesapeake Bay. Every time 
they increase their bonding authority to pay for unfunded mandates, it 
means one less school or one less highway. But the needs of Maryland 
are a cameo of the needs of the Nation. We are simply not putting 
enough money in the Federal checkbook for water and sewer systems.
  In my own hometown of Baltimore, our sewer system was built over 100 
years ago. We are under a court order instituted by the EPA to rebuild 
it. It will cost $1 billion to do this. In order to be able to do this, 
ratepayers will pay the bill.
  This is an issue where growing green also generates jobs.
  The second reason this amendment is necessary is that it creates 
jobs. It is estimated for every $1 billion we spend on water 
infrastructure, 40,000 jobs are created, from the civil engineers and 
architect who design on it, to construction contractors, to heavy 
equipment manufacturers, and even those who run the lunch wagons at the 
job site. This creates jobs, but it has value for the taxpayer. It will 
give the State a much needed breather as they themselves are trying to 
meet this need.
  My amendment is temporary and it is targeted. It is a one-time $3 
billion increase. This isn't $3 billion every year; it is $3 billion 
this year. The State loan funds have widespread support and would go a 
long way in helping this.
  The President requested $3.7 billion for water and sewer projects in 
Iraq. The President requested this funding as an emergency.
  I respect what the President said, but we have an emergency here. We 
have crumbling water systems that threaten public health. We need 
billions of dollars. We have rising rates for our citizens, and at the 
same time the local ratepayer is going to shoulder the responsibility. 
If there is an emergency in Iraq, there is surely a water and sewer 
emergency in this country.
  My amendment has widespread support--from the Water Infrastructure 
Network, a coalition of 47 nationally organized recognized 
organizations, to local officials, water and sewer service providers, 
engineers, construction contractors, labor unions, and 
environmentalists. This is the place where it all comes together--
mayors, Governors, workers, private sector.
  These will not be government jobs. These will be jobs in the private 
sector, in the local community, meeting local needs. Groups such as the 
League of Cities and the Association of Counties and others do that.
  I ask unanimous consent that two letters of support for my amendment 
be printed in the Record. They are from the Water Infrastructure 
Network, the Coalition of the American Rivers and Ocean Conservatory, 
and others.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 Water Infrastructure Network,

                                 Washington, DC, October 24, 2003.

     Hon. Barbara Mikulski,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
     Re support for $5.2 billion for Clean & Safe Water SRFs.
       Dear Senator Mikulski: The Water Infrastructure Network 
     (WIN) strongly supports your $5.2 billion amendment for the 
     Clean Water and Safe Drinking Water State Revolving Funds 
     (SRFs) in the Fiscal Year (FY) 2004 Veterans, Housing and 
     Independent Agencies Appropriations bill. WIN is a broad-
     based coalition of 47 nationally-recognized organizations 
     that represent local elected officials, drinking water and 
     wastewater service providers, environmental and health 
     administrators, engineers, labor unions, construction 
     contractors, and environmentalists. WIN is dedicated to 
     preserving and protecting the health, environmental, and 
     economic gains that America's drinking water and wastewater 
     infrastructure provides.
       The SRFs help local communities meet water quality 
     standards, repair and replace old and decaying pipelines and 
     plants, protect public health, and ensure continued progress 
     in restoring the health and safety of America's water bodies. 
     This investment is a much-needed down payment to improve our 
     nation's water and wastewater treatment plants. Your support 
     for additional funding for the SRFs would help stimulate the 
     economy, create jobs and provide funds for securing our water 
     infrastructure for generations to come. WIN supports your 
     proposed increase in federal funding in FY 2004 for the Clean 
     Water SRF from its current level of $1.35 billion to $3.2 
     billion and for the Drinking Water SRF from $850 million to 
     $2 billion. WIN believes this is an important first step 
     toward developing a long-term, sustainable solution to close 
     our country's infrastructure funding gap.
       Safeguarding clean and safe water must remain one of our 
     nation's highest priorities even though funding its continued 
     improvement is one of our greatest challenges. Thank you for 
     supporting clean and safe water in America.
           Sincerely,
       American Concrete Pipe Association (ACPA); American 
     Concrete Pressure Pipe Association (ACPPA); American Council 
     of Engineering Companies (ACEC); American Public Works 
     Association (APWA); American Society of Civil Engineers 
     (ASCE); American Water Works Association (AWWA); Associated 
     Equipment Distributors, Inc. (AED); Association of Equipment 
     Manufacturers (AEM).
       Associated General Contractors of America (AGC); 
     Association of California Water Agencies (ACWA); Association 
     of Metropolitan Sewerage Agencies (AMSA); Association of 
     Metropolitan Water Agencies (AMWA); California Rebuild 
     America Coalition (CalRAC); Construction Management 
     Association of America (CMAA); Chesapeake Bay Foundation 
     (CBF); Design-Build Institute of America (DBIA).
       Environmental and Energy Study Institute (EESI); 
     International Association of Bridge, Structural, Ornamental 
     and Reinforcing Iron Workers; International Brotherhood of 
     Teamsters; International Union of Bricklayers and Allied 
     Craftworkers (BAC); International Union of Operating 
     Engineers, AFL-CIO (IUOE); Laborers' International Union of 
     North America (LIUNA); National Association of Counties 
     (NACo).
       National Association of Flood and Stormwater Management 
     Agencies (NAFSMA); National Association of Regional Councils 
     (NARC); National Association of Sewer Service Companies 
     (NAASCO); National Association of Towns and Townships 
     (NATaT); National Heavy & Highway Alliance; National League 
     of Cities (NLC); National Precast Concrete Association 
     (NPCA); National Ready Mixed Concrete Association (NRMCA).
       National Rural Water Association (NRWA); National Society 
     of Professional Engineers (NSPE); National Urban Agriculture 
     Council (NUAC); Operative Plasters' and Cement Masons' 
     International Association; Pipe Rehabilitation Council (PRC); 
     Plastics Pipe Institute, Inc. (PPI); Portland Cement 
     Association (PCA); Rural Community Assistance Program, Inc. 
     (RCAP).
       SAVE International (SAVE); Uni-Bell PVC Pipe Association 
     (Uni-Bell); The Vinyl Institute; Underground Contractors 
     Association of Illinois (UCA); United Brotherhood of 
     Carpenters and Joiners of America (UBC); Water Environment 
     Federation (WEF); WaterReuse Association (WasteReuse); 
     Western Coalition of Arid States (WESTCAS).
                                  ____

                                                 October 27, 2003.
     Support Mikulski amendment to fight water pollution on VA/HUD 
         2004 appropriation bill.

       Dear Senator: We ask you to vote in favor of Senator 
     Mikulski's floor amendment to the VA-HUD appropriations bill 
     appropriating $3 billion this year to fund critical drinking 
     water and wastewater infrastructure needs. Our nation's 
     perpetual failure to

[[Page 28587]]

     invest in maintaining our drinking water and sewer systems is 
     endangering public heath and safety. The gap between our 
     needs and our spending is on the order of $15 billion each 
     year according to EPA.
       The current funding is grossly insufficient to meet our 
     nation's water quality needs, including addressing drinking 
     water security issues, removing arsenic and other toxins from 
     our tap water, rehabilitating aging sewer plants, controlling 
     raw sewer overflows, decontaminating stormwater discharges, 
     and minimizing polluted runoff. The cumulative impact of our 
     society's failure to invest in clean water year after year 
     has begun to cause very serious harm to public health, to the 
     environment, and to our economy.
       Experts estimate 7.1 million cases of mild to moderate and 
     560,000 cases of moderate to sever infectious waterborne 
     disease in the United States each year, costing untold 
     billions of dollars in health care and other expenses.
       The CDC found that in 1999-2000 there were 39 disease 
     outbreaks associated with drinking water and 59 associated 
     with recreational water. Experts say approximately 1 in 10 
     waterborne disease outbreaks are detected.
       There are over 200,000 water main breaks/yr. in the U.S.
       The loss of swimming opportunities (beach closings) due to 
     pathogen contamination is valued at $1-2 billion annually in 
     the U.S. (EPA, 1995).
       Economic losses due to swimming-related illnesses estimated 
     at $28 billion annually (EPA, 1995).
        There are estimated to be at least 40,000 discharges of 
     raw sewage each year from ``sanitary'' sewer systems into 
     streets, playgrounds, and waterways and 400,000 basement 
     backups (U.S. EPA 2001).
       Raw sewage discharges from combined sewer systems dump 1.2 
     trillion gallons of raw sewage into waterways each year in 
     more than 700 U.S. cities.
       Over 90% of U.S. city water supplies continue to use pre-
     WWI era technology to treat drinking water.
       Earlier this year the Senate in its Budget Resolution 
     approved a $3 billion increase in funding for the SRFs above 
     last year's level, but unfortunately this proposal did not 
     survive conference with the House. The Mikulski amendment 
     would make this critical funding available through an 
     emergency designation. Since inadequate drinking water and 
     wastewater treatment results in raw sewage discharges, 
     contaminated drinking water, beach closings, and waterborne 
     disease outbreaks, this national problem clearly qualifies as 
     a public health emergency.
       We strongly urge you to support investing now in a clean 
     water future for our nation. We also ask you to support any 
     other amendments that improve environmental protection and to 
     keep the bill free of anti-environmental riders.
           Sincerely,
         S. Elizabeth Birnbaum, Director of Government Affairs, 
           American Rivers, Bob Perciasepe, Chief Operating 
           Officer, National Audubon Society; Paul Schwartz, 
           National Campaigns Director, Clean Water Action; Dawn 
           Hamilton, Executive Director, Coast Alliance; Diana 
           Neidle, Public Policy Advocate, Consumer Federation of 
           America; Michele Merkel, Counsel, Environmental 
           Integrity Project; Sara Zdeb, Legislative Director, 
           Friends of the Earth.
         Lisa Ragain, GWU Medical Center, Center for Risk Science 
           and Public Health, National Association of People with 
           AIDS; Olivia B. Wein, Staff Attorney, National Consumer 
           Law Center; Nancy Stoner, Senior Attorney, Natural 
           Resources Defense Council; Catherine Hazlewood, Clean 
           Oceans Programs Manager, The Ocean Conservancy; Kyle 
           Kinner, Legislative Director, Physicians for Social 
           Responsibility; Anna Aurilio, Legislative Director, 
           U.S. Public Interest Research Group; Michele Boyd, 
           Legislative Representative, Public Citizen; Debbie 
           Boger, Deputy Legislative Director, Sierra Club.

  Ms. MIKULSKI. Mr. President, in conclusion, my amendment helps our 
communities by providing more funding to meet immediate water and sewer 
needs so our communities can have clean and safe water. Water and sewer 
funding provides dual value for the taxpayers. It helps public health, 
it helps the environment. We will have clean water and safe water, and 
it creates jobs.
  I urge my colleagues to support my amendment to provide $3 billion 
more for our communities because I know every single State could use at 
least $1 billion more and I wish we could do it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Ms. LANDRIEU. Mr. President, I rise to speak on the underlying bill 
as well as to make some general comments about the Defense 
authorization bill we just passed and a few comments about the veterans 
provisions generally.
  I thank the Chair and the ranking member for their good work on the 
underlying bill. I understand we hope to pass this very important 
appropriations bill before 6 o'clock this evening.
  I was unable to be here earlier today. I want to make a couple of 
comments regarding veterans generally.
  There are 400,000 veterans in Louisiana, and 12,000 of them are 
directly affected in a very positive way by the underlying bill.
  Before I speak about that, I wish to say that the chairman of the 
Armed Services Committee, Senator Warner from Virginia, and our ranking 
member, Senator Levin, should be commended for crafting a very good 
Defense authorization bill at a very difficult time.
  I was formerly a member of the Armed Services Committee and worked 
for many years to fashion a bill, and I know how difficult it is even 
in times that are not stressful, much less in a time when we are in a 
war against terror in Iraq, here at home and other places around the 
world. It seems to me, as a former member of the committee, that the 
conference could have imploded many different times. But to Senator 
Warner's and Senator Levin's credit and very good bipartisan working 
relationship, that bill was passed earlier today.
  While I don't agree with all the provisions of it, there are a couple 
which are very important to our troops in Louisiana: No. 1, the 4.1 
percent pay raise for all of our troops. And, No. 2, we moved closer to 
completely eliminating the disability tax on veterans in Louisiana with 
20 years of service; that is, 12,000 men and women who now, when they 
retire, do not get their full retirement and disability benefits but 
basically have to give up 50 percent of that benefit. This bill we 
passed earlier today corrects that. For those families and their loved 
ones, that will mean immediate help.
  In addition, the TRICARE eligibility expansion for guardsmen and 
reservists, if they are unemployed or cannot acquire health insurance 
from their employers, is a tremendous gesture to the Guard and Reserve 
who we are counting on and depending on to help defend us at this time. 
We literally could not win this war or even begin this endeavor without 
their commitment.
  We must remain committed to the quality of life of our veterans and 
to letting our Guard and Reserve men and women know how much we 
appreciate them. We must keep ever vigilant, particularly when it comes 
to the Guard and Reserve. We are getting ready to send another 43,000.
  I wish to make a couple of comments about the tax treatment of our 
Guard and Reserve and speak about some disappointment in that area.
  Yesterday, with some fanfare, the Military Family Tax Relief Act was 
passed. It is a help, but in my mind it is an insufficient gesture. It 
is too modest for what our men and women in uniform deserve. The bill 
provided $1.1 billion in tax relief, which was asked for and which is 
most certainly deserved. It doubles the amount of payments to survivors 
of soldiers killed in action from $6,000 to $12,000--not a lot of 
money, but it helps the families better than the $6,000 that was in the 
previous law. It allows guards and reservists to deduct travel 
expenses, it allows troops to deduct the cost of equipment they buy 
themselves, and it reduces the residency requirement so our troops can 
take full benefit of the capital gains provision in the law as do other 
Americans who are not in the service.
  But this bill did not go far enough. I wish to speak for a minute 
about this and my strong objection to moving forward with it without 
additional help and support.
  The bill that was signed, Tax Relief for Families in the Military, 
represented .006 percent of the $1.75 trillion in tax relief that has 
been passed by this Congress at the urging of this administration. Let 
me repeat. The bill that was signed on Tuesday for the military only 
represented .006 percent of the tax cuts that have been provided by 
this administration to Americans generally. Yet the military, the men

[[Page 28588]]

and women in uniform today, the over 1 million men and women in 
uniform, are providing 100 percent of our security, one could argue. 
That is not to diminish the role of our men and women in uniform, 
police and fire on the home front, but protecting our borders, fighting 
the battles overseas, they are providing 100 percent of the protection. 
Yet they only receive in this bill .006 percent of the tax cut.
  We asked, Republicans and Democrats alike, to please include a 
provision that would have allowed the Guard and Reserve who are leaving 
their jobs and leaving their businesses to go fight in Iraq, to please 
have the Federal Government recognize that many of these families are 
losing income, sometimes as much as 60, 70, or 80 percent. We are 
asking them not just to go and put their life on the line, but we are 
asking them to put their livelihood on the line.
  When some Members petitioned this administration, and particularly 
the House Republican leadership, to give some relief, to provide some 
tax relief to these businesses to encourage them to maintain those 
salaries for our Guard and Reserve, we were told: We do not have enough 
money.
  We had 1.75 trillion to give tax cuts generally to people not in the 
military, but we could not find a few pennies to help our businesses in 
this country, to help their employees meet their salaries for the 
benefit of their families. I know the Senator wants to get back to the 
HUD bill, and I will in a minute, but I want to make this point and 
then get to the underlying bill, VA-HUD.
  What we have to do in every way we can, whether it is this veterans 
bill we are debating now, whether it is in Defense authorization, or 
whether it is in our tax bills, to recognize our first priority should 
be to our men and women in uniform, overseas and here on our home 
front. When we design tax packages and tax benefits, they should be the 
first, not the last, to receive the help. They should be getting the 
lion's share or the essence or the core, not the crumbs that fall from 
the table.
  Unfortunately, still, despite the lives that are being given, despite 
the effort that is being made, they still are receiving crumbs when 
they deserve the whole loaf of bread.
  I will submit for the Record an article about a reservist reward for 
MSG Rodriguez: His reward was bankruptcy. When MSG Rodriquez and his 
company were activated for 1 year, they were given an 8-hour notice. He 
had to leave behind his wife to run the couple's construction company. 
He comes home and his daughter, of course, is crying and in tears, his 
wife is upset because they lost their business. Their income was cut by 
80 percent. I ask unanimous consent to have this article printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From CBS Evening News, Nov. 11, 2003]

                    A Reservist's Reward--Bankruptcy

       On a sun soaked street in northern California, Air Force 
     reservist Oscar Rodriguez is finally back home from active 
     duty, where, as CBS News Correspondent Byron Pitts reports, 
     the high and unexpected cost of war has taken a toll.
       ``They ain't giving us a loan cause I got bad credit,'' 
     says Rodriguez.
       ``It was hard seeing my mom,'' says his daughter Desiree. 
     ``I mean seeing her stressed and seeing her cry--it hurts a 
     lot.''
       When Master Sgt. Rodriguez and his company were activated 
     for one year--on eight hours notice--he left behind his wife 
     to run the couple's construction company.
       ``My dad was away and so she's pretty much was doing this 
     on her own cause he can't do anything about it when he's 
     gone, and I can't really do anything about it, but I try,'' 
     says Desiree.
       They all tried, but with Rodriguez at war, repairing Air 
     Force cargo planes, the family income was cut by 80 percent.
       ``I lost the bids for my construction projects,'' says 
     Rodriguez. ``I lost my savings. I lost my credit. My credit 
     history--it's in shambles.''
       Despite federal laws protecting active duty reservists from 
     creditors during wartime, the creditors kept calling. Their 
     home is now in foreclosure.
       ``You do everything that you're supposed to do without 
     asking for help,'' says his wife Kathy. ``All you want is for 
     everyone to do the right thing.''
       The Rodriguez family aren't the only ones who've 
     sacrificed. Of the nearly 200,000 reservists on active duty 
     in Afghanistan, Iraq and around the world, one-third have 
     taken a pay cut in order to serve their country.
       Rodriguez is now trying to rebuild his business one step at 
     a time. He's gone from building hotels to kitchen counters. 
     He's suing his creditors as much for the principle as the 
     money.
       ``It's about every soldier, sailor, airman or marine,'' 
     says Rodriguez. ``Anybody who's serving our country has a 
     right to at least not be concerned about the wolves knocking 
     at the door.''
       Asked if they're going to recover, Rodriguez and his wife 
     say they aren't sure.
       ``We're separated,'' said Kathy Rodriguez, as her husband 
     sat silently beside her.
       The strain of duty and debt may have cost this couple their 
     marriage. Yet, Rodriguez has re-enlisted.
       He's a member of an Air Force Honor Guard.
       For him, sacrifice isn't a slogan. In war there are 
     casualties, both overseas and at home.

  Ms. LANDRIEU. The efforts some Members made to get this issue dealt 
with were rejected because we did not have enough money to help this 
reservist or the thousands and hundreds of thousands who are fighting 
for us, taking the cut in pay and losing their companies in the 
process.
  Also I ask unanimous consent to have printed in the Record an article 
printed regarding 120,000 Federal employees who serve in the National 
Guard and Reserve. Nearly 14,000 have been called to active duty to 
help fight the war in Iraq. Senator Durbin and I wanted to get in the 
tax bill that was passed a provision that would allow them to maintain 
their salaries, their Federal salaries, so as not to fall down, 
basically, to receive the lower salary they receive in the Guard and 
Reserve. The sad thing is it would not have cost the Government 
anything because we had already budgeted to pay them their full 
salaries. This was rejected.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

           [From Government Executive Magazine, Apr. 2, 2003]

             Bill Would Close Pay Gap for Active Duty Feds

                         (By Tanya N. Ballard)

       Three Senate lawmakers introduced a bill Wednesday that 
     would require the government to pay the difference between 
     civilian and military wages for federal employees called to 
     active duty.
       More than 120,000 federal employees serve in the National 
     Guard and Reserves, and nearly 14,000 of them have been 
     called to active duty to help fight the war in Iraq. But most 
     of those employees earn less as active duty reservists than 
     as civilian workers, according to Sen. Richard Durbin, D-Ill. 
     Durbin joined with Sens. Mary Landrieu, D-La., and Barbara 
     Mikulski, D-Md. to introduce legislation that would close the 
     gap between military and civilian pay for those workers.
       ``We cannot simultaneously encourage Americans to serve 
     their country in the National Guard and Reserves and then 
     punish those who enlist by taking away a large portion of 
     their income,'' Durbin said.
       The Illinois senator described the case of one Air Force 
     reservist who took a $45,000 cut in pay when he was called to 
     duty and left his job as an air traffic controller in 
     Chicago.
       ``This was a severe blow to his family,'' Durbin said.
       According to Landrieu, several local and state governments, 
     as well as private companies, have a pay gap plan in place to 
     address this issue and the federal government needs to do the 
     same.
       ``Reserve and guard employees--whether working in the 
     public or private sector--should not have to take a pay cut 
     when called to active duty, and that's exactly what's 
     happening now,'' Landrieu said. ``These men and women are not 
     getting a tax cut, they are taking a pay cut to serve. It 
     does not make sense.''
       According to Durbin, the gap in salary can range from 2 
     percent to 48 percent.
       ``We must provide our reservist employees with financial 
     support so they can leave their civilian lives to serve our 
     country without the added burden of worrying whether their 
     loved ones back home can make the monthly mortgage payment or 
     provide new shoes for their kids.'' Durbin said. ``They are 
     doing so much for us, we should do no less for them.''

  Ms. LANDRIEU. I say for the benefit of the people in Louisiana, we do 
not understand how we can give our tax credits to everybody but the 
Guard and Reserve. We can give out help to everybody except those 
Federal employees who take off one uniform and put on another, leave 
their homes for 6 months to a year, sometimes longer,

[[Page 28589]]

and we expect them to take a cut in pay when we are giving tax credits 
to people who are not fighting.
  If I could conclude on this one issue which really pours salt into 
the wound, when people say, Senator, we could not afford it, we 
actually found a way to pay for it. We said we should pay for it by 
making people who are right now evading U.S. taxes because they have 
made so much money in America because our troops have put their life on 
the line to protect the way of life which allows business people to 
make a lot of money in America, these business people who have made a 
lot of money because of what these men and women are doing in the Armed 
Forces, these business people are now deciding they are paying too much 
in tax, so they go to another country. They do not want to pay their 
taxes.
  So we said let's make those folks pay their taxes and use those 
proceeds to pay for tax relief for the men and women in the military. 
We were told we cannot do that. We cannot possibly make people who owe 
taxes to America pay their taxes so that we can pay the men and women 
in uniform and give them a tax cut. I hope we will change our policy 
because it is wrong. We have missed an opportunity to help these 
families.
  I conclude by thanking Senator Mikulski and Senator Bond for their 
hard work on behalf of veterans. They have restored a lot of the cuts 
that were proposed by this administration. I am proud to be part of 
helping to pass a veterans bill. But let's not forget it is not just 
about appropriations bills where we can help our men and women in 
uniform. Tax bills can help them. Other direct spending bills can help 
them. No one deserves our help more than people who put on a uniform 
every day and actually put their life on the line.
  This Senator does not think we are doing enough and can afford to do 
more when we found an offset to make regular people pay the taxes they 
owe. If they do not want to put on a uniform and fight, that is fine, 
but at least give the benefits to the people who are protecting their 
ability to make a living.
  I yield the floor.
  Mr. JEFFORDS. Mr. President, I am a cosponsor of the Lautenberg-
Mikulski amendment increasing funding for the enforcement activities of 
the Environmental Protection Agency, EPA. I would like to voice my 
strong support for this amendment. Without effective enforcement, our 
environmental laws will never succeed in reducing pollution and 
improving environmental quality. Simply put, the best environmental 
laws in the world mean nothing without vigorous enforcement.
  Unfortunately, this administration does not share this sentiment. 
Just last week, the administration directed the EPA to abandon ongoing 
investigations of some 50 different facilities for violations of the 
Clean Air Act's New Source Review provisions. Apparently, gutting the 
rule itself was not enough. Pardons for big polluters--many of them 
large political contributors--seem to be the administration's preferred 
approach to environmental enforcement.
  Lack of enforcement is hardly confined to the Clean Air Act. Indeed, 
a recent report from the EPA inspector general reveals an Agency 
failing to keep up with its enforcement duties across a number of 
different programs. According to the report, a majority of special 
agents-in-charge of environmental crimes states that they will not open 
a new case if they lack the resources necessary to pursue the case. In 
addition, formal enforcement actions under several key Clean Water Act 
programs have declined dramatically over the last 3 years. 
Specifically, the number of formal enforcement actions brought under 
the National Pollution Discharge Elimination System declined by 45 
percent between 1999 and 2001. Clear Water Act enforcement actions 
against large concentrated animal feeding operations declined by more 
than 90 percent between 2000 and 2002.
  I ask my colleagues: What kind of message does this send to the 
Nation's polluters? What kind of message does it send to the American 
people?
  On one hand, we have an administration that is openly hostile to 
environmental enforcement. On the other hand, we have an EPA that is 
unable to initiate new environmental crimes cases and is dramatically 
scaling back on several major civil enforcement programs because the 
agency lacks adequate resources. I hope that Administrator Leavitt will 
work to remedy this situation, but I fear that much of the problem may 
ultimately lie with the White House.
  Mr. President, the additional appropriation contained in this 
amendment represents a modest increase in the Agency's enforcement 
budget. But it is crucial one given the Agency's inability to keep up 
with its obligations to enforce this country's environmental laws. This 
amendment also sends a signal to the EPA and to the administration that 
the Senate takes environmental enforcement seriously. At the end of the 
day, the answer is not, as the administration would have it, to abandon 
existing enforcement actions.
  Rather, the answer is to provide adequate resources and to demand 
more oversight to ensure that our environmental laws will not be empty 
words in the statute books.
  Mr. JEFFORDS. Mr. President, I rise before you today to join my 
colleague, Senator Mikulski, in offering this amendment to increase the 
funds available for water infrastructure spending.
  Since assuming the chairmanship of the Environment and Public Works 
Committee in 2001, I have spent many hours in the committee and here on 
the Senate floor discussing the pressing need for investment in our 
Nation's water infrastructure.
  In the 107th Congress, the committee passed S. 1961, the Water 
Investment Act, which I introduced with Senators Graham, Crapo, and 
Smith of New Hampshire, which would have increased water infrastructure 
spending by $35 billion, providing $3.2 billion for clean water in the 
first year, and $2 billion for drinking water in the first year
  The Bush administration opposed the bill, stating, ``. . . the 
administration does not support the funding levels contained in S. 
1961.''
  In December 2002, Senators Sarbanes and Voinovich and I, along with 
38 Members of the Senate from both sides of the aisle, sent a letter to 
the President asking him to provide $3.2 billion for clean water 
spending, and $2 billion for drinking water spending.
  Instead, President Bush responded by proposing a 40 percent cut in 
water infrastructure spending to Congress in his fiscal year 2004 
budget.
  In March 2003, I cosponsored an amendment with Senators Mikulski, 
Sarbanes, Graham and Crapo to increase the allocation for water 
infrastructure spending in the budget resolution to $3.2 billion for 
clean water, and $2 billion for drinking water.
  It was accepted by the Senate and dropped in conference with the 
House.
  I do appreciate the work that the Senate VA-HUD Subcommittee did to 
restore clean water infrastructure spending to $1.35 billion, up from 
the President's request of $800 million--a significant step in the 
right direction.
  The ironic thing about this issue, the actions we have taken over the 
last 2 years, and the lack of major progress is that there appears to 
be bipartisan consensus that water infrastructure spending has 
significant need, is critical to our Nation's water quality, leads to 
job growth, and enjoys broad support among the American people.
  First--the needs are substantial. The EPA's own estimates show a $535 
billion gap between current spending and projected needs for water and 
wastewater infrastructure over the next 20 years if additional 
investments are not made.
  According to the Congressional Budget Office, the spending gap for 
clean water needs is estimated to be between $132 billion and $388 
billion over 20 years, and the spending gap for drinking water needs at 
between $70 billion and $362 billion over 20 years.
  It is not solely the Federal Government's responsibility to fill this 
gap. However, it is the Federal Government's responsibility to provide 
a reasonable investment in water infrastructure, given the size of the 
anticipated needs.
  Second--repair of a quickly deteriorating water infrastructure is 
critical to our Nation's water quality.

[[Page 28590]]

  Our towns and cities, along with the Federal Government, have 
invested billions of dollars over the last 30 years to build the 
infrastructure to treat our wastewater and drinking water. It is with 
this infrastructure that the country has been able to return about 60 
percent of our waters to swimming and fishing standards.
  Even with those investments, we continue to fail to fully protect our 
waters from pollution, with over 40 percent of our Nation's waters 
still impaired.
  Now, the progress we have made over the last 30 years stands on the 
brink of evaporation as the extensive water and wastewater 
infrastructure we have built nears the end of its useful life, and we 
are failing to reinvest
  Third, estimates show that for every billion dollars invested in 
water infrastructure spending, approximately 40,000 jobs would be 
created. We must take action to prevent our economy from faltering. We 
are proposing to invest $5.2 billion in the State revolving funds.
  The States will provide a 20-percent match of just over $1 billion. 
This could create over 200,000 jobs.
  Yet despite the apparent consensus that there are significant needs, 
that healthy water infrastructure is in need of repair, that investment 
will increase job growth, and that Americans support investing in water 
infrastructure, we fail to act. Why? I cannot answer that question.
  Just last month, the President recognized the importance of water 
infrastructure needs in Iraq with his request for an $87 billion 
supplemental spending package that provided about $4 billion for water 
infrastructure improvements.
  It is appalling to me that the President is willing to support water 
infrastructure investment overseas while failing to recognize that 
Americans have the same needs here at home.
  However, the fact that the President failed to recognize our water 
infrastructure needs, requested a 40-percent drop in water 
infrastructure spending, and sought emergency spending for water 
infrastructure in Iraq that was four times the amount he requested for 
domestic water infrastructure spending, does not justify the same 
failure by this Senate.
  The amendment that I offer today with Senator Milkulski provides a 
downpayment on our water infrastructure needs. It provides an 
additional $3 billion for domestic water infrastructure improvements. 
This increase is $1.3 billion less than the amount this Senate approved 
for Iraq less than 2 weeks ago.
  By voting aye on the amendment offered by the Senator from Maryland, 
each of you can take direct action to improve both the state of our 
Nation's waters and the state of our Nation's economy.
  Today could be the day that the Senate finally changes the course of 
water infrastructure spending and votes decisively to live up to our 
responsibility and improve the quality of our Nation's waters.
  The outcome is up to us. I urge you to support the amendment proposed 
by the Senator from Maryland.
  Mr. SARBANES. Mr. President, I rise in strong support of this 
amendment, by my colleague Senator Mikulski to boost federal funding 
for the clean water and safe drinking water state revolving funds (SRF) 
by an additional $3 billion. I spoke earlier this year on a similar 
amendment which I offered to the Senate budget resolution and I just 
want to underscore some of the key reasons this amendment is needed.
  The President's Fiscal 2004 budget severely short changes the funds 
needed by State and local governments to upgrade their aging wastewater 
and drinking water infrastructure. The President's budget provided only 
$1.7 billion for both State Revolving Funds, split equally. The 
Committee-approved bill provided an additional $500 million, restoring 
the President's budget cut to the Fiscal 2003 enacted level of funding 
of $2.2 million--but is still short of what is needed.
  Despite important progress over the last three decades, EPA reports 
that more than 40 percent of our nation's lakes, rivers and streams are 
still too impaired for fishing or swimming. Discharges from aging and 
failing seweage systems, urban storm water and other sources, continue 
to pose serious threats to our nation's waters, endangering not only 
public health, but fishing and recreation industries. Population growth 
and development are placing additional stress on the nation's water 
infrastructure and its ability to sustain hard-won water quality gains.
  Combined sewer systems or so-called CSOs can be found in more than 
750 communities in 32 States and the District of Columbia. EPA 
estimates that annual combined sewer systems discharge nearly 1,300 
billion gallons of untreated or under-treated wastewater. To eliminate 
sewer overflows, the City of Baltimore alone must invest more than $900 
million to upgrade its sewer system and comply with a consent decree 
with the Department of Justice and the Environmental Protection Agency. 
Many other cities across the nation face similar challenges. In fact, 
three years ago, in 2000, Congress amended the Clean Water Act to 
authorize a $1.5 billion grant program to help cities reduce these wet 
weather flows, but funds have not been available to implement the 
program.
  Nearly 20,000 municipalities have separate sewer systems or SSOs, 
serving a population of 150 million. Unlike CSOs, these separate 
sanitary collection systems are not intended to carry significant 
volumes of extraneous water, such as storm water runoff, but frequently 
do because of infiltration and inflow, aging systems, and other 
factors. EPA acknowledges that sanitary sewer overflows pose a severe 
problem to the environment and public health.
  Across the nation, our wastewater and drinking water systems are 
aging. In some cases, systems currently in use were built more than a 
century ago and have outlived their useful life. For many communities, 
current treatment is not sufficient to meet water quality goals. Recent 
modeling of the EPA's Bay Program has found that the 304 major 
municipal wastewater treatment facilities in the watershed will have to 
reduce nitrogen discharges by nearly 75 percent to restore the 
Chesapeake Bay and its major tributaries to health. Achieving this goal 
is estimated to cost $4.4 billion.
  In April 2000, the Water Infrastructure Network (WIN), a broad 
coalition of local elected officials, drinking water and wastewater 
service providers, state environmental and health administrators, 
engineers and environmentalists released a report, Clean & Safe Water 
for the 21st Century. The report documented a $23 billion a year 
shortfall in funding needed to meet national environmental and public 
health priorities in the Clean Water Act and Safe Drinking Water Act 
and to replace aging and failing infrastructure.
  In May 2002, the Congressional Budget Office released a report that 
estimated the spending gap for Clean Water needs between $132 billion 
and $388 billion over 20 years and the spending gap for drinking water 
needs at between $70 billion and $362 billion over 20 years.
  In September 2002, the EPA released a Clean Water and Drinking Water 
Infrastructure Gap Analysis which found that there will be a $535 
billion gap between current spending and projected needs for water and 
wastewater infrastructure over the next 20 years if additional 
investments are not made. This figure does not even account for 
investments necessary to meet water quality goals in nutrient impaired 
waters, like Chesapeake Bay.
  The need for additional investment in wastewater and drinking water 
infrastructure is clearly documented.
  But, States, localities and private sources can't meet the funding 
gap alone.
  Local communities already pay almost 90 percent of the total cost or 
about $60 billion a year to build, operate, and maintain their water 
and wastewater systems. But as former Administrator Whitman pointed 
out, ``(t)he magnitude of the challenge America faces is clearly beyond 
the ability of any one entity to address.''
  Water pollution is an interstate problem. The Congress understood the 
interstate dynamic of pollution in 1972

[[Page 28591]]

when a bi-partisan majority passed the Clean Water Act and began 
funding waste treatment infrastructure. In 1979 and 1980, the Congress 
provided $5 billion in Clean Water construction grants alone to assist 
states and municipalities with wastewater infrastructure needs. Over 
the years, budgetary pressures and other factors have reduced that 
funding level, and in Fiscal 2003, we provided only $1.34 billion in 
Clean Water State Revolving loan funds.
  It is vital that the Federal government maintain a strong partnership 
with states and local governments in averting the massive projected 
funding gap and share in the burden of maintaining and improving the 
nation's water infrastructure. Municipalities need significant 
resources to comply with Federal clean water and drinking water 
standards. In the 107th Congress, House and Senate committees approved 
bills to authorize $20 billion over 5 years for the Clean Water Act 
SRF, underscoring the recognition that something must be done to 
address this funding gap.
  An increase in funding for the Clean Water SRF to $3.2 billion and 
for the Drinking Water SRF to $2 billion in fiscal 2004 is the first 
step necessary to meet the Federal government's longstanding commitment 
in this regard.
  This isn't a make-work public works project. It is an investment in 
the health of Americans and in a clean environment. It is an investment 
that will pay substantial dividends.
  Wastewater treatment plants not only prevent billions of tons of 
pollutants each year from reaching our rivers, lakes, streams, and 
coasts they also help prevent water-borne diseases and make waters safe 
for swimming and fishing.
  According to the Water Infrastructure Network, ``Clean water supports 
a $50 billion a year water-based recreation industry, at least $300 
billion a year in coastal tourism, a $45 billion annual commercial 
fishing and shell fishing industry, and hundreds of billions of dollars 
a year in basic manufacturing that relies on clean water. Clean rivers, 
lakes, and coastlines attract investment in local communities and 
increase land values on or near the water, which in turn, create jobs, 
add incremental tax base, and increase income and property tax revenue 
to local, state, and federal government. Some 54,000 community drinking 
water systems provide drinking water to more than 250 million 
Americans. By keeping water supplies free of contaminants that cause 
disease, these systems reduce sickness and related health care costs 
and absenteeism in the workforce.''
  They also create jobs--indeed tens of thousands of jobs and provide 
stimulus to the economy.
  Each $1 billion in sewer and water improvements creates an estimated 
40,000 jobs. With more than $5 billion in water infrastructure projects 
ready for construction, these jobs would be created immediately with 
Federal assistance. According to OMB, every federal dollar invested in 
water infrastructure generates up to $4 for project loans, so the 
potential for job creation from this amendment is tremendous.
  The case for this amendment is compelling. Today, maintaining clear, 
safe water remains one of our greatest national and global challenges.
  I urge my colleagues to support this amendment and help address the 
massive funding gap that looms on the horizon. Failure to act now risks 
undermining thirty years of progress in cleaning up our nation's 
waters.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, we are on the amendment, the emergency 
designation by my friend and colleague from Maryland. She seeks to add 
$3 billion to the vitally important State revolving funds that are so 
important to cleaning up our environment. I could not agree with her 
from my heart more strongly because this is an area of need. We have 
fought very hard to get our funding up to where it is. That is not 
enough. We have not been able to fund the National Science Foundation 
as we should. We had a major effort by the leadership of the full 
committee to get us the money that we need to get an additional $1.3 
billion for veterans health care.
  Having said that, this, unfortunately, is far beyond the budget 
allocated to the committee. It is in conflict with the stated position 
of the OMB with respect to emergency designations. Therefore, it is 
with regret that out of necessity I note that section 502, House 
Concurrent Resolution 95, the fiscal year 2004 concurrent resolution on 
the budget, created a point of order against an emergency designation 
on nondefense spending.
  The amendment contains nondefense spending with an emergency 
designation; therefore, pursuant to section 502 of H. Con. Res. 95, the 
fiscal year 2004 concurrent resolution on the budget, I make a point of 
order against the emergency designation contained in the amendment.
  Ms. MIKULSKI. Mr. President, pursuant to section 502(c)(6) of H. Con. 
Res. 95, the concurrent resolution on the budget for fiscal year 2004, 
I move to waive the 502(c) of that concurrent resolution for purposes 
of the pending amendment.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the motion.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from New Mexico (Mr. 
Domenici), the Senator from Georgia (Mr. Chambliss), and the Senator 
from Montana (Mr. Burns) are necessarily absent.
  Mr. REID. I announce that the Senator from New York (Mrs. Clinton), 
the Senator from South Dakota (Mr. Daschle), the Senator from North 
Carolina (Mr. Edwards), and the Senator from Massachusetts (Mr. Kerry) 
are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``yea.''
  The PRESIDING OFFICER (Ms. Collins). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 44, nays 49, as follows:
  The result was announced--yeas 44, nays 49, as follows:

                      [Rollcall Vote No. 449 Leg.]

                                YEAS--44

     Akaka
     Baucus
     Bayh
     Biden
     Boxer
     Breaux
     Byrd
     Campbell
     Cantwell
     Carper
     Corzine
     Dayton
     Dodd
     Dorgan
     Durbin
     Ensign
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Smith
     Stabenow
     Wyden

                                NAYS--49

     Alexander
     Allard
     Allen
     Bennett
     Bingaman
     Bond
     Brownback
     Bunning
     Chafee
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Enzi
     Feingold
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                             NOT VOTING--7

     Burns
     Chambliss
     Clinton
     Daschle
     Domenici
     Edwards
     Kerry
  The PRESIDING OFFICER. On this vote, the yeas are 44, the nays are 
49. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected. The point of order is 
sustained, and the emergency designation is stricken.
  Mr. BOND. I move to reconsider the vote, and I move to lay that 
motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Parliamentary inquiry: Does the amendment fall without the 
emergency designation?
  The PRESIDING OFFICER. The Senator needs to make a point of order.

[[Page 28592]]


  Mr. BOND. I make a point of order that this exceeds the budget 
allocation and, therefore, must fall.
  The PRESIDING OFFICER. The point of order is well taken, and the 
amendment falls.
  The Senator from Missouri.
  Mr. BOND. Madam President, I have six amendments to offer.
  Mr. REID. Without the Senator losing his right to the floor, I direct 
a question through the Chair to the distinguished Senator from 
Missouri. We are wondering, how much longer do the managers believe it 
would take to finish this bill?
  Mr. BOND. Madam President, I have now heard from about five Members 
on the other side who have amendments on which we would have to have 
votes. If that is 20 minutes a vote, that would be 100 minutes at 
least.
  Ms. MIKULSKI. I say to the distinguished Democratic whip, I think we 
can do this in 2 hours. I think there are amendments that require more 
conversation and modification, that might not require votes.
  Mr. REID. If the Senator will continue yielding, I believe with five 
Democratic amendments the Senator has spoken about and the persuasive 
nature of the Democratic manager of this bill, some of them would not 
require votes, and I believe we could finish this in 2 hours.
  I suggest to the leadership on the other side--I know everyone is 
chomping at the bit to go to 6 o'clock, but if we could have another 
couple hours, we could finish this bill. On this side, that would cut 
the marathon down to 28 hours. Although I have no authority to do this 
and this is not in the form of a unanimous consent request, I think we 
would be willing to give up part of our time in those 2 hours to finish 
this bill.
  Mr. BOND. Madam President, I am truly overwhelmed by the generosity 
of my good friend from Nevada, but regrettably I am not driving this 
bus. I believe there is a unanimous consent order that cannot be 
altered without talking to the leadership. I apologize to my friends. I 
would love to finish the bill, but now that I have the floor, I do have 
a number of amendments that have been cleared on both sides.


                Amendment No. 2180 to Amendment No. 2150

  Mr. BOND. Madam President, I send an amendment to the desk on behalf 
of myself to direct the Secretary of Housing and Urban Development to 
conduct and negotiate a rulemaking for purposes of changes to the 
formula governing the public housing operating fund. I ask for its 
immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond] proposes an amendment 
     numbered 2180 to amendment No. 2150.

  Mr. BOND. Madam President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

  (Purpose: To require HUD to make any changes to the operating fund 
                   formula by negotiated rulemaking)

       On page 86, after line 11, insert the following new 
     section:
       Sec. 226. The Secretary of Housing and Urban Development 
     shall conduct negotiated rulemaking with representatives from 
     interested parties for purposes of any changes to the formula 
     governing the Public Housing Operating Fund. A final rule 
     shall be issued no later than July 31, 2004.

  Mr. BYRD addressed the Chair.
  The PRESIDING OFFICER. The Senator from Missouri has the floor.
  Mr. BOND. Madam President, there are no objections on the other side.
  Ms. MIKULSKI. No, I do not have an objection.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  Mr. BYRD. Madam President, may I be recognized? May I be recognized 
for debate?
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. I thank the Chair.
  Madam President, I have sought the floor at this moment to urge the 
leadership to extend the time on this bill for 2 hours. I have heard 
the distinguished Democratic whip say it, I believe I have heard the 
Senator from Maryland, the manager of the bill, and the ranking member 
on this side, Senator Mikulski, say it, and I believe I have heard the 
manager indicate we might be able to finish this bill with an 
additional 2 hours.
  We have completed 10 appropriations bills for floor action. There are 
only 13. That means there are three more. If we could finish this bill 
in 2 hours, that would leave only two appropriations bills that have 
not had floor action: CJS and District of Columbia.
  So I urge, Madam President, that the leadership extend the time on 
this measure that is before the Senate just 2 hours.
  Let us finish this bill before going to other matters.
  Mr. REID. Will the Senator yield for a question?
  Mr. BYRD. Yes, I yield.
  Mr. REID. I say to the Senator, who is the most experienced person in 
the Senate as far as moving matters on the floor, I mentioned to the 
two managers that we have momentum on this bill now. If we come back 
some other time with 2 hours, it just is not the same. All of us who 
are in the Senate, we know these measures develop momentum and that is 
what we have now.
  As I indicated to the two managers earlier and through the Chair to 
my distinguished friend, the Senator from West Virginia, we could 
finish this bill in 2 hours. It would not be easy, but if we made a 
commitment to do that, we would, and I think we should. It will not 
take anything away from the 6 show. It would just put it over for a 
couple of hours. Would the Senator agree with that?
  Mr. BYRD. Yes, I do.
  Mr. DURBIN. Will the Senator from West Virginia yield for a question?
  Mr. BYRD. Yes, I yield for a question without losing my right to the 
floor.
  Mr. DURBIN. I thank the Senator from West Virginia. Through the 
Chair, I ask the Senator, who is more familiar with the rules than 
anyone, if the Senator from West Virginia made a unanimous consent 
request now that we went until 8 p.m., for example, and finish this 
bill for the veterans, the Veterans' Administration, would that be in 
order?
  Mr. BYRD. It certainly would be in order.
  Mr. DURBIN. In order to bring us to closure on this important 
legislation before we begin the long debate?
  Mr. BYRD. It certainly would.
  Mr. DURBIN. Through the Chair, I would ask the Senator from West 
Virginia to seriously consider that.
  Mr. BYRD. Well, I will not only consider it, I will make the request. 
I would like for the leadership to be here and let the leadership 
consider making the request. I am talking about the majority leader. I 
do not want to try to impose myself in his stead in a matter of this 
nature, but I do think the Senate ought to go for a couple more hours, 
if that would do it, and let us finish this bill.
  We have finished 10 appropriations bills. I am the ranking member on 
the Appropriations Committee. It certainly is in order for me to 
attempt to try to get this bill acted on. We are so close. This is a 
veterans bill, the VA-HUD bill, that is so important. We have soldiers, 
men and women, dying in Iraq. Why not pass this bill within 2 hours? We 
are within 2 hours, and if we work hard we might complete it before 
that 2 hours. Maybe some of the amendments could be peeled off so we 
could cut the time.
  I ask, Is there anyone who would get the majority leader to come to 
the floor and let us consider this?
  Mr. BOND. Madam President----
  Mr. BYRD. I have the floor.
  Mr. BOND. I was going to respond.
  Mr. BYRD. Yes. Let me protect myself, though. I ask unanimous consent 
that I may yield to the distinguished Senator from Missouri so that he 
can propound a question to the Chair and that I retain my right to the 
floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Madam President, we are coming up on a 6 p.m. deadline, I 
say to my friend from West Virginia, that has been long announced and 
been planned for. I say to the distinguished Senator that unless and 
until we are able to get

[[Page 28593]]

concurrence from the leadership, the work on this bill tonight will 
stop. I further ask the Senator from West Virginia if he would permit 
us to continue with the cleared amendment that is at the desk. There 
are five more cleared amendments, four of them by Members from his side 
of the aisle, that we would like to be able to clear if he would allow 
me to do so.
  Also, I announce to my colleagues there are visiting dignitaries from 
the European Parliament. My colleagues may wish to greet them.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Madam President, I am going to propound a request. That 
request will include--did the Senator from Missouri say there were four 
amendments that were cleared?
  Mr. BOND. Madam President, there is one measure pending at the desk, 
and there are five more amendments that have been cleared on both 
sides. Excuse me. Coming in over the transom, there are now two more. 
So that makes a grand total of seven amendments, five of them from 
Members on the other side of the aisle.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Madam President, before I make a request, let me 
congratulate the Senator from Missouri. He is a good member of the 
Appropriations Committee. He works hard. He is a productive member. I 
have a great deal of admiration for him and for the work he does. I say 
the same about my friend, the Senator from Maryland. She has done 
tremendous work on this bill. It is the VA-HUD bill. She always applies 
her total energies and talents to working on this measure. With her 
good work and cooperation, the manager of the bill, Mr. Bond, has been 
able to bring the bill to the floor. He has done great work. I do not 
want to take away from his work. I want to add to it, and so I 
compliment him.
  As I understand it, there are seven amendments at the desk that have 
been cleared on both sides?
  Mr. BOND. Madam President, these are not at the desk, only submitted.
  Mr. BYRD. I yield only if I may retain my right to the floor.
  I yield to the Senator that he may make that statement, and ask that 
I may retain my right to the floor.
  Mr. BOND. Madam President, as I said, there are seven amendments that 
are to be offered. There is one at the desk and there are seven more 
now that have been cleared on both sides.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. May I say again, we have finished 10 of the 13 
appropriations bills on this floor. We lack three: CJS, District of 
Columbia, and VA-HUD. VA-HUD is before the Senate. We are within reach 
of completing floor action on that bill. We ought to do that. If we 
fail, having come this close, what is the Senate going to look like? We 
have to complete action on appropriations bills one way or another 
before we can adjourn sine die. I hope we could finish floor action on 
this bill.
  Think of all the time that has gone into the consideration of this 
bill in the committee. The chairman and ranking member have held 
hearings. They have had a markup of this bill. They have worked hard 
over a period of many months. They have heard witnesses. All of this 
ought not to be for naught.
  I hope Senators will agree. I had hoped the distinguished majority 
leader would be on the Senate floor so that I could urge him to 
propound this request. We are only 11 minutes away from 6. Now, a 
unanimous consent request entered into at this point will prevail over 
any previous unanimous consent request dealing with that same matter. 
So I have the floor. I know what my rights are, and I know what my 
duties are, also, as the ranking member of the Appropriations 
Committee.
  May I ask the Chair, am I wrong in anything I have said? Am I 
correct?
  The PRESIDING OFFICER. The Senator has the floor.
  Mr. BYRD. Yes. And am I correct that a unanimous consent request 
agreed to at this moment to extend the hour of 6, which was in a 
previous request, would be the prevailing motion?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. BYRD. I thank the Chair.
  Mr. DURBIN. Will the Senator yield for another question?
  Mr. BYRD. Madam President, I yield for a question without giving up 
the floor.
  Mr. DURBIN. Through the Presiding Officer, I would like to ask the 
Senator from West Virginia, could you not make part of your unanimous 
consent request an agreement that the pending amendments will be 
considered in a timely fashion?
  Mr. BYRD. That would be part.
  Mr. DURBIN. So there is no effort to extend this beyond a reasonable 
period, but an effort to complete this bill for our veterans, for the 
Veterans Administration, before we begin the 30-hour debate. Could you 
not include that in your unanimous consent request?
  Mr. BYRD. Yes, indeed.
  So, Madam President, I really hesitate to make this request. I had 
hoped the majority leader would be in the Chamber because he is the 
person to be recognized at 6 o'clock, under the previous order. I don't 
want to appear to be discourteous. That is not my intention.
  Why do you think I am doing this? I am the ranking member of the 
Senate Appropriations Committee. In the 7 years, I believe it was, that 
I was chairman of the Appropriations Committee, we never had--I don't 
think we ever had--I think we finished all 13 appropriations bills 
every year. We could finish another one. I know Senator Stevens has 
worked hard. I asked Senator Stevens during the last rollcall if he was 
agreeable to extending this time, since we are so close. He indicated 
he would work to do that.
  Madam President, I ask unanimous consent that----
  The PRESIDING OFFICER. The Presiding Officer apologizes to the 
Senator from West Virginia for being temporarily distracted.
  Mr. BYRD. I didn't understand the Chair.
  The PRESIDING OFFICER. The Presiding Officer apologizes to the 
Senator from West Virginia for being temporarily distracted.
  Mr. BYRD. I thank the distinguished Presiding Officer.
  I am trying to avoid appearing to intrude on the majority leader's 
previous request and his time. I don't want to appear to be 
discourteous. I want to make the request when the majority leader is 
here.
  The PRESIDENT pro tempore. The Senator from West Virginia.
  Mr. BYRD. I ask unanimous consent that I be permitted to make a 
unanimous consent request and that, if it is agreed to--or whether or 
not it is agreed to, that I be recognized for another unanimous consent 
request, with the understanding that in any event I will be recognized 
1 minute before 6 p.m. today to make such request.
  Mr. BOND. I object on behalf of the leadership, Mr. President, and I 
seek recognition.
  Mr. BYRD. Mr. President, I don't lose the floor by virtue of having 
made a unanimous consent request, even though it is objected to. I 
don't lose the floor.
  The PRESIDENT pro tempore. The Senator does not lose the floor by 
making a unanimous consent request.
  Mr. SARBANES. Will the Senator from West Virginia yield for a 
question, reserving his right to the floor?
  Mr. BYRD. I yield to the distinguished Senator from Maryland with the 
understanding I do not lose my right to the floor, and I yield for a 
question only.
  Mr. SARBANES. If I could have the attention of the Senator from 
Missouri as I pose this question? Would the Senator entertain a 
unanimous consent request that allowed the amendments that are lined up 
here to be offered and to be accepted? I understand they are all going 
to be taken by voice.
  Mr. BYRD. Mr. President, I don't yield the floor for that purpose.
  Mr. SARBANES. I am not asking. I am just inquiring of the Senator's 
view of that.
  Mr. BYRD. Mr. President, I ask unanimous consent that the seven 
amendments at the desk, to which the distinguished Senator from 
Missouri alluded,

[[Page 28594]]

be considered agreed to, the motion to reconsider be laid on the table, 
and that the Senate immediately proceed to the further consideration of 
the VA-HUD appropriations bill with the understanding that time on that 
bill would end no later than 8 o'clock--or would end at 8 o'clock this 
evening, and that there would be a vote on the VA-HUD bill.
  The PRESIDENT pro tempore. Is there objection to the request?
  Mr. BOND. On behalf of the leadership, I object.
  Mr. BYRD. Senators will understand I used to propound these requests 
without their being in writing. I am carefully trying to approach this, 
so I will start over.
  Mr. President, I ask unanimous consent that the seven amendments that 
have been referred to by the distinguished Senator from Missouri, Mr. 
Bond, and are at the desk, that have been cleared, be considered agreed 
to and adopted to the bill. I further ask that the time originally set 
for recognition of the majority leader, at 1 minute until 6, be delayed 
2 hours, that in the meantime the Senate consider action and complete 
action on the VA-HUD appropriations bill, and that the motions to 
reconsider be laid on the table.
  The PRESIDENT pro tempore. Is there objection?
  Mr. BOND. On behalf of the leadership, I object.
  The PRESIDENT pro tempore. Objection is heard.
  The Senator from Missouri.


   Amendments Nos. 2151, 2180, 2181, 2182, 2183, 2184, 2185, 2186 to 
                           Amendment No. 2150

  Mr. BOND. Mr. President, we do have these six measures--seven--eight 
measures, now, at the desk, that I propounded? We have one from Senator 
Murkowski on pioneer homes in the State of Alaska; we have one from 
Senators Dorgan, Rockefeller, and Landrieu on access to primary health 
care for veterans in rural areas; we have one from Senator Snowe--
Senator Sarbanes, Senators Collins, Byrd, Santorum, and others, a sense 
of the Senate with respect to section 8 vouchers; an amendment by 
Senator Clinton and others relating to the Corporation for National 
Service volunteers; another from Senator Landrieu with respect to the 
States' deduction for administrative expenses in the Housing and 
Community Development Act; an amendment by Senator Levin and others 
relating to Federal water pollution control; a sense-of-the-Senate 
amendment by Senator Boxer about human dosing studies of pesticides.
  I ask unanimous consent that the aforementioned amendments be sent to 
the desk, the titles read, that they be approved, and that a motion to 
reconsider be laid upon the table.
  The PRESIDENT pro tempore. Is there objection?
  Ms. MIKULSKI. Mr. President, I have no objection except I am sorry we 
can't finish this bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendments were agreed to, as follows:


                amendment no. 2151 to amendment no. 2150

 (Purpose: To increase the amount of funds that may be used by States 
 for technical assistance and administrative costs under the community 
                    development block grant program)

       On page 125, between lines 7 and 8, insert the following:
       Sec. 418. Section 106(d) of the Housing and Community 
     Development Act of 1974 (42 U.S.C. 5306(d)) is amended--
       (1) in paragraph (3)(A), by striking ``shall not exceed 2 
     percent'' and inserting ``shall not, subject to paragraph 
     (6), exceed 3 percent'';
       (2) in paragraph (5), by striking ``not to exceed 1 
     percent'' and inserting ``subject to paragraph (6), not to 
     exceed 3 percent'';
       (3) by redesignating the second paragraph (5) and paragraph 
     (6) as paragraphs (7) and (8), respectively; and
       (4) by inserting after paragraph (5) the following:
       ``(6) Of the amounts received under paragraph (1), the 
     State may deduct not more than an aggregate total of 3 
     percent of such amounts for--
       ``(A) administrative expenses under paragraph (3)(A); and
       ``(B) technical assistance under paragraph (5).''.


                AMENDMENT NO. 2180 to Amendment No. 2150

   (Purpose: To require HUD to make any changes to the operating fund 
                   formula by negotiated rulemaking)

        On page 86, after line 11, insert the following new 
     section:
        Sec. 226. The Secretary of Housing and Urban Development 
     shall conduct negotiated rulemaking with representatives from 
     interested parties for purposes of any changes to the formula 
     governing the Public Housing Operating Fund. A final rule 
     shall be issued no later than July 31, 2004.


                Amendment No. 2181 to Amendment No. 2150

 (Purpose: To provide for the treatment of the Pioneer Homes in Alaska 
                     as a State home for veterans)

       At the end of title I, add the following:
       Sec.  116. (a) Treatment of Pioneer Homes in Alaska as 
     State Home for Veterans.--The Secretary of Veterans Affairs 
     may--
       (1) treat the Pioneer Homes in the State of Alaska 
     collectively as a single State home for veterans for purposes 
     of section 1741 of title 38, United States Code; and
       (2) make per diem payments to the State of Alaska for care 
     provided to veterans in the Pioneer Homes in accordance with 
     the provisions of that section.
       (b) Treatment Notwithstanding Non-Veteran Residency.--The 
     Secretary shall treat the Pioneer Homes as a State home under 
     subsection (a) notwithstanding the residency of non-veterans 
     in one or more of the Pioneer Homes.
       (c) Pioneer Homes Defined.--In this section, the term 
     ``Pioneer Homes'' means the six regional homes in the State 
     of Alaska known as Pioneer Homes, which are located in the 
     following:
       (1) Anchorage, Alaska.
       (2) Fairbanks, Alaska.
       (3) Juneau, Alaska.
       (4) Ketchikan, Alaska.
       (5) Palmer, Alaska.
       (6) Sitka, Alaska.


                Amendment No. 2182 to Amendment No. 2150

 (Purpose: To express the sense of the Senate on the access to primary 
    health care of veterans living in rural and highly rural areas)

       At the end of title I, add the following:
       Sec. 116. (a) Findings on Access to Primary Health Care of 
     Veterans in Rural Areas.--The Senate makes the following 
     findings:
       (1) The Secretary of Veterans Affairs has appointed a 
     commission, called the Capital Asset Realignment for Enhanced 
     Services (CARES) Commission, and directed it to make specific 
     recommendations regarding the realignment and allocation of 
     capital assets necessary to meet the demand for veterans 
     health care services over the next 20 years.
       (2) The Department of Veterans Affairs accessibility 
     standard for primary health care provides that at least 70 
     percent of the veterans enrolled in each of the regional 
     ``markets'' of the Department should live within a specified 
     driving time of a Department primary care facility. That 
     driving time is 30 minutes for veterans living in urban and 
     rural areas and 60 minutes for veterans living in highly 
     rural areas.
       (3) The Draft National CARES Plan issued by the Under 
     Secretary for Health would place veterans in 18 rural and 
     highly rural regional markets outside the Department 
     accessibility standard for primary health care until at least 
     fiscal year 2022, which means that thousands of veterans will 
     have to continuing traveling up to 3-4 hours each way to 
     visit a Department primary care facility.
       (4) The 18 rural and highly rural markets that will remain 
     outside the Department accessibility standard for primary 
     health care comprise all or parts of Arkansas, Idaho, 
     Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, 
     Minnesota, Mississippi, Missouri, Montana, Nebraska, North 
     Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, 
     Tennessee, Texas, Virginia, Washington, and West Virginia.
       (5) Health care facilities for veterans are 
     disproportionately needed in rural and highly rural areas 
     because the residents of such areas are generally older, 
     poorer, and sicker than their urban counterparts.
       (b) Sense of Senate.--It is the sense of the Senate that--
       (1) the CARES Commission should give as much attention to 
     solving the special needs of veterans who live in rural areas 
     as it does to providing for the health care needs of veterans 
     living in more highly populated areas;
       (2) the CARES Commission should reject the portions of the 
     Draft National CARES Plan that would prevent any regional 
     market of the Department from complying with the Department 
     accessibility standard for primary health care, which 
     provides that at least 70 percent of the veterans residing in 
     each market be within specified driving times of a Department 
     primary care facility; and
       (3) the CARES Commission should recommend to the Secretary 
     the investments and initiatives that are necessary to achieve 
     the Department accessibility standard for primary health care 
     in each of the rural and highly rural health care markets of 
     the Department.

[[Page 28595]]




                Amendment No. 2183 to Amendment No. 2150

(Purpose: To express the sense of the Senate that housing vouchers are 
   a critical resource and that the Department of Housing and Urban 
 Development should ensure that all vouchers can be used by low-income 
                               families)

       On page 125, between lines 7 and 8, insert the following:

     SEC. 4__. SENSE OF THE SENATE.

       (a) Findings.--The Senate finds that--
       (1) 30 percent of American families have housing 
     affordability problems, with 14,300,000 families paying more 
     than half of their income for housing costs, and 17,300,000 
     families paying 30 to 50 percent of their income towards 
     housing costs;
       (2) 9,300,000 American families live in housing that is 
     overcrowded or distressed;
       (3) 3,500,000 households in the United States will 
     experience homelessness at some point this year, including 
     1,350,000 children;
       (4) the number of working families who are unable to afford 
     adequate housing is increasing, as the gap between wages and 
     housing costs grows;
       (5) there is no county or metropolitan area in the country 
     where a minimum wage earner can afford to rent a modest 2-
     bedroom apartment, and on average, a family must earn over 
     $15 an hour to afford modest rental housing, which is almost 
     3 times the minimum wage;
       (6) section 8 housing vouchers help approximately 2,000,000 
     families with children, senior citizens, and disabled 
     individuals afford a safe and decent place to live;
       (7) utilization of vouchers is at a high of 96 percent, and 
     is on course to rise to 97 percent in fiscal year 2004, 
     according to data provided by the Department of Housing and 
     Urban Development;
       (8) the average cost per voucher has also steadily 
     increased from just over $6400 in August of 2002, to $6,756 
     in April, 2003, due largely to rising rents in the private 
     market, and the Congressional Budget Office estimates that 
     the cost per voucher in fiscal year 2004 will be $7,028, $560 
     more per voucher than the estimate contained in the fiscal 
     year 2004 budget request; and
       (9) the congressionally appointed, bipartisan Millennial 
     Housing Commission found that housing vouchers are ``the 
     linchpin of a national housing policy providing very low-
     income renters access to privately-owned housing stock''.
       (b) Sense of the Senate.--It is the sense of the Senate 
     that--
       (1) housing vouchers are a critical resource in ensuring 
     that families in America can afford safe, decent, and 
     adequate housing;
       (2) public housing agencies must retain the ability to use 
     100 percent of their authorized vouchers to help house low-
     income families; and
       (3) the Senate expects the Department of Housing and Urban 
     Development to take all necessary actions to encourage full 
     utilization of vouchers, and to use all legally available 
     resources as needed to support full funding for housing 
     vouchers in fiscal year 2004, so that every voucher can be 
     used by a family in need.


                Amendment No. 2184 to Amendment No. 2150

    (Purpose: To provide VISTA volunteers the option of receiving a 
                  national service educational award)

       On page 92, line 22, insert ``: Provided further, That the 
     Corporation shall offer any individual selected after October 
     31, 2002, for initial enrollment or reenrollment as a VISTA 
     volunteer under title I of the Domestic Volunteer Service Act 
     of 1973 (42 U.S.C. 4951 et seq.) the option of receiving a 
     national service educational award under subtitle D of title 
     I of the National and Community Service Act of 1990 (42 
     U.S.C. 12601 et seq.)'' after ``programs''.


                Amendment No. 2185 to Amendment No. 2150

   (Purpose: To authorize appropriations for sewer overflow control 
                                grants.

       On page 125, between lines 7 and 8, insert the following:

     SEC. 4__. SEWER OVERFLOW CONTROL GRANTS.

       Section 221 of the Federal Water Pollution Control Act (33 
     U.S.C. 1301) is amended--
       (1) in subsection (f), by striking ``2002 and 2003'' and 
     inserting ``2005 and 2006'';
       (2) in subsection (g)(1)--
       (A) in the paragraph heading, by striking ``2002'' and 
     inserting ``2005''; and
       (B) by striking ``2002'' and inserting ``2005'';
       (3) in subsection (g)(2)--
       (A) in the paragraph heading, by striking ``2003'' and 
     inserting ``2006''; and
       (B) by striking ``2003'' and inserting ``2006''; and
       (4) in subsection (i), by striking ``2003'' and inserting 
     ``2006''.


                Amendment No. 2186 to Amendment No. 2150

       It is the sense of the Senate that human dosing studies a 
     pesticides raises ethical and health questions.


                           Amendment No. 2183

  Ms. COLLINS. Mr. President, I rise today to speak on behalf of a 
Sense of the Senate amendment that Senator Sarbanes and I are offering 
with respect to the section 8 housing voucher program. This amendment 
states that section 8 housing vouchers are a critical housing resource, 
that public housing authorities must be able to use all of their 
authorized vouchers, and that the Senate expects the Department of 
Housing and Urban Development to take all necessary steps to encourage 
full voucher utilization.
  Our Nation is facing a critical shortage of affordable housing. A 
recent study by the Joint Center on Housing Studies at Harvard 
University indicates that approximately 30 percent of American families 
have housing affordability problems, with as many as 14.3 million 
families paying more than half of their income for housing costs and 
17.3 million families paying 30 to 50 percent of their income toward 
housing costs. The same study indicates that 9.3 million families live 
in housing that is overcrowded or distressed, and 3.5 million 
households in the United States will experience homelessness at some 
point this year. That last number includes more than 1.3 million 
children.
  As the gap between wages and housing costs grows, the number of 
working families who are unable to afford adequate housing continues to 
increase. On average, a family must earn over $15 per hour to afford 
modest rental housing, and in many cases, rising costs have led to 
families simply being priced out of the housing market. In my home 
state of Maine, the City of Portland offers a prime example of this 
phenomenon. The National Housing Conference reports that, in 1999, the 
median home price in Portland was $12,500. By 2001, that median price 
had increased to $158,000. During this period, Fair Market Rent for a 
two-bedroom apartment jumped from $641 to $817 per month, and this 
trend of increasing disparity between wages and housing costs shows 
little sign of abating.
  Section 8 housing vouchers help approximately 2 million families with 
children, senior citizens, and disabled individuals afford a safe and 
decent place to live. The congressionally appointed, bipartisan 
Millennial Housing Commission found that housing vouchers are ``the 
linchpin of a national housing policy providing very low-income renters 
access to privately owned housing stock. Currently, utilization of 
vouchers is at a high of 96 percent, and is on course to rise to 97 
percent in fiscal year 2004, according to data provided by HUD. The 
average cost per voucher has also steadily increased from just over 
$6,400 in August of 2002, to $6,756 in April, 2003, and the 
Congressional Budget Office estimates that the cost per voucher in FY 
2004 will be $7,028.
  Our amendment states that it is the sense of the Senate that: 1. 
housing voucher are a critical resource in ensuring that families in 
America can afford safe, decent, and adequate housing; 2. public 
housing agencies must retain the ability to use 100 percent of their 
authorized vouchers to help house low-income families; and 3. the 
Senate expects the Department of Housing and Urban Development to take 
all necessary actions to encourage full utilization of vouchers, and to 
use all legally available resources as needed to support full funding 
for housing vouchers in fiscal year 2004, so that every voucher can be 
used by a family in need.
  To many families, older, and disabled individuals, section 8 housing 
vouchers are the difference between having a safe, decent place to live 
and homelessness. it should be the sense of the Senate that HUD use all 
legally available funds to support every authorized voucher, and I 
encourage my colleagues to support this amendment.
  Mrs. CLINTON. Mr. President, today I rise in support of Senator 
Sarbane's resolution, which expressed the sense of the Senate that 
Section 8 housing vouchers are a critical resource and that the 
Department of Housing and Urban Development should ensure that all 
vouchers can be used by low-income families. I have joined many of my 
colleagues as an original cosponsor of this amendment and would like to 
thank both Senator Bond and Senator Mikulski for including it in the 
pending VA/HUD Appropriations bill. I would like to commend the 
Senators for their commitment to balancing the competing housing 
priorities we face given

[[Page 28596]]

the constraints they were working under. The Senate provisions are a 
big improvement over the House bill and would greatly reduce the 
chances of cuts to this program.
  Earlier this year, I joined my colleagues in sending a letter to 
Secretary Martinez expressing our reservations and concerns about the 
President's proposal to block grant this critical program. Experience 
with block grants tells us that this plan could have actually 
undermined the program and reduced the number of families being served, 
so I was pleased that both the House and the Senate Committee rejected 
it.
  The fact is the gap between wages and housing costs is growing and is 
pushing affordable housing beyond the reach of an increasing number of 
working families. On average, a family in this country must earn $15.21 
an hour to afford a modest two-bedroom apartment, which is almost three 
times the minimum wage. In my home State of New York, a minimum wage 
worker would have to work 147 hours a week to afford a two-bedroom 
apartment at fair market rent. Section 8 vouchers make housing 
affordable and are making a real difference in the lives of 
approximately 2 million elderly and disabled individuals as well as 
families with children across the Nation. We should expand the program 
so that more families can receive assistance they so desperately need, 
but if we cannot expand it we should preserve it to ensure that 
families receiving vouchers can continue to depend on the support they 
have been promised.
  New York's housing crisis is particularly alarming. In my State more 
than 500,000 renter households, roughly one-fourth of all renters, 
continue to pay more than half of their income in rent. These rents 
impose enormous pressures on them and add on to the financial burdens 
they already face. Many severely disadvantaged households find 
themselves unable to pay rent and meet their other basic needs. Some 
are forced to live on the street or in shelters. More than 38,000 
homeless people sleep in New York City's shelter system each night, 
almost double the number of just 5 years ago and the largest annual 
increase since the Great Depression. The largest and fastest-growing 
segment of this homeless population is families with children. Section 
8 housing vouchers provide a lifeline that helps these individuals make 
ends meet. We must help America afford safe and decent housing so that 
parents are not forced to choose between finding the money to pay for 
rent and putting food on the table.
  The Housing Choice Voucher program is more than just a housing 
program. We know that affordable housing helps families increase their 
employability, earnings, educational outcomes, and children's well 
being.
  In New York, Section 8 housing vouchers are assisting approximately 
200,000 seniors, people with disabilities, and families with children. 
Under the House VA-HUD appropriations bill, New York could lose 6,020 
vouchers, of which approximately 1,840 would go to working families, 
1,020 to elderly households, 1,320 to disabled households, and 1,840 to 
other households. If the final VA-HUD conference report retains the 
Senate provisions referenced in the Sense of the Senate--directing HUD 
to fund these vouchers--then none of these vouchers would be lost and 
all of these families would be helped.
  As this bill moves forward during conference, I urge my colleagues to 
support this language. It sends a message to HUD that America is 
depending on housing vouchers to ensure that all of our families can 
afford a safe, decent and adequate place to live.


                           Amendment No. 2184

  Mr. REED. Mr. President, I rise as a cosponsor of Senator Clinton's 
amendment relating to VISTA.
  Since its creation in 1965, as part of the War on Poverty, over 
120,000 Americans have performed national service as VISTA volunteers.
  VISTA, Volunteers In Service To America, members serve in hundreds of 
nonprofit organizations and public agencies across the country, helping 
to find solutions to the problems caused by urban and rural poverty. 
VISTA volunteers fight illiteracy, improve health services, increase 
housing opportunities, bridge the digital divide, create businesses, 
and so much more.
  Unfortunately, VISTA volunteers have been shortchanged for more than 
a year.
  Since the creation of education awards in 1994, VISTA volunteers, 
upon completion of their service, have been eligible to receive either 
a $4,725 education award or end-of-service stipend of $1,200. Education 
awards can be used to pay education costs at qualified institutions of 
higher education or to repay qualified student loans.
  However, the Corporation for National and Community Service has 
refused to offer education awards to last year's and this year's 
volunteers.
  This summer, I was alerted to this unfortunate change in policy by 
several Rhode Islanders.
  Section 129(b) of the National and Community Service Trust Act of 
1993 contains the following language:

       Reservation of Approved Positions--The Corporation shall 
     ensure that each individual selected during a fiscal year for 
     assignment as a VISTA Volunteer under title I of the Domestic 
     Volunteer Service Act of 1973 . . . shall receive the 
     national service educational award described in subtitle D if 
     the individual satisfies the eligibility requirements for the 
     award. Funds for approved national service positions required 
     by this paragraph for a fiscal year shall be deducted from 
     the total funding for approved national service positions to 
     be available for distribution under subsectons (a) and (d) 
     for that fiscal year.

  Given this clear language in the statute, I wrote to the Corporation 
seeking its rationale for denying the opportunity for VISTA volunteers 
to elect education awards. In his response, the General Counsel for the 
Corporation argued that the Corporation, not this language, determines 
whether a VISTA volunteer is in an ``approved national service 
position'', and only if that is the case, is the volunteer entitled to 
the opportunity to elect to receive an education award. The General 
Counsel has ruled that all VISTA slots are not ``approved national 
service positions.'' Moreover, the General Counsel states that the 
Corporation has the authority to modify program rules based on funding 
levels.
  As a result, 3,200 volunteers in fiscal year 2003 have been denied 
the option of an education award that has been of great benefit to 
countless volunteers. In Rhode Island, this has affected nearly 20 
VISTA volunteers at City Arts, AS220, Providence Public Library, Family 
Life Center, RI Training School, RI Free Clinic, Southside Community 
Land Trust, New Urban Arts, and RI Coalition for Domestic Violence.
  In order to continue to attract high quality and talented individuals 
willing to serve as VISTA volunteers, the Clinton amendment requires 
the Corporation to offer individuals, selected after October 31, 2002, 
for initial enrollment or reenrollment as a VISTA volunteer the option 
of receiving a national service education award.
  This is an important amendment as we look to revitalize service in 
our country after months of mishaps at the Corporation for National and 
Community Service, and I urge its passage.


                           AMENDMENT NO. 2183

   Mr. SARBANES. Mr. President, I come to the floor today to offer an 
amendment to the VA/HUD appropriations bill to ensure that the U.S. 
Department of Housing and Urban Development does all it can to make 
sure that the section 8 housing voucher program is fully funded and 
fully operational. I want to thank the cosponsors of this amendment, 
including Senators Reed, Kennedy, Allen, Santorum, and Byrd. In 
addition, I want to thank Senator Collins, who is a cosponsor, and was 
instrumental in drafting and gaining support for the amendment.
   This amendment expresses the sense of the Senate that housing 
vouchers, which now assist almost 2 million low-income families around 
the country, are a critical housing resource and should receive full 
funding. This amendment reaffirms our commitment to the voucher program 
by reiterating that public housing agencies can lease all of their 
authorized vouchers, and that HUD must use all available funds to 
support these needed vouchers.

[[Page 28597]]

   Unfortunately, too many families in America find it difficult to 
afford decent and safe places to call home. In fact, the number of 
working families who are paying over half of their income in rent is 
steadily rising, as the gap between wages and housing costs continues 
to widen.
   According to a recent study conducted by the National Low Income 
Housing Coalition, on average, a family in the United States must earn 
over $15 an hour to afford a modest apartment without forgoing other 
necessities. This is almost 3 times the minimum wage. In my home State 
of Maryland, this number is almost $19 an hour.
   These numbers make clear that there is a pressing need for housing 
assistance. The section 8 housing voucher program is a market-based 
housing program that has had strong bipartisan support since the 
program's inception. The housing voucher program has long been regarded 
as a successful way to help families in need find and afford rental 
housing.
   Housing vouchers enable low-income families to go out into the 
private rental market and rent housing of their choice subject to a cap 
on the rental amount. Housing vouchers help families move closer to 
employment and educational opportunities, while providing stability so 
that families can better retain employment and children can succeed in 
school. Every study that has looked at the impact of vouchers has found 
a positive effect on employment and earnings, in addition to finding 
that housing vouchers help make the transition from welfare to work a 
successful one.
  It is evident that the voucher program is one that works, and this 
has been recognized by past administrations and by Members of Congress 
on both sides of the aisle. Unfortunately, this administration simply 
did not ask for adequate funding for this program. According to recent 
HUD data, the budget request submitted this year by the administration 
underfunds this critical program by nearly $1.25 billion.
  This $1.25 billion shortfall could have easily been avoided had the 
Department used updated data for its budget estimate, and I thank 
Senators Bond and Mikulski for calling on HUD to do just that. Recent 
HUD data show that a greater percentage of vouchers are being used now 
than ever before. According to this data, utilization is at a high of 
96 percent, and is expected to rise to 97 percent in fiscal year 2004. 
In addition, due to rising rents, the actual cost per voucher is much 
higher than estimated by the administration. As rents rise, HUD must 
seek adequate funding to meet the needs in ever-changing housing 
markets.
  While the bill before us today does not contain enough newly 
appropriated funds for the voucher program, we have reason to believe 
that HUD has enough available funding to meet the needs in the program 
in fiscal year 2004. I appreciate the efforts of Senators Bond and 
Mikulski to address this issue in the bill by directing HUD to ensure 
that public housing agencies can continue to issue turnover vouchers, 
and by calling on HUD to request supplemental funds if necessary.
  The amendment I am offering today, along with Senator Collins and 
others, is a companion to this important language. It expresses the 
sense of the Senate that we expect HUD to do all it can to ensure that 
housing agencies can lease up to their authorized level of vouchers. 
The ability to lease 100 percent of authorized vouchers is critical and 
we fought hard last year to make sure that this right was retained. 
This bill reiterates this right and directs HUD to make sure all 
vouchers, including turnover vouchers, can be used by low-income 
families. In addition, this amendment calls on HUD to live up to its 
obligations by using all legally available funds to renew housing 
vouchers. Without using this additional funding, the $1.25 billion 
shortfall could translate into over 100,000 families losing their 
voucher assistance and their homes.
  The amendment we are offering sends a message to HUD that this would 
be unacceptable, and that we expect it to do everything possible to 
ensure that families with vouchers do not lose their housing assistance 
and that low-income families on waiting lists can gain access to 
vouchers. These vouchers are being used in every community across the 
country, providing not only housing, but economic opportunities to low-
income families. I urge my colleagues to support this amendment which 
reaffirms our commitment to housing low-income people in this Nation.


                           amendment no. 2184

  Mrs. CLINTON. Mr. President, I rise to offer an amendment that would 
provide education awards to all volunteers who are part of the VISTA--
Volunteers in Service to America--program, which is administered by the 
Corporation for National and Community Service.
  Before I begin, I want to thank Senator Bond and Senator Mikulski for 
all the hard work they have done to support national and community 
service. They have been real champions of this program. I would also 
like to thank Senators Snowe, Kennedy, Chafee, Harkin, Reed, Murray, 
and Dodd for co-sponsoring this amendment. This amendment that I rise 
to offer today is not a partisan amendment--I know that I have support 
on both sides of the aisle because the VISTA program has such deep, 
strong roots among many political leaders on both sides of the aisle.
  The VISTA program was first envisioned by President Kennedy soon 
after the Peace Corps was created. And in 1965, as part of President 
Johnson's War on Poverty, President Kennedy's dream was realized.
  VISTA, like Head Start and so many other lasting anti-poverty 
programs, was created to serve the needs of the poorest Americans. On 
December 12, 1964, just four months after the legislation was enacted, 
President and Lady Bird Johnson welcomed the first group of twenty 
VISTA volunteers with these remarks:

       Your pay will be low; the conditions of your labor often 
     will be difficult. But you will have the satisfaction of 
     leading a great national effort and you will have the 
     ultimate reward which comes to those who serve their fellow 
     man.

  When my husband championed the effort to dramatically expand national 
service and create AmeriCorps, he wanted to preserve this important 
part of President Kennedy and President Johnson's legacy. The VISTA 
program was authorized within the National and Community Service Trust 
Act and today it is administered by the Corporation for National and 
Community Service.
  A staple of the program since its inclusion within the National and 
Community Service Trust Act is that every member who signs up shall 
receive a choice--a scholarship toward their education or a cash 
stipend. In recent years, more than two-thirds of the individuals 
participating in the VISTA program have opted for the education 
scholarship instead of the cash stipend.
  In November of 2002, the Corporation for National and Community 
Service began denying new volunteers the option of receiving education 
awards. They were provided cash stipends, regardless of their 
preference.
  I began hearing from New Yorkers who were frustrated by the decision. 
They felt like they had been duped--given a bait and switch. Their 
morale dropped dramatically and some have resigned as a result. Many 
saw a fundamental problem of equity. Members were passed over for 
education and awards while those who enrolled just two months later 
received them. I'm sure we all agree that this is unfair.
  New Yorkers described to me the difference that VISTA has made in 
their life and in the lives of people they serve and expressed their 
frustration about what has happened to the program. Two New York VISTA 
members serving in West Seneca, New York developed a pilot program for 
ex-offenders, and I want to tell you a little bit about the first 
graduate: ``he got his driver's license and was getting things in order 
for this first apartment ever--he had been incarcerated for 28 years, 
since his youth. The joy on the guy's face was unbelievable and I was 
proud to know that two VISTA members had made it possible,'' said one 
of them.
  Across the country, at least 1,766 volunteers who were affected by 
this decision, according to the Corporation for

[[Page 28598]]

National and Community Service. The organization established to support 
the VISTA program--called Friends of Vista--estimates the impact at 
3,200.
  I do not want to haggle over the numbers or argue about who's to 
blame. I simply want the problem addressed.
  This amendment is straightforward and simple. It says that VISTA 
volunteers shall be provided the option of receiving an education award 
or a cash stipend, consistent with the law and current practice. It 
does not have a cost associated with it, and I urge my colleagues to 
support this amendment and rectify this injustice.
  Mr. SARBANES. Mr. President, have the amendments been adopted?
  Ms. MIKULSKI. Mr. President, what time----
  Mr. SARBANES. Have the amendments been adopted?
  The PRESIDENT pro tempore. The amendments were adopted by unanimous 
consent, as requested.
  Ms. MIKULSKI. I move to reconsider and lay the motion on the table.
  The motion to lay on the table was agreed to.


                           nsf epscor program

  Mr. BURNS. Mr. President, I rise to speak on the National Science 
Foundation's (NSF) Experimental Program to Stimulate Competitive 
Research program or EPSCoR. First, I would like to thank the 
distinguished chair of the subcommittee for including $100 million in 
the EPSCoR program. This is a very important program in my State of 
Montana--and very important for the other 22 EPSCoR states that are 
trying to develop a competitive research program.
  I would also like to mention that I have talked with the EPSCoR 
project director and other participants in the program from Montana and 
that they have told me that the infrastructure improvement components 
of the program is critical to all other efforts to develop research 
capacity and to compete successfully for other NSF funding. I would 
like it to be clear that the research infrastructure component is 
central to the program and that we have provided funds to ensure that 
states can be fully funded.
  Mr. BOND. I, too, have heard about the importance of the research 
infrastructure program and I want to assure the Senator that we have 
sought to provide sufficient funding to cover existing commitments and 
states that are currently under review.
  Mr. BURNS. That is very important. Finally, I would just add that I 
hope NSF will make every effort to include the EPSCoR states in its new 
cyberinfrastructure activities. NSF did a very fine job a few years ago 
in helping secure high-speed connections for research institutions in 
EPSCoR states. The new NSF cyberinfrastructure program is evolving and 
I hope that they will include states like Montana in these efforts 
since networking and advanced computing are essential to keeping our 
research universities connected to cutting-edge research and allow them 
to collaborate and use equipment at remote locations.
  Mr. BOND. I understand the Senator's interest.


                            cares initiative

  Mr. SCHUMER. It is my understanding that the managers of this 
legislation have agreed to work to address the concerns shared by Sen. 
Clinton, Sen. Enzi, myself and others through the inclusion of language 
in the conference report on the FY04 VA-HUD Appropriations Act. It is 
my further understanding that this language will specifically address 
our concerns regarding the CARES Initiative's impact on long-term care, 
domiciliary care and mental health care as well as the ability of 
veterans to attend and participate in hearings regarding facility 
closings and the special needs of rural veterans in the process. I also 
understand that the managers have agreed to send a letter to Secretary 
Principi on these matters. In addition I understand that I will join my 
colleagues and the managers in submitting a longer colloquy for the 
record with the specific language to be included.
  Mr. BOND. That understanding is correct and I look forward to working 
with my colleagues on this issue.
  Ms. MIKULSKI. I share that understanding as well and thank my 
colleagues.


               NON-ELDERLY DISABLED INCREMENTAL VOUCHERS

  Mr. DOMENICI. Mr. President, I rise to join my friend and colleague, 
Senator Bond, in a colloquy on the Department of Housing and Urban 
Development's (HUD) Section 8 program. Senator Bond, it is my 
understanding that the section of the bill allocating funding for the 
Section 8 Housing Certificate Fund includes language that allows HUD to 
target up to $36 million for incremental vouchers to non-elderly people 
with disabilities that are adversely affected by the designation of 
public and assisted housing as ``elderly only.'' Is this correct?
  Mr. BOND. The Senator is correct. The bill includes more than $461 
million for the HUD Secretary to support a range of activities related 
to the Section 8 program including contract amendments and other 
measures to ensure that housing authorities are able to lease up to 
their authorized unit levels. In addition, the bill allows HUD to 
allocate up to $36 million for new vouchers tied to the designation and 
occupancy restrictions imposed in public and assisted housing 
developments for the elderly. This continues a policy established by 
Congress in 1996 to ensure alternative resources for non-elderly people 
with disabilities who are being excluded from certain public and 
assisted housing properties.
  It is important to note that the bill requires the HUD Secretary to 
ensure that there are adequate funds to renew all existing rental 
vouchers before allocating additional funds for disability vouchers for 
Fiscal Year 2004. It is the expectation of both Senator Mikulski and 
myself that HUD will be able to make a mid-year assessment in Fiscal 
Year 2004 to determine if the amounts appropriated for voucher renewals 
and contract amendments exceed the expected requests from housing 
authorities for authorized voucher renewals. In our view, such an 
assessment can be made as part of the periodic measurements HUD 
routinely makes regarding the pace of voucher renewals. It should also 
be part of the requirement set forth in S. Rpt. 108-143 by the 
Appropriations Committee for development of a real-time data model to 
identify the actual use of vouchers.
  Further, it is our view that every effort should be made to ensure 
that public housing designation plans for elderly-only housing are 
linked to the vouchers, should they become available in Fiscal Year 
2004. I do not believe that HUD should be prevented from including 
these disability vouchers in its annual consolidated Notice of Funding 
Availability or SuperNOFA. This would allow the agency to allocate 
expeditiously these vouchers before the end of Fiscal Year 2004 to 
housing authorities that are able to target them effectively to non-
elderly people with disabilities who have been adversely affected by 
the designation of public and assisted housing as elderly only.
  Mr. DOMENICI. I thank the Senator from Missouri for his support on 
this important issue.


                       NSF ASTRONOMICAL RESEARCH

  Mr. INOUYE. Mr. President, I rise to speak on the issue of funding 
for astronomy within the National Science Foundation. I would like to 
engage in a colloquy with Senators Bond and Mikulski, the distinguished 
chairman and ranking member of the Subcommittee on VA, HUD and 
Independent Agencies.
  Mr. BOND. I would be happy to engage in such a discussion with the 
Senator from Hawaii, a member of the Committee and the ranking member 
on the Subcommittee on Defense.
  Mr. INOUYE. The committee's bill recognizes that the budget request 
provided inadequate funding for NSF's astronomical facilities. In 
response, the committee bill provided additional funding for radio 
astronomy facilities, but the funding level in other areas remains 
inadequate. For example, the National Optical Astronomy Observatory 
would be reduced below last year's level.
  Ms. MIKULSKI. The Senator is correct. We were unable to provide 
additional funds for the NOAO due to our tight 302(b) allocation.
  Mr. INOUYE. One specific high priority area for investment in optical 
astronomy that will be needed to develop

[[Page 28599]]

the next generation of ground-based telescopes is in the area of 
adaptive optics. This will enable a major advance in astronomy that 
will have far-reaching effects in other areas, including national 
security. The National Academy of Sciences Decadal Survey in Astronomy 
has identified this as the enabling breakthrough that will be needed 
for the Giant Segmented Mirror Telescope, the top priority for optical 
astronomy.
  For fiscal year 2004, about $5 million in additional funding for 
adaptive optics development is needed in order to develop the future 
generation of ground based telescopes, particularly for the GSMT. Would 
the chairman and ranking member be willing to join me in examining this 
possibility during conference on this bill?
  Mr. BOND. We face a very tough conference with the House with our 
tight allocation and other competing funding priority areas such as 
veterans' health care, affordable housing, and other science and space 
programs. Nevertheless, I will look at this issue in conference.
  Mr. MIKULSKI. I would be happy to support the Senator.
  Mr. INOUYE. I would like to raise another issue. The Advanced 
Technology Solar Telescope was identified as the highest priority solar 
astronomy initiative for the coming decade. Presently, the National 
Solar Observatory is leading a national effort to identify a site for 
this future telescope and to make the overall project a success by 
addressing the long lead technologies. Progress on these is essential 
in order for the Advanced Technology Solar Telescope to achieve 
operations by 2007-2008 when NASA's complimentary space mission, the 
Solar Dynamics Observer, is launched. The combination of these two 
observatories will provide an unprecedented synergy between space- and 
ground-based solar observations that we believe will be of great 
scientific benefit. Unfortunately, the budget request does not provide 
the necessary funding to accommodate these needs.
  One specific area that has emerged as critical is to begin the 
preparatory work on the mirror for this telescope and to develop fully 
the fabrication and polishing techniques that will be necessary. Would 
the chairman and ranking member join me in helping to identify $2 
million in additional funding during conference to address this issue?
  Mr. BOND. Speaking for Senator Mikulski and myself, we would be happy 
to look at this issue in conference.
  Mr. INOUYE. I thank both Senators for their leadership in helping the 
U.S. remain scientifically and technologically competitive by providing 
critical investments in research.
  Mr. BYRD. Mr. President, I am very interested in the need to provide 
funding through the Environmental Protection Agency (EPA) for the 
National Research Council to study whether the use of coal combustion 
wastes, otherwise known as coal fly ash, poses health and/or safety 
threats to the public or to the environment when used for reclamation 
purposes in both active and abandoned coal mines.
  For more than twenty years, the EPA has been grappling with the issue 
of whether and how the use of these power plant combustion wastes 
should be regulated and the manner in which they should be regulated, 
if at all, under the Resources Conservation and Recovery Act or the 
Surface Mining Control and Reclamation Act. With this amendment, the 
National Research Council will be able to provide much-needed research 
assistance to the EPA as the agency continues to consider the 
development of national regulations in this area.
  This study serves an important purpose and will help answer important 
questions about the impact of disposing coal combustion wastes in coal 
mines. Further, this study would offer timely information to EPA policy 
makers as these experts continue to assess the need for regulations 
governing this practice.
  In summary, there is a great need for this study. It could be funded 
within existing resources and under existing authorizations. I hope 
that my colleagues will be able to consider this important request 
during the VA/HUD conference. I thank them for their consideration of 
this issue.
  Mr. BOND. I thank the Senator from West Virginia for his remarks, and 
I will be working to ensure that this important study will be included 
in the conference report.
  Ms. MIKULSKI. I also thank the senior Senator from West Virginia, and 
I, too, will support his request for such a study during the conference 
negotiations. This is an important matter for the State of West 
Virginia and other coal-producing States.


                                  nasa

  Mr. COCHRAN. Mr. President, I commend the chairman and the 
subcommittee staff for their outstanding work in bringing this 
legislation to the Senate for consideration.
  Mr. BOND. I thank the Senator for his kind comments.
  Mr. COCHRAN. As the chairman knows, I have had a longstanding 
interest in NASA's research partnerships with universities and 
industry, particularly in the area of developing commercial 
applications in remote sensing. I am pleased that the committee report 
includes the following language, which directs NASA to continue these 
partnerships:

       The Committee also expects NASA to continue its work on 
     long-term plans to partner with U.S. universities and 
     industry in a variety of NASA-related science research, 
     including research related to nanotechnology, information 
     technology and remote sensing. These are all areas of 
     investment that have a commercial application that will have 
     an increasing impact on society, the economy, and quality of 
     life.

  Mr. BOND. I share and strongly support the Senator's view that NASA 
should continue to work with universities and industry on NASA-related 
scientific research.
  Mr. COCHRAN. I appreciate the Senator's response and would make the 
point that, while the Committee is supportive of these partnerships, 
the committee report proposes to decrease funding for the Earth Science 
Applications by $15,000,000 below the President's Budget request. I am 
concerned that this reduction will not only limit NASA's ability to 
partner with universities in the future, but may put at risk several 
current and on-going NASA contracts with universities for remote 
sensing research.
  I am particularly concerned that NASA has sufficient funds in fiscal 
year 2004 to continue, at the fiscal year 2003 contracted amounts, 
three important NASA-university partnerships--the Enterprise for 
Innovative Geospatial Solutions, the Institute for Advanced Education 
in Geospatial Sciences, and the GeoResources Institute. I would inquire 
whether the Chairman would agree that it is not the Committee's 
intention that this Bill's proposed reduction in the Earth Sciences 
account will be applied by NASA to reduce the fiscal year 2004 funding 
for these three partnerships.
  Mr. BOND. I appreciate the Senator bringing his concerns to my 
attention. He has my assurance that the Committee's proposed reduction 
in the Earth Sciences account is not intended to reduce the funding for 
the three university partnership programs he has described. I also 
share your concerns that this reduction could curtail some of the 
valuable research which we expect and which needs to be accomplished, 
and therefore intend to work in conference to increase the funding for 
Earth Science Applications to prevent any unintended shortfalls to 
existing programs as well as to needed new investments. As NASA 
continues to implement full cost accounting, we will confront a number 
of funding issues which will need additional scrutiny as we seek to 
understand NASA's new requirements with regard to what costs apply to 
programs under full cost accounting.
  Mr. COCHRAN. I appreciate the Senator's assurance and look forward to 
working with him to ensure Earth Science Applications and these 
important NASA-university partnerships will be fully funded in fiscal 
year 2004.
  Mr. SANTORUM. Mr. President, today I rise to speak to an amendment to 
the VA-HUD, and Independent Agencies appropriations bill which 
increases the bill's funding for AmeriCorps up to the funding level 
requested by President Bush in this year's budget. The

[[Page 28600]]

bill currently includes $340 million in a combined account for 
AmeriCorps grants, national and state grants, and education awards. My 
amendment would add $93 million to increase the total to $433 million, 
the President's budget request. The amendment is paid for by the 
necessary across-the-board reduction in the bill as a whole. As a part 
of the USA Freedom Corps initiative, President Bush is committed to 
providing resources for 75,000 AmeriCorps participants this coming 
year. Earlier this year, in July, the Senate supported an increase of 
$100 million in Fiscal Year 2003 funding. Unfortunately, the funding 
was not ultimately included in the supplemental spending bill to the 
detriment of many committed community service programs around the 
country and in Pennsylvania.
  Major community service and volunteer programs funded by the Federal 
Government are authorized under two laws: the National and Community 
Service Act of 1990, NCSA, and the Domestic Volunteer Service Act of 
1973, DVSA. The Corporation for National and Community Service, CNCS, 
an independent Federal agency, generally administers the programs 
authorized under these laws.
  The NCSA and DVSA have not been reauthorized since 1993, with the 
passage of the National and Community Service Trust Act of 1993, P.L. 
103-82). This measure established: No. 1, the AmeriCorps program; No. 
2, CNCS to administer NCSA and DVSA programs; No. 3, a National Service 
Trust to fund educational awards to AmeriCorps and other community 
service participants; and No. 4, State commissions on national and 
community service to receive funding under NCSA. Although authorization 
for the appropriation of funds for NCSA and DVSA programs expired at 
the end of fiscal year 1996, funding for the programs has been 
maintained through annual appropriations legislation. Specifically, 
NCSA programs are funded through the Veterans Affairs, VA, and Housing 
and Urban Development, HUD, appropriations bill, while DVSA programs 
are funded through the Labor, Health and Human Services, HHS, and 
Education appropriations bill.
  AmeriCorps funds are distributed through the following channels: 
State formula programs, State competitive programs, national grants, 
and set-asides for Indian tribes. One of the benefits eligible 
AmeriCorps participants receive is an education award of $4,725 at the 
end of their service term. As a result of accounting and management 
complications and reduced funding, the AmeriCorps program expects to 
fall short of funding the 50,000 available volunteer slots for 2003.
  Significant progress continues to be made to improve and reform the 
AmeriCorps program. Under the leadership of former Senator Harris 
Wofford and some States, significant steps were taken to improve the 
management of the AmeriCorps program of the Corporation for National 
Service, CNS. Les Lenkowsky had a vision to continue that progress and 
a commitment to community service. I recognize the dedication and 
contributions of AmeriCorps participants. I also believe that more can 
be done to improve the effectiveness of AmeriCorps by expanding the 
opportunities for service and I have previously introduced legislation 
intended to further that effort. In August 2001, I introduced S. 1352, 
the AmeriCorps Reform and Charitable Expansion Act. The goal of this 
legislation was to expand service opportunities through the AmeriCorps 
program and better equip AmeriCorps volunteers to reach out and serve 
Americans in low-income communities. We must continue to focus our 
efforts on serving Americans in our society who are most in need of a 
helping hand. My bill would have enabled participants to focus their 
efforts on helping Americans who are often overlooked in our society 
and help bring about renewal in our low-income communities. The bill 
would have dramatically increased service opportunities in low-income 
communities through a voucher system, which would have encouraged 
AmeriCorps volunteers to choose locations predominantly serving low-
income individuals. In addition to increasing the funding, I believe it 
is important to reauthorize the Corporation for National Service this 
Congress.
  As a significant additional step, on June 18, 2003, Senator Kit Bond 
of Missouri introduced S. 1276, the Strengthen AmeriCorps Program Act. 
I cosponsored this bipartisan legislation, which allowed the CNCS to 
fund education award grants using ``conservative estimates'' of 
AmeriCorps volunteer awards. CNCS is expected to enroll nearly 50,000 
volunteers in 2003. The bill also provides safeguards for the program 
by establishing a central reserve fund to guard the Corporation against 
overenrollment; requiring the Chief Executive Officer to certify that 
the National Service Trust Fund contains sufficient resources to meet 
education award liabilities; and requiring an independent audit of the 
corporation's funding formula. S. 1276 was passed unanimously by the 
Senate, with my strong support, and was subsequently passed by the 
House of Representatives the following day. Passage of this legislation 
was a positive step towards addressing the needs of the AmeriCorps 
program.
  I am disappointed that additional AmeriCorps funds were not 
ultimately included in the supplemental this year. However, I am 
pleased that increased funding has been included in both the Senate and 
House fiscal year 2004 VA-HUD, and Independent Agencies appropriations 
bill. The House passed this legislation on July 21, and it contains 
$244 million for the aforementioned grants and education awards. 
President Bush requested $313.2 million for fiscal year 2004; the 
amount provided in fiscal year 2003 was $173.9 million.
  Mr. President, I urge my colleagues to support this amendment to 
expand the number of AmeriCorps participants and fully fund the 
President's request. I also believe that Congress should refocus the 
program on poverty alleviation efforts, expanded service location 
options for participants, and placing a greater emphasis on serving 
charities and the needy communities they serve to enable an even more 
strategic contribution from this federally supported program for 
Americans in need.
  Mr. BOND. Mr. President, I would like to thank the Senator from 
Pennsylvania, Mr. Santorum, for agreeing to withdraw his amendment to 
further increase funds for the AmeriCorps program. I look forward to 
working with the Senator from Pennsylvania in the effort in conference 
to fully fund the President's request for AmeriCorps.
  Mr. NICKLES. Mr. President, today the Senate is considering H.R. 
2861, the Veterans Affairs, Housing and Urban Development and 
Independent Agencies Appropriations bill for Fiscal Year 2004, as 
reported by the Senate Committee on Appropriations.
  The pending bill provides $91.334 billion in total budget authority 
and $96.549 billion in total outlays for Fiscal Year 2004 and within 
the Subcommittee's 302(b) allocation. For discretionary spending the 
Senate bill is at the Subcommittee's 302(b) allocation for budget 
authority and below the allocation by $.018 billion or .02 percent in 
outlays. The Senate bill is $1.699 billion or 1.8 percent in BA and 
$.708 billion or .7 percent in outlays above the President's budget 
request.
  The pending bill funds the programs of the Department of Veterans 
Affairs, the Department of Housing and Urban Development, the 
Environmental Protection Agency, Corporation for National and Community 
Service, National Aeronautics and Space Administration, National 
Science Foundation and several other agencies.
  Mr. President, I ask unanimous consent that a table displaying the 
Budget Committee scoring of the bill be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  S. 1584, VA-HUD APPROPRIATIONS, 2004.--SPENDING COMPARISONS--SENATE-
                              REPORTED BILL
                     [Fiscal Year 2004, $ millions]
------------------------------------------------------------------------
                                     General
                                    purpose\1\   Mandatory      Total
------------------------------------------------------------------------
Senate-reported bill:\2\
    Budget authority.............       91,334       32,911      124,245
    Outlays......................       96,549       32,685      129,234
Senate Committee allocation:
    Budget authority.............       91,334       32,911      124,245

[[Page 28601]]

 
    Outlays......................       96,567       32,685      129,252
2003 enacted:
    Budget authority.............       86,817       30,318      117,135
    Outlays......................       93,061       29,859      122,920
President's request:
    Budget authority.............       89,635       32,911      122,546
    Outlays......................       95,841       32,685      128,526
House-passed bill:
    Budget authority.............       90,033       32,482      122,515
    Outlays......................       95,478       32,266      127,744
 
                    Senate-Reported Bill Compared To
 
Senate 302(b) allocation:
    Budget authority.............            0            0            0
    Outlays......................          -18            0          -18
2003 enacted:
    Budget authority.............        4,517        2,593        7,110
    Outlays......................        3,488        2,826        6,314
President's request
    Budget authority.............        1,699            0        1,699
    Outlays......................          708            0          708
House-passed bill:
    Budget authority.............        1,301          429        1,730
    Outlays......................        1,071          419        1,490
------------------------------------------------------------------------
\1\Adjusted for floor amendment striking contingent emergency
  designation.
\2\This bill contains $25 million in lost revenue in FY 2004 due to a
  provision that blocks pesticide fees.
Note.--Details may not add to totals due to rounding. Totals adjusted
  for consistency with scorekeeping conventions.

   Mr. SARBANES. Mr. President, I come to the floor today to voice my 
support for the HUD/VA fiscal year 2004 appropriations bill currently 
before us. This bill is a great improvement over the administration's 
budget which sought to terminate a number of important housing 
programs. Under the leadership of Senators Bond and Mikulski, the 
Appropriations Committee was able to restore cuts contained in the 
administration's budget.
   I first want to underscore the importance of the housing programs 
funded under this bill. These programs meet a critical need in 
communities around this country. Thirty percent of American families 
have housing affordability problems, with over 14 million families 
paying more than half of their income for rent. Many working families 
are unable to afford housing costs and this problem is growing as 
housing costs rise.
   The importance of housing programs is clear. Unfortunately, each 
year we must fight to ensure that these programs are adequately funded. 
While I support the overall bill that we are considering, it does not 
contain adequate funding to meet the needs of low-income people around 
this country. What this bill does, however, is improve upon the 
administration's budget request.
   I thank Senators Bond and Mikulski for including language in this 
bill which will help to ensure that thousands of families do not lose 
their homes. Under the administration's budget, the section 8 housing 
voucher program, which assists almost 2 million families across the 
country, would be underfunded by over $1 billion.
   Fortunately, we have reason to believe that HUD has funds from prior 
years to use on voucher renewals, and the bill before us directs HUD to 
use all legally available funds for this purpose. The bill contains 
important provisions that preserve a housing agency's right to lease up 
to its authorized level of vouchers, and to overlease in a given month 
where necessary to achieve full utilization. It is my hope that these 
provisions avert any problems that could be caused by the low level of 
appropriations for this program. However, I fully support language in 
the report directing HUD to seek additional funding through a 
supplemental if necessary.
   The bill before us restores funding for a number of small, but 
important programs that the President's budget sought to terminate. 
This bill continues the Rural Housing and Economic Development program, 
a $25 million program to help address the unique housing needs in rural 
communities, and provides $25 million for brownfields development.
   Fortunately, homeless programs in this bill are provided with $108 
million more than in fiscal year 2003. Over 1 million children will 
experience homelessness at some point this year, and each extra dollar 
for homeless programs is clearly needed to ensure that no child has to 
live on the street.
   While there are many positive aspects to this appropriations bill, 
the public housing program, which houses approximately 1.5 million 
families, is underfunded yet again. each year, the administration has 
cut the Public Housing Capital Fund, which is used for maintenance and 
repairs. There is already a backlog of over $20 billion in needed 
capital repairs, yet, the administration's budget, as well as this 
bill, cuts the Capital Fund by $69 million. Without adequate funding, 
this backlog will continue to grow, threatening the homes of 1.5 
million American families and the Federal Government's substantial 
investment in this housing.
  The Public Housing Operating Fund is level funded; however, even that 
level is not adequate. Under last year's appropriations, HUD was unable 
to provide housing authorities with 100 percent of their needed 
subsidies. In addition to these cuts, in the past few years, housing 
authorities have lost the ability to run youth programs and provide for 
safety patrols as a result of the termination of the Public Housing 
Drug Elimination Program.
  Despite these cuts, public housing agencies, in general, provide 
decent and safe housing for millions of low-income Americans. However, 
there are some public housing developments that do not provide adequate 
housing and contribute to neighborhood blight and deterioration. These 
developments are being transformed through the HOPE VI program, which 
provides grants to demolish and rebuild the deteriorated housing, 
helping to revitalize communities. I can tell you that in Baltimore 
City, the HOPE VI program has been an integral part of our 
revitalization efforts and its effects are felt throughout the city. I 
commend Senators Bond and Mikulski for continuing to fund this 
important program in the face of the administration's efforts to 
terminate HOPE VI.
  The appropriations bill before us also contains a number of changes 
to existing programs. I want to raise a concern about the adoption in 
this bill of language authorizing HUD to move forward with a proposal 
to allow for subprime FHA lending. I do not believe that HUD is 
prepared for such a program. FHA has been an important tool for 
creating first time homebuyers, particularly new minority homebuyers. 
However, in some areas, as the committee report recognizes, FHA has 
been misused so as to lead to neighborhood disinvestment. The potential 
for abuse is too large to allow HUD to move forward with this new 
product. I urge members of the committee to ask HUD to provide a 
detailed plan on how it would implement a subprime FHA product prior to 
empowering HUD to do so.
  I also thank Senator Bond and Senator Mikulski for their strong and 
ongoing support of the Asset Control Area, ACA, program. This program 
was established by the appropriators with the goal of turning 
distressed neighborhoods with high foreclosure rates, low homeownership 
rates, and disinvestment into areas of hope and growth. HUD has not 
administered this program effectively, as the Senate report points out. 
The Congress gave HUD considerable flexibility to run this program and 
I strongly agree with the views expressed in the report that HUD has 
not used this flexibility to effectively work with the local 
governments and nonprofits to make this program useful. I agree with my 
colleagues that HUD ought to work with these groups to ensure that they 
possess the necessary tools to invest in and rehabilitate these 
communities.
  Restoring neighborhoods that have fallen victim to disinvestment is 
important; however, it is more cost effective to prevent the 
disinvestment from happening in the first place. That is why we must do 
more to prevent FHA foreclosures in troubled neighborhoods. I applaud 
Senator Mikulski and Senator Bond for their continued efforts to find 
ways to stop the foreclosure and flipping problems that plague many 
neighborhoods. I support the requirement contained in the committee 
report that HUD explore ways to protect both these communities and FHA 
homebuyers from bad loans that lead to foreclosures. The idea that FHA 
homebuyers in these specific areas would have someone who is 
responsible for watching out for their interests could help reduce 
flipping, predatory lending, and other abusive practices that undermine 
a community's stability and I thank my colleagues for including this in 
the bill before us.

[[Page 28602]]

  Again, I thank Senators Bond and Mikulski for ensuring that low-
income families continue to have access to decent and safe housing and 
for helping to address some of the tough issues that affect many 
neighborhoods around the country--vacant homes, predatory lending, and 
revitalization efforts.
  Ms. MIKULSKI. Mr. President, what time is it?
  The PRESIDENT pro tempore. It is 5:58.
  Ms. MIKULSKI. Mr. President, in the 2 minutes that are left I just 
want to thank my colleague for the spirited way he has tried to move 
this bill. We worked with energy. We had momentum. We had bipartisan 
support. With the 2 minutes left on this bill, I really must express my 
very keen disappointment that we were not allowed at least another hour 
or two to finish. I know the other side has the issues they want to 
raise on Federal judgeships, but this bill stands up for what America 
stands for--veterans, empowerment of communities, and housing. And for 
2 hours, in a show of respect to them, we could finish this bill.
  The PRESIDENT pro tempore. The hour of 6 o'clock having arrived, the 
majority leader is recognized.

                          ____________________




                          JUDICIAL NOMINATIONS

  The PRESIDENT pro tempore. The hour of 6 o'clock having arrived, the 
majority leader is recognized.
  Mr. FRIST. Mr. President, tonight we embark upon an extraordinary 
session for the next 30 hours. Republicans and Democrats will debate 
the merits of three judicial nominees. We will be considering the 
meaning of our constitutional responsibility to advise and consent on 
nominations. We will discuss whether there is a need to enact 
filibuster reform so that nominations taken to the floor can get a 
vote.
  At the end of this time, the Senate will either vote on the nominees 
or we will try to break the minority's filibusters through cloture 
votes. Our goal is very simple: It is an up-or-down vote on these 
nominees. People can vote them up or they can vote them down. Just give 
us a vote.
  We hold this extraordinary session for truly extraordinary reasons. 
In the history of this Senate, through 107 Congresses, the filibuster 
was never used to block confirmation of judicial nominees enjoying 
majority support. When the Senate has refused to confirm a nominee 
brought to the floor, it has done so on an up-or-down vote. Permitting 
a vote was fair to the nominees and fair to the President who sent them 
to us. In theory, the filibuster has always been available as a tool to 
derail a nomination, but until this Congress it has not been 
successfully used.
  On rare occasions, confirmation filibusters were attempted, but the 
Senate always thwarted them. Up until now, no judicial nominee has ever 
failed on a filibuster. For the past 200 years, no judicial nominee has 
ever failed on a filibuster.
  This year, in this Congress, those norms have been shattered. A 
partisan filibuster destroyed the nomination of Miguel Estrada, an 
immigrant from Honduras. Mr. Estrada is a superb lawyer, a great 
American success story. He served with distinction in both the Clinton 
administration and the Bush administration. The American Bar 
Association gave him its highest rating. Senate confirmation by an 
ample majority was assured. But a filibuster blocked action and the 
Senate was denied the opportunity for an up-or-down vote.
  The remedy for the filibuster is a cloture vote. Before filing a 
cloture motion on the Estrada nomination, we waited several weeks. 
During that time, the nomination was debated on the floor for many 
hours. On more than 20 occasions we asked unanimous consent for a time 
certain to vote. Every time we did, the minority objected. They 
obstructed a simple up-or-down vote. From their standpoint, Mr. Estrada 
would never get a vote, not in a week, not in a month, not in a month 
or two, and not even for the whole Congress.
  When it became clear that consent was impossible and the filibuster 
would not voluntarily end, cloture was the only resource left. Until 
this Congress, the record number of cloture votes on a single judicial 
nomination was two. On the few occasions a filibuster had gotten that 
far, bipartisan majorities in both invoked cloture, shut it down, and 
immediately thereafter those nominees were confirmed. Not so for Miguel 
Estrada. Seven times--not two, seven times--we initiated cloture; seven 
times cloture failed. Each time more than a majority in this body voted 
to end the filibuster but never did we get 60 votes. The minority 
obstruction did prevail, but Mr. Estrada would never get an up-or-down 
vote. This body never gave Miguel Estrada an up-or-down vote.
  Finally, Mr. Estrada asked the President to withdraw his nomination. 
Who could blame him? He left the field with dignity. Meanwhile, the 
Federal courts--indeed, I would argue, therefore, the American people--
were denied the service of a brilliant intellect, and the Senate's 
confirmation process was tarnished with unfairness.
  Sad to say, Miguel Estrada was not an isolated case. Filibusters have 
also been mounted against Priscilla Owen, William Pryor, and Charles 
Pickering. In each of these instances, a majority of the Senate will 
confirm, a majority will confirm, but we cannot get 60 votes for 
cloture to allow the vote. Under Senate rules, the Presiding Officer 
cannot put the question to a vote if any Senator holds the floor or 
seeks to speak. If debate does not end, we cannot vote. To conclude 
debate, we must secure cloture, but cloture requires 60 votes. If a 
minority determines to obstruct, they never permit the Chair to put the 
question, and they withhold the votes for cloture to stop the 
filibuster.
  On Miguel Estrada, on Priscilla Owen, on William Pryor, and on 
Charles Pickering, the full Senate has been denied the right to vote on 
confirmation. And no amount of debate and no amount of time is 
sufficient so the opponents' obstruction thus far has prevailed.
  This week, I fear yet two more nominees may fall victim to the 
filibuster. Carolyn Kuhl and Janice Rogers Brown are able and talented 
candidates for the Federal bench. Either could be confirmed if they 
were ever given a vote. Will Senators be able to take those votes or 
will disciplined obstruction prevail yet again? I would like to be 
proven wrong, but I am not optimistic.
  We will hear in this debate over the next several hours that the 
Senate has confirmed over 168 Bush nominees, and only 4 have thus far 
been blocked. Some Senators will argue these numbers demonstrate 
fairness to the nominees overall and to the President. We hear again 
and again the Senate is not a rubber stamp.
  I am unimpressed with that argument. It uses a scorecard of a sort to 
mask the real issues. Can Senators vote up or down on a nominee? Or 
will obstruction by filibuster deny them that right to vote? Will 
Senators be held accountable for their vote? Will all nominees brought 
to the floor be treated fairly and get a vote? Will we be denied our 
right to give advice and consent? If Senators wish to oppose a nominee, 
that is their right. They may vote against him or her if they wish. If 
they can command a majority, the nominee simply will not be confirmed. 
That is how things should be. But that simple logic seems no longer to 
apply. Because of the filibuster, the majority is allowed to vote only 
if the minority consents.
  Filibustering judicial nominations breaks dangerous new ground. It is 
unprecedented. These filibusters are not business as usual. 
Obstructionists have eroded two centuries of Senate tradition. Those 
who obstruct have changed the ground rules by which the Senate votes on 
confirmations. Some contend the minority has no choice. These left-wing 
activists and special interests claim the minority must use every 
available tool to oppose even if it changes forever how the Senate does 
business. Only then, they say, can the separation of powers be 
vindicated.
  But let's look to history because history shows us a very different 
and a better path. For 70 percent of the 20th century the same party 
controlled the

[[Page 28603]]

 White House and the Senate. Franklin Roosevelt sent liberal nominees 
to a Senate dominated by Democrats. So did John Kennedy, Lyndon 
Johnson, and Jimmy Carter. Ronald Reagan sent conservative nominees to 
a Senate controlled by Republicans. The Senate confirmed most of those 
nominees and rejected some others. But nominations brought to the floor 
got a vote and never died due to a filibuster.
  All during those times the Senate had vigorous debate, effective 
debate. They had vigorous and effective minorities who sometimes 
filibustered legislation but never filibustered judges. Was Senator 
Dirksen's minority derelict in some way in not using the filibuster 
against Kennedy's and Johnson's nominees? What about the minority that 
served with Senator Baker but did not filibuster Carter judges, the 
minority that served with Senator Byrd but did not filibuster Reagan 
judges, or the minority that served with Senator Dole but did not 
obstruct Clinton judges? Because they did not filibuster judges, did 
those minorities abdicate their confirmation responsibilities? I think 
not.
  But now a different tradition has been launched. It is the 
obstruction of judges by a minority. This obstruction sets a novel 
threshold for confirmation: Nominees who are singled out because they 
fail someone's ideological test or because they showed general promise 
must have 60 votes to break a filibuster. The Constitution says that a 
simple majority is enough to confirm, but somehow that majority is no 
longer sufficient. Confronted with a filibuster and disciplined 
obstruction, the majority cannot vote at all. They are being denied a 
simple up-or-down vote on those nominees.
  Under the Constitution, the Senate has a confirmation veto; a 
majority can vote a nominee down but obstruction by filibuster is veto 
by a minority. Never did the framers envision that anti-democratic 
outcome.
  The American people are going to learn a lot about cloture over the 
next 30 hours. Cloture has applied to nominations since 1949 when the 
rule was expanded to address every debatable question except for 
motions to proceed to rules changes. The inclusion of cloture was 
merely incidental to a broader reform. In 1949, the change was 
controversial. It was well debated but not a word in all of that debate 
in 1949 was about nominations. The omission is not surprising because 
nominations simply were not filibustered then.
  For three decades thereafter many proposals surfaced to change the 
cloture rule, and in 1959, 1975, and 1979 major amendments were, in 
fact, adopted. In all those debates not a word was said about 
nominations.
  Mr. GREGG. Will the majority yield for a parliamentary inquiry? Isn't 
the sign across the aisle in violation of rule XVII?
  The PRESIDENT pro tempore. The Parliamentarian will make a report to 
the Chair.
  The majority leader is recognized.
  Mr. FRIST. Many proposals surfaced to change the cloture rule. Major 
amendments were adopted. In all those debates, not a word was mentioned 
about nominations. Why should the debate have focused there? 
Nominations were not filibustered.
  What is happening now breaks sharply with Senate tradition in ways 
that are corrosive for this institution. To restore those traditions, I 
have proposed filibuster reform. Along with Senators Zell Miller and 
nine additional cosponsors, I introduced S. Res. 138 in May. Our 
proposal was heard, reported by the Rules Committee in June, and now 
awaits Senate action.
  The Frist-Miller proposal will alter the way the Senate concludes 
debate on nominations. By progressively declining cloture requirements 
of 60 votes, then 57 votes, then 54 votes, then 51, and finally, with a 
simple majority of Senators present and voting, we can end the practice 
of filibustering nominations if the Senate has the will to do so.
  Every effort to reform the cloture rule, whether successful or not, 
has been debated in its entirety. Frist-Miller is different. It reforms 
the cloture process only for nominations and leaves cloture for the 
remainder of Senate debate alone. We fix only what is broken.
  Mr. GREGG. Mr. President, I am sorry to interfere, but that sign is 
clearly in violation of rule XVII and should be removed.
  The PRESIDENT pro tempore. The Chair has asked for a review of that, 
and the Chair will report to the Senate when we get that report.
  The majority leader is recognized.
  Mr. FRIST. Mr. President, a nomination filibuster by a minority 
whenever it may coalesce is different from legislative filibusters. On 
legislation, there is a potential safety valve that a troubled measure 
may be offered elsewhere as a nongermane amendment or somehow be 
addressed by the House or in conference. No such possibility exists on 
a nomination. There is no safety valve on a nomination. Filibustering 
nominations is obstruction in its most potent and virulent form. Even 
if a majority of Senators stand ready to confirm, nomination 
filibusters are fatal.
  Frist-Miller is a narrow remedy that addresses a real problem. It 
permits substantial debate but allows the full Senate to work its will. 
The Senate must halt the emerging and unwelcome practice of obstructing 
nominations. No change in the rules is needed if those who have 
filibustered will relent and permit the nominations to have a vote. If 
they do not, then amending the rules is imperative. We have sought 
consent for a time certain to vote on each of the nominees. Met with 
objection, we filed for cloture. Without either consent or cloture, the 
obstruction will continue and incessant demands for reform will grow 
louder.
  These demands will include the exercise of the Senate's 
constitutional rulemaking power to amend rules or precedents to end 
filibusters on nominees.
  Various proposals go far beyond the Frist-Miller filibuster reform. I 
would not support these efforts now but I reserve the right to support 
them later.
  During these recent days, the majority has come under vocal criticism 
from our colleagues on the other side for scheduling this executive 
session tonight and these cloture votes. The debate is a waste of time, 
they contend, because the Senate has many urgent matters to address, 
and we are short on time to address them. Indeed, our agenda is 
crowded. But the question of how this Senate discharges its 
constitutional responsibility on nominations is among the most 
important issues we can discuss. It affects how we relate to two 
coordinate branches of government. It concerns whether Senate 
traditions will be upheld or discarded. It involves the meaning and 
future of the confirmation process. Such deliberations are plainly 
worth the Senate's time and the close attention of the American people.
  In closing, by unanimous consent, time during these 30 hours has been 
equally divided between the two parties. This will allow for balanced 
arguments, good debate, a chance to focus on these issues without 
distraction. We have entered this consent agreement in good faith to 
foster a serious dialog on a serious subject. This means sticking to 
the subject and not undermining or trivializing this session by wasting 
time through meaningless quorum calls and other obstructionist tactics. 
The debate we launch tonight is fundamental to restoring fairness to 
our confirmation process and reaffirming two centuries of Senate 
tradition.
  The majority is here, prepared to do business. We want to meet our 
constitutional responsibility to advise and consent. Whenever the 
opposition ceases to obstruct, we are ready to vote. What we ask for is 
to be able to vote, up or down. Just give us a vote.
  The PRESIDENT pro tempore. The Chair will make a report on the 
suggestion of the Senator from New Hampshire. Rule XVII of the Rules 
for Regulation of the Senate wing of The United States Capitol and 
Senate Office Buildings provides that:

       Graphic displays in the Senate Chamber are limited to the 
     following:
       Charts, photographs, or renderings:
       Size--No larger than 36 inches by 48 inches.
       Where--On an easel stand next to the Senator's desk or at 
     the rear of the Chamber.
       When--Only at the time the Senator is engaged in debate.
       Number--No more than two may be displayed at a time.

[[Page 28604]]

  This sign was on display prior to the time the Senator has been 
recognized. I would ask that the Senator be prepared to use his sign 
when he is recognized and the signs not be displayed until the Senator 
is recognized.
  Several Senators addressed the Chair.
  The PRESIDENT pro tempore. The majority leader still has the floor.
  Mr. FRIST. Mr. President, once I run through these unanimous consent 
requests, I will yield the floor.


            Unanimous Consent Agreement--Executive Calendar

  Mr. President, I now ask unanimous consent that the Senate proceed to 
executive session for the consideration of Calendar No. 86, the 
nomination of Priscilla Richman Owen to be a United States Circuit 
Judge for the Fifth Circuit.
  The PRESIDENT pro tempore. Is there objection?
  Mr. BYRD. Mr. President, reserving the right to object.
  The PRESIDENT pro tempore. The Senator reserves the right to object.
  Mr. BYRD. I shall not object, but I ask for this recognition for the 
purpose of asking the distinguished majority leader a question.
  Before I do that, may I say to the distinguished majority leader that 
I have no intention to become involved in this game back and forth. And 
I do not say it is a game just indulged in by one side. I have nothing 
to do with it. I have had nothing to say in it thus far. And at the 
moment, I do not anticipate having anything to say.
  My interest is this: I am the ranking member of the Appropriations 
Committee of the Senate. I have been on that Appropriations Committee 
longer than any Senator in history. I have been on it 45 years. I would 
like to see us get one more appropriations bill passed.
  When I was chairman of the Appropriations Committee for 7 years, I do 
not believe there was a year in which we did not get all 13 regular 
appropriations bills passed. We have passed 10 appropriations bills 
already this year.
  The distinguished chairman of the Appropriations Committee, Mr. 
Stevens, who is the President pro tempore of the Senate, and who now 
presides, has worked hard and has worked with me, but he has done most 
of the work in getting those 10 appropriations bills passed. I 
discussed this matter with him during the vote just preceding the hour 
of 6 o'clock, and I indicated to him I would like to see us try to 
finish this appropriations bill, the VA-HUD appropriations bill. And he 
indicated to me--he is in the chair--he indicated to me he would be 
glad to work toward that.
  So here we are. We have finished floor action on 10 of the 13 regular 
appropriations bills. Only three are left. Those three are VA-HUD; DC 
appropriations; and CJS, Commerce-Justice-State--three appropriations 
bills. We are almost finished on VA-HUD.
  When I came to the floor, my interest was in trying to get that bill 
finished, making it 11 appropriations bills. So I came to the floor, 
and I asked the manager on this side, Senator Mikulski, if we could 
finish it, and how long it would take, in her judgment. She thought it 
would take perhaps 2 more hours. And I believe, in discussions with 
Senator Bond, it was also indicated that we might finish that bill in 2 
hours.
  Now, I hoped the majority leader would be in the Chamber prior to the 
hour of 6 o'clock. I was made aware of his request that he be 
recognized 2 minutes before 6--5:58 or some such. I was hoping that--
and it was with considerable trepidation, certainly reluctance, that I 
sought to impose a unanimous consent request that would, for 2 hours, 
have delayed action on the then-pending unanimous consent--Senate 
request--the unanimous consent request. I get my tongue a little 
twisted at age 86. That is my problem.
  But I waited, hoping the majority leader would come to the floor. I 
know the demands on him, and I understand that. But I hoped he would be 
here so that I could make this request prior to this, what I call a 
game that is going on.
  Please forgive me if--I am interested in getting the appropriations 
bills passed. I am not interested in participating in this other matter 
at all--right now. I have some ideas. I do not thoroughly agree--I do 
not completely agree with the distinguished majority leader on his 
interpretation of the Constitution with respect to nominees, but that 
is for another time.
  But I have taken the floor now in the hope that we might, on this one 
day after Veterans Day--and my mother died on Armistice Day, 1918. I 
was 1 year old back then, lacking a week or something.
  We have men and women dying in Iraq now. We have veterans by the 
scores coming back to this country who are injured and who will carry 
for life the signs of their service in Iraq.
  I wanted to ask the distinguished majority leader--and I did not want 
to interrupt his speech, but I want to ask him, with great respect, if 
he would be willing to let the Senate go, let's say, until 8 o'clock, 
and then renew the previous order, with the understanding that we 
finish action on the VA-HUD bill by 8 o'clock, that the time 
intervening be equally divided between Mr. Bond and Senator Mikulski, 
and that we enter the order to complete that bill at 8 o'clock.
  That is all I am asking, that we go another hour and a half, complete 
that bill, which would make us have 11 bills finished as far as floor 
action is concerned, with only 2 remaining. Let's get that bill passed. 
That is important.
  I was a participant in the filibuster against Abe Fortas. I know 
something about filibusters. And I just am not willing to enter into 
one personally right now. But I would like to get this appropriations 
bill finished.
  Mr. FRIST. Mr. President, responding, through the Chair, there is 
nobody on the floor of the Senate now--and I do appreciate this many 
people being here to debate the issue of our judicial nominations and 
the process, the process that the distinguished Senator from West 
Virginia probably understands better than anybody; that is cloture and 
the history of cloture--nobody understands better the challenges to me 
as majority leader than the distinguished Senator from West Virginia on 
the scheduling of this body.
  I know there are people questioning why we are working tonight, and 
even through the night. We tried to spend a full day this Monday on the 
floor of the Senate, which was not a Federal holiday--never has been a 
Federal holiday--but when I made it clear we were here to do 
appropriations, a specific appropriations bill, and then, yes, on 
Veterans Day had us here--and I know the distinguished Senator had 
wished we were not here on that day, but being here on Veterans Day, 
and talking about the Department of Defense authorization and military 
construction and preparing for the bill that we addressed today, we 
made it very clear we would be using this time from 6 o'clock tonight, 
a long time ago, weeks ago, to your side and my side--not weeks ago, 
probably last week--after we try to finish up our business.
  I put a huge priority on appropriations, a huge priority. We are 
going to kill ourselves to finish all these bills. I pledge to you by 
the end of next week is my goal to fully address all of the 
appropriations bills because I respect the process, and I have tried to 
bring every bill out. And as of today, we have brought every single 
bill to the floor. And for various reasons--not pointing fingers too 
much to either side--we have not been able to finish several of them.
  Thus, I am going to respectfully say that no, I am going to stick 
with the schedule because we have people here to talk about an issue 
that many believe equally important, some more important; that is, our 
responsibility to handle these judicial nominations responsibly, 
respectfully, and that is what people are here to debate.
  Then I would be happy to discuss how we complete this appropriations 
process with you and with the distinguished Presiding Officer because I 
am going to need your help to finish these in an orderly way.
  But for now, I think we need to progress with addressing another 
important issue that is the schedule I set out. I would ask your 
consideration for setting that schedule out and that we

[[Page 28605]]

can figure out how to do these appropriations bills.
  Mr. REID. Mr. President, reserving the right to object.
  The PRESIDENT pro tempore. The Senator from Nevada.
  Mr. REID. Mr. President, I say, through the Chair to the 
distinguished majority leader, we started at 6 o'clock, and he spoke 
for 22 minutes or something. We have not gone into executive session 
yet. I would ask consent that your time be counted in the first hour so 
that we do not get behind in the 30 hours.
  Does the leader understand my request?
  Mr. FRIST. I do. And then we are going to subtract the time from the 
questions.
  Mr. REID. Yes, I understand.
  Mr. FRIST. That is fine, my 22 minutes apply, or whatever the time 
was I was actually speaking, to our first-hour agreement.
  I still have some unanimous consent requests.
  Mr. REID. I certainly understand.
  Mr. FRIST. But for the length of my speech, it would be fine to apply 
that time to the first hour since we will be splitting the hours.
  The PRESIDENT pro tempore. Is there objection to the request?
  Mr. BYRD. Mr. President, further reserving the right to object.
  The PRESIDENT pro tempore. The Senator is recognized for a question.
  Mr. BYRD. And I do not intend to object, Mr. President.
  May I say to the distinguished majority leader, 4 million veterans 
receive health care through the veterans health care system funded by 
the VA-HUD bill. How should we explain to these veterans that the bill 
is being set aside?
  Mr. FRIST. Mr. President, through the Chair, I have had the wonderful 
opportunity of working in veterans hospitals myself for the last--until 
I got to this body--for 15 years, every day operating, giving care to 
veterans in medicine. So I appreciate veterans hospitals. I worked in 
veterans hospitals. I have probably spent more time than anybody in 
this Chamber in veterans hospitals--from early in the morning through 
many nights, just as we are going tonight. I care about hospitals. We 
are going to address them.
  What I would ask, in response, is if the Senator from West Virginia 
would agree to a 2-hour unanimous consent to finish this bill, VA-HUD, 
on Friday--on Friday--so we can answer your question. If we can do 
that, we will be able to do exactly what you want to accomplish, to 
finish that bill, and it allows me to keep a commitment to a packed 
Chamber right now where we can debate the issues that people are here 
to debate. And then, within 48 hours, we have accomplished my objective 
and your objective. Two hours, we will do it Friday, as soon as we 
finish the cloture votes?
  Mr. BYRD. Will the Senator yield for me to respond?
  Mr. FRIST. Yes, sir.
  Mr. BYRD. Mr. President, I have long admired the distinguished 
Senator from Tennessee.
  [Disturbance in the Galleries.]
  Mr. FRIST. Thank you, sir.
  Mr. BYRD. I do not say that facetiously.
  The PRESIDENT pro tempore. The Gallery will be warned, no response 
from the Gallery is permitted in the Senate.
  Mr. BYRD. Some people are serious when they say things. But I have 
admired the Senator as a great physician. He speaks of his long service 
to veterans. I speak of a long service to veterans--more than 51 years 
in this Congress. I was here when the Veterans Administration was 
created. About Friday--Friday----
  Mr. FRIST. Yes, sir.
  Mr. BYRD. I am the recipient of the Franklin Delano and Eleanor 
Roosevelt Award for Freedom from Fear. I will receive that award on 
Saturday. I am not in a position to drive up on Saturday morning and 
receive that award. My wife is invited also with me. She cannot go. So 
I have to go on Friday, and the train leaves at 1 o'clock. As far as I 
am personally concerned, I would be happy to come in and finish those 2 
hours and get the--I believe there are four votes that are going to be 
scheduled on clotures that morning.
  Well, I have cast more rollcall votes than any living Senator, any 
deceased Senator, any Senator in the history of this Republic, any 
other Senator. I have 16,627 or 8 or 9--somewhere along there.
  I say all that to say this: I do not want to miss any rollcall votes 
on Saturday. I take great pride in my rollcall record extending over 45 
years in the Senate. It is 98.7 percent. So I missed less than 2 
percent of the votes.
  Could we agree then--I do not want to put myself in the position of 
my own leaders, as I did not want to put myself in the position of the 
distinguished majority leader on the other side. I would like to be 
able to make the four votes on Friday, catch my train at 1 o'clock, and 
go up and receive this very prestigious award.
  Could we work something out to that effect?
  Mr. FRIST. Mr. President, what I would like to do, because it is 
going to affect everybody's schedule, is to address this. If we can go 
through the remainder of the unanimous consent request, then try to 
address it.
  I just want to restate I would love to finish this bill, the 
appropriations bill on VA-HUD, and I would love to be able to work it 
out if we can on Friday.
  The PRESIDENT pro tempore. Is there objection to the request?
  The regular order is to report the nomination at this time. The 
clerk----
  Mr. BYRD. No. I reserved the right to object. May I have another 
minute? I am not participating in this whatever you call it--marathon, 
talkathon, blame-athon, or whatever it is. That is not of my interest 
right now. I am interested in the appropriations bill. It can be passed 
in 2 hours or less. As far as I am concerned, we could pass it now, 
just have a rollcall vote on it, the VA-HUD, but that would depend upon 
the two managers.
  I am not going to impose on the time of the Senate and the majority 
leader, but I ask the majority leader, would he please put the request 
in some form to finish this bill within the next hour, have a vote up 
or down within the next hour?
  Mr. FRIST. Responding, once again through the Chair, I will not be 
making that request tonight. Tonight we are going to stay on the 
judicial nominees. But I would like to discuss with you and the 
managers of the bill, and the Presiding Officer, the chairman of the 
Appropriations Committee, how we can best resolve that as quickly as we 
possibly can.
  Mr. BYRD. Thank you, Mr. President. I remove my reservation and thank 
the majority leader.
  The PRESIDENT pro tempore. Did the majority leader submit a unanimous 
consent request?
  Mr. REID. Yes, he did. He did.
  The PRESIDENT pro tempore. Without objection, it is so ordered. The 
request is granted.

                          ____________________




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF PRISCILLA RICHMAN OWEN, OF TEXAS, TO BE UNITED STATES 
                  CIRCUIT JUDGE FOR THE FIFTH CIRCUIT

  The PRESIDENT pro tempore. The clerk will report.
  The assistant legislative clerk read the nomination of Priscilla 
Richman Owen, of Texas, to be a United States Circuit Judge for the 
Fifth Circuit.
  The PRESIDENT pro tempore. The majority leader.
  Mr. FRIST. Mr. President, I would inquire of the Democratic side if 
they would be prepared to grant a time limitation on this nomination of 
2 hours?
  The PRESIDENT pro tempore. The Senator from Nevada.
  Mr. REID. Thank you very much, Mr. President.
  Through you to the distinguished majority leader, first of all, let 
me really say we could finish this bill quickly tonight. The decision 
has been made not to do that. We will be happy to come back Friday and 
cooperate with the majority. We could not agree to a time, but I think 
as to how we worked before, if we go to that bill Friday, within a very 
reasonable period of

[[Page 28606]]

time we could finish it on Friday. But as far as a specific time 
agreement is concerned, it would be very difficult to do that. But I 
stand ready and willing to come back to this bill on Friday and finish 
it on Friday; that is, VA-HUD. It is too bad we could not do it 
tonight.
  In direct response to the majority leader, we would not be in a 
position to grant a time on Priscilla Owen. We have already voted on 
this matter on at least two or three separate occasions, as I recall. 
So in response to the distinguished majority leader's request, we would 
not agree to a time agreement on Priscilla Owen of any duration.


                             Cloture Motion

  Mr. FRIST. Given the objection, I send a cloture motion to the desk.
  The PRESIDENT pro tempore. The cloture motion having been presented 
under rule XXII, the Chair directs the clerk to read the motion.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 86, the nomination of Priscilla Richman Owen, of 
     Texas, to be United States Circuit Judge for the Fifth 
     Circuit:
         Bill Frist, Orrin Hatch, Lindsey Graham, Mike Crapo, Jeff 
           Sessions, Conrad Burns, Larry E. Craig, Saxby 
           Chambliss, Mitch McConnell, Jim Bunning, Judd Gregg, 
           John Cornyn, Jon Kyl, Trent Lott, Mike DeWine, Craig 
           Thomas, Kay Bailey Hutchison.

NOMINATION OF CAROLYN B. KUHL TO BE UNITED STATES CIRCUIT JUDGE FOR THE 
                             NINTH CIRCUIT

  Mr. FRIST. Mr. President, I ask unanimous consent that the Senate now 
proceed to the consideration of Calendar No. 169, the nomination of 
Carolyn B. Kuhl, to be a United States Circuit Judge for the Ninth 
Circuit.
  The PRESIDENT pro tempore. The nomination will be stated.
  The assistant legislative clerk read the nomination of Carolyn B. 
Kuhl, of California, to be United States Circuit Judge for the Ninth 
Circuit.
  Mr. FRIST. Mr. President, again I ask the other side if they would be 
prepared to set a time certain for an up-or-down vote on this nominee 
after whatever debate they may need.
  The PRESIDENT pro tempore. The Senator from Nevada.
  Mr. REID. Mr. President, in an effort to understand what is going on 
here, everyone should understand, these requests require a simple 
majority vote, and it would be senseless to take a vote on this. That 
is why we did not object.
  I would say with this nominee, Carolyn Kuhl, we have reviewed this in 
very deep detail and would not be in agreement at this time to set any 
time limit on the debate. I ask the distinguished majority leader to 
advise us when we finish this woman and the following nominee, if you 
would be good enough to tell us when you anticipate voting. We are 
waiving the request for the requirement of a quorum. So if the majority 
leader can give us some indication when he desires to vote on this, 
whether it is 12:01 on Friday morning or later in the day.
  Mr. FRIST. Mr. President, in response, we plan on voting Friday 
morning at a reasonable hour to be defined. That means sometime after 
8:30 Friday morning. I will be more specific.
  Mr. REID. I appreciate that very much. I object.
  The PRESIDENT pro tempore. Objection is heard.


                             Cloture Motion

  Mr. FRIST. I send a cloture motion to the desk.
  The PRESIDENT pro tempore. The cloture motion having been presented 
under rule XXII, the Chair directs the clerk to read the motion.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 169, the nomination of Carolyn B. Kuhl, of 
     California, to be United States Circuit Judge for the Ninth 
     Circuit.
         Bill Frist, Orrin Hatch, Lindsey Graham, Mike Crapo, Jeff 
           Sessions, Conrad Burns, Larry E. Craig, Saxby 
           Chambliss, Mitch McConnell, Jim Bunning, Judd Gregg, 
           John Cornyn, Jon Kyl, Trent Lott, Mike DeWine, Craig 
           Thomas, Kay Bailey Hutchison.

                          ____________________




   NOMINATION OF JANICE R. BROWN, OF CALIFORNIA, TO BE UNITED STATES 
           CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT

  Mr. FRIST. Mr. President, I ask unanimous consent that the Senate now 
proceed to the consideration of Calendar No. 455, the nomination of 
Janice R. Brown, of California, to be a United States Circuit Judge for 
the District of Columbia Circuit.
  The PRESIDENT pro tempore. Without objection, it is so ordered. The 
clerk will report.
  The assistant legislative clerk read the nomination of Janice R. 
Brown, of California, to be United States Circuit Judge for the 
District of Columbia Circuit.
  Mr. FRIST. Mr. President, once again, I ask if we would be able to 
limit the time for debate on this nominee to 8 hours or 10 hours.
  Mr. REID. We object, Mr. President.
  The PRESIDENT pro tempore. Objection is heard.


                             Cloture Motion

  Mr. FRIST. With that answer, Mr. President, I send a cloture motion 
to the desk.
  The PRESIDENT pro tempore. The cloture motion having been presented 
under rule XXII, the Chair directs the clerk to read the motion.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 455, the nomination of Janice R. Brown, of 
     California, to be United States Circuit Judge for the 
     District of Columbia Circuit.
         Bill Frist, Orrin Hatch, Lindsey Graham, Mike Crapo, Jeff 
           Sessions, Conrad Burns, Larry E. Craig, Saxby 
           Chambliss, Mitch McConnell, Jim Bunning, Judd Gregg, 
           John Cornyn, Jon Kyl, Trent Lott, Mike DeWine, Craig 
           Thomas, Kay Bailey Hutchison.

  Mr. FRIST. Mr. President, I now ask unanimous consent that the three 
live quorums required under rule XXII be waived en bloc.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  Mr. FRIST. Mr. President, parliamentary inquiry: In terms of the time 
we used on our side, how much time, in terms of my initial speech, was 
used by this side?
  The PRESIDENT pro tempore. The majority has 4 minutes 47 seconds. The 
minority has 11 minutes 22 seconds.
  Mr. REID. If I can make an inquiry through the Chair, Mr. President, 
the unanimous consent request, as I have heard the ruling of the Chair, 
is not counted against anybody; is that the way it is?
  The PRESIDENT pro tempore. The time to object or reserving the right 
to object has been charged to the side making such a reservation.
  Mr. FRIST. Mr. President, I suggest the general agreement is to spend 
an hour, 30 minutes to a side, and if they are not using the time, it 
will be yielded back to the other side. I ask unanimous consent that I 
use 15 minutes, 15 minutes for Senator Hatch, and we go to the other 
side.
  Mr. REID. And we would have an hour?
  Mr. FRIST. You would have 30 minutes.
  Mr. REID. I say to the distinguished majority leader, we have had no 
time agreement the first hour other than listening to me object.
  The PRESIDENT pro tempore. Reserving the right to object and 
statements made under such objection or reservation has been charged 
against the side making that reservation.
  Mr. REID. I understand. So the Chair has ruled that the statement by 
Senator Byrd ran against us; is that true?
  The PRESIDENT pro tempore. That is correct.
  Mr. REID. So the next half hour will be used by Senators Frist and 
Hatch, and then we will use our half hour.
  Mr. FRIST. Again, I think it is time for us to move forward. 
Conceptually,

[[Page 28607]]

we are going to have an hour, 30 minutes either side. Say I used 15 
minutes--it may be more--Senator Hatch will speak about 15 minutes, and 
30 minutes will be to your side, and we will be going back and forth.
  Mr. REID. Fine. My only concern is we have had Senators we have 
scheduled to speak to use our half hour. Some of them have been 
champing at the bit here. If they don't speak now, they lose their 
time, their day in the sun.
  Mr. FRIST. I thought I had a pretty good 20-minute speech. I was 
ready to start, but because of questions directed to me, again, about 
scheduling--we get things well set and then because of questions--if we 
can just start now and do as I requested, have 15 minutes and you take 
30 minutes, we will be able to get started.
  Mr. REID. I am wondering, I ask if we could use the next 15 minutes 
so my people who have been here, Senators waiting could take the time. 
I would divide whatever by 3 until the time until 7 o'clock.
  Mr. FRIST. Would you please repeat that?
  Mr. REID. Then we can start fresh at 7 o'clock with you and Senator 
Hatch giving us your statements, and we will take the next half hour.
  Mr. FRIST. Mr. President, you mean I have Senator Hatch speak?
  Mr. REID. We would take approximately 4 minutes each until 7.
  Mr. FRIST. No, Mr. President, Senator Hatch is going to follow me, 
and then we will go into going back and forth. Senator Hatch has also 
been waiting 30 minutes. If it hadn't been for these questions, we 
would have been done 15 or 20 minutes ago.
  Mr. REID. I say through the Chair, I am trying to be peaceful and 
calm here. The Chair ruled we have 4 minutes left.
  Mr. FRIST. Would the Chair clarify how much time we have available on 
either side?
  The PRESIDENT pro tempore. The majority has 4 minutes 37 seconds. The 
minority has 10 minutes 47 seconds.
  Mr. HATCH. I ask unanimous consent that immediately after the half 
hour taken by the Democrats, I be given an additional 11 minutes. I 
will take 4 right now.
  Mr. SCHUMER. I could not hear the Senator from Utah.
  Mr. REID. The Senator from Utah said we would go until 7 o'clock and 
then they would do the next half hour; is that right? Is that what you 
said?
  The PRESIDENT pro tempore. Is there objection?
  Mr. HATCH. No, I said I would take the 4 minutes now and then take 
the 11 minutes after you had half an hour. How is that?
  Mr. REID. Out of their time, that is absolutely fine.
  The PRESIDENT pro tempore. The Senator is recognized for 4 minutes.
  Mr. HATCH. Mr. President, I think it is appropriate to have the 
chairman of the Judiciary Committee who has had to go through all this 
rigmarole to say a few words before we get into this debate. I know the 
distinguished majority leader wanted me to do so.
  To be honest with you, Mr. President, just think about it. All we 
want to do is what the Senate has always done. Once a nominee comes to 
the calendar, that nominee deserves a vote up or down under the advise 
and consent clause which is clearly a majority vote.
  Never in the history of this Congress have we had what has been 
happening over the last number of years caused by the Democrats on the 
other side.
  We should be voting on judges tonight, not debating judges. Frankly, 
there is a vocal minority of Senators preventing us from doing our 
constitutional duty to vote on judicial nominees. The American people 
need to know this, and although some of these folks have been moaning 
and groaning on the other side that we are taking this time, I suggest 
to them that there is hardly anything more important in a President's 
life, whoever that President may be, than getting his or her judicial 
nominations through.
  Frankly, it is extremely important because this involves one-third of 
the coequal branches of Government. We found a continual filibuster on 
a number of these nominees.
  Let me say this. Democrats seem to be very fond of saying: We passed 
168 and we only filibustered 4. The fact is, that raw number of 168 we 
have had to fight pretty hard to get as well. But we have. Never in the 
history of this country have we had four stopped. That is only part of 
it.
  I can name at least 15 that I have had various Democrats tell me they 
are going to filibuster. Most of them are circuit court of appeals 
nominees for the very important circuit courts in this country, people 
who have the ABA imprimatur, people such as Miguel Estrada; Priscilla 
Owen, who broke through the glass ceiling for women; Bill Pryor--even 
though he is conservative, he has always upheld the law even when he 
disagreed with the law; Charles Pickering, unanimously confirmed to the 
district court in 1990 and treated like dirt in the Senate--a racial 
reconciling. Yet he has been treated just like dirt. Carolyn Kuhl--we 
are going to have her first cloture vote on Friday because they are 
going to filibuster. Janice Brown--they are filibustering her; Claude 
Allen, I am told they are going to filibuster Claude Allen. How about 
Terrence Boyle of the Fourth Circuit? It looks as if they are going to 
filibuster him. James Deavers is being held up. Bob Conrad is being 
held up.
  Four Circuit Court of Appeals judges for the Sixth Circuit out of 
Michigan are being held up by our colleagues on the other side; two 
district court nominees, and I could name some others.
  The fact is, for the first time in history, they are treating a 
President of the United States in a ridiculous, unconstitutional 
fashion and not allowing him to have an up-or-down vote on his 
nominees. If they can defeat these nominees, that is their right, but 
they should not be dragging their feet and making it very difficult for 
these nominees to come up.
  I heard some of the comments about how important the appropriations 
process is. It is important, but I can tell you we have had foot 
dragging almost all year by our colleagues on the other side, and it is 
important, but there is nothing more important than making sure that 
our courts are well staffed with competent judges who are going to 
enforce the law for the benefit of the American citizens.
  There is nothing more important than that. Frankly, it is the one 
legacy that any President can leave. When Bill Clinton was President, 
we helped him put through 377 judges, the second all-time record. I 
might add Ronald Reagan was the all-time record holder at 382, 5 more 
than President Clinton. President Reagan had 6 years of a Republican 
Senate to help him and President Clinton had only 2 years of a 
Democratic Senate, and he was treated abundantly fair.
  There were 47 holdovers at the end. Contrast that to when Democrats 
controlled the committee and Bush 1 was President. There were 54 
holdovers.
  Mr. President, this is really wrong what they are doing. It has the 
potential of exploding this body. Frankly, we can't allow it to 
continue. It is time for the American people to understand this. I 
understand my time is up.
  Mr. REID. Mr. President, I yield 2\1/2\ minutes to the Senator from 
New York, Mr. Schumer; 2\1/2\ minutes to the Senator from California, 
Mrs. Feinstein; and 2\1/2\ minutes to the Senator from Wisconsin, Mr. 
Feingold; in that order.
  The PRESIDENT pro tempore. The Senator from New York.
  Mr. SCHUMER. Mr. President, they say one picture says a thousand 
words; one sign will equal 30 hours of palaver. The bottom line is very 
simple, we have supported and confirmed 168 judges whom President Bush 
has sent us. We have blocked 4.
  All the rhetoric, all the splitting of hairs, all the talking about 
angels on the head of a pin don't equal that. This debate will 
boomerang on my colleagues from the other side of the aisle because all 
the American people have to do is look at that sign and they say: Gee, 
you're right.
  The bottom line is the President, the majority leader, and the 
chairman of the Judiciary Committee will not be content unless every 
single judge the President nominates is rubberstamped

[[Page 28608]]

by this body. That is what they want. We all know it. We have been very 
careful and very judicious in whom we have opposed.
  People who are getting life appointments should not be extremists, 
should not be out of the mainstream, should not be asked to roll back 
30 or 60 years of jurisprudence, and the four we have blocked fall in 
that category.
  The bottom line is very simple: If you want agreement, then read the 
Constitution and tell the President, in all due respect, to read the 
Constitution. It says advise and consent. Advise means consult. We get 
no consultation. Consent means the Senate does its own independent 
review. That is what we have done.
  So I understand why early on this sign vexed my colleagues from the 
other side. The bottom line is simple: We have been reasonable; we have 
been careful; we have been moderate; we have been judicious. The other 
side and the President simply say my way or the highway. That will not 
stand.
  The PRESIDENT pro tempore. The Senator's time has expired. The 
Senator from California is recognized 2\1/2\ minutes.
  Mrs. FEINSTEIN. I thank the Chair.
  Mr. President, I have served as a member of the Judiciary Committee 
since I came to the Senate. I take the job very seriously. I try to do 
my homework in looking at these judges. I very deeply believe that this 
election provided no mandate to skew the courts to the right. I deeply 
believe that judges should be in the mainstream of American legal 
thinking, that they should have the temperament and the wisdom and the 
intellect to represent us well on the highest courts of our land.
  What I wanted to use my time for--and the 2\1/2\ minutes will not be 
enough to do it--is to indicate that during the time I have been on the 
Judiciary Committee how I have seen the rules and the procedures of the 
committee change. Those changes have not been good. They have served to 
divide the committee more. They begin with changing the American Bar 
Association's 50-year tradition of rating the qualifications of 
potential nominees before the President nominates them, to after the 
President nominates them. I would like to say why I think that is 
important.
  There have been changes made in the so-called blue slip policy so 
that concerns Senators from a nominee's home State are no longer given 
any consideration whatsoever. There has been a reinterpretation of a 
longstanding committee rule, rule 4, prohibiting the majority from 
prematurely cutting off debate over a nominee in committee. There has 
been the elimination of the tradition of holding a hearing on only one 
controversial nominee for appellate vacancies at one time. There have 
been changes to committee practice----
  The PRESIDENT pro tempore. The Senator's time has expired.
  Mrs. FEINSTEIN. I hope in the next hour perhaps I might have more 
time. I yield the floor.
  The PRESIDENT pro tempore. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I think we ought to be spending 30 hours 
on the manufacturing crisis in our country. Since January 31, we have 
lost 2.5 million manufacturing jobs and over 70,000 of them are from 
Wisconsin alone.
  These jobs are more than numbers on a page. They are all too real. 
The thousands of Wisconsin residents who have petitioned their 
Government know this firsthand.
  In their letters to me--and, Mr. President, I have with me over 2,000 
letters that were sent recently to my home by manufacturers, not labor 
union members but manufacturers from the State of Wisconsin that are 
desperate about this problem. Thousands of people from all around 
Wisconsin, from places such as Sparta and Trempeleau and West Bend and 
Muskego, write that the first and foremost reason behind these lost 
jobs is our trade policy.
  These letters say: Our elected officials say workers will benefit 
from this free trade policy and the free trade agreements that come 
with it, but the opposite has occurred. Our trade deficit is increasing 
at a pace of $1.5 billion per day. That is how many more products we 
are importing than we are making. As you can see, these trade 
agreements are not working to the benefit of U.S. workers.
  These letters go on to talk about how manufacturing in America is 
dying a slow death. That is a much higher priority than spending 30 
hours talking about four judicial nominations, and we should respond to 
the desperate situation that the American people are facing with 
manufacturing job loss.
  I yield the floor.
  The PRESIDENT pro tempore. Under the previous order, the next hour is 
equally divided between the two parties, 30 minutes to each side. Who 
yields time? The Senator from Utah.
  Mr. HATCH. As I understand it, I have 11 minutes left; is that 
correct?
  The PRESIDENT pro tempore. The Senator has a half hour.
  Mr. HATCH. Mr. President, we should be voting on judges tonight. 
Instead we are debating judges tonight because a vocal minority of 
Senators is preventing us from doing our constitutional duty to vote on 
judicial nominees.
  The American people need to know that. That is why we are here. If 
you stop and think about this sudden new set of arguments or at least 
arguments they have used for a long time, the Democratic leadership has 
been blocking all kinds of passage of bills that are America's 
priorities for the whole year.
  Now they are complaining because we want to let the American people 
know how bad they have been about Federal judges, which, after all, is 
one of the most important things we do around here. Just think about 
it. The long overdue fiscal year 2003 appropriations bills were finally 
enacted on February 20, 2003. For the first time in history, there were 
filibusters to defeat the President's circuit court nominees, now up to 
six who are actually filibustered, and at least another nine whom, I 
have been told, they will filibuster. The sign they have is an absolute 
outright falsehood.
  We needed legal reforms to stop lawsuit abuse against doctors, 
businesses, and industries that have been virtually banned by the 
tactics of the minority. Medical liability, class action reform, gun 
liability, and asbestos reform: they have all been subject to delays or 
filibuster by the minority.
  Similar delays led to a record number of days spent on the budget 
resolution and the near record number of rollcall votes on amendments, 
many of which were virtually identical. The distinguished Senator from 
Alaska understands that as chairman of the Appropriations Committee.
  The most innovative waste of time came on the Energy bill. After 
spending 22 days on the Energy bill last year, we spent 18 days on the 
Energy bill this year, only to pass the same version of the Energy bill 
that passed the Senate last year.
  Bioshield legislation necessary to ensure proper vaccines in medicine 
to counter bioterrorism attacks has still not cleared.
  The State Department reauthorization has been stalled by Democrats 
insisting upon unrelated poison pill amendments be voted on prior to 
passage. I could go on and on.
  The fact is, there has been a steady slowdown, steady slow walk 
around here, ever since we became the majority.
  Now, the issues we are highlighting tonight could not be more 
fundamental to our country, to democracy, to the rule of law: 
separation of powers. All are at stake in this ongoing debate. Among 
the constitutional Framers' conceptual breakthroughs was that the 
judicial branch would receive equal status to that of the executive and 
legislative branches. An independent judiciary is the thread that binds 
the country together and ensures law and order. It is important. It is 
indispensable to the survival of a civilized society.
  If it had not been for the restraining force of an independent 
judicial branch, either the executive or the legislative branches would 
have usurped incredible power and destroyed the checks and balances 
that are at the

[[Page 28609]]

very foundation of our constitutional form of government. So we all 
have a stake in this debate tonight, and it is my hope that our 
opponents across the aisle will act to restore the constitutionally 
required up-or-down vote for judicial nominees. Ultimately, through the 
ballot box, the people in my home State of Utah and across America will 
decide who nominates and who confirms judges.
  Let me repeat that our Nation's founding document requires that every 
judicial nominee who reaches the Senate floor receive an up-or-down 
vote. It is a simple, clear, and fair fact that lies at the heart of 
this debate. Once they hit the floor, they have always gotten a vote.
  Every one of President Clinton's judges who hit the floor got a vote 
up or down, and only 1 out of 377 was defeated. But a minority of the 
Senate is rigging the system by engaging in an unfair set of 
unprecedented filibusters which are the culmination of an outright 
assault on the independence of the Federal judiciary.
  When our colleagues across the aisle controlled the Senate, we saw 
nominees with the full support of their home State Senators denied 
hearings and votes for months and months. We saw nominees stalled by 
demands for unpublished opinions and volumes of written questions. We 
saw this become more and more serious since the beginning of this year.
  We have continued to see ideology used to threaten the independence 
of our Federal judiciary by essentially requiring nominees to announce 
their views on issues that may come before them as Federal judges, 
something that has not happened in the past. But that is what they are 
requiring of President Bush's nominees, at least some of them.
  They treated Miguel Estrada like dirt, while they allowed John 
Roberts to go through. Roberts was also in the Solicitor General's 
office. They did not ask for the highly privileged confidential matters 
for Roberts, but they did for Miguel Estrada.
  By the way, most all of these people have high ratings from their 
gold standard, the American Bar Association.
  We have seen for the first time in American history true filibusters 
of judicial nominees which are preventing the Senate from exercising 
its constitutional right and duty of advice and consent. This is 
harmful to the Nation, it is harmful to the judiciary, and it is 
certainly harmful to our institution. It is harmful to the President. 
It is harmful to these people who are willing to put their names up and 
to do this.
  Article II of the Constitution of the United States invests in the 
President alone the power to nominate judges. There is no room for 
interpretation. The words are explicit. Yet we have seen efforts to 
usurp the President's constitutional authority not by constitutional 
amendment but through various proposals on how nominations should be 
made and demands on who should be nominated that exceed any reasonable 
interpretation of consultation.
  We have also seen the filibusters of judicial nominees that brought 
us here tonight and prevent us from exercising our constitutional 
obligation of an up-or-down vote.
  This assault on the judiciary is not without victims. There is no 
question that it is harmful to the Federal judiciary. More than half of 
its existing vacancies are considered judicial emergencies. So it is 
harmful to the President. He is not being treated fairly compared to 
all Presidents before him. And it is harmful to the Senate, whose 
constitutional roles are turned on their heads. It is perhaps most 
harmful to the individual lives of the nominees who have been denied a 
simple up-or-down vote, which they have always gotten before when they 
have been brought to the floor on the Executive Calendar.
  Now let me talk about some of these nominees because I think it is 
important to remember that they are very real people who want to get on 
with their very real lives instead of hanging in the limbo of what has 
become the Senate's confirmation stall.
  Let me turn to this particular picture. Former DC Circuit nominee 
Miguel Estrada, who is an American success story, unanimously gets the 
highest rating from the American Bar Association, the Democrats' gold 
standard. He was stopped for over 2 years--actually 3 years. Priscilla 
Owen broke through the glass ceiling for women and made it so women 
could become partners in major law firms, one of the most brilliant 
people in our society. She was an excellent witness, but they just do 
not want her.
  William Pryor, of course, in my opinion, the outside groups tried to 
smear Pryor, and they did so with regard to his strongly held personal 
beliefs on abortion.
  I might add that Charles Pickering, who I mentioned before, was 
passed by this body unanimously in 1990. Yet all of a sudden in the 
next 13 years he is unworthy to be on the circuit court of appeals?
  No. It all comes down to abortion. We can go further. We can go 
further than just these nominees. I have mentioned a whole raft of 
others. I could name at least 15 colleagues on the other side who have 
indicated they are going to filibuster. Now that is abominable. All 
four of those nominees have been waiting years, and in some cases many 
years, for confirmation. All of them have been denied up-or-down votes.
  On Friday, the Senate will consider the nomination of two more 
outstanding jurists, and let me just put up this second chart. Carolyn 
Kuhl served in the Reagan administration. She was only 28 years old at 
the time and they have tried to act like she had all kinds of authority 
to do things with which they disagree. She has virtually unanimous 
support from her fellow judges in California, many of whom are 
Democrats, who say she will make a terrific addition to the Ninth 
Circuit Court of Appeals.
  Take Janice Rogers Brown, this African American woman who was the 
daughter of sharecroppers. She put herself through college and law 
school as a single mother--just think about that--and yet she is being 
treated in a very improper fashion.
  I might add that nearly 100 of her fellow judges on the Los Angeles 
County Superior Court are in support of Carolyn Kuhl. She is a terrific 
nominee, but they suspect that she is probably pro-life. I do not know 
what she is. I do not know what Janice Rogers Brown is. They may be 
right on that, but so what?
  I think if a person is otherwise qualified, no single issue should 
stop them from being able to serve their country on the Federal bench, 
and if we had taken the attitude they are taking, my gosh, President 
Clinton would have got very few judges. Instead he got 377, the second 
all-time record for confirmations.
  DC Circuit Court nominee Janice Brown has spent nearly a quarter 
century in public service, including nearly a decade as a judge in the 
California State courts. This daughter of a sharecropper became the 
first African American woman to sit on the California Supreme Court in 
1996. Why are they against her? Because they know she is conservative, 
and they want just one way of thinking among African Americans. She 
does not qualify because she happens to be conservative. No matter that 
she won 76 percent of the vote in the last election, more than any 
other nominee for the California Supreme Court, and wrote most of the 
majority opinions in the last year.
  On Friday, we will have the opportunity to give these two nominees 
the up-or-down vote they deserve, but it is apparent the minority whip 
has said they are going to filibuster them.
  I am proud to say in my 27 years in the Senate, some of my Democratic 
colleagues expressed similar views when a different President was in 
the White House. For example, the distinguished minority leader stated:

       As Chief Justice Rehnquist has recognized: The Senate is 
     surely under no obligation to confirm any particular nominee, 
     but after the necessary time for inquiry it should vote him 
     up or vote him down. An up-or-down vote, that is all we ask.

  That was their philosophy when they had the Presidency and they had 
the Senate Judiciary Committee and were the leaders in the Senate.

[[Page 28610]]

  On this point, I agree with Senator Daschle. All we ask for is an up-
or-down vote. If they want to vote against these people, that is their 
right, but they need to have an up-or-down vote. Why are they afraid of 
allowing simple up-or-down votes in the cases of these excellent 
nominees? Well, because we think--I think--there is more than adequate 
evidence that on a bipartisan set of votes these nominees would be 
confirmed by the Senate. If not, let the chips fall where they may. But 
these nominees deserve a vote. Vote them up or vote them down, but just 
vote.
  I yield the floor.
  The PRESIDENT pro tempore. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, my Democratic colleagues try to justify 
their unprecedented filibusters of President Bush's nominees by arguing 
that they want mainstream judges and that President Bush's nominees do 
not fit that criteria. Mainstream judges--I am a little puzzled by that 
assertion. I would think, for example, that Priscilla Owen is in the 
mainstream. She was rated unanimously well qualified by the ABA. She 
was endorsed by the past 16 Texas Bar Association presidents, both 
Democrats and Republicans. She has been twice elected to statewide 
judicial office in Texas, one of the States where they elect judges, 
and the last time, interestingly enough, she got 84 percent of the 
vote--unanimously well qualified by the ABA; supported by 16 presidents 
of the State bar of Texas, Democrats and Republicans, and gets 84 
percent of the vote. Sounds like mainstream to me. Yet Democrats 
filibustered her nomination because of her interpretation of a Texas 
law saying minor girls could not have an abortion without their parents 
being notified--not consent but merely notified.
  After all, school nurses need a parent's consent to dispense an 
aspirin to a child. Should not a parent be entitled to a simple 
notification when their child seeks an abortion? Over 80 percent of 
Americans think they should. That is a very mainstream notion.
  So I was astonished that Democrats would say she was not ``in the 
mainstream,'' and, frankly, I think the American public would be 
astonished by such a conclusion that a person so ruling would not be in 
the mainstream. But ``mainstream,'' of course, is a relative term.
  To help the American people understand the Democrats' view, we should 
look at some of the Clinton judges my Democratic colleagues have 
supported. Upon doing so, it should be pretty clear that the Democrats' 
view of mainstream is colored by the fact that they are sitting on the 
far left bank.
  Clinton class of 1994, Judge Shira Scheindlin, a get-out-of-jail-free 
card for terrorist sympathizers. In the days after 9/11, Federal agents 
did their job by detaining a material witness to the 9/11 attacks, a 
Jordanian named Osama Awadallah. Osama knew two of the 9/11 hijackers 
and met with one at least 40 times. His name was found in the car 
parked at the Dulles Airport by one of the hijackers of American 
Airlines Flight 77, and photos of his better known name's sake, Osama 
bin Laden, were found in Osama Awadallah's apartment.
  Under the law, a material witness may be detained if he or she has 
relevant information and is a flight risk. The Justice Department 
thought Osama met both of those tests. While detained, he was indicted 
for perjury. But Judge Shira Scheindlin, a 1994 Clinton nominee, 
dismissed the perjury charges and released this man on the street. Her 
reason? She ruled that the convening of a Federal grand jury 
investigating a crime was not a criminal proceeding, and therefore it 
was unconstitutional to detain this Mr. Awadallah.
  This was quite a surprise to Federal prosecutors who, for decades, 
had used the material witness law in the context of grand jury 
proceedings for everyone from mobsters to mass murderer Timothy 
McVeigh. So much for following well-settled law.
  If anyone wants to read a good article about this case, I recommend 
the Wall Street Journal editorial from last year entitled ``Osama's 
Favorite Judge.'' It notes that thanks to Judge Scheindlin, this fellow 
is out on bail. We wonder how he is spending his time.
  Just last Friday, the Second Circuit reversed Judge Scheindlin. The 
appellate court seemed quite puzzled that she would release this man 
given his obvious connection to terrorists. The Second Circuit held 
that his detention as a material witness was a scrupulous and 
constitutional use of the Federal material witness statute.
  It is too bad Judge Scheindlin did not act in a similarly scrupulous 
fashion. Nevertheless, to Democrats she is probably ``in the 
mainstream.''
  Let us take a look at the Clinton class of 1995, Judge Jed Rakoff. 
One of Judge Scheindlin's colleagues, a 1995 Clinton nominee, has ruled 
that the Federal death penalty is unconstitutional in all instances.
  Now, some of my colleagues may share this position, but their views 
differ from the majority of Americans. When Judge Rakoff acts on his 
personal views, it is a very clear failure to follow Supreme Court 
precedent. Indeed, Judge Rakoff's rulings so brazenly violated 
precedent that even the Washington Post, which is against the death 
penalty as a policy matter, came out against his decision as gross 
judicial activism.
  In an editorial entitled ``Right Answer, Wrong Branch,'' the Post 
noted that the fifth amendment specifically contemplates capital 
punishment three separate times. The Post noted:

       [T]he Supreme Court has been clear that it regards the 
     death penalty as constitutional. . . . The High Court has, in 
     fact, rejected far stronger arguments against capital 
     punishment. . . . Individual district judges may not like 
     this jurisprudence, but it is not their place to find ways 
     around it. The arguments Judge Rakoff makes should, rather, 
     be embraced and acted upon in the legislative arena. The 
     death penalty must be abolished, but not because judges beat 
     a false confession out of the Fifth Amendment.

  Another editorial, this one from the Wall Street Journal entitled 
``Run for Office, Judge,'' said as follows:

       It hardly advances th[e] highly-charged debate [on capital 
     punishment] to have a Federal judge allude to Members of 
     Congress who support capital punishment as murderers. If 
     Judge Rakoff wants to vote against the death penalty, he 
     ought to resign from the bench and run for Congress or the 
     state legislature, where the Founders thought such debates 
     belonged.

  Judge Rakoff's ruling would prevent the application of the death 
penalty against mass murderers like Timothy McVeigh or Osama bin Laden. 
I guess Judge Rakoff is the kind of mainstream judge the Democrats 
would like to see on the bench.
  There have also been some interesting rulings from the Ninth Circuit, 
finding the right to long distance procreation for prisoners. My 
friends on the other side believe very strongly in a living and 
breathing constitution. They also believe that the rule of law should 
not be confined to the mere words of the document and the Framers' 
intent. To them, those are anachronistic concepts. I was truly 
surprised, however, to read what a panel of the Ninth Circuit had tried 
to breath into the Constitution.
  Three-time felon William Geber is serving a life sentence for, among 
other things, making terroristic threats. Unhappy with how prison life 
was interfering with his social life, Mr. Gerber alleged he had a 
constitutional right to procreate via artificial insemination.
  A California district court rejected Mr. Gerber's claim. A split-
decision of the Ninth circuit, though, reversed. Infamous Carter-
appointee Stephen Rhinehardt joined President Johnson's appointee, 
Myron Bright, to conclude that yes, the farmers had indeed intended for 
``the right to procreate to survive incarceration.''
  In his dissent, Judge Barry Silverman--a Clinton appointee who was 
recommended by Senator Kyl--wrote that ``This is a seminal case in more 
ways in one'' because ``the majority simply does not accept the fact 
that there are certain downsides to being confined in prison.'' One of 
them is ``the interference with a normal family life.''
  Judge Silverman noted that while the Constitution protects against 
forced sterilization, that hardly establishes ``a constitutional right 
to procreate from prison via FedEx.'' The Ninth Circuit, en banc, 
reversed this decision, but only barely. And it did so

[[Page 28611]]

against the wishes of Clinton appointees Tashima, Hawkins, Paez and 
Berzon, who dissented from the en banc ruling.
  If anyone wants to read more about this case, I'd recommend George 
Will's piece entitled, ``Inmates and Proud Parents.'' If there ever was 
a circuit in need of some moderation, balance, and ideological 
diversity, it is the Ninth Circuit. It is made up of 17 Democrat 
appointees, but only 10 Republican appointees.
  It is the Nation's largest circuit, covering nine states and 51 
million people. It is also reversed far and away more than any other 
circuit. Indeed, it is reversed so often--from 1996-2000, the Supreme 
court reversed it 77 out of 90 times--it is known as a ``rogue'' 
circuit. This has forced its representatives to introduce legislation 
to allow their States to secede from the Ninth Circuit.
  But my Democrat colleagues probably won't give Ninth Circuit nominee 
Carolyn Kuhl the simple dignity of an up or down vote. Evidently she is 
not as ``mainstream'' as all these Democrat judges.
  If these Democrat judges represent the ``mainstream,'' then quite 
frankly, I am glad the Democrats think that Priscilla Owen, Carolyn 
Kuhl, and Janis Rogers Brown aren't in it. Unlike these Democrat 
judges, I am confident these women will follow precedent and act with 
commonsense.
  The Senate should, as it did with Judge Paez, Judge Berzon, and other 
controversial Democrat nominees, give these women the simple dignity of 
an up or down vote.
  I yield the floor.
  The PRESIDENT pro tempore. The Senator from Nevada.
  Mr. REID. Thank you very much, Mr. President.
  I talked quite a bit on Monday about this matter dealing with jobs. 
We should be talking about jobs. We should be talking about 
unemployment, not four people who have jobs.
  What I am talking about, what we are talking about on this side is 
absolutely valid. One needs only to go to the Web site of the majority 
leader, Senator Frist, prior to his pulling from his Web site the 
information to the following question: Should the President's nominees 
to the Federal bench be allowed an up-or-down vote on confirmation as 
specified in the Constitution? Sixty percent, no.
  Even the majority leader's Web site indicates that what is going on 
here is absolutely wrong. The majority of the people who responded, 
almost 10,000 people, said this is the wrong approach. This is from the 
majority leader's own Web site.
  I also say that this has been referred to as a carnival--I don't know 
if that is an exact term. But as an indication that it is circus-like, 
one need only get an e-mail that was sent to various Senators on the 
majority side saying:

       It is important to double your efforts to get your boss to 
     S-230 on time. Fox News channel is really excited about the 
     marathon. Britt Hume at 6 would love to open the door to all 
     our 51 Senators walking on to the floor. The producer wants 
     to know, will we walk in exactly at 6:02 when the show starts 
     so we can get it live to open Britt Hume's show? Or, if not, 
     can we give them an exact time for the walk-in start?

  Mr. President, we have said this should be about jobs, about 
unemployment. Even Senator Frist's people who respond to him on his Web 
site say yes. Is it a circus? Absolutely. You can see from this it is a 
circus.
  Mr. DURBIN. Will the Senator yield?
  Mr. REID. I am happy to yield.
  Mr. DURBIN. Is it possible for us to get an update during the course 
of the evening on what Fox News is going to be looking for during this 
marathon? This opening about the march into the Chamber clearly was 
priority for the ``fair and balanced'' network. Will we get updates 
from time to time how Fox News would like to orchestrate the rest of 
this?
  Mr. REID. I say to my friend, perhaps so. If not, maybe we could 
check with the Federalist Society, which, coincidentally, is starting 
their convention tomorrow.
  The PRESIDENT pro tempore. The Senator is warned to speak through the 
Chair and not risk the probability of being interrupted and losing the 
floor.
  Mr. REID. Mr. President, I don't understand. I was speaking through 
the Chair, answering the Senator's question.
  The PRESIDENT pro tempore. The Senator from North Dakota must address 
the Chair and ask for permission.
  Mr. DURBIN. There is no Senator from North Dakota.
  Mr. REID. I respond through the Chair to the distinguished Senator 
from Illinois.
  The PRESIDENT pro tempore. It protects the Senator's right to the 
floor.
  Mr. REID. I say to my friend that the Federalist Society, as we know, 
is not mainstream dealing with judicial issues, but extreme, and 
indicate that may be the case. One of the lead speakers, of course, is 
Mr. Bork. To even compound the political nature of the operation, 
Attorney General William Pryor of Alabama is speaking there.
  For everyone within the sound of my voice, it sounds to me rather 
unusual that someone who has the nomination and is trying to get 
confirmed to be a member of a very high Federal court--I cannot imagine 
it would be appropriate for that person to appear at an organization 
that is not in the mainstream, but extreme.
  So what we have here, even by Senator Frist's standards, looking at 
his Web site, we have the facts as I have indicated previously.
  Mr. SESSIONS. Will the Senator yield?
  Mr. REID. Not right now. I will not.
  We have here from Senator Frist's own Web site the fact that 60 
percent of the people--about 10,000 responded before it was pulled from 
the Web site--say that the procedure being sought here is wrong.
  I also say it is very clear this is a carnival-type atmosphere as 
indicated by the e-mail setting up the various presentations to satisfy 
Fox News.
  Finally, the Federalist Society, coincidentally, is the typeset for 
this matter.
  I yield 12 minutes to the Senator from California, Mrs. Feinstein.
  The PRESIDENT pro tempore. The Senator from California is recognized 
for 12 minutes.
  Mrs. FEINSTEIN. Mr. President, what I was trying to do was 
essentially trace changes in committee procedure with the difficulties 
the Judiciary Committee seems to be countenancing in present days. A 
good deal of it has to do with blue slip policy because it was the 
second tradition to fall by the wayside when President Bush took 
office.
  Under the Clinton administration, nominees were often blocked not 
only by home State Senators but by any single Republican Senator. At 
the very least throughout the years preceding the Bush administration, 
a home State Senator's objection to a nominee would effectively stop 
that nominee from moving forward.
  Let me show a copy of a blue slip used during the Clinton 
administration, starting in January of 1999, and sent to each home 
State Senator. The document itself specifically states that no 
proceedings on this nominee will be scheduled until both blue slips 
have been returned by the nominee's home State Senators.
  That policy was followed without fail and without question. Even 
before 1999, during the Clinton Presidency, the blue slip said ``unless 
a reply is received from you within a week from this date, it will be 
assumed that you have no objection to this nomination.''
  But still, if there was an objection from a home State Senator, that 
nominee simply did not move, did not get a hearing, did not get a vote, 
did not get confirmed. It was, in fact, a filibuster of one.
  Today, there is a new blue slip policy, one in which the objections 
of one or even both of the home State Senators is no longer 
dispositive. That is part of the problem. This keeps changing, 
dependent on who is President. This latest policy puts Democrats on the 
committee and in the Senate in a difficult position.
  In the past, if a home State Senator objected to a nominee, that 
nominee did not proceed; there would be no committee vote and no 
filibuster on the floor. Fifty-five Clinton nominees did not receive a 
hearing. This well could have been a filibuster of one. The blue slip 
is secret; nobody knows.

[[Page 28612]]

  Let me name some of the Clinton nominees who were filibustered by one 
or two members of the Judiciary Committee. Elena Kagen, nominated to 
the District of Columbia Circuit, nominated by Clinton, June 17, 1999. 
The nomination was returned December 15, 2000. She waited 547 days 
without getting a hearing or a vote in the Judiciary Committee. She is 
currently the dean of Harvard Law School.
  Lynette Norton, nominated for the District Court for the Western 
District of Pennsylvania. Nominated by President Clinton on April 28, 
1998, in the 105th Congress. Her nomination, which was submitted to the 
105th and 106th Congresses, was returned both times without a hearing. 
She waited 961 days without a hearing or a vote in the Judiciary 
Committee. Again, a successful filibuster by one or two Senators, in 
secret.
  Barry Goode, nominated for the Ninth Circuit. Goode was nominated by 
President Clinton on June 24, 1998. After 3 years of inaction, 
President Bush withdrew his nomination, on March 19, 2001. Mr. Goode 
waited 998 days without ever getting either a hearing or a vote in the 
Judiciary Committee. A filibuster of one or two, in secret--no hearing, 
no opportunity to read a transcript, no opportunity to go back and read 
writings, speeches, or look into a nominee's background. Just because 
of one or two Senators, a hearing is denied; the filibuster is 
complete.
  H. Alston Johnson, nominated for the Fifth Circuit, a Louisiana slot. 
President Clinton nominated Johnson on April 22, 1999. His nomination 
was returned December 15, 2000. He waited almost 697 days without 
getting a hearing or a vote in the Judiciary Committee.
  This goes on and on and on.
  Now, the nominees before us today had hearings. There was debate. 
There was a markup. There was a debate. There was a vote. We did read 
their background. And based on knowledge, the minority of this body 
made a decision that we do not wish to proceed to affirm them. We have 
over 40 votes to do so. This is not the vote of one person in secret 
preventing a hearing from taking place. Now that is as much a 
filibuster as this is.
  You are looking at me strangely, Mr. President?
  The PRESIDING OFFICER (Mr. Talent). There is no reason for that. I am 
just inquiring of the Parliamentarian about the time remaining.
  Mrs. FEINSTEIN. And I don't want to use the time because I know 
Senator Durbin--how much time do we have remaining?
  The PRESIDING OFFICER. The minority has 18 minutes, of which 5\1/2\ 
minutes, approximately, still remain for the Senator from California.
  Mrs. FEINSTEIN. Thank you.
  So my point is that much of what has been happening in the Judiciary 
Committee has been to make it more confrontational. The blue slips are 
an excellent case in point. Changing when the American Bar Association 
ratings are known is a good point.
  I remember during the Clinton administration when the ratings were 
done earlier and I had to call a nominee and tell them that because 
they had been out of the practice of law for a period of time, they 
were deemed unqualified by the American Bar Association and the 
President was not going to move their nomination. So without 
embarrassment to the individual, that nomination was withdrawn.
  Today, you do not get the American Bar Association's qualified or 
partially qualified or unqualified rating until after the nominee is on 
the Hill.
  Now there are those who do not think the American Bar Association's 
evaluation is worth anything. There are those on the committee who 
believe it is. So there is a difference in point of view. But at least 
have the qualification or nonqualification done early enough so that it 
can save the individual humiliation and also play a major role.
  Let me talk for a minute about rule IV because I think rule IV again 
divided our committee in a way that it did not have to be. Rule IV has 
been a Senate tradition. It is a rule. It is a hard and fast rule. It 
prevents closing off debate on a nominee unless at least one member of 
the minority agrees to do so. Twice this rule has been reinterpreted, 
really violated, and votes have been forced on nominees well before 
debate has ended. The committee's rule in question contains the 
following language:

       The chairman shall entertain a nondebatable motion to bring 
     a matter before the committee to a vote. If there is 
     objection to bringing the matter to a vote without further 
     debate, a rollcall of the committee shall be taken and debate 
     shall be terminated if the motion to bring the matter to a 
     vote without further debate passes with 10 votes in the 
     affirmative, 1 of which must be cast by the minority.

  That enables the minority to delay a matter. It is in the rules of 
the committee to give it more time. This rule is not being followed.
  This is one of the only protections the minority party has in the 
Judiciary Committee. Without it, there might never be debate at all. A 
chairman could convene a markup, demand a vote, and the entire process 
would take 2 minutes. This is not how a deliberative body should 
function. More importantly, it is contrary to our rules. That is one of 
the reasons we are where we are today.
  This rule was first instituted in 1979 when Senator Kennedy was 
chairman of the Judiciary Committee. It has been followed to the letter 
until very recently.
  This is a nation of laws. We expect these laws to be obeyed even if 
they are just Judiciary Committee rules.
  Let me give another situation, and that is ignoring traditional State 
vacancies. There is also a willingness by this administration to simply 
change the playing field if they do not like a result. Fourth Circuit 
nominee Claude Allen is one such instance. He is from Virginia. He has 
been nominated for a position that has traditionally been filled from 
Maryland. Why? Because President Bush became frustrated that Maryland's 
two Democratic Senators would not sign off on the nominees he wanted 
for that position. So he decided to simply go where he could find more 
friendly company--Virginia's two Republican Senators.
  This stark determination to simply fill the bench with conservative 
jurists at all costs is what gives the minority in the Senate pause 
when considering whether to simply approve every Bush judge who comes 
our way or make a stand on some. We have chosen to make a stand on 
some. There are other attempts to ignore the minority. There are little 
things as well, things that add up over time to give the clear 
impression that the majority does not care about the needs or the will 
of the minority. That simply serves to create, increasingly, a bunker 
mentality among Democrats in today's Senate.
  For instance, earlier this session, the Judiciary Committee scheduled 
a hearing with three very controversial circuit court nominees on a 
single panel for an appellate court.
  The PRESIDING OFFICER. The Chair needs to inform the Senator from 
California she has used her 12 minutes.
  Mrs. FEINSTEIN. May I finish my statement?
  Mr. REID. I yield the Senator 2 more minutes.
  Mrs. FEINSTEIN. The point is, these were all controversial nominees. 
A controversial nominee's hearing can run 8 hours. If you schedule 
three, you truncate the hearing for each, and you do not allow the 
minority to do their due diligence in terms of their homework.
  I thank the Chair and I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I yield the remainder of our time to the 
distinguished Senator from Illinois, Mr. Durbin.
  The PRESIDING OFFICER. The Senator from Illinois is recognized, and 
he has 11 minutes 45 seconds.
  Mr. DURBIN. Thank you, Mr. President, and I thank the minority whip.
  First, for those who are following this debate, if it can be 
characterized as such, you should understand we had an opportunity to 
finish the appropriations bill for the Veterans' Administration, a $62 
billion bill to fund veterans hospitals, clinics, and health care 
across the United States. We tried.

[[Page 28613]]

  Senator Byrd of West Virginia came to the floor and said: Can we 
postpone what we are doing tonight here to finish this important 
appropriations bill so we can go to conference and get ready to adjourn 
this session in a timely fashion? Sadly, the Republican side objected 
to finishing the appropriations bill for the Veterans' Administration. 
It is their belief what we are doing now took precedence, is more 
important. It will be up to the voters and the public to make a 
judgment as to whether they were right.
  I would also say that instead of addressing some issues families 
across America might tune in to follow, such as the unemployment in 
this country, and what we are doing about it, we are here debating a 
situation where 4 judges have been held out of 172 submitted by 
President Bush.
  I would think, frankly, we ought to spend a little time really 
addressing the problem of unemployment in this country. This President 
has witnessed, in his administration, a loss of more than 3 million 
private-sector jobs. That is a record. Unless something changes 
dramatically, this President will be the first President since Herbert 
Hoover to have lost jobs during the course of his administration. Over 
3 million Americans unemployed. Sadly, we have 9 million unemployed 
across the country today and their unemployment benefits are running 
out.


                   Unanimous Consent Request--S. 1853

  In the interest of at least trying to do something constructive and 
legislative this evening, rather than just exchanging our comments back 
and forth, I am about to make a unanimous consent request that the 
Senate proceed to legislative session, and the Finance Committee be 
discharged from further consideration of S. 1853, a bill to extend 
unemployment insurance benefits for displaced workers, that the Senate 
proceed to its immediate consideration, and that this bill be read a 
third time and passed, and the motion to reconsider be laid upon the 
table.
  The PRESIDING OFFICER. Is there objection?
  Mr. SESSIONS. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. DURBIN. I am not surprised because what we are about tonight is 
not the issues families care about. We are about a political script. 
Senator Reid of Nevada read to us this all-points bulletin that was 
sent out to the Senators saying: Be sure and get over here exactly at 6 
o'clock. It said: The Fox News channel is really excited about this 
marathon. Britt Hume at 6 would love to open with all of our 51 
Senators walking on to the floor. The producer wants to know, will we 
walk in exactly at 6:02 when the show starts so they can get it live to 
open Britt Hume's show, or, if not, can we give them an exact time for 
the walk-in?
  That is what this is about: It is about theater. The theater we are 
witnessing tonight is one where, frankly, the curtain should come down. 
We ought to start talking about things people really care about across 
America. I can tell you, it is not about 4 judges out of 172. We have 
approved for this President 168 of his nominees. I think it is a new 
record. I do not think any President in that brief a period of time has 
had 168 nominees approved. Lest you believe the Democrats dragged their 
feet, we approved 100 of these judges during the 17 months Pat Leahy 
was chairman of the Senate Judiciary Committee. The remaining 68 came 
through under Republican Chairman Hatch. I think there has been a 
concerted and conscientious effort to give the President his nominees. 
Then, of course, there were 4 who were not approved--168 to 4. So 98 
percent of this President's nominees have been approved. By any 
reasonable standard, this President is doing very well. Most people 
would agree, except for the 51 Senators on the other side of the aisle. 
They believe unless the President gets every nominee, this is a 
miscarriage of justice.
  Sadly, though, they are ignoring the obvious. The obvious is the 
Constitution of the United States gives this Senate the authority to 
say yes or no, to advise and consent. Article II, section 2: Advice and 
consent of the Senate. Some of these Republican Senators would like to 
see this phrase go away and make their argument at least a little 
plausible, but it is a fact. We have the authority under the 
Constitution we swear to uphold to make these decisions; and we have 
made them.
  Of course, not only is the Constitution on our side, but the rules of 
the Senate are on our side. It reminds me in law school, they told you 
early in a trial advocacy course--and this a cliche, I know--they used 
to say: If you have the law on your side in your trial, beat on the 
law. If you have the facts on your side, beat on the facts. But if you 
do not have the law or the facts on your side, beat on the table. That 
is what is happening in this 30-hour marathon. Our Republican 
colleagues are beating on the table. The law is not on their side.
  The Constitution says we have the authority to say no. We have said 
no 4 times out of 172 opportunities. It is constitutional to do so. Are 
the facts on our side? Are we being unfair to stop 4 judges, approving 
168 and stopping 4? I do not think so.
  Frankly, if you look at the record of the Republicans in control of 
this same committee with a Democratic President, you will find some 63 
nominees were never given the decency of a hearing. They never had a 
chance to even appear and introduce themselves to the committee. The 
decision was made by the Republican leadership, with a Democratic 
President, not to even let them in the building.
  I have been through this. Three of my nominees that happened to. Do 
you know what it consisted of? If any one Republican Senator objected 
to any nominee, end of story. They effectively had a filibuster by one 
Senator. They stopped these nominees in their tracks.
  I can recall going to Senator John Ashcroft, our Attorney General, 
with one extraordinarily talented nominee, and pleading with him, after 
the man had waited for a year for a hearing, pleading with him to at 
least meet the man. Let him come before the committee. No way. The 
answer was no. End of story. End of nomination.
  That was the treatment accorded to three judges from my State during 
the short period of time when I was here and President Clinton was 
President, as the Republicans ruled the Senate Judiciary Committee.
  I lost 3 nominees. Did I rally my Democratic colleagues: ``Let's all 
get together and hold our breath and turn blue for 30 hours because I 
have lost 3 nominees''? No. Maybe I could have. Maybe I should have. 
But I did not. I understood it. I thought it was fundamentally unfair, 
and I still do.
  What we have done to these four nominees is not unfair. Each and 
every single one of them has had a hearing. Each and every one of them 
has been able to come to the committee and present their credentials. 
That never happened to 63 nominees offered by President Clinton.
  This President has a pretty good batting average when it comes to the 
Senate: 98 percent of his nominees have gotten through. But for the 2 
percent, we are meeting this evening.
  I might add here, if you take a look at the issues at hand, the 
Senator from Nevada raised an interesting one. Almost without fail, the 
majority of the 168 nominees were all members of this Federalist 
Society. It sounds like a secret handshake society. It is something 
else. I am not sure exactly what it is. I will tell you why I am not 
sure.
  I do know this. If you are an aspiring law student who one day wants 
to be a Republican nominee for a judgeship, my recommendation to you is 
to join the Federalist Society today and do not miss a meeting because, 
frankly, that is a requirement if you are going to make it into the 
ranks of judges in the future.
  What is it about this society? I don't know. But if you scratch the 
DNA of all these Republican nominees, you are going to find that 
Federalist Society chromosome. It is in every one of them. Time and 
again, I have said to these nominees: What is the Federalist Society? 
What does it mean to you? Some people say it is a rather extreme 
organization that views the law and the Constitution in a manner that 
most Americans do not. But when I ask these nominees--I can remember a 
Professor Viet Dinh of Georgetown Law

[[Page 28614]]

School where I went to school many years ago. I said: You belong to the 
Federalist Society. Why? He said: Because I get a free lunch in 
Chinatown once a month.
  Well, I think it is more than that. If you go to their Web site and 
ask the Federalist Society what they believe, what they put on their 
Web site is they talk about how we have lost control of the law and the 
liberals are taking over--all the stuff you expect. Then when you ask 
each of these nominees: Well, do you agree with that? ``Oh, no,''--with 
one exception: Mr. Pryor. William Pryor of Alabama says, yes, he does 
agree with it. If you got to know Mr. Pryor, you would understand he is 
rather unabashed in his political beliefs.
  The fact of the matter is, the nominees we are receiving from the 
White House are not mainstream nominees. Sadly, of the 168 we have 
approved, many could be challenged as outside the mainstream, and that 
is not what America is looking for.
  President Clinton knew if he sent up a real liberal, someone who, 
frankly, had the credentials of the left, he did not stand a chance 
before Senator Orrin Hatch's Judiciary Committee. We would strive to 
find people with extraordinary legal credentials, people who really 
have made a difference in terms of their practice of law and what they 
have done; and they, too, suffered before that same committee.
  This President has no qualms. The people he sends to us, whether it 
is Miguel Estrada or whether it is William Pryor or Priscilla Owen, 
each and every one of them have come back--Charles Pickering--with 
credentials that just do not pass the middle-of-the-road test.
  Why are we doing this for 30 hours? Let's lay it on the line. This 
memo from Fox News tells you why we are here. We are here to grind raw 
meat for the Republican rightwing, so television networks like the fair 
and balanced Fox News network can rail on for days and weeks about this 
30-hour tribute to the Republican point of view, so the radio talk show 
hosts, who blather on every single day from the right, will have much 
more to talk about. And instead of dealing with real issues, paying for 
the Veterans' Administration, so we can get that done, and meet our 
obligations, taking care of the unemployed across America, so they can 
feed their families and avoid bankruptcy, we do not have time for that. 
Our time has to be focused and dedicated to this debate.
  I will say to my colleagues in the Senate, I think my friends on the 
Republican side will have to agree with this: Though they do not like 
the outcome of the four judges we have talked about here, we have given 
the nominees, even when Senator Leahy was chairman, ample opportunity 
to explain who they are and what they stand for. I think what we have 
asked for is reasonable.
  What we ask of every judicial nominee, from a Democrat or Republican 
President, is really basic. They have to be people who are honest, of 
high integrity. They have to understand the law. They should be people 
who do not come to this job with an ax to grind. That is not too much 
to ask. Four have failed that test; 168 have been approved.
  The PRESIDING OFFICER. The time of the minority has expired.
  The Senator from Alabama.
  Mr. SESSIONS. Mr. President, how much time is left in the first 
section for the majority?
  The PRESIDING OFFICER. Five minutes 45 seconds.
  Mr. SESSIONS. Mr. President, in response to a number of things that 
have been said, first of all, I want to correct Senator Durbin. I think 
he misspoke when he said the Senate has said no to these nominees. What 
the Senate has said no to is an up-or-down vote. They have denied these 
nominees a vote. In each case, these nominees have proven they have a 
majority of the Senators in this body ready and willing to confirm 
them, if they are given the up-and-down vote. The systematic use of the 
filibuster that is occurring now has never before occurred in the 
history of this Senate.
  As to the Constitution, I will just point out article II, section 2, 
quoted by the Senator--this is what it says--the President ``shall have 
Power, by and with the Advice and Consent of the Senate, to make 
Treaties, provided two-thirds of the Senators present concur; and he 
shall nominate, and by and with the Advice and Consent of the Senate, 
shall appoint Ambassadors [and] judges. . . .''
  Historically, this body has felt that constitutional language meant 
treaties required a supermajority, two-thirds vote, and judges would be 
confirmed by a majority vote, and that is what we have done.
  I would just like to ask--I was going to ask Senator Reid early, the 
distinguished assistant Democratic leader--name one position taken by 
the Federalist Society that is extreme. He will not be able to give you 
one of those, and neither would Senator Durbin. This is a society of 
people who meet and discuss ideas. For example, they have had, in 
recent weeks, Senator Schumer's chief counsel speaking to the 
Federalist Society, as has Cass Sunstein, Marcia Greenberger, Laurence 
Tribe--three of the architects of the Democratic strategy for changing 
the ground rules of nominating judges.
  This is really odd for me. I know Senator Durbin said he has some 
legislation he would like to offer. Maybe he should have offered it 
Monday when the assistant majority leader was talking 10 hours down 
here about rabbits and cactus in Nevada and his book. That was all very 
interesting, but why weren't we doing any work then? I did not hear any 
complaints then when we were not passing legislation. That would have 
been an outstanding opportunity, I submit, to move forward.
  Let me just say one thing about where we are on nominations. 
President Clinton had 377 judges confirmed. One judge was voted down on 
an up-or-down vote on this floor, a majority voted no--only one. When 
he left office, there were 41 judges pending and unconfirmed--only 41. 
President Clinton personally withdrew the nominations of 18. That is 
how they get 60.
  When former President Bush left office, under Democrat control of the 
Senate, as Republicans were under Clinton, he had 54 nominees left 
unconfirmed. The record of the Republican Senate under President 
Clinton was superior under any standard of confirmations to that of the 
Democrats.
  I believe we need to remember those numbers. We need to remember the 
Republicans rejected consistently the use of the filibuster. It was 
discussed by people. They said: Why don't we filibuster? Senator Hatch 
and others would say: We do not filibuster judges. This is why you do 
not filibuster judges. We never filibustered judges. In fact, one 
nominee I felt strongly about, whom I voted against, I voted for 
cloture to bring that nominee up for a vote to overcome a hold that was 
on the nominee.
  My colleagues complain about the Federalist Society. They say they 
are extreme. They take no extreme positions whatsoever. They are a 
society that believes in the rule of law and they discuss those issues 
in free and open debate. But they have moved forward here such as 
Marsha Berzon and Ruth Bader Ginsburg on the Supreme Court.
  ACLU members, American Civil Liberties Union members--do you want to 
know what their stated positions are on a lot of issues? They oppose 
steadfastly the death penalty. They openly support partial-birth 
abortion. They are consistently hostile to law enforcement. They oppose 
pornography laws, all pornography laws, in fact, even child pornography 
laws. They favor legalization of drugs.
  We have confirmed a lot of ACLU members, as the Senator knows. They 
have stated positions that are contrary to the mainstream of American 
thought--no doubt whatsoever.
  Somebody such as Attorney General Bill Pryor, who has a record of 
following the law to the letter, whether he agrees with it or not, is 
castigated because he makes a talk to the Federalist Society. It is 
suggested that is an extreme thing for him to do and it is not correct.
  Mr. President, I yield back the time.

[[Page 28615]]

  The PRESIDING OFFICER. The Senator from Alabama has 15 seconds.
  Mr. SESSIONS. I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, parliamentary inquiry: Are we now 
starting 30 minutes of time on this side of the aisle?
  The PRESIDING OFFICER. That is correct.
  Mr. SPECTER. I thank the Chair.
  Tonight the Senate is engaging in a proceeding to call the attention 
of the American people to a very serious matter which exists on the 
confirmation of Federal judges. It is not a matter which occurs just 
when there has been a Republican President, but it has occurred also 
when there has been a President of the Democratic party, when the 
Republicans controlled the Senate. It has gone back at least to 1987, 
during the second 2 years of President Reagan's administration.
  When the Senator from Illinois calls this theater, he may be right, 
but it is factual theater, and it is worth the time of the Senate for 
the American people to focus on this important issue.
  It is now a little after 8 o'clock Eastern standard time. Frequently, 
the Senate Chamber is dark at this time. It is true we could be 
conducting other business, but there are many days when the Senate has 
tarried. For example, on Monday, the day before yesterday, when there 
had been a longstanding expectation that the Senate would not be in 
session because Veterans Day is traditionally not a day in session, but 
we came back specially to try to finish our work by the projected date 
of November 21, unexpectedly we were greeted with a 10-hour filibuster 
by Senator Reid on the other side of the aisle. He has a right to do 
that--he is a Senator--under our rules.
  It doesn't lie in the mouth of somebody to say we are spending time 
where we could have been working very hard on the appropriations 
process. I do hope we finish that process. I have been an appropriator 
for my 23 years in the Senate, and we should move to complete that work 
as promptly as possible.
  But the subject matter tonight is the confirmation process, and it is 
a very serious subject. When President Reagan was in office, during the 
first 6 years where the Republican Party controlled the Senate, 
President Reagan secured confirmation of 82 percent of his district and 
circuit court nominees. In 1987 and 1988, when the Democrats were in 
control, that percentage dropped from 82 percent to slightly above 63 
percent. When President George H.W. Bush was in office, all 4 years had 
the Senate in the control of the Democrats. The Senate confirmed 
slightly more than 62 percent of President Bush's nominees, and 54 
percent of his nominees to both circuit and district courts were still 
pending in the Senate when his term ended.
  President Clinton had about the same experience. In 1993 and 1994, 
there was an average of 79 percent of his district and circuit court 
nominees confirmed when his party controlled the Senate. For President 
Clinton's remaining 6 years, the percentage dropped to 54\1/2\ percent. 
So that the business of having the President of one party stymied or 
reduced in effectiveness on confirmation when the Senate is controlled 
by the other party has been really an apportionment of blame pretty 
much equally between Democrats and Republicans during the course of the 
Reagan, first Bush, and Clinton administrations.
  The matter has come to a substantial decline, when, for the first 
time in the history of the Republic, some 216 years, there has been a 
filibuster of circuit court nominees.
  I think it is important to note that we are not seeking tonight to 
break a filibuster. That would occur when we would seek to have those 
who were objecting to the judges continue to talk and talk until they 
ran out of energy or effort and stopped talking so that we could come 
to a vote. That was what happened in the filibusters on civil rights 
legislation in the 1960s.
  The last time there was a filibuster in the Senate was 1987 when the 
subject was campaign finance reform. Senator Byrd was the leader of the 
Democrats. Senator Dole, the leader of the Republicans, called all of 
us into the cloakroom behind us in the Senate Chamber at about 2 
o'clock one morning and said: I would like all Republican Senators to 
stay off the floor. The reason Senator Dole asked everyone to stay off 
the floor was to compel the party in power, the Democrats, to maintain 
a quorum of 51 Senators because if there are not 51 Senators present, 
then any Senator may suggest the absence of a quorum, and the Senate 
conducts no further business.
  When Republican Senators, including Arlen Specter, absented ourselves 
from the floor at Senator Dole's request, Senator Byrd, the leader of 
the Democrats, countered with a motion to arrest absent Senators. 
Sergeant at Arms Henry Giugni was then armed with warrants of arrest 
and started to patrol the halls, and the first Senator he found was 
Senator Lowell Weicker.
  Sergeant at Arms Henry Giugni was a little fellow, about 5 foot 6 
inches, 150 pounds. Senator Weicker was a big guy--still is--about 6 
foot 4 inches, 240 pounds. This was at about 3:30 in the morning. 
Sergeant at Arms Giugni decided not to arrest Senator Weicker. I think 
he made a good judgment. Then he started to go around and knock on 
Senators' doors.
  Senator Packwood foolishly answered his door. Senator Packwood was 
then carried feet first into the Senate Chamber. This is a true story. 
You don't get many out of Washington, but this is a true story. That 
incident attracted a great deal of attention. C-SPAN became the channel 
of choice instead of Jay Leno.
  In having this proceeding, it is more accurately called a marathon 
than a filibuster because it is not a filibuster. Republicans are doing 
most of the talking. We seek to attract the attention of the American 
people to what is going on in the judicial system.
  We have at the present time judicial emergencies in four of the 
circuit courts of appeals in the United States: the Fourth Circuit, the 
Fifth Circuit, the Sixth Circuit, and the Ninth Circuit. When these 
judicial emergencies occur, people are denied their day in court, cases 
languish, the matters are not decided, and the fact of life is that 
justice delayed is justice denied.
  Without burdening the record unduly, it is worth noting that in the 
Sixth Circuit where there is a judicial emergency, a 50-percent vacancy 
rate on that court, a death penalty case has been pending for more than 
8 years. A plaintiff in a civil case on a job discrimination suit 
trying to get a job had to wait some 15 months before the case came up. 
That individual died before the case was ever heard.
  The ultimate answer, I suggest, is that cooler heads are going to 
have to prevail, and we are going to have to establish a principle 
where it applies regardless of what party controls the White House or 
what party controls the Senate.
  Three years ago, I proposed a judicial protocol to establish a 
timetable that 60 days after the President submitted a nomination to 
the Judiciary Committee, there had to be a hearing; 30 days thereafter, 
there had to be action by the Judiciary Committee on the nomination; 30 
days later, the matter had to be brought to the floor of the Senate. 
Those times could be extended on cause shown by the chairman of the 
committee with notice to the ranking member or by the majority leader 
with notice to the minority leader. But those time parameters should be 
established.
  If there were to be a strictly party-line vote in the Judiciary 
Committee, then that matter ought to be advanced to the Senate floor 
even without having the customary majority vote to bring it to the 
floor.
  One of the grave problems which may confront the Senate is what is 
going to happen next when there is a Supreme Court vacancy. The 
filibusters conducted up until the present time constitute an effort to 
elevate the confirmation process which under the Senate rules calls for 
51 votes, or a majority, to 60 votes which it takes to end a 
filibuster.
  For those who may not know what a filibuster is, that is when one 
party

[[Page 28616]]

keeps talking and talking and talking endlessly. But that may be 
brought to a close under the rules of the Senate with 60 Senators 
voting to cut off debate. That then leaves 100 more hours to debate, 
plenty of time even after cloture, even after debate is ended or 
limited, before the matter comes to a vote.
  It does not require a Nostradamus to predict or to understand that 
the current approach on imposing an ideological test is a precursor for 
the Supreme Court of the United States. When the Senate is constituted 
as it is at the present time, it is easy to project that we will find a 
Supreme Court nominee, who does not satisfy the standards of the other 
party, subjected to a filibuster and to have a vacancy on the Court. 
What we are moving toward is deadlock.
  Right now, there still remains an aura of some civility in this 
Chamber, notwithstanding our disagreements on the tactics that one side 
or the other may use in the Senate. We know that the next vote is the 
most important vote. Notwithstanding the rancor of the arguments, we do 
understand that we are here to conduct the business of the people of 
the United States. The judicial system is limping along--still in 
motion but limping along.
  We face a grave potential problem. If the current course of conduct 
continues so that when we have a nominee for the Supreme Court of the 
United States, we have this deadlock, and then with so many 5-to-4 
decisions by the Supreme Court deciding the cutting-edge questions in 
our society, we may look to 4-to-4 decisions, and that means no ruling 
by the Supreme Court of the United States.
  One additional thought. Senator Santorum and I use in Pennsylvania a 
judicial nominating panel under an arrangement where the President has 
three nominees and the Democrats have one nominee. During the 24-year 
period from the time President Nixon was elected until the time 
President Reagan was elected, Republicans controlled the White House 
for 20 of those 24 years. It seemed to me it was an undue balance of 
judicial nominees without having the Democrats with any nominees in the 
district courts, so an arrangement was made when Senator Heinz and I 
were the Senators, carried on by Senator Santorum and myself, to allow 
the party out of power, the Democrats, to have one nominee out of three 
for the President--one for the party out of power. That has had a very 
salutary effect in bringing a little bipartisanship into the process.
  I do not suggest that for the Supreme Court. I do not press it for 
the court of appeals. But I think it is an idea worth considering for 
the U.S. district courts.
  In conclusion--the two most popular words of any speech--it is my 
hope that something constructive will come out of this marathon. It is 
my hope that there will be some attention attracted to it. When the 
Senator from Illinois characterizes this as theater, I don't think that 
is especially derogatory because it is fact theater. The American 
people would be well advised to watch this theater than some of that 
which is on the national networks tonight. This is real. Those sitcoms 
go on and on and are repetitious. More important than the factual 
theater is that we are on a vital issue.
  I hope the Senators hear from the American people. I hope the 
American people tell us what they would like to have done: Whether you 
would like to have this kind of projected stalemate where nominees wait 
endlessly and where it takes 60 votes, a supermajority, to cut off 
debate and bring it to a vote, or whether you would like us to follow 
the constitutional mandate of 51 votes in confirmation so that these 
judges may be confirmed, may take their places to see that justice is 
done in an equitable way within a reasonable time period.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. CORNYN. Mr. President, I want to focus on a chart that was 
displayed earlier by the Senator from New York where he proudly 
displayed the numbers 168 to 4. I think it is important we ask the 
question: what is that chart designed to prove?
  On one hand, our colleagues on the other side of the aisle in the 
Judiciary Committee and here in the Chamber rail against the 
President's judicial nominees, calling them out of the mainstream and, 
even worse, mean-spirited, right wing. But if, in fact, our colleagues 
on the other side of the aisle have voted to confirm 168 of President 
Bush's nominees, it refutes that allegation because they have to agree 
that at least 168 of those nominees met their definition of mainstream.
  I would like to associate myself with the outstanding comments of the 
Senator from Kentucky, the assistant majority leader, Mr. McConnell. I 
wonder what their definition of mainstream truly is.
  The second number of 4 is a number they want to be congratulated for 
blocking. I submit that just because you observe a stop sign 168 times 
and comply with the law, you are not to be rewarded for running that 
stop sign four times. It is still a violation of law, and you are still 
likely to get a ticket from the police officer.
  This is more than just about breaking the law. This is about 
violating our Constitution, the fundamental law of this Nation.
  We know really, rather than 168 to 4, the true number we ought to be 
focusing on is 0 to 4, and let me explain.
  From 1789 to 2002--that is, for all of our Nation's history up until 
this year--the number of filibusters against judicial nominees of a 
President was--you guessed it--zero. But this year alone, because of 
this tactic that our colleagues have devised, to deny a bipartisan 
majority of this body its right under the Constitution to vote up or 
down on a judicial nominee, this number is 4.
  So rather than 168 to 4--and as I explained, I think that repudiates 
and flies in the face of some of their arguments about President Bush's 
judicial nominees, and I deny that they are to be congratulated for 
unconstitutionally obstructing only 4. The real number we ought to be 
focusing on, and I hope the American people are focusing on, is zero to 
four because never, ever, in the history of this Republic has a 
minority in the Senate denied the right of the majority the vote up or 
down on judicial nominees. It is just not right. It is not fair. It has 
resulted in a degradation and a downward spiral in the judicial 
confirmation process of which no one should be proud.
  I submit that four unconstitutional filibusters of these 
distinguished nominees is four filibusters too many. If we want to look 
at maybe a little bit of a history lesson, as this chart demonstrates, 
when Franklin Delano Roosevelt was President of the United States, 
4,473 laws were enacted, 4 civil rights laws were filibustered--hardly 
something to be proud of. But I guess if our colleagues across the 
aisle are proud of their four, the argument would be that the people 
who filibustered these civil rights laws during FDR's term ought to be 
proud of that number.
  When President Truman was in office, 3,414 laws were passed, 3 civil 
rights laws were filibustered. Is that something to be proud of? What 
our colleagues across the aisle say, because 3,414 laws were passed and 
only 3 were filibustered, that these folks who filibustered those three 
civil rights laws ought to be congratulated. I think not.
  Then when President Lyndon Baines Johnson was in office, 1,931 laws 
were enacted, 3 civil rights laws were filibustered. To this hall of 
shame, I would add the 168 to 4, which is nothing to be proud of; it is 
something to be ashamed of.
  Unfortunately, some people have lost their sense of shame in this 
process, which has become so degraded and so destructive. Indeed, I 
submit that the filibusters we have of the President's nominees are an 
abuse of the process. How can they justly claim that a 60-vote 
requirement to close off debate can somehow trump the Constitution?
  As we have heard before on this floor, everyone knows, who has 
studied the Constitution, that there are supermajority requirements for 
certain things, and they are stated in the Constitution: To ratify a 
treaty or to pass a constitutional amendment, the Constitution is very 
clear that it requires

[[Page 28617]]

a supermajority. Everything else requires majority rule.
  Indeed, majority rule is fundamental to the democratic form of 
government. Majority rules: We fight our best fight; we make our best 
argument. Then we have a vote up or down. If we lose, well, we come 
back to fight another day. We try to persuade others that we were right 
and the majority was wrong. That is what our form of government is all 
about; not denying a majority their right, as stated in the 
Constitution, to let majority rule.
  Believe it or not, that is what is happening and that is the reason 
we are standing here tonight trying to let the American people know 
that a terrible abuse of this process is occurring and an abuse of the 
Constitution, indeed a violation of the Constitution, is occurring. It 
is a disgrace. It is nothing to be proud of.
  The other thing I would point out in the few minutes I have 
remaining, before I turn the floor over to the senior Senator from 
Texas, is this process is not only abusing the Constitution and 
creating a downward spiral in the judicial confirmation process that is 
very destructive of relationships in this institution, of our ability 
to get things done, it has made it too partisan, too bitter, too angry, 
and it is destructive.
  I would also point out that the tactics that are being used against 
some of these nominees are despicable. Unless we stand up and repudiate 
the tactics of some of those who are opposing the fine nominees of 
President Bush, such as Janice Rogers Brown, I believe those who have 
joined cause with them in opposing this fine nominee ought to examine 
their conscience. I think they ought to reconsider their tactics. I 
think they ought to reconsider whom they associate with, whom they are 
joining cause with to tear down some of the fine nominees of this 
President, such as Janice Rogers Brown.
  This is a cartoon that was posted on The Black Commentator on 
September 4, 2003, with President Bush, a racist caricature of Janice 
Rogers Brown with Justice Clarence Thomas, Colin Powell, Secretary of 
State, and Condoleezza Rice standing there. The caption says: ``Welcome 
to the Federal bench, Ms. Clarence--I mean, Ms. Rogers Brown. You'll 
fit right in.''
  It is easy to see why this process has gone downhill and needs a 
wake-up call from all of us, because we need a fresh start. We need to 
disavow tactics such as this. Those who are opposing Justice Brown and 
other nominees should not be proud of that association any more than 
they claim to be proud of an unconstitutional filibuster of four of 
these nominees, including Justice Brown, because if, in fact, we do not 
get a fresh start, we do not have a clean break with this destructive 
process, if we do not quit tearing down people who want nothing more 
than to offer themselves to the American people by serving in positions 
of honor, such as Federal judges, who will answer the call? If they 
know that answering the call of public service means that they are 
going to have their reputation destroyed, they are going to be 
besmirched, they are going to be painted into a caricature that bears 
no resemblance to who they really are, who will answer the call? We 
will all be poorer for it.
  I yield the floor.
  The PRESIDING OFFICER. Who seeks recognition?
  The Senator from Texas is recognized. The Chair informs the Senator 
from Texas that there are 2 minutes 20 seconds remaining on the 
Republican side.
  Mrs. HUTCHISON. Mr. President, just to get an understanding, after 
that 2 minutes 20 seconds, then it goes to the Democratic side for 30 
minutes and then back to the Republican side? Is that the way it is?
  The PRESIDING OFFICER. The Senator is correct.
  Mrs. HUTCHISON. Mr. President, in the 2 minutes that I have, I say I 
think the junior Senator from Texas made a very important point and 
that is the importance of the delicate balance of powers that was put 
in our Constitution. I think it is important that we do not say, well, 
98 percent of the time we adhere to the Constitution. We need to adhere 
to the Constitution 100 percent of the time.
  The Constitution has always said, from its beginning, that we would 
have a majority required to confirm the judicial nominees of the 
President. Now, this is by implication, because when the Constitution 
meant to have a supermajority, it so stated. We have always had a 
majority, and that is what, by its silence, the advise and consent part 
of the Constitution has required for judicial nominees, until last 
year.
  In fact, I think the President is losing his constitutional right to 
appoint Federal judges. I think this whole situation is going to deter 
good people from offering themselves for the bench, and the judiciary 
must have good people if we are going to keep that very strong 
separation of powers with three separate but equal branches of 
Government.
  In his first 2 years of office, President Bush was able to get 53 
percent of his circuit court judges confirmed. The previous three 
Presidents each had 91 percent in the first 2 years of their office in 
the very important circuit court judge appointments.
  Now, the circuit court, of course, is the next step below the Supreme 
Court. So a 53 percent record in the first 2 years is something that I 
think should not be accepted. It is very important that we try to get 
votes on these judges.
  The PRESIDING OFFICER. The time of the Senator has expired.
  The Senator from Nevada.
  Mr. REID. Mr. President, I yield 15 minutes to the Senator from 
Indiana and 15 minutes to the Senator from Illinois.
  The PRESIDING OFFICER. The Senator from Indiana.


                   Unanimous Consent Request--S. 1853

  Mr. BAYH. Mr. President, I ask unanimous consent that the Senate 
proceed to legislative session and the Finance Committee be discharged 
from further consideration of S. 1853, a bill to extend unemployment 
insurance benefits for displaced workers; that the Senate proceed to 
its immediate consideration; the bill be read a third time and passed, 
and the motion to reconsider be laid upon the table.
  Mrs. HUTCHISON. Mr. President, I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator is recognized.
  Mr. BAYH. Mr. President, this is an unfortunate debate, and I regret 
that all of us are here this evening. This debate will do nothing to 
speed the confirmation of judges about which this session has been 
called to consider. It will do nothing for the economy, for health 
care, for education, to protect the environment, or to advance the 
interests of our Nation's security.
  It will, however, at least in small part, bring this august body, 
about which we care so much, to additional disrepute with the American 
people, making us look ineffectual and irrelevant.
  In some respects, the Senate is being reduced to something close to a 
farce. It is becoming rapidly not the world's greatest deliberative 
body but instead the world's greatest Kabuki theater, a place where 
speeches are given to which very few people listen, no minds are 
changed, and votes are then held with complete predictability of 
results.
  The search for principled compromise, which has always been a long 
and honorable part, distinguishing this body from other legislative 
bodies, has been abandoned in favor of sterile, ideological warfare, 
satisfying to only the most fervent of partisans. After this debate, I 
suspect that the far right will be satisfied, I suspect that the far 
left will be satisfied, and that the rest of the American people will 
be left scratching their heads, wondering, what on Earth are they 
doing?
  I am reminded of nothing quite so much as some lines from Shakespeare 
when he characterized another instance as: Great sound and fury that 
signifyeth nothing.
  That is tonight's debate: Sterile, empty, barren of results.
  This debate, unfortunately, is a microcosm of everything the American 
people have come to not like about both the Congress and Washington, 
DC, something that is all too often all process and partisanship, with 
no progress

[[Page 28618]]

on matters of substance and importance to the American people.
  Too often the American people view Washington as totally self-
absorbed, indifferent to their real concerns, and ineffectual in 
accomplishing much of value on the things that do matter in their daily 
lives: Health care, jobs, education for our children and grandchildren.
  We must stop this cycle of constant recrimination, a process in which 
the minority obstructs to gain power and then turns around and 
complains about obstruction once power has been obtained. It makes us 
all look bad.
  If hypocrisy had a monetary value, we could easily erase the Federal 
deficit because of debates such as the one we are engaged in tonight.
  What is this all about? What are the facts that the American people 
deserve to know? Is it true that judges are being obstructed solely 
because of their partisan affiliation? That obviously cannot be the 
case. One hundred and sixty-eight of President Bush's judicial nominees 
have been confirmed. I assume that all of them, if not almost all of 
them, are good card-carrying Republicans or he would not have nominated 
them. Obviously, there cannot be some stonewall to object to 
Republicans being appointed to the Federal judiciary. This simply is 
not the case.
  Are judges being rejected up to a point based solely upon ideological 
concerns? This also cannot possibly be the case. Of these 168 judges 
who have been confirmed, I assume that all, if not almost all, are in 
fact fairly conservative jurists, or hold out the prospect of being 
fairly conservative jurists. Otherwise, they would not have been 
nominated by this President.
  So up to a point, it is obvious that conservatives are not being 
denied their place upon the Federal judiciary. This is all about power, 
the balance of power between the executive and legislative branches and 
whether the advise and consent function should be abolished whenever 
the Senate is controlled by the party of the President. It is all about 
the balance of power between the minority and the majority caucuses in 
this Senate and whether the right to debate should be limited in the 
case of judicial nominees, unlike any other business taken up by this 
body.
  It is also about tipping the balance of power within the Federal 
judiciary and setting the stage for a Supreme Court vacancy to be 
filled by someone of even the most extreme ideological conviction and 
views.
  Is that possibly what the Constitution had in mind when it 
established the right of advise and consent in this Senate? Is that 
something for which we should abrogate the right to unlimited debate in 
this Senate, selecting judicial nominees in exclusion to all other 
topics in this regard? Of course it is not.
  We are ignoring the issues this evening that are of most importance 
to the balance of the American people. When I go home, I hear great 
talk about the economy and job losses. In the last 3 years, we in the 
State of Indiana have lost approximately one out of every six of our 
manufacturing jobs. One hundred fifty-nine thousand jobs, nonfarm jobs, 
have been lost during this period of time. That is what I hear people 
talking about. Small business men wonder how they are going to compete 
in the global economy today. Large business men and women wonder how 
they are going to make ends meet, particularly with the skyrocketing 
cost of health care. Many people ask how we are going to compete with 
China, India, and other countries that all too often seek to abuse the 
rules of international trade to seek unfair economic advantage. Those 
are the subjects we should be debating tonight.
  Those are the topics that are on the minds of Hoosiers to whom I 
talk. Very rarely am I asked about vacancies in the Federal judiciary.
  When I was returning from Indiana just last evening, one of the 
security guards, a gentleman who looked somewhat advanced in his years, 
called out to me as I was going through security, saying: Senator, what 
about the Medicare drug benefit? Is something going to get passed?
  I said: I hope so.
  He said: Well, it probably will not be structured the way it ought to 
be anyway.
  I said: Well, I hope not. We are going to go back and see if we 
cannot hammer out a reasonable compromise.
  I see some of my colleagues, including Senator Grassley, who are 
laboring mightily toward that very end, and I salute him for that. That 
is what we should be debating tonight, how to reconcile our differences 
on providing drug coverage to senior citizens who are asking about it; 
how to make health care available to the American people in a way that 
is accessible and affordable. That is what is on the minds of Hoosiers 
to whom I talk. That is what we should be debating this evening in this 
body.
  What about our education standards and what about providing our 
children and grandchildren with access to quality affordable education? 
When I think about the economy of the future, more than anything else 
it is going to require advanced levels of education, skill, and know-
how. We are going to prepare my young sons and the rest of our children 
and grandchildren to have a better standard of living in a prosperous 
economy. It is going to be based not upon how strong they are but upon 
how knowledgeable they are, how well trained they are, how skilled they 
are. That is going to enable us to build a better economy. We are not 
debating that tonight.
  At no point, in my recollection, have we set aside 30 hours to debate 
quality health care. At no point, in my recollection, have we set aside 
30 hours to debate the economy or what we are going to do to create 
quality jobs. At no point, in my experience in the Senate, have we set 
aside 30 hours to talk about what we can do to debate quality education 
in the way we are setting aside these 30 uninterrupted hours in the wee 
hours of the morning. This is a clear example of misplaced priorities.
  I hope this Senate will extricate itself from the morass into which 
we have sunk and begin to rehabilitate ourselves in the eyes of our 
countrymen and women. I hope we can once again begin to address the 
great issues that are of concern to the American people, that press all 
around us--what our country can do to be more prosperous, more just and 
more free. Above all, I hope that we as Senators can remember why we 
are here, and that is not to wage war upon one another but instead to 
once again renew the struggle against the ancient enemies of man: 
Ignorance, poverty, disease. That is why we are here, not sterile 
ideological debates.
  I hope we can learn from this experience so that we will not have to 
repeat it. I hope we can focus on making progress, not dividing this 
body over the country. This aisle that separates the chairs, 
Republicans on one side and Democrats upon the other, gives us the 
opportunity to build bridges of reconciliation and understanding, 
forging principled compromise which has always been the hallmark of 
this institution. We have strayed from this heritage for too long. It 
is a tradition to which we must return if we are to once again 
recapture the confidence of the American people.
  The final thing I will say is that we had an election in Indiana for 
our mayors this last Tuesday, a week ago yesterday. Something on the 
order of 20 percent of the people of my State turned out to vote for 
our mayors. When I had the privilege of being elected to this body in 
1998, about 36 percent of the eligible voters in my State took the time 
to go to the polls. That is barely one out of three. In the closest 
Presidential election in the history of our country 2 years ago, 
decided finally by the Supreme Court, barely half of the American 
people felt connected enough to their institutions of self-governance 
to take even the most elementary step of citizenship--going to the 
polls to register their preference.
  What has happened to our democracy? What has happened when 20 percent 
or 36 percent or a bare majority feel invested enough in the cause of 
shaping their own destiny to take the time to participate in our 
elections? If we are going to renew our democracy, if we are going to 
lead this country to meet the great challenges of our time,

[[Page 28619]]

if there is one thing I am absolutely certain, it is that it will take 
all of us, each and every one of us from every ethnic group, racial 
group, gender, and walk of life.
  Too many people have become disillusioned. Too many cynical, too many 
skeptical whether this body and their government can make a difference 
anymore. Events such as this debate tonight do not help.
  We need to get back to the business at hand, putting before the 
American people an agenda of hope and opportunity so we can once again 
reenlist them in the cause of making this the greatest democracy known 
to man. That, at the end of the day, is what has brought us here. I 
suggest that is the business to which we must once again return.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois is recognized. There 
are 16 minutes 54 seconds remaining.
  Mr. DURBIN. I begin by commending my colleague from Indiana. That was 
an extraordinary speech. I hope that for a moment Senators on both 
sides of the aisle will stop and reflect on what he just said. I think 
it was a challenge to everyone, as strongly as we feel about what we 
are debating tonight, the appointment of Federal judges; the Senator 
from Indiana is right. The people across America wonder why we are 
wasting the time of the Senate on issues that have no importance or 
relevance to their lives, and because they cannot understand us, they 
are estranged from us. They do not feel invested in this process, they 
do not feel a responsibility to vote; they, frankly, think we spend too 
much time in partisan posturing. The 30 hours of this debate are a 
classic example of that kind of partisan posture. That is unfortunate.
  What the Senator hears in Indiana and I hear in Illinois and I 
daresay every Senator hears in their State--I have been going back to 
Illinois for 4 straight years in the month of August trying to tour the 
State, meeting with business and labor leaders and community leaders, 
to ask what is going on. For 4 straight years they told me the same 
thing: Senator, can you do anything about the cost of health insurance? 
It is killing us. It is killing my small business. It is killing my 
large business. My family is worried about coverage. What are you going 
to do in Washington about the cost of health insurance? I have to 
basically shrug my shoulder and say: I am sorry, that is not on our 
agenda. We have other things we debate in Washington, not the things 
you and your family worry about, that keep you up at night. This is a 
good example.
  Would it not have been inspiring if we came together as Democrats and 
Republicans on the floor to talk for 30 hours about the future of 
health care in America, to speak to it in honest, nonpartisan fashion, 
to try to address some of the most controversial parts of it in a 
responsible, gentlemanly way?
  That is what we are expected to do. That is not what this is about. 
This is about alerting FOX News to grind out their cameras at the 
entrance of the Senate to watch a parade of Senators come in--Senators 
who have now disappeared. This is about charts being made, night and 
day by Democrats and Republicans, to argue their case.
  My people living back home in Springfield, IL, and Chicago, IL, I am 
sure, turned off C-SPAN a long, long time ago, if this is the best we 
can offer them. Sadly, that is all we are offering them.
  We left the Veterans Administration appropriations bill--we could 
have finished it--for veterans hospitals and the millions of veterans 
across America because we did not have time; we had to start this 
never-ending 30-hour debate. We cannot entertain a motion made by the 
Senator from Indiana, a motion I made, as well, to try to do something 
about the 9 million unemployed Americans whose benefits are running 
out. We do not have time for that. We have time for this political 
debate.
  That is unfortunate. It is distressing. I have given 21 years of my 
adult life to public service. I have never regretted a moment of it. I 
walked away from a law practice and never looked back. This is the most 
exciting and interesting thing I can think of to do with your life, to 
be involved in public service. I encourage everyone, regardless of your 
political stripe, to get involved. You will love the opportunity it 
gives you to help people. But, frankly, we are not seizing that 
opportunity or we would not be here tonight. We would not be here 
discussing a question about whether 168 or 172 judges is the right 
number.
  Is this the best we can do? I think not. I think we can rise to a 
greater challenge but we have to put aside the partisanship.
  I readily concede I have struck a few partisan blows and a few have 
been thrown my way. That is part of life in the Senate, I am sure, and 
life in the big leagues. But at the end of the day when it is all over, 
at the end of the year or end of the session, each of us would like to 
point back to something we did to improve the lives of the people we 
represent. What have we done to make the schools better? What have we 
done to deal with the economic uncertainty of middle-income families? 
What have we done to deal with the trade laws that are killing us in 
the Midwest and across the Nation?
  I have been a proponent of free trade. It is almost impossible to 
defend at this moment in time. We are not enforcing our trade 
agreements. We have lost five or six manufacturers in Indiana and the 
same is true in Illinois. We lost 3 million jobs across America. 
Frankly, many of those jobs will never come back. When we read 
headlines that say there are 120,000 new jobs in America, that is good 
news. But ask the hard question, are the jobs we created paying as much 
as the jobs we lost? If they were manufacturing jobs, the answer is 
pretty obvious. The answer is no, they are not. We are losing more and 
more good jobs. Instead of focusing on that as we should, on the things 
that people care about, we are spending our time in 30 hours of debate 
over four judges.
  The senior Senator from Texas said earlier that the President has a 
constitutional right to appoint judges. I don't want to correct the 
Senator from Texas, but she is wrong. The President does not have a 
constitutional right to appoint judges. The President has a 
constitutional right to nominate judges. The judges are appointed 
through the advice and consent of the Senate. Therein lies the 
difference in our points of view. From the Republican side of the 
aisle, the President has a constitutional right to name the judges he 
wants. End of story. But the Constitution says otherwise. And it always 
has.
  Even the most powerful and beloved President has to be held 
accountable to the people of America through the Senate, through the 
House, and that is why we are here tonight. At one moment in history 
when President Roosevelt had been reelected with the largest majority 
in the history of the United States, Franklin Roosevelt, he decided he 
had had his fill with the U.S. Supreme Court across the street and they 
were not treating him well and he came up with a scheme to pack the 
court, to add more Supreme Court Justices because they just were not 
ruling on his laws the way he wanted them to. He proposed that to an 
overwhelmingly Democratic Congress in the House and the Senate and ran 
into a firestorm of opposition from his own party.
  President Franklin Roosevelt, as popular as he was, with the mandate 
he brought to office--and I will not reflect on this President's 
mandate in this discussion, but President FDR's mandate was 
substantial. He felt that he had a moment in history when he could 
change the Supreme Court. And this Senate, the Democrats in the Senate, 
said: No, we have to draw the line; this executive branch cannot 
control the judicial branch and we will stand in the path of a popular 
and beloved President. And they did. They stopped him.
  That, to me, was an important moment in history--when Senators of the 
same political party said to a President, this Constitution created 
three branches of Government for good reason.
  So tonight we are in a position where many are arguing that this 
Senate

[[Page 28620]]

should step back and not assert its constitutional right to speak to 
the qualifications of judges. It will be a sad day if we allow that to 
occur.
  Let me try to synthesize this into what it is about. It is not about 
the four judges or two more who might be added on Friday. It is about 
the next appointment to the Supreme Court across the street. That is 
the real story. There are a lot of good reasons we are here tonight but 
the real reason is the next Supreme Court vacancy and the belief on the 
Republican side of the aisle that if we can hold fast with our approach 
in stopping people unqualified, unfit, to serve on a Federal court, 
they will have a difficult time passing through a controversial nominee 
to the U.S. Supreme Court.
  I think, in my heart of hearts, that is why we are here this evening. 
They are trying to smooth the road, prepare the way for that Supreme 
Court nominee from this President.
  Now, let me give advice to my friends--and they are not likely to 
take it--on the Republican side. There is a way to avoid all that. Pick 
a man or a woman who is of such impeccable legal background, great 
credentials, the kind of person with the integrity that they will be 
above this kind of political debate. It can happen and it has happened.
  In my State of Illinois, a State with two Senators from opposite 
political parties, we have not had one problem in filling the Federal 
judicial vacancies. We have done so, Democrat and Republican, with good 
men and women whom I am certain will serve this country well. I just 
gave the green light to a nominee who sits on our calendar, and I hope 
we will move quickly, Mark Philip, who was a clerk to Justice Antonin 
Scalia. I am a Democrat, approving a former clerk to Justice Scalia. I 
met him and trust him and I think he will be a great Federal district 
court judge.
  That can happen again. But we have to move away from those who are 
ideological extremes. We have to move away from those who are lightning 
rods. We have to move to a center path, which most Americans expect of 
us.
  Sadly, tonight, we are being told this Senate should not even ask 
questions of these nominees. That is wrong. We have a constitutional 
responsibility, a responsibility that must be met.
  Some have said, incidentally, that ours are the first to ever 
filibuster nominees. In fact, the Senator from Pennsylvania said it is 
the first time in the history of the United States anyone has ever 
filibustered a judicial nominee. Well, this chart shows that is not 
correct. Abe Fortas of the Supreme Court, subject to cloture motion, 
filibuster; Stephen Breyer, First Circuit--I am going through the 
list--Rosemary Barkett, Eleventh Circuit; Lee Sarokin, Third Circuit; 
Marsha Berzon, Ninth Circuit; and Richard Paez, Ninth Circuit.
  The fact is, there have been judges brought to the Senate floor who 
have been filibustered in the past. The fact is, most of those 
filibusters failed. The motion for cloture prevailed but the filibuster 
was on. On the four who are under contention this evening, the 
filibuster has succeeded. The motion for cloture has not been filed 
successfully. That is the difference. To say it has never happened 
before in our history is to defy the obvious. It certainly has happened 
before.
  The point we are trying to make is it is not unreasonable to have 4 
nominees out of 172 questioned, to be found lacking.
  Let me close by saying, again I commend my colleague from Indiana 
because I think he put it in perspective. We all know it is true. We 
could be spending our time doing a lot more important things for 
America and a lot more important things for the people we represent 
than squabbling over four judges.
  Mr. REID. Will the Senator yield?
  Mr. DURBIN. I am happy to yield.
  Mr. REID. I ask the Senator, through the Chair, there have been 
statements made by the majority, for weeks, months, that never ever in 
the history of the country has there been a filibuster conducted 
regarding a Federal judge. Would the Senator again state whether or not 
those statements regarding filibusters of Federal judges having never 
been held is true or false?
  Mr. DURBIN. It is false. It is clearly false. Justice Abe Fortas, 
1968; Judge Stephen Breyer, 1990; Judge Rosemary Barkett, 1994; Judge 
Marsha Berzon, 2000; Judge Paez, 2000. And many others.
  The fact is, for those who say there have never been filibusters by 
nominees, that is clearly not right.
  Mr. REID. Another question I ask my friend from Illinois, through the 
Chair, what I have heard the Senator state tonight is that on numerous 
occasions--in fact, the chart that is behind you indicates this--that 
there would be numerous occasions going back to at least 1968, there 
have been filibuster after filibuster, and sometimes they have tried to 
invoke cloture on more than one occasion; is that true?
  Mr. DURBIN. That is accurate. As noted here, for Judge Breyer, twice. 
That is a clear example. On some of the others, there could have been 
more than one time, as well.
  The point I would like to make to my friend from Nevada, we also know 
that under President Clinton, 63 of his nominees never got a hearing. 
They were never given a chance to come to the floor for this vote 
because the Republican-controlled Senate Judiciary Committee would not 
even give them a hearing.
  Mr. REID. Will the Senator yield for a question that I ask through 
the Chair?
  Mr. DURBIN. I am happy to yield.
  Mr. REID. The Senator from Illinois is a member of the Judiciary 
Committee. Would you explain to the people watching this--whatever it 
is--would you explain to the people how a person gets to the Senate 
floor to be nominated for a judge? How do they get here? What is the 
process? Explain to the people of the country what you mean when you 
say someone never had a hearing.
  Mr. DURBIN. It is customary for a Senator of a State, depending on 
the President's party, to be able to suggest to the White House a 
nominee to fill a vacancy on the Federal district judge and the Federal 
circuit court. That nominee is then given to the White House for 
approval and investigation, FBI background checks, the normal things. 
If the White House then clears that nominee, the name is sent to the 
Senate Judiciary Committee. A hearing is scheduled in the normal course 
where the person is brought before the committee. After the committee 
has done its investigation, questions are asked and then the person is 
brought for a vote and eventually finds their way to the floor.
  Under the Clinton administration, after the nominee came out of the 
White House, 63 times, 20 percent of the President's nominees were 
stopped at that point and never brought to a hearing before the Senate 
Judiciary Committee. So the argument that we have stopped four belies 
the reality that when we looked at the numbers from the Clinton 
administration, 20 percent, not 2 percent but 20 percent, of the judges 
never got their chance before the Judiciary Committee to even present 
their credentials and argue for their nomination.
  I say to the Senator from Nevada, that is a sad reality. Frankly, 
this President is being treated far better than President Clinton. This 
Senate Judiciary Committee, under the leadership of Senator Patrick 
Leahy, a Democrat, approved 100 of President Bush's nominees, gave them 
hearings and moved them forward.
  We tried in a bipartisan fashion to meet our constitutional 
responsibility. Only 4 times out of 172 have we said no. Only four. It 
is reasonable for us to stop and ask hard questions of nominees who are 
asking for lifetime appointments to some of the highest courts of the 
land.
  Mr. REID. Will the Senator yield?
  The PRESIDING OFFICER. The time of the Senator from Illinois has 
expired. However, there is a minute and a half left on the Democratic 
side.
  Mr. REID. Will the Senator answer this question?
  The PRESIDING OFFICER. The Senator from Nevada is recognized.

[[Page 28621]]


  Mr. REID. I direct the question through the Chair to my friend from 
Illinois. The number 168 on the chart behind you, does that represent 
168 people who have been nominated by President Bush who are now 
serving in the Federal judiciary who have lifetime appointments? ca
  Mr. DURBIN. That is correct. I say to the Senator from Nevada that 
there are some among those 168 about whom I have had misgivings. Many 
of them I voted for anyway, understanding this is the President's 
prerogative to nominate people for the Federal courts.
  Going back to the point I made earlier, the President does not have a 
constitutional right to appoint Federal judges. He has the right to 
nominate them. Only with the advice and consent can they be appointed 
to the Federal judicial vacancies. Therein lies the real difference in 
the argument we brought forward this evening.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada has the floor with 27 
seconds.
  Mr. REID. When the majority uses their time, the half hour will be 
divided in whichever way the Senator from Michigan, Mr. Levin, and the 
Senator on the other side wishes to divide 30 minutes.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mrs. HUTCHISON. Mr. President, Senator Hatch will be on the floor 
shortly. Before he gets here, I want to talk about one of the nominees 
who we will be voting on, once again, with cloture votes on Friday. 
That is Justice Priscilla Owen. Justice Priscilla Owen has had a vote 
in the Senate. She has had four or five votes in the Senate.
  If we were adhering to the Constitution of the United States, she 
would be sitting on the Fifth Circuit today. There are three vacancies 
on the Fifth Circuit. They need to fill their bench. She should be 
sitting there because she has gotten more than 51 votes. But Priscilla 
Owen is not sitting on the Federal bench today because we have a new 
standard that has been put in place for the first time since 1789. Last 
year, we started having a 60-vote standard for Federal judges.
  So Priscilla Owen, although she has repeatedly and every time, gotten 
over the required 51 percent, is not sitting on the Federal bench 
today. No. Instead, this very qualified supreme court justice of the 
State of Texas is doing her job, doing it very well, serving as a 
supreme court justice in the State of Texas, even though she has gotten 
the requisite number of votes on repeated occasions to be confirmed as 
a Federal judge by the standards of this Congress from 1789 until 2002, 
until the rules were changed because we are now filibustering Federal 
judge nominees.
  Priscilla Owen was endorsed by every newspaper in Texas when she ran 
for reelection. Priscilla Owen made the highest grade--the highest 
grade--on the bar exam when she took it. She graduated at the top of 
her class from Baylor Law School. She has had an exemplary record both 
as a supreme court justice for the State of Texas and as a practicing 
lawyer. She is experienced. She is qualified. She was rendered 
qualified by the ABA system, the committee, and she has been endorsed 
by Democrats and Republicans throughout Texas. She has been endorsed by 
Democratic supreme court justices with whom she served on the Supreme 
Court of Texas.
  The former chief justice of the supreme court, a Democrat, named John 
R. Hill, who also was a Democrat attorney general in the State of 
Texas--a very fine one, a very respected lawyer in Texas; supreme court 
chief justice and attorney general of our State--said Priscilla Owen is 
unqualifiedly the best we could have for this court. She is a person 
who ought to be on the Federal court.
  In fact, he came up here and tried to meet with Democratic Senators 
to talk about how qualified she is. That Priscilla Owen is not sitting 
on the Fifth Circuit today is a tragedy, and it is not right.
  She is not the only one who has been asked to meet this higher 
standard. Look at Miguel Estrada, who came to our country as a boy and 
did not even speak English, who studied so hard that he was able to go 
to Columbia and become a Phi Beta Kappa, and then to Harvard Law 
School, where he graduated, again in the top of his class.
  Miguel Estrada, the American dream; Miguel Estrada, who sat here 
since May of 2001, who got the requisite number of votes to be 
confirmed for the DC Circuit--well over 51--time and time and time 
again, but he is not sitting on the DC Circuit. He finally said: I 
can't take this anymore. I have to get on with my life. In September, 
he said: Take my name off the list.
  Why? Why have we set a higher bar for Priscilla Owen and Miguel 
Estrada--these two perfectly qualified people, with great academic 
standing, with great records, with experience, everything you would 
want on the Federal bench?
  What are we going to do to the people who would ask for Federal 
benches in the future? I am very concerned that after watching this 
process so many of them are going to say: Please, don't throw me in 
that briar patch.
  So, Mr. President, I do not think we should change the Constitution 
of the United States without going through the process of a 
constitutional amendment. Have we had a vote on the floor that got a 
two-thirds majority saying that we will have a 60-vote requirement for 
confirming Federal judges? Have we done that? That is the process for 
amending the Constitution of the United States.
  But I do not think that since I have been here I have seen a vote 
that would say: No, it is not a 51-vote margin; it is 60. No, Mr. 
President, we have not had that vote. But, in fact, the amendment to 
the Constitution is being put forward without going through the 
process. Because we now have six people nominated to the circuit court 
bench who are having to meet a higher standard than 51. And that is not 
right.
  To date, our President, President Bush, has had 63 percent of his 
nominees to the circuit court confirmed. The previous three Presidents 
have had 91 percent of their circuit court judges confirmed by this 
time in their terms.
  So I am going to turn the floor over to the distinguished chairman of 
the Judiciary Committee who has done a wonderful job trying to get 
these nominations through the process. He has done a magnificent job in 
trying to bring these great nominees to the floor.
  But we are standing here tonight because this is a constitutional 
issue, and it is important. It is important that these good people, who 
have submitted themselves for this process to be confirmed as Federal 
circuit judges, be able to, with dignity, have a vote up or down with 
the same standard that we have had since 1789; and that is a 51-vote 
margin.
  Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from Utah.
  Mr. HATCH. Mr. President, I have been listening to this debate and 
the populist arguments being made by Democrats who seem to think that 
having Federal judgeship nominees treated fairly, as they always have 
been in the past, once they have been brought to the floor, seems to be 
not right because they think we ought to do something about jobs.
  Well, why haven't they? This recession began in the last year of the 
Clinton administration. I went through just some of the things that 
show they have had a pattern of obstruction from day 1 around here 
since we have taken over control of the Senate.
  The pattern of obstruction was set on the first day of the 108th 
Congress when the motion to adjourn was forced to a rollcall vote, 
something that is usually never done. The long overdue 2003 
appropriations bills were finally enacted after we became the majority 
in 2003, on February 20.
  For the first time in history, filibusters were used to defeat the 
President's circuit court nominees. I have mentioned upwards of 15 that 
some Democrats have told me they are going to filibuster. They are not 
going to filibuster all of them, but they are certainly filibustering 
already more than four. There are six right now by the time you get 
through with Friday.
  I can tell you, there are a whole raft of others they are planning on 
filibustering. First time in history, treating a

[[Page 28622]]

President like dirt, and these nominees, which is even more important 
in this sense, because these nominees--we are going to find that we 
cannot get the top people in the country to take these positions, 
especially if they are very liberal or very conservative, even though 
they are in the mainstream. And that is a big phony shibboleth. Every 
time they say: Well, they are outside the mainstream of American 
jurisprudence. They were saying that about Bill Pryor, criticizing the 
cases that he won as the Alabama attorney general before the Supreme 
Court. So who is out of the mainstream? It certainly is not Bill Pryor, 
nor is it any of these other nominees.
  Like I say, Priscilla Owen, who has been held up for 3 years now--
better than 3 years--Priscilla Owen is on the Texas Supreme Court. She 
was one of the first women partners in this country. She broke through 
the ``glass ceiling'' for women. They ought to be giving her a medal 
instead of treating her in this despicable fashion, and they are only 
doing it because these inside-the-beltway groups control, in many 
respects, what they do. It all comes down to abortion.
  Now, there are sincere people on both sides of that issue. That is 
why I did not allow the issue of abortion to stop otherwise qualified 
candidates from getting a vote up or down on the floor, even though I 
am personally pro-life and cannot imagine why anybody would want to go 
for a regime of abortion on demand. There were 1.6 million abortions a 
year at one time. Forty million abortions in this country--the barbaric 
practice of partial-birth abortion, which many of my colleagues voted 
for, even some on this side.
  Let me go down a few further here: Needed legal reforms, I mentioned, 
to stop lawsuit abuse against doctors, businesses, and industries have 
been virtually banned by the tactics of the minority.
  Jobs have been lost right and left because of their refusal to allow 
decent laws to be passed. Medical liability, class action reform, gun 
liability, and asbestos lawsuit reforms have all been subject to delays 
or filibusters by our colleagues on the other side.
  As I said, we spent 22 days on an Energy bill last year, and then we 
had to spend 18 days on an Energy bill this year, when we basically 
enacted the same bill we did last year.
  Bioshield legislation is very important for those of us who work 
heavily in the area of health care and antiterrorism. Bioshield 
legislation is necessary to ensure proper vaccines and medicines to 
counter bioterrorism attacks has still not cleared objections.
  The State Department reauthorization was stalled by Democrats 
insisting upon unrelated poison-pill amendments being voted on prior to 
passage.
  The District of Columbia appropriations bill is subject to a rolling 
filibuster threat over a provision giving low-income students school 
choice, where we spend over $11,000 per student and have the lousiest 
school system in the country.
  Last year Senate Democrats failed to pass a budget resolution for the 
first time since the Budget Act was written in 1974, and they have the 
gall to come in here and say: Well, we ought to be taking care of jobs.
  We are going to take care of jobs if we can get some cooperation from 
them. But all the taking care of jobs in the world may not amount to 
much if we do not have a good Federal judiciary to make this system 
work, to make sure our constitutional way of life continues.
  They passed no welfare reform. They took no action to ban cloning. 
They passed no Medicare prescription drug plan. They confirmed a record 
low number of judges. They enacted only 2 of the 13 appropriations 
bills and delayed enactment of a Homeland Security Department for 
months. It is this dismal record of inaction that Democrats hope to 
repeat.
  Now, we are committed to delivering the Healthy Forests bill and the 
CARE Act to the President's desk. The Democrats are refusing to name 
conferees to the bill that passed with strong bipartisan support. I 
could go on and on.
  But my friend from Nevada--it is kind of interesting to me that he 
would take 10 hours out of the Senate's time on Monday to filibuster, 
when we all came here prepared to vote on appropriations bills.
  I think it is pretty bad to come in here and say that we should not 
do what we should for judges, when they themselves have been 
filibustering not just judges but virtually everything else with a slow 
walk.
  Mr. McCONNELL. Will the Senator yield for a question?
  Mr. HATCH. I am glad to yield, without losing my right to the floor.
  Mr. McCONNELL. I notice my friend's voice from Utah is cracking a 
bit, and I thought I might give him a moment's relief by asking him a 
question or two.
  Mr. HATCH. Sure.
  Mr. McCONNELL. I would ask the chairman of the Judiciary Committee, 
was it not the case that the current DC Circuit Judge John Roberts and 
nominee Miguel Estrada were nominated on the same day in May of 2001?
  Mr. HATCH. That is correct.
  Mr. McCONNELL. I would ask my friend from Utah, is it not true that 
the rationale for defeating Miguel Estrada given by the other side was 
that either he or the Justice Department or both of them refused to 
turn over the working papers that he had produced during his period as 
a lawyer in the Solicitor's Office of the Justice Department?
  Mr. HATCH. That is correct. These are the most confidential private 
papers of the Solicitor General's Office, the lawyer who represents all 
of the public.
  Mr. McCONNELL. Right. Was it also not the case, I ask my friend from 
Utah, that every single living Solicitor, who are either current or 
former Solicitors, the majority of which are Democrats, concurred with 
the Justice Department's position that these working papers should not 
be turned over?
  Mr. HATCH. That is correct. Four of the seven former Solicitors 
General were leading Democrats, who said that what the Democrats are 
doing is wrong.
  Mr. McCONNELL. People such as Seth Waxman and Archibald Cox?
  Mr. HATCH. Right.
  Mr. McCONNELL. All concurred?
  Mr. HATCH. Right.
  Mr. McCONNELL. All concurred that these types of working papers 
should not be turned over?
  Mr. HATCH. That is right.
  Mr. McCONNELL. Is it not the case, I ask my friend from Utah, that 
both John Roberts and Miguel Estrada worked in the Solicitor's Office?
  Mr. HATCH. They both worked there. They both were excellent appellate 
lawyers. By the way, Estrada worked not only with the Bush 
administration but with the Clinton administration. And he had high 
marks.
  Mr. McCONNELL. The same two gentlemen we just discussed, who were 
nominated on the same day back in May of 2001, by President Bush, for 
the very same court?
  Mr. HATCH. Right.
  Mr. McCONNELL. Nominated to the same court, the same experience in 
the Solicitor's Office. And is it not the case, I say to my friend from 
Utah, that John Roberts was passed out of committee and subsequently 
confirmed on a voice vote in the Senate?
  Mr. HATCH. A unanimous voice vote on the floor, but only after 
waiting 12 years through three nominations by two different Presidents.
  Mr. McCONNELL. He certainly had to wait a while, did he not?
  Mr. HATCH. Right.
  Mr. McCONNELL. Is it not the case that you had two nominees nominated 
on the same day, to the same court, having had the same experience in 
the Solicitor's Office, and one nominee was rejected because internal 
papers in the Solicitor's Office were requested and not turned over, 
and no such request for the same kind of office papers were made of now 
Judge Roberts?
  Mr. HATCH. John Roberts, who was one of the finest appellate lawyers 
in the country, as was Miguel Estrada, was treated completely 
differently once the Judiciary Committee considered him. And I had to 
force them to consider him. Yet he passed this body by unanimous 
consent.
  Mr. McCONNELL. So the request was made for certain papers of one 
nominee

[[Page 28623]]

and the precise same papers of the other nominee were not requested?
  Mr. HATCH. That is exactly right. They treated Miguel Estrada 
differently from John Roberts.
  Mr. McCONNELL. Let me ask my friend from Utah, is there any 
conceivable basis for such disparate treatment for the same two people, 
nominated for the very same court on the very same day, going through 
the very same Judiciary Committee? Can the Senator from Utah think of 
any rational reason for this kind of disparate treatment?
  Mr. HATCH. Not a legitimate reason. The only reason was they believed 
him to be pro-life. I don't know whether he is to this day because we 
do not ask those questions.
  Mr. McCONNELL. But the stated reason, I would say to my friend from 
Utah, you just confirmed a moment ago. The stated reason for not 
confirming Miguel Estrada was that he would not turn over these papers 
or the administration would not turn over these papers.
  Mr. HATCH. The phony reason.
  Mr. McCONNELL. That was the stated reason.
  Mr. HATCH. The phony reason they hid behind.
  But let me make this point. Miguel Estrada, as great an attorney as 
he is, having argued 15 cases before the Supreme Court, having the 
highest recommendation of the American Bar Association, their gold 
standard, they did not want him to come through this process because 
they knew, or at least they perceived, that he was on the fast track to 
become the first Hispanic on the Supreme Court and they just cannot 
tolerate having a conservative Hispanic on the Circuit Court of Appeals 
for the District of Columbia, let alone on the Supreme Court.
  Mr. McCONNELL. So I say to my friend from Utah, what we have is a 
situation where a white male nominee, to the very same court, with the 
very same experience, was treated one way and a Hispanic-American 
nominee, nominated to the very same court, on the very same day, was 
treated differently?
  Mr. HATCH. That is absolutely right. But even Roberts had to go 
through a lot of pain to get there--12 years waiting, nominated three 
times by two different Presidents.
  We put him out of the committee after a 12-hour hearing. You hardly 
have that much for Supreme Court nominees. There were two others on 
that list. They complained because there were three on one day's 
hearing. They ignored the fact that Ted Kennedy, when he was chairman, 
had seven circuit nominees one day, and another four. We had at least 
10 other times when we had three.
  Then once we put him out of the committee, I had to bring him back in 
the committee so they could have another crack at him. They could not 
touch him. He was that good. So he had to go through an inordinate 
process to get there. But they knew they did not have anything on him. 
They know they didn't have anything on Miguel Estrada.
  Mr. McCONNELL. It sounds to this Senator, I wonder if the chairman 
concurs, that there was a sort of rule created and applied to Miguel 
Estrada----
  Mr. HATCH. It was a double standard.
  Mr. McCONNELL. That was not applied to John Roberts, two nominees 
considered for the same court at the same time.
  Mr. HATCH. Absolutely right. Roberts was treated like all other 
nominees during the Reagan years, Bush 1 years, and the Clinton years. 
He was not asked to give his opinions on future issues that might come 
before the Circuit Court for the District of Columbia.
  Because Miguel Estrada answered the same way basically as all the 
other people who had passed in prior years, they held that against him. 
The big phony issue was knowing that the Solicitor General's Office did 
not give the most privileged, private documents in that department 
without making that department unworkable.
  Mr. McCONNELL. Which is why, I say to my friend, they didn't ask for 
those papers on John Roberts.
  Mr. HATCH. That is right. They did treat Roberts differently, no 
question about it. They gave him a rough time, too. Miguel Estrada is 
in a league of his own in the way he was mistreated, but Roberts was 
mistreated, too. Roberts sits on the Circuit Court of Appeals for the 
District of Columbia after having been unanimously approved here.
  Let's talk about how important that is. We have had 40 rollcall votes 
on the floor. You talk about delays. You talk about fouling up this 
body. We have had 40 rollcall votes on people who got unanimously 
confirmed. Can you imagine what it takes to go through 40 rollcall 
votes? It slows down the Senate like you can't believe, and muscles up 
the Senate like you can't believe. It is all a big game to try and make 
this President not successful. But Miguel Estrada had to go through 
that as well.
  Mr. McCONNELL. So I say to my friend from Utah, and I will conclude 
with this, the practical result of that is this immigrant who came to 
the United States as a teenager, speaking broken English, realized the 
American dream, went to undergraduate and law school, was a star 
student, argued 15 cases before the Supreme Court, was denied an 
opportunity to get an up-or-down vote on the Senate floor by the 
creation of a standard that was not applied at the very same time to 
another nominee who was not a minority.
  Mr. HATCH. And, by the way, was never applied to any nominee, to my 
knowledge, in the past. Miguel Estrada was singled out with a double 
standard for the sole purpose of defeating his nomination and getting 
him to withdraw.
  Mr. McCONNELL. They were having a hard time, I say to the chairman, 
trying to find some basis upon which to defeat this guy. He was 
unanimously well qualified by the ABA, right?
  Mr. HATCH. Their gold standard.
  Mr. McCONNELL. He argued 15 cases before the Supreme Court.
  Mr. HATCH. Very few people even argue one case.
  Mr. McCONNELL. He received outstanding recommendations from everyone 
with whom he worked. They were having a real struggle, weren't they, I 
say to my friend, the chairman, trying to find some basis upon which to 
reject this truly outstanding nominee.
  Mr. HATCH. It shows the lengths they would go to on that side--at 
least the leaders on that side--to screw up a nomination of a very good 
person.
  Take Janice Rogers Brown. She is a terrific African-American justice 
on the California Supreme Court. She wrote the majority of the majority 
opinions on that court last year, and yet they come here and say she is 
outside the mainstream. They are outside the mainstream when they make 
arguments such as that.
  There is only one reason they are against Janice Rogers Brown and 
filibuster her: because she is an African-American woman who is 
conservative and pro-life. For these inside-the-beltway groups, that is 
their single issue.
  I had friends on the other side tell me, when I asked, ``Why are you 
doing this,'' say, ``Well, the groups will score this as a vote, and 
then they will come against whoever votes that way in the next 
election.'' These guys don't have the guts to take on the groups.
  Mr. McCONNELL. Isn't it true, I ask my friend from Utah, in 
California where the justice to whom you just referred serves on the 
supreme court, you have to stand periodically for continuation?
  Mr. HATCH. That is right.
  Mr. McCONNELL. You can be rejected. Is it not true she got three-
fourths of the votes?
  Mr. HATCH. Better than that. She got 76 percent of the vote. She was 
the top vote-getter among four supreme court nominees.
  Mr. McCONNELL. This is in that bastion of conservatism, California.
  Mr. HATCH. I think the Senator makes a very good point.
  Mr. McCONNELL. This nominee who was called outside the mainstream--
outside the mainstream--gets about three-fourths of the vote in that 
bastion of conservatism--California--and the other side suggests she is 
somehow unacceptably conservative? That is absurd on its face, I argue 
to my friend.
  Mr. HATCH. It certainly is. I went to one of my friends on the other 
side--

[[Page 28624]]

and I won't mention the name because I don't think that would be 
proper--and I said: What did you think of Janice Rogers Brown? His 
answer was: She's terrific--which she was in front of the committee. 
Yet every Democrat went against her in committee and I think cited 
horrendously bad arguments to do it.
  They can point to 8 or 10 cases with which they didn't agree, but 
with which a lot of people do agree, and then they say she is outside 
the mainstream when she has tried hundreds of cases and decided, as a 
majority opinion writer, the most majority opinions in that court last 
year and I think in prior years as well.
  It is really unseemly, and that is why we are so upset here. Let me 
tell you, if we continue down this course, we are going to severely 
harm the Federal judiciary and get only people who really are not only 
outside the mainstream, but are Milquetoast, who can't make a decision 
to save their lives. Once you get to the Federal bench, you have to be 
able to make tough decisions.
  Mr. McCONNELL. Isn't it also true, I say to my friend, the chairman, 
that one of the arguments used on some of the nominees is because they 
have certain personal beliefs, that they won't uphold the law? Has that 
been an argument frequently made?
  Mr. HATCH. That is a frequent argument. I think the best illustration 
of that happens to be Bill Pryor.
  Mr. McCONNELL. Which is what I was going to ask my friend, the 
chairman.
  Mr. HATCH. They criticized him for cases he won before the Supreme 
Court, saying he is outside the mainstream because they disagreed with 
the cases. In fact, they think Rehnquist is out of the mainstream. They 
think Scalia is out of the mainstream. They certainly think Clarence 
Thomas is out of the mainstream because they want a single approach, a 
minority approach to everything that has to be liberal, and if you are 
not liberal, you are outside the mainstream, even though some of the 
greatest judges ever to sit on the Federal courts and Supreme Court 
were conservatives. Some of the great ones were liberals, too, but 
understood the role of judges.
  Mr. McCONNELL. This is the same Bill Pryor who is currently standing 
up against the Alabama chief justice.
  Mr. HATCH. Right.
  Mr. McCONNELL. Who has been defying a court order by refusing to 
remove the Ten Commandments from a public building. It is very 
unpopular in Alabama to be against that guy.
  Mr. HATCH. Bill Pryor is getting savaged by the rightwing because he 
basically sued to have the chief justice removed for not following the 
rule of law.
  Mr. McCONNELL. A classic example of following the law and not his own 
personal beliefs; is that not correct?
  Mr. HATCH. That is absolutely correct. Just fast forward to this 
week. As the Atlanta Journal Constitution reported this week, Bill 
Pryor filed a pretrial brief asking the Alabama Court of the Judiciary 
to remove Judge Moore from the Alabama Supreme Court because of Moore's 
defiance of the Federal court order to remove the Ten Commandments 
display. Bill Pryor's brief stated, quoting from the Atlanta Journal 
Constitution article: Moore should be removed because ``he 
intentionally engaged in misconduct and because he remains unrepentant 
for his behavior.''
  I could go on about Bill Pryor. During his hearing--a lengthy 
hearing--he was asked over and over by virtually every Democrat who 
showed up about his deeply held personal beliefs. He answered every 
question the way a judicial nominee should. Even though he had deeply 
held beliefs, he would obey the law.
  The PRESIDING OFFICER. The time controlled by the majority has 
expired.
  Mr. HATCH. I thank the Senator for his excellent questions.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I ask the time of the half hour allotted to 
this side be divided between myself and Senator Dodd and that I may 
proceed for 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. Mr. President, what I wish the majority would be allowing 
tonight is consideration of legislation that addresses the loss of over 
3 million jobs in this country during the last few years, most of them 
manufacturing jobs.
  What I wish the majority would be allowing us to do tonight is to 
consider legislation to extend the unemployment benefits to those 
Americans who have lost their jobs in this recession, the way we have 
extended unemployment benefits in previous downturns.
  Those needs of the American people and a dozen other needs are what 
we ought to be spending our time on tonight and every day until those 
issues, and many other critical issues, are addressed.
  Instead, those on the other side of the aisle decided to spend 30 
hours rehashing the reasons that 4 out of the 172 of President Bush's 
judicial nominees have not been confirmed by the Senate. That is their 
right, but it is wrong.
  In my home State of Michigan, the unemployment rate is 7.4 percent. 
In fact, Michigan has lost and continues to lose more manufacturing 
jobs than almost any other State in the Nation. Mr. President, 2.5 
million of the 3.3 million jobs which the U.S. economy has lost since 
January 1, 2001, were in manufacturing. We lost over 160,000 of those 
jobs in Michigan alone. Other States face large job losses, but what we 
should be doing is helping people who lost jobs, acting to stop the 
currency manipulation by China, Japan, and other countries, and the 
one-way street in trade which has been such a large part of the loss of 
jobs in this country.
  The first act of this Congress last January was to extend 
unemployment benefits through the end of this year because Congress did 
not act last year. That made the 2002 holiday season mighty grim for 
those workers whose benefits had expired. Current law provides 13 weeks 
of additional Federal aid to laid-off workers who have exhausted their 
26 weeks of regular State benefits. However, this administration has 
shown no interest in either extending the deadline for the program or 
authorizing new benefits. The trust fund that is to be used for 
unemployment benefits currently has over $20 billion in it. Why this 
administration balks at extending unemployment benefits is beyond me 
since that is what the money in that fund is for.
  I, along with a number of our colleagues, propose we extend the 
December 31 deadline for another 6 months so newly unemployed workers 
can receive Federal assistance, but also making available an additional 
13 weeks of Federal unemployment benefits for a total of 26 weeks. That 
is what we have done in prior recessions. We responded during the 1974 
recession. Federal benefits were extended to 29 weeks.
  In the 1981 recession, Congress extended benefits to 26 weeks. In the 
1990 recession, 26 weeks were provided, 33 weeks to States with high 
unemployment.
  While the unemployment numbers released last week were somewhat of an 
improvement, in terms of manufacturing jobs, that loss continues, and 
the long-term economic forecast continues to be pessimistic.
  On this track, this administration will be the first administration 
to lose private sector jobs since Herbert Hoover.
  In one moment I am going to propound a unanimous consent request that 
I know my Republican colleagues will want to hear, and I want to alert 
them of the fact I will be propounding that request in a moment. I hope 
our Republican colleagues will give us consent to take up unemployment 
insurance extension legislation this evening. Perhaps then this 30-hour 
exercise will be fruitful.
  I think I have alerted the Republicans that we would be making this 
unanimous consent request.


                   Unanimous Consent Request--S. 1853

  I ask unanimous consent that the Senate proceed to legislative 
session; that the Finance Committee be discharged from further 
consideration of

[[Page 28625]]

S. 1853, which is a bill to extend unemployment insurance benefits for 
displaced workers; that the Senate proceed to its immediate 
consideration; that the bill be read a third time and passed; and that 
the motion to reconsider be laid on the table.
  The PRESIDING OFFICER. Is there objection?
  Mr. McCONNELL. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. LEVIN. Mr. President, since the majority has now determined we 
will spend 30 hours of the time of the Senate rehashing 4 of the 172 
judicial nominations that haven't been confirmed, I want to address 
what is an even deeper issue than the majority's effort to weaken and 
water down the role of the Senate in exercising its advice-and-consent 
responsibility.
  That even more fundamental issue is our Nation's historic and 
constitutional system of checks and balances. Those checks and balances 
are an integral part of the unique design of our founding document in 
restraining the potential excesses and extremes of the executive 
branch. We share the obligation and responsibility with the judicial 
branch.
  Our rules in the Senate are aimed at restraining the potential abuse 
of the rights of the minority by the majority within the legislative 
branch itself.
  In June of this year, Robert Caro, the eminent Pulitzer Prize winning 
historian and author of ``Master of the Senate,'' his great biography 
of former President and Senate majority leader Lyndon Johnson, wrote to 
our Senate Rules Committee addressing this subject and quoting from his 
book. Here is what he said:

       . . . in creating this new nation, its Founding Fathers, 
     the Framers of its Constitution, gave its legislature . . . 
     not only its own powers, specified and sweeping . . . but 
     also the powers designed to make the Congress independent of 
     the President and to restrain and act as a check on his 
     authority, [including the] power to approve his appointments, 
     even the appointments he made within his own Administration . 
     . . and . . . the power to approve Presidential appointments 
     was given to the Senate alone; a President could nominate and 
     appoint ambassadors, Supreme Court Justices, and other 
     officers of the United States, but only ``with the advice and 
     consent of the Senate.''

  Robert Caro goes on to say:

       The Framers wanted to check and restrain not only the 
     people's rulers, but also the possibility that the majority 
     will be used in Madison's words ``to oppress the minority.'' 
     The Framers, he [Madison] said, established the Senate as the 
     body ``first to protect the people against their rulers; 
     secondly to protect the people against the transient 
     impressions into which they themselves might be led . . . The 
     use of the Senate is to consist in its proceeding with more 
     coolness, with more system. . . .

  One of the historical tools for the protection of the minority which 
is developed in the Senate from its earliest days is the principle of 
extended debate. The exercise of this right of Senators, particularly 
when it is used to block actions which the majority fervently wishes to 
take, is embodied in our Senate rule that you must have a supermajority 
of 60 percent of the Senate on matters where there is strong 
opposition.
  Filibusters have played an important role in moderating action in the 
Senate. It is widely recognized the Senate is a less partisan place--
you may not be able to discern that tonight, but generally this is a 
less partisan place than the other body in our Congress or virtually 
any other democratically elected legislative body anywhere in the 
world.
  As Senator Byrd said in his series of scholarly addresses on the 
floor of the Senate about Senate history:

       Arguments against filibusters have largely centered around 
     the principle that the majority should rule in a democratic 
     society. The very existence of the Senate, however, embodies 
     an equally valid tenet in American democracy: the principle 
     that minorities have rights.

  Senator Byrd goes on to say in his study:

       The most important argument supporting extended debate in 
     the Senate, and even the right to filibuster, is the system 
     of checks and balances. The Senate operates as the balance 
     wheel in that system, because it provides the greatest check 
     against an all powerful executive through the privilege that 
     Senators have to discuss without hindrance what they please 
     for as long as they please . . . Without the potential for 
     filibusters, that power to check a Senate majority or an 
     imperial presidency would be destroyed. It is a power too 
     sacred to be trifled with.

  Lyndon Baines Johnson said in 1949:

       . . . If I should have the opportunity to send into the 
     countries behind the iron curtain one freedom and only one, I 
     know what my choice would be . . . I would send those nations 
     the right of unlimited debate in their legislative chambers.
       If we now, in haste and irritation, shut off this freedom, 
     we shall be cutting off the most vital safeguard which 
     minorities possess against the tyranny of momentary 
     majorities.

  In May of 1994, when the Republican minority blocked President 
Clinton's nomination of Sam Brown to be ambassador, one of our 
Republican colleagues said the following:

       In considering the nomination of Mr. Samuel W. Brown to be 
     the Ambassador to CSCE, I have reflected on the latitude 
     which ought to be accorded the President in making this 
     decision for the ambassadorship, reflecting as well on the 
     constitutional responsibility of the Senate for advice and 
     consent as a check. . . . I am troubled by a situation where 
     the only pressure point Republicans have in the U.S. 
     Government is on cloture. Once cloture is obtained, there are 
     more than enough votes on the other side of the aisle to 
     cover the day. While the House is not involved in this 
     matter, the House is overwhelmingly Democratic; there is a 
     Democrat in the White House. The only place Republicans can 
     assert any effective, decisive action is by stopping somebody 
     from coming up. We have 44 votes, and we have more than 
     enough, if there is unity among the Republicans, to do that. 
     I think Mr. Brown's nomination and the responsibilities at 
     the Conference on Security and Cooperation in Europe are 
     sufficiently important to preclude his nomination.

  The filibuster succeeded in blocking this nomination.
  There are many reasons to at least consider modification to the 
Senate rules regarding the procedures for ending debate, the process we 
call cloture. Those rules have been modified a number of times before, 
but one of the reasons to consider modifying our rules is not the 
reason which is motivating our current majority in the Senate: 
irritation with the fact that only 98 percent of President Bush's 
judicial nominees have been confirmed by the Senate. That irritation 
that a substantial minority of Senators would stand in the way of 
getting their way 100 percent of the time has led to this 30-hour 
talkathon and their apparent desire to amend the Senate rules to let 
them get their way 100 percent of the time.
  We find ourselves tonight debating not whether unemployment insurance 
should be extended for Americans who have lost their jobs, not how to 
create more jobs in our economy, not how to better provide for the 
education of our children, or to strengthen our homeland security, or 
reduce the cost and increase the availability of prescription drugs, 
but, rather, listening to the re-argument of the case for the 4 
nominees out of 172 nominees the Senate has not confirmed.
  They want a 100 percent confirmation success record, and they appear 
to be willing to throw over the very essence of the Senate and its 
check-and-balance role to accomplish it. The Constitution says the 
President shall nominate, and, by and with the consent of the Senate, 
shall appoint ambassadors and judges.
  William Maclay, one of the first two Senators from Pennsylvania, 
wrote the following:

       Whoever attends strictly to the Constitution of the United 
     States will readily observe that the part assigned to the 
     Senate was an important one, no less than that of being the 
     great check, the regulator and corrector, or, if I may so 
     speak, the balance of this Government. . . . The approbation 
     of the Senate was certainly meant to guard against the 
     mistakes of the President in his appointments to office [and] 
     the depriving power should be the same as the appointing 
     power.

  I thank the Chair, and I yield the floor to my friend from 
Connecticut.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Mr. President, I begin by thanking my colleague from 
Michigan for his comments. I intend to share some similar thoughts this 
evening.
  First of all, let me begin by stating my own views about this process 
this evening and note--some have chosen to use the word anger--but I 
rise more in sadness.

[[Page 28626]]

  We are gathered to engage in this--I do not know what it is properly 
called--I guess a filibuster. It is unique in that the majority is 
conducting a filibuster. Normally, a filibuster, for those who are 
interested in how this works, is conducted by a minority within a 
minority, but we find ourselves this evening a few short days away from 
the end of this particular session with a tremendous amount of 
unfinished business, and we are spending the next 30 hours--or 26 
hours, whatever is left--on this particular debate and discussion, 
which I suppose has some value in the mind of some. As far as this 
Member is concerned, I regret in some ways even addressing the matters 
before us this evening. The better approach might have been to protect 
the rights of the minority but not to engage in this debate.
  There may be four votes that will occur on Friday. Three of them 
involve individuals who are seeking appointment to the Federal 
judiciary. With all due respect to these particular nominees, putting 
aside one's views or whether they are for or against them, history will 
probably little note nor record for any great length of time who they 
were. That is not in any way to suggest they are not worthy 
individuals, but in the passage of time, these nominations will not 
register terribly significantly in the history of the debates of this 
great Chamber.
  I arrived as an employee of the Senate about the age of 17 when I sat 
on these steps. Lyndon Johnson was the majority leader of the Senate. 
There was Everett Dirksen and Senator McClellan. It was a sea of giants 
who served in this body. I tried to imagine this evening whether or not 
they might proceed in a debate like we are having, but I cannot imagine 
them doing so, quite candidly.
  I am afraid we are diminishing dramatically the incredible historic 
role of this institution by this process. When I think of all the 
matters that deserve our attention, when I think of all of the 
Herculean debates that have occurred in this Chamber throughout the 
217-year history of our country, some of the great debates deciding who 
we were as a society--I sat on that step over there and listened to the 
all-night debates on civil rights in the early 1960s. I listened to 
southerners argue vehemently on behalf of their position regarding 
States rights. They were incredible debates. Never once in all of that 
process that I watched as a child sitting out there did I ever hear 
anyone suggest we ought to change the rules of the Senate.
  Even among those who were outraged that there were those who were 
arguing about denying a substantial minority of citizens of this 
country the right to participate freely in the democratic institutions 
of America, never once did anyone suggest we ought to somehow curtail 
the right of a minority to be heard in debate, extended debate. Never 
once. Yet here we are tonight, having an extended debate over three or 
four judicial nominations. We may be asked on Friday to cast a ballot 
about amending the rules of the Senate to fundamentally change what has 
been a central ingredient of why this institution has been as 
celebrated and honored throughout the 217-year history of this country. 
That I find rather appalling, that we would gather at this hour with 
all of the other issues in front of us.
  I spent 2 hours yesterday at Walter Reed Hospital. I took my 2-year-
old daughter out to visit with the young men there, many of whom are 
missing limbs. I saw several of my colleagues out there, by the way. 
Sam Brownback was out there. I went to spend a quiet couple of hours to 
express to these young men my great admiration for what they had done 
for their country.
  I would like to think they might think something larger of this 
institution other than that we would engage in a discussion and debate 
tonight about three or four judicial nominations. Other of my 
colleagues have made comments about the numbers that have been approved 
and not approved. I am not a member of the Judiciary Committee. I have 
heard my colleagues extol the virtues of these nominees. I have heard 
others excoriate them. I will leave that debate for others. The vote I 
am most worried about is the possible fourth vote that may occur on 
Friday, and that is whether we are going to change the nature of this 
institution because some of us are disappointed about some outcomes of 
votes. I would hope whatever else ensues or passes over these next 30 
or 40 hours that when it comes to that vote, maybe there will be those 
who will get up and defend this institution.
  It is inappropriate for me to do so, but I will note the fact that 
there are those watching this debate this evening in this Chamber who 
are of a younger generation. They are students, I suspect, in some way 
wanting to participate or witness what some have tried to describe as 
an historic event. I would hope they take note of the arguments in 
debate about what is important, why the Founders created this 
institution, why we are not a unicameral body, as some State 
legislatures--why we are a bicameral body, why it is there is down this 
corridor a House of Representatives at that end of the building and a 
Senate at this end. What are the fundamental distinctions between these 
two branches of one House? Why are we different? Why do we exist? What 
did the Framers have in mind when they created this institution? It is 
this very debate that gives justice, gives rationale to the existence 
of the Senate.
  One needs only to go back to the Federalist papers, and as I look 
around this Chamber there are the forebears of those who sit in these 
seats who made the most eloquent arguments on behalf of the notion, of 
the idea, of having extended debate and the right and power to amend. 
Those are the two central ingredients which make this institution so 
unique.
  When we begin to erode those very powers, then the very justification 
for this institution begins to diminish. We end up creating nothing 
more, potentially, than a mere image of the body that is at the other 
end of this hall.
  I gave some remarks going back a number of weeks ago in front of the 
Rules Committee. I am the ranking Democrat of the Rules Committee. As 
such, I bear a responsibility, along with my colleague from 
Mississippi, who is the chairman of the committee, to consider such 
matters. I have great respect for the majority leader, but I would hope 
as we discuss the idea of amending rule XXII, that we would keep in 
mind what the Framers had in mind when it came to nominations, 
particularly nominations of a life tenure.
  It is one thing to be talking about nominations during the duration 
of a given administration, but with judicial nominations it is for 
life. Depending on how young that person may be, an Federal judicial 
appointment can go on for decades. And so the Framers, given the 
experience they had come through, with the tyranny of a king, desired 
to create a system whereby the third coequal branch of government would 
have powers delineated between the executive branch to appoint and the 
legislative branch to approve, to provide its advice and consent.
  If the ability of this institution to thoroughly exercise that right 
of advice and consent is destroyed, then we run the risk of creating a 
judicial branch, a coequal, that becomes nothing more than the hand 
servant of the executive. That is what the Founders worried about. It 
is what Senator Rutledge of South Carolina argued for when he spoke 
eloquently about the importance of keeping an independent judiciary.
  In fact, for many weeks, during the constitutional convention, they 
argued the President ought to have no rights when it came to judicial 
nominations, that that right ought to be exclusively contained in the 
Senate of the United States. As a result of compromise, it was 
ultimately decided that the power to nominate individuals should reside 
in the executive, and the power to approve should remain here, thus 
guaranteeing, to the extent possible, an independent judiciary.
  What is being suggested by the fourth vote we may be asked to cast on 
Friday is that we undermine that very principle which has survived for 
217 years. I would hope with a resounding vote, both Democrats and 
Republicans,

[[Page 28627]]

whatever strong feelings there may be about these three or four 
nominees, or whatever the number is, that we would not allow this 
institution to be diminished, caught up in the passions of these 
nominations.
  History will not record nor remember who these people are, but if we 
undermine this institution's ability to do what our Founders asked us 
to do, then history will record forever our shortsightedness.
  I regret in a sense having to engage in this debate. I was stunned to 
learn that in addition to this 30 hours of ``circusry'' going on here, 
and the three votes that will occur on Friday, there may be a serious 
effort to vote on whether this institution should give up its right to 
be able to have extended debate on judicial nominations.
  This institution and its history deserve more. The fact that the 
Senator from Michigan and I have to arise at 10 at night to argue about 
something as fundamental as a rule change in the Senate and to be asked 
to vote on it with maybe 5 minutes of deliberation before that ballot 
is cast on Friday is incredible to this Member. It is incredible we 
would have to do this.
  Does not anyone care about being here? We are only temporary 
stewards. My colleagues and I are just guaranteed a short amount of 
time to be a part of this institution. We do not own this. We bear an 
historical responsibility to those who came before, but an even greater 
one to those who come afterward, to see to it we maintain the order and 
the ideals embodied in the creation of this institution. That we would 
relegate a fundamental change in the rules of the Senate to a debate 
occurring between 10 and 2 and 3 and 4 and 5 a.m. in the morning, with 
a vote to that may be cast on Friday without further deliberation, I 
find stunning in its dimensions.
  This is a matter that deserves far more deliberation and thought, 
whatever one's views may be on these nominations. To find ourselves, 
with all of these other issues that are in front of us, to have to 
defend the Senate in the wee hours of the morning about a rule that has 
sustained us as an institution, is something I regret deeply.
  I hope my colleagues, whatever their passions may be about Miguel 
Estrada, Priscilla Owen, William Pryor, and Charles Pickering--I do not 
know these individuals. I presume they are good people, whatever 
differences we may have, as I am sure there have been people who have 
been nominated in previous administrations who are also good people who 
were rejected because the majority today disagreed with them. I am 
sorry that happens to people, but unfortunately, that is one of the 
aspects of a process such as we have, as imperfect as it is.
  The idea that our passions are so wrapped up in these individuals 
that we are willing to squander the rules of the Senate is disturbing. 
We should always know that it may only be a short time before roles may 
be reversed. This party in the minority may be the party of the 
majority in the future. And in the future, the party of the President 
may, of course, be different. I would hope we would never suggest 
changing the rules of the Senate because we are momentarily 
disappointed that certain individuals, whatever contributions they may 
have made in their lives and to their communities, are so deserving 
that they warrant changing the rules of the Senate because they are not 
getting a position they seek. I hope we have not come to that.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I enjoyed the stirring remarks of my 
colleague. However, I think he completely ignores the fact that the 
filibuster rule did not even begin until 1917, and it did not come into 
fruition until the 1940s. Nevertheless, we have changed the rules in 
this body many times. But we are not asking for a change of the rules. 
We are asking for a recognition. There is a difference between the 
Executive Calendar, where the precise meaning of the Constitution is 
advise and consent under section 2, clause 2 of the Constitution, and 
the legislative calendar where we do have a right to filibuster. So 
that distinction needs to be made.
  I yield 5 minutes to the distinguished Senator from Pennsylvania, and 
then I will be happy to take questions on this side.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I want to respond directly to the 
comments made by the Senator from Connecticut. I too sit on the Rules 
Committee and I take a responsibility here, being a steward, as the 
Senator from Connecticut said, a temporary steward of this place. One 
would think, if they listened to the comments of the Senator from 
Connecticut, that what the Republicans are trying to do is change the 
rules.
  I have a chart of the last 11 Presidents since the ``filibuster 
rule'' has been around: 2,372 judicial nominations confirmed, zero 
filibustered.
  Who is changing the rules? This is a wonderful world we have: That 
left is right, right is left, up is down, in is out.
  The rules have been changed by practice. They hold up a chart 168 to 
4. This states 2,372 to nothing. Never been done. Walk through these 
Halls. Stand in this Chamber. If the walls could speak of the great 
debates, the intense, partisan, vicious debates that occurred in this 
Chamber, fights that have occurred on the floor of the Senate because 
of the passions of the moment, so firmly believing that what you were 
fighting for was right.
  But not once, not one time did they put that passion for that short-
term partisan or political or policy game in front of the sacred 
constitutional process that governs this country.
  What does that constitutional process dictate in the case of judicial 
nominations? Look at the precedent my friends. Look at the precedent. 
No filibusters. Because the Constitution says that it is a majority 
vote. In spite of the rancor, in spite of the partisanship and the 
stakes so high so many times in our country's history, they always had 
the perspective because, yes, I say to the Senator from Connecticut, 
they knew they were temporary stewards. They took that responsibility 
seriously so they did not corrupt the rules.
  Why are we changing the rules? We are not trying to change the rules. 
We are trying to bring back the rules that have been in this country 
for 214 years. We are trying to change the rules? We are not being good 
temporary stewards? Me thinks thou doest protest too much. We are 
simply trying to set this Senate back to the days the Senator from 
Connecticut recalls as a boy, when giants did stroll this Senate, where 
big matters were at stake, but they put the integrity of the process, 
the integrity of the Senate because we are a country of laws and rules 
and constitutions. We do not twist them and corrupt them to meet the 
short-term political needs that some interest group off the Hill was 
pleading for you to do.
  That is what is happening here. That is what occurs here, and will 
occur, unfortunately, if we do not have a change of heart by a number 
of people on the other side of the aisle again on Friday so the 98-
percent button that I see and the 168 to 4 will now be 168 to 6 and 
then 168 to 7 and then to 8 and then to who knows? Because once we 
corrupt the system, once we twist the rules to meet our partisan end, 
there is no end other than a complete debasement of what this Senate 
has stood for 2,372 times before.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. I yield without losing my right to the floor a question of 
the Senator from----
  Mr. REID. We cannot hear you.
  Mr. HATCH. I yield to the Senator from Colorado without losing my 
right to the floor.
  Mr. ALLARD. I thank the fine Senator from Utah.
  Mr. HATCH. I have laryngitis. What a time to have laryngitis. But 
that is the way it is. I apologize for my voice.
  Mr. ALLARD. I thank the fine Senator from Utah for yielding.
  Many papers in the State of Colorado have expressed a concern that we 
are not voting on judicial nominees, along with many papers throughout 
the country. I have three papers that expressed a view. I would like to 
have the

[[Page 28628]]

chairman respond to the comments made in these three papers.
  Many people throughout Colorado wonder what the impact might be on 
having a filibuster and how that will affect the Federal judiciary. 
Many of them live in the great city of Pueblo. In fact, the Pueblo 
Chieftain observed, ``some liberals are trying to create a second 
legislative body,'' referring to the judiciary, ``that will pass 
measures which they cannot get passed because they're often opposed by 
a majority of Americans.'' The paper fears this will lead to ``a 
serious erosion of the separation of powers.''
  Does the Senator from Utah share those concerns?
  Mr. HATCH. I sure do. The paper got it just right. I have seen three 
major editorials from the Chieftain and from the Rocky Mountain News 
calling the Democratic filibuster an irresponsible escalation of the 
judicial nominating war.
  I agree with both. The Denver Post said ``a change in Senate 
procedure is long overdue.'' ``[T]here is no good reason to oppose a 
supermajority of the Senate that was not contemplated in the 
Constitution.''
  They got it just right.
  Mr. ALLARD. That is correct. I thank the chairman for responding to 
those comments made in those three major papers in the State of 
Colorado.
  We do need to move on for a vote. They express the view of many in 
Colorado. I thank the chairman for giving me an opportunity to ask the 
question.
  Mr. HATCH. I yield to the distinguished Senator from Virginia without 
losing my right to the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. ALLEN. I wish the Senator from Michigan, Mr. Levin, were still on 
the floor. In his arguments, he cited a quote from Lyndon Baines 
Johnson as to what would be the best gift that could be given, I 
believe he said, to the Soviet Union or those behind the Iron Curtain. 
He thought the best gift would be unlimited debate.
  I could think of a lot of other things you would want to give people 
who are repressed than unlimited debate. Maybe freedom of speech, 
freedom of expression, freedom of religious beliefs, private property 
rights, due process, equal protection of the law, maybe even the right 
to bear arms so they can overthrow the dictatorship.
  Unlimited debate--that does not strike me as what is needed in a 
democracy. What one wants is adherence to the Constitution, 
accountability and responsible action by those who are elected by the 
people. And we want fairness, which is being denied here, without 
potential for filibustering.
  This is what Senator Levin said that President Johnson said: ``If I 
should have the opportunity to send into countries behind the iron 
curtain one freedom, and only one, my choice would be to send those 
nations the right of unlimited debate in their legislative chambers.''
  I expect they could have had all sorts of unlimited debate but what 
one wants is adherence to our U.S. Constitution.
  Let me share with our distinguished chairman of the Judiciary 
Committee, Senator Hatch, some words that have been said recently: 
Judgeships are currently vacant, causing undue delays in justice for 
citizens served by the court. The candidates for these vacancies 
deserve to have an up-or-down vote on their nominations. The Senate 
should not be playing politics with the Federal judiciary.
  Guess who said that? Senator Carl Levin in a press release on May 24, 
2000.
  Then Senator Levin said, on October 3, 2000, in the Congressional 
Record: I believe the Nation as a whole deserves to have these nominees 
and other nominees awaiting hearings and votes acted on by this Senate, 
as well. I believe it is also unfair. Perhaps this is the most 
important of all to the people who await justice in their courts.
  Senator Levin said that on October 3, 2000.
  Then Senator Levin also said that leadership had a responsibility to 
advise and at least vote on judicial nominees.
  And parallel to the debates we are having on several of the judges 
this evening that will go on through tomorrow and into the morning on 
Friday, he said: Two of the women who we are focusing on today are from 
Michigan. They are nominees for the court of appeals. The truth of the 
matter is that the leadership of the Senate has the responsibility to 
do what the Constitution says we should do which is to advise and at 
least vote on whether or not to consent to the nomination of nominees 
for these courts.
  That was September 14, 2000, 3 years ago. I wish that Senator Levin 
were still on the floor so I could ask him whether he was right in 
2000, saying the Constitution demanded and required Senators to act and 
vote on nominees. Or does he really believe that the most important 
responsibility is for endless debate?
  I say to the Senator from Utah, Mr. Hatch, what we have seen is 
stalling and more stalling and more stalling. They can debate 
endlessly, but at the end of every debate, at the end of every 
examination, of everyone's qualifications and capabilities, and whether 
Miguel Estrada, Priscilla Owen, or any other of the nominees, 
ultimately the responsibility is, as Senator Levin said 3 years ago, it 
is our responsibility to act, to vote. The Constitution demands it. 
Accountability to our constituents and our respective States demands 
it. And fairness should not continue to be denied to these many 
nominees because of the obstruction and also the very inconsistent 
statements that have been made this year compared to past years.
  I ask the chairman of the Judiciary Committee, would you find these 
statements to be prior inconsistent statements which call into question 
the desirability of having endless debates in the Senate or in the 
committee, especially after the committee has decided on a majority 
vote to report out, favorably, a judicial nominee?
  Mr. HATCH. That is a good question because it seems as if our friends 
on the other side forget when they were in the majority and they had 
the Presidency and they all wanted votes up and down and all of a 
sudden they do not.
  The Senator is right in pointing out these disparities. All of a 
sudden when the worm is turned, they do not want to live up to their 
own words. I am not sure that Senator Levin does not want to live up to 
his own words, but if he does want to live up to his own words, then he 
should not be voting with the Democrats. He should be voting for 
cloture.
  Mr. ALLEN. I have a followup question. In view of our friend from the 
Commonwealth of Pennsylvania and his articulate, passionate statement, 
Senator Santorum, out of the thousands and thousands of nominations, 
how many have been filibustered? Zero, is that not correct?
  Mr. HATCH. Zero. Until this.
  Mr. SCHUMER. Will the Senator yield?
  Mr. HATCH. I will yield to the distinguished Senator from Virginia 
for a question and then I will yield to the distinguished Senator from 
Minnesota without losing my right to the floor.
  Mr. WARNER. Mr. President, first, may I thank the distinguished 
chairman of the Judiciary Committee.
  Mr. SCHUMER. Will the Senator yield?
  The PRESIDING OFFICER. The Senator from Utah has yielded to the 
Senator from Virginia for the purposes of asking a question.
  Mr. HATCH. The Senator will have his half hour in about 15 or 20 
minutes.
  Mr. WARNER. I thank the Presiding Officer and I thank the 
distinguished chairman of our Judiciary Committee.
  I say to my colleague from Virginia how proud we are to be from the 
Commonwealth of Virginia from whence so many Framers of the 
Constitution came. I compliment you on your remarks tonight. I am 
privileged to serve with you because you represent, in my judgment, all 
the fine things about the Commonwealth. I try, in my humble way these 
25 years, to do the same.
  The Senator referred to this Constitution. The question I have to our 
distinguished chairman is very simple. I want to go back to the hot 
summer of 1787, when 55 individuals had gathered from the Colonies to 
work from May 25

[[Page 28629]]

to September 17 to frame this precious document. It was a long, hot 
summer. Tireless trips from their homes to Philadelphia. As a 
consequence, today, our form of government is the oldest continuously 
functioning government on Earth today. I have been challenged on it. 
But almost every other government in existence at the time this 
Constitution was written have fallen into the dustbin of history. 
Someone challenged me about Switzerland. Yes, Napoleon crossed the Alps 
and ceased that government for a period of time. This is a government 
that has continued to function.
  As the delegates emerged on the final day, September 17, Ben Franklin 
walked down the steps and was met by a reporter. I thought of that 
little history tonight when a reporter asked me, what is it that you 
are doing tonight in the Senate? Mr. Franklin answered that question on 
September 17, 1787. He said to that reporter: We have given you a 
Republic, if you can keep it.
  This Constitution explicitly gives to the President of the United 
States the power to appoint the judges. In Section 2, it explicitly 
gives to the Senate, not the Congress, but to the Senate, the 
responsibility of advice and consent.
  Three coequal branches of the Government and the judiciary perform 
that critical function of keeping the power of each of the other two, 
executive and legislative, in balance. That is what we are doing 
tonight. I ask the distinguished chairman, are we not, in the immortal 
words of Ben Franklin, here tonight for one sole purpose, to keep our 
Republic?
  Mr. HATCH. That is the way I view it. I have to say this is a very 
dangerous thing the Democrats are doing for the first time in history. 
It has caused a tremendous amount of angst on everyone's part and awful 
partisanship because it has never been done before. It is time to move 
on.
  I yield to the distinguished Senator from Minnesota.
  Mr. COLEMAN. Mr. President, I thank the distinguished chair of the 
Judiciary Committee, the Senator from Utah, for yielding. I have a 
question that reflects upon the implications, changing the 
constitutional standard. The Senator from the Commonwealth of 
Pennsylvania noted that of the past 11 Presidents' judicial nominees, 
2,372 were confirmed, zero filibuster. The President was elected and he 
has served his responsibilities on the part of his office; we have our 
responsibility. I take it that the Senator from Utah would say part of 
those responsibilities in the Constitution give us the opportunity to 
vote, a majority vote to confirm or deny the confirmation of judges.
  The question I have concerns a comment that appeared in a Minnesota 
paper. Like the Senator from Colorado, Minnesota papers have commented 
on this problem. There was a column by George Will, a nationally 
syndicated columnist, that appeared in the Duluth News Tribune. He said 
the following, and I ask the Senator from Utah whether he would agree 
with this statement: If the Senate rules, exploited by an 
anticonstitutional minority, are allowed to trump the Constitution's 
test and two centuries of practice, the Senate's power to consent to 
judicial nominations will have become a Senate right to require a 60-
vote supermajority for confirmations by thus nullifying the President's 
power to shape the judiciary, the Democratic Party will yield a 
Presidential power without having won a Presidential election. Would 
the Senator from Utah agree with this statement?
  Mr. HATCH. I certainly do. That is what is behind this. I think the 
Senator points it out very well. So did George Will.
  Mr. SCHUMER. Would my colleague from Utah yield for a question?
  Mr. HATCH. Not on my time.
  Mr. SCHUMER. We have had some misstatements on the floor about how 
many filibusters we have had.
  Mr. HATCH. About what? I did not hear the Senator.
  Mr. SCHUMER. I said, we have had some misstatements repeatedly by the 
Senator from Virginia and the Senator from Minnesota about how many 
have been filibustered. There have been a bunch who have been 
filibustered, it is just that we happened to succeed. Isn't that 
correct?
  Mr. HATCH. I am not going to yield at this time to the distinguished 
Senator. I will yield to the distinguished Senator from Tennessee.
  Mr. COLEMAN. Will the Senator, if I could just follow up--so the 
record is clear----
  Mr. HATCH. Yes.
  Mr. COLEMAN. It is clear, in the history of this great Republic, the 
Senate has not denied a confirmation of a circuit court nominee by 
filibuster?
  Mr. HATCH. That is right, in the history of the Senate. Absolutely, 
Will was right, because that same commentary was pointed out by 
Alexander Hamilton. He wrote in Federalist Paper 76 the Senate's role 
is to refuse nominations only for ``special and strong reasons'' having 
to do with ``unfit characters.'' That is not what our Democratic 
colleagues are doing. What they are doing here is denying up-and-down 
votes to very qualified people, who by their own gold standard, the 
American Bar Association, are proven to be qualified.
  I believe it is abysmal that has happened. I think Senators have 
pointed out here this evening this is a very important debate that has 
to occur.
  The American people need to know a militant minority, 45 Democrats, 
basically, is thwarting the will of the majority and taking away the 
dignity of an up-and-down vote to qualified judicial nominees by this 
President, which has never happened, once they hit the floor, which has 
never happened before.
  In the Clinton years, all 377 judges were confirmed--only one was 
rejected, but he got an up-and-down vote, which is more than our people 
are getting.
  Mr. COLEMAN. I thank the Senator.
  Mr. HATCH. I yield to the distinguished Senator from Tennessee, 
without losing my right to the floor.
  Mr. ALEXANDER. Mr. President, if I could ask the Senator a question. 
Maybe he could help me understand something I am having a difficult 
time understanding.
  I had the privilege of serving as a law clerk in the 1960s to the 
Honorable John Minor Wisdom on the Fifth Circuit Court of Appeals. 
Judge Wisdom was among the four Republican-appointed judges who 
presided over the peaceful desegregation of the South. I have lived in 
the South and grown up in the South and know something about what those 
years were like.
  I have been mystified, since I am not a member of the Judiciary 
Committee, by the treatment of Judge Pickering of Mississippi and 
Attorney General Bill Pryor of Alabama. I do not know Judge Pickering. 
I have met him briefly only twice. My staff and I studied his record. I 
have heard insinuations and words that were carefully chosen by the 
other side to suggest he was guilty of not being sensitive on racial 
issues. Yet when I looked into his record, I discovered, quite to the 
contrary. He had been living in Laurel, MS. In 1967, just to cite one 
example, he had testified in public against the leader of the White 
Knights of the Ku Klux Klan, which were the closest thing we had to 
terrorists in the United States of America in the last half century--an 
act of courage.
  So here is a man who throughout his whole life was far out front on 
issues of race relations. He was living in an area where it was hard to 
do, and he had not been quiet, he had not been backward, he had been 
far out front of his neighbors on issues of race relations.
  Then I learn about Mr. Pryor, the Attorney General of Alabama, and I 
realize in hearing Senator Sessions talk that he, too, was a law clerk 
to Judge Wisdom, the great civil rights judge in the South. I hear it 
said Mr. Pryor is somehow insensitive to racial and other matters.
  Yet looking into his record, I learned he is at the moment seeking to 
oust the chief judge of Alabama in the case involving the chief judge's 
failure to obey a Federal court order to remove the Ten Commandments 
from the State Supreme Court, that the State Attorney General of 
Alabama wrote all the football players and coaches in Alabama to say 
they could not pray before football games because the law did not allow 
it, that he wrote to the district

[[Page 28630]]

attorneys telling them they could not enforce a law against abortion, 
that he took a case all the way to the United States Supreme Court that 
was against the Republican party to which he belonged. It seemed to me 
here is a man who I recall Judge Wisdom talking about as a wonderfully 
talented young man. The judge was very proud of him. Here he has this 
record of upholding the law when it would be enormously unpopular in 
Alabama and certainly must be against his own views.
  What is it about these two southerners, the latter one, the editor in 
chief of the Tulane Law Review, a law clerk to Judge Wisdom, this 
distinguished person; and then Judge Pickering, who was a leader for 
civil rights, endorsed by former Governor William Winter, the Democrat, 
endorsed by Frank Hunger, Al Gore's brother-in-law. What is it about 
the other side that will not allow us to have an up-or-down vote on 
those two southerners who have been nominated by the President to be a 
judge?
  Mr. HATCH. Well, to be honest with you, it all comes down to 
abortion, according to some of my top Democrat friends. That has become 
a litmus test issue for Democrats because the inside-the-beltway groups 
the Democrats talk about do not want people on the courts who are pro-
life, even though they are committed to upholding Roe v. Wade because 
that is the law of the land.
  In the case of Judge Pickering, Judge Pickering was unanimously 
confirmed as a Federal district court judge in 1990. He has served 
well. He is one of the people who brought about racial conciliation in 
the State of Mississippi and was treated in a despicable fashion here.
  In the case of Bill Pryor, I do not think anybody who looks at his 
record can say he will not uphold the law, no matter how much he 
disagrees with it, because that is what a judge will have to do.
  Mr. ALEXANDER. May I ask the chairman, did he not, as Attorney 
General of Alabama, advise the local district attorneys they could not 
enforce a law passed by the Alabama State legislature----
  Mr. HATCH. That is correct.
  Mr. ALEXANDER. Because it would be in violation of a Supreme Court 
decision?
  Mr. HATCH. That is right. If I recall it correctly, it had to do with 
partial-birth abortion, even though he hates partial-birth abortion, as 
anybody who looks at it carefully. It is a barbaric practice, at the 
very least. He upheld the law.
  I do not know you can ask anything more of anybody than that. Plus, 
this is a fellow who graduated No. 1 in his class from Tulane 
University School of Law, who is very bright and was very candid and 
open with the committee, and yet being filibustered for no good reason. 
It really is unseemly.
  Mr. ALEXANDER. I wonder if the chairman remembers--I have heard a lot 
of talk tonight about what a great protection of minority rights the 
filibuster is.
  Mr. HATCH. Yes.
  Mr. ALEXANDER. I am trying to think back to the 1950s and the 1960s. 
How many rights of African Americans in the South were protected by the 
filibuster in the 1950s?
  Mr. HATCH. That is right.
  Mr. ALEXANDER. In the 1960s? How long was civil rights legislation 
held up in this very body by the filibuster? What was it that caused 
the cloture rules to be changed so now it takes 60 to override instead 
of 67? It was the Nation's anger about the filibuster, denying equal 
rights for African Americans in the South in the United States.
  What is so great about the filibuster in terms of protecting the 
rights of minorities and individuals if it delayed progress on civil 
rights for so long in this country?
  Mr. HATCH. The distinguished Senator raises some good points. There 
is no question the filibuster rule was despicably used during that 
time. But I still believe most of us would agree that rule XXII, the 
filibuster rule, can and should apply to the legislative calendar. We 
have a right to set our own rules through the legislative calendar. But 
the Executive Calendar is a calendar that is subject to our right to 
advise and consent, which under article II, section 2 is a majority 
vote, and it is being distorted by our friends on the other side.
  The PRESIDING OFFICER. The time controlled by the majority has 
expired.
  The Senator from Nevada.
  Mr. REID. Mr. President, first of all, I want to lay it on the record 
that Carl Levin, the senior Senator from Michigan, is not inconsistent 
in any way. We all know what happened to Carl Levin and the Michigan 
delegation is the fact that there were no hearings on the judges he 
wanted--no hearings.
  That is the reason some 20 percent of the Clinton nominees never made 
it. They refused to hold hearings. Carl Levin would have welcomed the 
procedure we are going through because if it had gotten here, and there 
had been an attempt to filibuster, cloture would have been invoked.
  Carl Levin, I say to my friend, the junior Senator from Virginia, is 
not and has not been inconsistent in any way.
  I want to refer to this. We have to understand what we are talking 
about here. Mr. President, 168 judges have been approved; 4 have been 
disapproved. For people to continually come on this floor, as if 
history facts have no bearing on what they are talking about--they 
believe, on the other side, if they keep saying it long enough, that 
there have never been filibusters before--that people will believe it.
  I show everyone this New York Times headline of September 25, 1968. 
Headline: ``Critics of Fortas Begin Filibuster, Citing `Property'.'' 
``Griffin Attack Lasts 3 Hours. . . .''
  Of course, we know that was a filibuster. Senator Byrd participated 
in it, as we recall. I say to my friends on the other side of the 
aisle, please do not say this is the first time there has been a 
filibuster, because it is not true. It is not true.
  I also want to refer to the next chart, something that is important 
to the American people. What do I think we should be dealing with? 
During the time President Bush has been President, we have lost more 
than 3 million jobs in the private sector. I think that is fairly 
significant.
  Also what we should be talking about is my next chart to show what 
the President of the United States and his administration have done to 
create jobs in America.
  Here is what the President has done to create jobs. Can everyone see 
this chart? In fact, we can turn it around. It is the same on the other 
side, isn't it? Let's see what is on the other side. Yes, the same 
thing. This is what the President has done to create jobs: nothing.
  He has lost 3 million jobs. That is what we should be talking about 
here tonight, not the fact this is the first filibuster we have ever 
had in the history of the country. You can say it once, twice, 1,000 
times--it is not true. Other judges have been filibustered and we have 
had attempts to invoke cloture. It has been successful sometimes; 
sometimes it has not been successful.
  Let's look at this next chart. It is interesting we are spending 30 
hours talking about things we should not be talking about. We are 
talking about judicial vacancies, which are at the lowest rate in 
almost 15 years. What we should be talking about are those things that 
are going up, not the thing that is going down. We should be talking 
about the 44 million Americans who tonight will go to bed with no 
health insurance. That is what we should be talking about. We should 
also be concerned about the millions of Americans who are underinsured.
  Mr. President, 44 million people have no health insurance, and we are 
here spending our time lamenting about the 4 people who want job 
increases; that is, they want to get better jobs. Miguel Estrada, let's 
not shed too many tears for him. He makes a half a million dollars a 
year. I think we should be talking about the people who have no health 
insurance, about the people who have lost jobs in this administration--
the 9-plus million people who are unemployed, as we speak. Why can't we 
spend that time, that is, 30 hours dealing with issues that are 
important to the American people?

[[Page 28631]]

  We also know, in addition to having 44 million people uninsured, that 
during the last 3 years those people who are poor in America have 
increased in numbers. The numbers have ballooned. We have the poor 
getting poorer and the rich getting richer, and we are squeezing the 
middle class so it is getting smaller and smaller. Wouldn't it be nice 
if we talk about poor people? I recognize they do not have lobbyists. 
Maybe they do not have Gucci shoes and these big limousines, but they 
still deserve our time.
  The poor are getting poorer and the rich are getting richer. 
Shouldn't we spend part of this 30 hours talking about them? The 
unemployed: We have talked about that issue. I have talked about it 
tonight on more than one occasion. But the American people have to 
recognize that during the administration of George Bush the 
unemployment rolls have gone up.
  The national debt: What has happened to the national debt during the 
last 3 years? It has gone up, way up. It is interesting to note that 
during the last 3 years of the Clinton administration, we were spending 
less money than we were taking in. We were actually paying down the 
national debt. We were being criticized for paying it down too fast: Be 
careful; you can't do that.
  Well, whoever heard that term really took it in spades because the 
fact of the matter is, we are now increasing the national debt. This 
year's budget deficit will be the highest in the history of our great 
country.
  Everything that is going up we are not talking about. We are talking 
about people who have jobs, and they lost an opportunity to get a 
promotion.
  I ask unanimous consent that the Senate now return to legislative 
session and proceed to the consideration of Calendar No. 3, S. 224, the 
bill to increase the minimum wage, that the bill be read a third time, 
passed, and the motion to reconsider be laid on the table.
  The PRESIDING OFFICER. Is there objection?
  Mr. CORNYN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. REID. I am not surprised. I am not surprised. We have the 
audacity on this side of the aisle to ask that the minimum wage be 
increased from $5.15 to something more. Why, these people who draw 
minimum wage, think about it, if they work 40 hours a week, 52 weeks a 
year, and don't get any time off for vacation, they can make the grand 
sum, working a whole year, of $10,700. What pigs. They want to get that 
much money?
  I say we should recognize the people drawing minimum wage are not a 
bunch of high school kids working in a fast food chain. The fact of the 
matter is 60 percent of the people drawing minimum wage are women. For 
the majority of those women, that is the only money they get for them 
and their families. I cannot imagine that we have had such a difficult 
time bringing up something so important to the American people, the 
minimum wage, to increase it from $5.15 an hour, maybe increasing it 
$1, maybe increasing it $1.50.
  I know that is pushing the envelope a lot to think this body would 
take up something as unimportant as people getting an increase in the 
minimum wage. No. What we should do is worry about four people, four 
people, one of whom makes a half a million dollars a year downtown. 
Then we can also worry about other people, those other three who, 
between them, make about a half a million dollars.
  I have no understanding in my heart how the majority can continually 
deny us the opportunity to do something about the minimum wage.
  Remember, the judicial vacancies are at their lowest level in almost 
15 years. While we are here talking all night about judges, 44 million 
people, as I have indicated earlier, will go to sleep tonight with no 
health insurance, none, and millions of others have insurance that is 
not very good.
  Nine million, almost 10 million people will go to bed tonight 
wondering if tomorrow they will finally be able to find a job--
recognizing that the average person who loses a job in America today is 
out of work for 5 months. That is the average, 5 months. And it does 
not matter. It does not matter what strata we are talking about. People 
in America have trouble finding jobs. The average is 5 months.
  We have tried earlier today, through a unanimous consent request, to 
spend some of these 30 hours talking about having an extension of 
unemployment benefits. No.
  We have asked tonight to increase the minimum wage, to debate that. 
No.
  I think it pretty well describes what is going on here today.
  This is an issue that people think if they talk about how unfair we 
are, that, yes, what we have done here is so bad--we have approved only 
98 percent of the President's requests to become judges. Only 98 
percent. If we had it up to 99 percent, would we only be here for 15 
hours?
  I think this is a travesty. I say that without any question. Others 
have referred to it as a carnival and a circus. Whatever it is, the 
unemployed, those people who are poor, those people who have no health 
insurance are not getting their time in the Senate.
  Who is getting time? Four people: Estrada, Owen, Pickering, and 
Pryor. That is not fair.
  I yield to the Senator from New York.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. I thank the Chair.
  Mr. President, I listened to the debate, and I would say basically, 
kindly, it is just a repetition of arguments we have heard over and 
over again. A little less kindly, sound and fury signifying nothing.
  I tried to ask some questions of the other side a few minutes ago and 
was rebuffed. It is no wonder because we are not having a coming 
together here. We are not having an elucidation. What we are having is 
a rehash of arguments we have heard over and over again.
  It is not going to change anything, I say to my colleagues. It is not 
going to change a thing. There is only one way to change things, and 
that is for the President and the other side to follow the Constitution 
and take the words ``advise and consent'' seriously. If they think we 
can be bludgeoned, if they think more talk radio makes a difference, it 
is not going to make a difference. In fact, I would argue to my 
colleagues, this debate is helping us because the hard-right media, the 
talk radio, and the others don't mention this fact.
  This chart is worth 30 hours of palaver, of gibberish. The Wall 
Street Journal today has an editorial with the pictures of the six. Do 
they mention how many have been approved? They don't dare. They have 
had editorial after editorial and some of them criticize me. I write 
letters, and they don't publish them. You would think if they are going 
to do a whole editorial being critical of someone, they would give them 
the courtesy of publishing a letter. They are not interested in the 
debate of facts. No.
  At least we are getting a chance to show this. One picture is worth a 
thousand words; one chart is equal to all the talk we have heard. 
Nothing will change that.
  This is actually going to help our side. It is backfiring. I know 
many of you on the other side didn't really want to do this, but I 
guess I have to say to those of you who argued for it, thanks.
  I heard from a constituent earlier tonight. They were watching the 
debate. I said: Did you know about 168 to 4? No. Most people don't 
because the big storm on this has come from a small narrow band on the 
hard right. We know the other side has to pay attention to them. They 
accuse us of being subject to beltway liberal groups. There are groups 
on both sides. They both feel as passionately.
  I don't know why one group is any better than the other, but the 
group on that side has made this an issue. They just can't stand the 
fact that four have been rejected--four.
  I begin by saying, better be careful about what you wish for because 
this at least is an even airing of the facts. What I would like this to 
be is a real debate. I would like us to ask each other questions. I 
would like us to

[[Page 28632]]

challenge each other's assumptions and misstatements. But it is 
obviously not happening. Obviously not at all.
  Mr. CORNYN. Will the Senator yield for a question?
  Mr. SCHUMER. I will be happy to yield for a question. I give the 
Senator from Texas the courtesy I was not given.
  Mr. CORNYN. I would like to ask the Senator from New York, of the 
individuals he has listed on his chart, isn't it true that all but 
Judge Fortas were ultimately confirmed to the positions to which the 
President appointed them?
  Mr. SCHUMER. Yes, reclaiming my time, that is exactly the point. I 
haven't gotten up to this chart, but I will go to it now.
  Mr. CORNYN. If I may----
  Mr. SCHUMER. Let me please answer my colleague's question. The bottom 
line is the other side has said--and in the chart of the Senator from 
Pennsylvania, he was careful. He said ``successfully filibustered, 
none.'' Then when it was repeated by many of the other colleagues, they 
said there has never been a filibuster.
  As my good colleague from Nevada pointed out, there have been 
filibusters. Here are some of the judges who have been filibustered.
  Don't claim there has never been a filibuster. In fact, I would ask 
anyone on the other side, when you filibustered just 3 years ago, did 
anybody object and say the Constitution is being defiled? Judge Berzon 
was filibustered in 2000. Judge Paez was filibustered in 2000. Judge 
Sarokin was filibustered in 1994.
  I didn't hear the outcries from the Senator from Pennsylvania or 
others that filibuster is constitutionally wrong. Oh, no. Oh, no. So 
the one difference----
  Mr. CORNYN. Will the Senator yield?
  Mr. SCHUMER. Let me finish--the one difference--and then I will be 
happy to yield for a question--is this. We succeeded. Do you know why 
we succeeded? I will tell you why. Because President Clinton made an 
effort to nominate moderate judges, by and large; because President 
Clinton did far more of the advise-and-consent process than President 
Bush, and President Clinton was able to persuade 15 or 20 Members from 
the other side to finally vote for these judges.
  We have had no advice, meaning consultation. I am consulted in New 
York, and we have filled every vacancy. On the main court of appeals 
nominees, there is no advise, and that means there isn't consent.
  I would argue this to my good friend from Texas: No President has 
chosen judges through an ideological prism more than President Bush. He 
said it when he ran, to his credit. He was going to appoint judges in 
the mold of Scalia and Thomas, two of the most conservative judges we 
have. Some of them are to the right of Scalia and Thomas. Clearly, 
Justice Brown is. I believe Miguel Estrada was. He has appointed judges 
ideologically. Then we are supposed to not challenge that ideology? It 
is two-faced. It is hypocritical.
  Most of President Clinton's nominees--not all, but most--were not 
legal aid lawyers or ACLU attorneys. They were partners in law firms; 
they were prosecutors. Anyone who has followed this knows President 
Clinton decided to nominate, by and large, decidedly moderate judges. 
That is why the filibusters were not successful.
  Our filibusters are successful, frankly, not because of any of us. It 
is because President Bush has decided to nominate people from the hard 
right so that he gives us no choice. Nothing would please me more--and 
I am one of the leaders in this--nothing would please me more than for 
Counsel Gonzales to call some of us in and say: How do we come to some 
kind of comity? Guess what, the same thing that happened in New York 
and a few other States will happen nationally.
  Will most of the judges be far more conservative than me? Yes. Will 
many of the judges disagree with my view on choice or affirmative 
action or anything else? Yes. But at least we will feel they will 
interpret the law, not make law.
  As my good friends know on the other side, the Constitution requires 
interpretation of the law, and ideologues, far left or far right--I 
don't like far-left judges, either--want to make law because they feel 
they are so right and the country is so wrong, and so they try to make 
law.
  Mr. CORNYN. Will the Senator yield----
  Mr. SCHUMER. The Founding Fathers in their wisdom--I will yield in a 
minute, and maybe the Senator would ask the others on their time to 
yield to us as well. Then we can get some debate here and maybe make a 
little progress instead of just talking past one another.
  The bottom line is this: We are defending the Constitution. We are 
saying there should be some balance. President Bush didn't win by a 
landslide. This Senate is not 62 to 38 or 70 to 30. This country is 
narrowly divided, and that means when laws are made, they tend to move 
to the middle. The prescription drug law is an example right now. But 
judges don't have to move to the middle. Once they are appointed, they 
are there for life, and they have virtually absolute power over cases. 
All we have is the constraints within their own heads.
  My good, learned friend from Texas knows that in the ``Federalist 
Papers,'' Alexander Hamilton said ideology should play a role. My good 
friend from Texas--he is a student of history--knows one of the first 
nominees of George Washington, John Rutledge, was rejected because of 
his views on the Jay Treaty. My good friend knows in that Senate that 
rejected John Rutledge were a good number of the Founding Fathers. So 
this is not new. This is not made up. In fact, what is new is the view 
on the other side that if they don't get their whole way, they want to 
change the rules. If there had been for 20 years protests from many of 
my colleagues who sat in those seats in 2000 and 2000 and 1994 and 1994 
when there were filibusters, maybe we could feel there was some genuine 
feeling here, some genuine fidelity. Instead, I would argue most of 
those who study logic know that things can be made; that the weakest 
arguments are outcome determinant. In other words, you look for the 
outcome you want and then you make the argument. That, I would argue, 
with all due respect, is what my colleagues are doing.
  The bottom line is filibusters were not an abomination to the 
Constitution when President Clinton nominated. And, by the way, in the 
inverse case, holding back judges from even getting a vote in the 
Judiciary Committee was perfectly OK. That didn't unbalance the 
Constitution.
  What my colleagues have done is taken the result they want, which is 
172 to 0, and then come up with an argument that all of a sudden 
filibusters are bad. Blocking judges can't be bad because look at all 
these judges the other side blocked and didn't even allow to come up 
for a vote. So it can't be that blocking judges is wrong. But it also 
can't be that filibusters are wrong because they did them in recent 
history. They just didn't succeed.
  Now they have this twisted logic that only a successful filibuster is 
bad. That doesn't make much sense. I am sure my good colleague from 
Alabama wishes his filibuster had succeeded. He felt it passionately. 
He felt Judge Berzon and Judge Paez were too far over, maybe.
  Mr. SESSIONS. Will the Senator yield for a question?
  Mr. SCHUMER. I will be happy to yield since I mentioned the Senator's 
name.
  Mr. SESSIONS. Did the Senator know that although the Senator from 
Alabama strongly opposed Berzon and Paez and voted against both those 
nominees, that there were holds on those nominees, and the Republican 
leader, Trent Lott, moved for cloture to move the nominations forward, 
and this Senator, as did Trent Lott, voted for cloture to bring an up-
or-down vote and voted against the nomination although we----
  Mr. SCHUMER. Let me reclaim my time.
  Mr. SESSIONS. That is not the kind of filibuster we have going on 
today.
  Mr. SCHUMER. I simply say to my colleague----

[[Page 28633]]

  The PRESIDING OFFICER. The Senator from New York controls the time.
  Mr. SCHUMER. Thank you, Mr. President.
  What I said before was, and I say it again, I did not hear an outcry 
about filibustering being wrong or being unconstitutional or being evil 
when these judges came up. I didn't see people get on the floor for 30 
hours. There were four of them in the last 6 years. I didn't even hear 
people get on the floor for 3 hours and take up time to say why 
filibustering is bad.
  Do you know why they say it is bad now? Because we have succeeded. 
Again, why have we succeeded? Because President Bush has changed the 
way people are appointed to the judiciary. He has nominated judges 
through an ideological prism to a far greater extent than any President 
in history.
  I say to my colleagues, do you want to get it to be 172 to 0? Tell 
the President to sit down with us, to advise, to come to some 
compromise, and then you will probably get 172 to 0. But as long as 
this process continues where there is no advise and consent, as long as 
this process continues where certain judges who believe decisions that 
have been discredited 50 and 100 years ago should be law, we have no 
alternative but to do what we are doing.
  Mr. REID. Will the Senator yield for a question?
  Mr. SCHUMER. I will be happy to yield to my colleague for a question.
  Mr. REID. Does my friend from New York support the unanimous consent 
requests--plural--that have been entered today on the record and 
rejected by the majority, first of all to extend up employment 
benefits? Does the Senator from New York believe we would be better 
advised to go forward on something like that than on these four people 
who do have a job?
  Mr. SCHUMER. I say to my colleague, most definitely, because, first, 
not only do these people have a job, but they shouldn't be on the 
bench.
  Mr. REID. I ask another question. Does the Senator also agree that 
rather than going through 30 hours of this--first of all, with all due 
respect, everybody, including me, everything that has been said so far 
tonight in these 5 hours has already been said.
  Mr. SCHUMER. More than once.
  Mr. REID. And I am sure for the next 25 hours, there will still be 
nothing new. Having said that, I ask my friend from New York, does he 
think it would be a good idea that the unanimous consent requests I 
proffered where I asked to do something about the minimum wage right 
here on the Senate floor tonight, does the Senator think that would be 
a good idea to help the American people?
  Mr. SCHUMER. I say to my colleague, it would be an excellent idea. 
This debate, as I mentioned earlier, is not going to accomplish a 
thing. In fact, if it accomplishes anything, since we haven't had the 
media drumbeat on our side the way the others have, it is going to help 
us; it is going to get this very fact out. Why not have a debate on 
something we haven't debated, such as minimum wage, such as health 
care, such as energy policy, instead of having two people decide energy 
policy. Nobody knows what the conference report will be. Let's have a 
debate about that.
  Here we are repeating over and over and over and over again the 
arguments that have been made and made and made.
  The bottom line, I say to my good colleague from Nevada, is there are 
100, 200, 300 better ways to spend 30 hours in the Senate than redebate 
these issues. If this is frustration on the other side because 4 of the 
172 have been blocked, the solution is not to repeat the same arguments 
which we regard as specious. The solution is to come to the middle and 
compromise and talk to us, as we have done in certain States.
  I say this to my colleagues: Stop using outcome-determinative 
arguments. Filibusters are fine when you do them. Only when we do them 
successfully are they no good. And blocking judges? That is just fine. 
You blocked so many more than we have. This argument is like trying to 
thread a needle: Blocking judges is OK; filibustering is OK; only 
successful filibustering is unconstitutional.
  I doubt many legal scholars of any political persuasion would be able 
to sustain the contradictions in my friends' arguments from across the 
aisle.
  The bottom line is simple: We believe advise and consent really means 
what it says.
  The PRESIDING OFFICER (Mr. Enzi). The Senator has consumed his time.
  Mr. SCHUMER. We believe keeping judges in the mainstream is within 
what the Founding Fathers wished us to do. I will have more to say in 
the next hour.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, it is my understanding that there is a rough 
sense between the Democratic and Republican sides that the next hour, 
at least on our schedule, had been designated, that the Republican time 
would take half an hour and the Democratic side half an hour. If there 
is a different point of view on that side, perhaps that could be 
expressed. Otherwise, we would go forward. If there is not, then what I 
would like to do at this time is yield 5 minutes to the Senator from 
Idaho.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, I have spent a fair amount of time on the 
floor tonight listening. I am a freshman on the Judiciary Committee. 
There are a great many things Senators can do. They can speak 
flamboyantly, they can speak articulately, they make history, but they 
cannot rewrite history.
  I heard a few phrases tonight that were trying to rewrite a little of 
the history. So I thought for a few moments I would read from a letter 
from the Senator who was there for the Abe Fortas debate, not a 
filibuster but a debate, a cloture vote. We are trying to say tonight 
that cloture votes are somehow filibusters. Well, my goodness, what an 
interesting term of art. Most importantly, what an interesting play of 
words.
  Filibusters are nonstop speaking. Cloture votes are simply to gain 
the majority necessary, a supermajority, to continue the work of the 
Senate. Now, those are the rules of the Senate.
  Let me read a letter that came to us from Robert Griffin, Republican 
Senator from Michigan. He writes to the Honorable John Cornyn, chairman 
of the Subcommittee on the Constitution:

       Dear Mr. Chairman: An Associated Press piece which appeared 
     yesterday in many of the Sunday newspapers (copy attached) 
     speculated that Chief Justice Rehnquist and/or Justice 
     O'Connor might retire this year or next, and concluded with 
     this comment: Presidents have not had much success in 
     appointing Supreme Court justices in election years. . . . 
     The last person to try it was Lyndon Johnson in 1968, when he 
     failed to elevate Justice Abe Fortas to replace Chief Justice 
     Earl Warren. Republicans filibustered the nomination and 
     Johnson backed off.

  That is what the article in the paper said. Here are the facts from a 
Senator who was on the floor at the time debating the Abe Fortas 
nomination. He goes on:

       Whether intended or not, the inference read by many would 
     be: Since the Republicans filibustered to block Justice 
     Fortas from becoming Chief Justice, it must be all right for 
     Democrats to filibuster to keep President Bush's nominees off 
     the appellate courts. Having been on the scene in 1968, and 
     having participated in the debate, I see a number of very 
     important differences between what happened then and the 
     situation that confronts the Senate today.
       First of all, four days of debate on a nomination for Chief 
     Justice is hardly a filibuster.

  He goes on to speak of the remarks that he gave in closing out that 
debate.

       When is a filibuster, Mr. President? . . . There have been 
     no dilatory quorum calls or other dilatory tactics employed. 
     The speakers who have taken the floor have addressed 
     themselves to the subject before the Senate, and a most 
     interesting and useful discussion has been recorded in the 
     Congressional Record.
       Those who are considering invocation of cloture at this 
     early stage on such a controversial, complex matter should 
     keep in mind that Senate debate last year on the investment 
     tax credit bill lasted 5 weeks--

  In other words, Senate leadership is now considering imposing a 
cloture vote on the debate that has gone on for

[[Page 28634]]

4 days. Nothing was said about a filibuster. So we go on, and he speaks 
about that. Then he says:

       While a few Senators, individually, might have contemplated 
     the use of the filibuster, there was no Republican Party 
     position that it should be employed. Indeed, Republican 
     leader of the Senate, Everett Dirksen, publicly expressed his 
     support for the Fortas nomination shortly after the President 
     announced his choice. Opposition in 1968 to the Fortas 
     nomination was not partisan. Some Republicans supported 
     Fortas; and some Democrats opposed him.

  Then he goes on to speak about the cloture vote. There were 45 in 
favor of the motion and 43 against.
  What happened the next day, when the President, a Democrat President, 
could see he simply did not have bipartisan support on the floor for a 
majority, 50 plus 1? He pulled the Abe Fortas nomination. There was no 
filibuster. There was simply a cloture vote.
  Now, it is a term of art that is trying to be finely defined tonight 
and finely written. When is a filibuster a filibuster? When is a 
cloture a cloture? Well, my colleagues cannot use the Abe Fortas 
example as a filibuster because simply this Senator will never allow 
other Senators to rewrite history. History is what it is at the time it 
is recorded and the Congressional Record clearly demonstrates----
  Mr. SCHUMER. Will my colleague yield for a question?
  Mr. CRAIG. I will not yield at this time.
  It is simply a fact recorded in the Congressional Record, so spoken 
by Robert P. Griffin, then the Senator from Michigan, who was there 
debating the cloture.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I yield 5 minutes to the Senator from 
Virginia.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. ALLEN. Mr. President, I thank the Senator from Arizona. We have 
heard some comments about we ought to be talking about jobs and the 
economy. On this side of the aisle, we are always looking at ways to 
make our tax laws, our regulatory policies, and our legal system more 
conducive to more jobs with more investment in this country.
  We have heard this evening all sorts of excuses and justifications 
for filibustering. For example, we heard mentioned earlier by the 
Senator from Michigan, Mr. Levin, a citation as justification from 
Lyndon Johnson who said: ``If I should have the opportunity to send 
into countries behind the iron curtain one freedom and only one, my 
choice would be to send those nations the right of unlimited debate in 
their legislative chambers,'' to which my view was, gosh, there are a 
lot more important rights, such as freedom of expression, freedom of 
religion, property rights, due process under the rule of law.
  When we get to the rule of law and how important that is for the 
credibility in this country, whether it is people in this country or 
outside of America to take a risk and invest in this country, the fair 
adjudication and administration of laws is very important. It is 
vitally important that we have judges on the courts so that if there 
are contractual disputes, or if property is being taken, or if there is 
a dispute, it is as expeditiously handled and decided rather than being 
delayed because of insufficient judges.
  In many of these circuits, we have judicial emergencies. In fact, it 
is a fundamental principle of the American judicial system that justice 
should be blind, that people can get a fair hearing regardless of who 
they are, where they come from, or what they look like. Surely, 
nominees to the Federal bench deserve the same rights to a fair hearing 
as any of us.
  Our sense of what is right for the country tells us that the most 
political among us realize that it is imperative that our courts are in 
working order. Common sense tells us that many of America's highest 
courtrooms do not have judges to run them and as a result the legal 
system cannot function.
  When it is said that the economy is somehow not doing as well as it 
should, all of us, on this side of the aisle, President Bush and his 
Cabinet, are working to make sure that our economy gets stronger and 
more jobs are created. In fact, the gross domestic product is the best 
in nearly 20 years. We had negative growth in 2001, obviously because 
of a variety of factors, including, of course, the terrorist attacks. 
The gross domestic product has grown every quarter since the passage of 
the Economic Growth and Tax Relief Reconciliation Act of June of 2001.
  It grew our economy by a 7.2-percent annual rate the third quarter of 
this year. This was the fastest pace of growth since 1984, almost 20 
years ago. Employment continues to make gains. Payrolls increased by 
126,000 new jobs, net new jobs, in October. The stock market continues 
to grow. That means more money for people's nest eggs, for their 
security and retirement.
  Business is reacting favorably to tax relief and corresponding 
economic growth, where businesses are growing, thereby providing more 
jobs. We also find an increase in disposal household income, where 
mothers and fathers have more money so they are spending it on their 
children, which is great for those who are selling whatever products or 
services that they are purchasing, as well as whoever is packaging, 
transporting, fabricating, assembling, or manufacturing what they are 
purchasing.
  Dividend relief also is leading to billions of new dividends 
distributed to shareholders. All of this is going on now. It also is 
important, though, that we have judges and the fair administration of 
the rule of law in the laws that we pass.
  We cannot have activist judges. Activist judges create uncertainty. 
Businesses want to know what the laws will be so they can make those 
strategic long-term decisions. To have judges coming up with activist 
inventions of new laws that were not written or adopted by the 
legislative branch is dangerous for security, jobs, and investment in 
this country.
  To put a fine point on judges, look at the Ninth Circuit Court of 
Appeals. Ask those affected every day by the decisions by our Federal 
appellate courts whether confirming circuit court nominees is 
important.
  The people of California almost had their constitution gutted by a 
three-judge panel in the Ninth Circuit only to have a larger panel of 
the same circuit reinstate their constitutionally authorized 
gubernatorial recall election. I think it is pretty important who sits 
on the Ninth Circuit.
  I am sure those in circuits where, for example, schoolchildren in 
Montana, Nevada, Arizona, and Idaho, who cannot say the Pledge of 
Allegiance because of leftwing activist judges in that circuit, who say 
that if one person takes offense at some other revering our flag, then 
the pledge is unconstitutional, would say these judges do matter.
  They matter in our everyday lives. They matter in our schools. They 
matter in our businesses. Let's put in judges who will interpret the 
law, not invent it.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I thank the gentleman for his comments, both 
on the status of our economy and the great economic growth that we are 
now enjoying, but also the last point about the importance of 
confirming judges.
  I hope people around America are watching tonight so they will 
understand why we are talking about the importance of confirming judges 
nominated by the President to the Federal bench.
  We have all heard the phrase, ``justice delayed is justice denied.'' 
The reason that is a common phrase is because there is a lot of truth 
to it. What we are seeing around the country today is delay in justice 
because the Senate is denying the President a mere up-or-down vote on 
some of his nominees to the bench.
  While it is possible for minority members, along with some in the 
majority, to defeat a judge on an up-or-down vote, that has only 
happened one time, a few years ago, since I have been in the Senate.
  The judges who are being denied confirmation would all pass with a 
majority vote, but the minority is holding them up through the 
mechanism of the

[[Page 28635]]

filibuster. I will have more to say about that mechanism in a moment.
  The key point the Senator from Virginia made was that it is important 
we confirm these judges, as important as many of our other functions.
  Let us reflect for a moment. The Senate was given some very unique 
responsibilities by the Framers of our Constitution. Among those unique 
responsibilities is the sole ability to ratify treaties and confirm 
nominations of the President. Advice and consent of the Senate is the 
way the Constitution refers to it.
  The House of Representatives, with all of the great responsibilities 
of that body, does not have this authority. This is alone the job of 
the Senate, and it is a job that the Senate, throughout its entire 
history, has taken very seriously. Never, in the history of the Senate, 
has there been a successful filibuster of a nominee to the bench by the 
President. That is what is so striking, what is so important, what is 
so significant, about the activity of the minority party during the 
course of the last couple of years, and it is why we are here tonight 
talking about this and trying to move America to move our Democratic 
colleagues to recognize that it is only fair to provide an up-or-down 
vote for these candidates. That is all we are asking.
  We have talked about the fairness to the nominees themselves. Miguel 
Estrada, one of the most competent attorneys in the country, after more 
than 2 years, finally withdrew his name from consideration because he 
had to move on with his career. We could talk about the fairness to 
these nominees of having to languish for months, for years, without 
even the courtesy of an up-or-down vote. We could talk to the fairness 
of the President. We could talk to the fairness of the majority in the 
Senate.
  What I want to address briefly is the fairness to the American people 
in denying justice by the delay in filling vacancies, vacancies which 
are emergency vacancies.
  What is an emergency vacancy? An emergency vacancy is one which has 
been determined by the Judicial Conference, which is a nonpartisan 
entity that acts as the principal policymaking body for the 
administration of the U.S. courts, that there are so many cases per 
judge in a particular circuit or district that an emergency exists; 
there are not enough judges to take care of the cases in any reasonable 
timeframe, as a result of which litigants suffer.
  Perhaps the clearest way to make this point is, every schoolchild 
knows that the Constitution of the United States guarantees a criminal 
defendant a speedy trial, but they cannot get a speedy trial if there 
is no judge. So what happens is that all of the other litigants in the 
courts have to go to the back of the line and stay there until all of 
the criminal defendants have had their speedy trial.
  In some cases, that means the civil cases languish for 3, 4, 5, 6 
years. That is justice denied in the case of those litigants whose 
justice has been delayed.
  What are these judicial emergencies? There are 12 judicial 
emergencies on the circuit court of appeals including the Ninth 
Circuit, the Fifth Circuit, the Sixth Circuit, and the Fourth Circuit. 
Democrats are obstructing nominees for every one of those circuits. For 
all three of the nominations who have already been filibustered--
Priscilla Owen, nominated to fill one of the two Fifth Circuit judicial 
emergencies; Charles Pickering to fill one of the Fifth Circuit 
judicial emergencies; and Bill Pryor, nominated to fill an Eleventh 
Circuit judicial emergency--in each case, the filibuster is preventing 
us from filling a seat which has been declared a judicial emergency.
  This is not some theoretical exercise. This is a problem that has to 
be dealt with, and the Senate is falling down in its responsibility to 
fill these emergencies.
  Democrats have also threatened to filibuster other nominees who have 
been named to fill judicial emergencies in other circuits, by name, 
Carolyn Kuhl, who I would like to speak about a little later, nominated 
to fill a Ninth Circuit judicial emergency, Henry Saad for the Sixth 
Circuit, Susan Neilson for the Sixth Circuit, Richard Griffin for the 
Sixth Circuit, David McKeague for the Sixth Circuit, and Claude Allen 
to fill a judicial emergency in the Fourth Circuit.
  The cost of judicial vacancies to litigants in civil rights cases not 
being able to vindicate their civil rights in commercial disputes, in 
contract disputes, in regulatory cases involving Federal regulations, 
in every kind of case one can mention, there are cases languishing and 
litigants who are not being given their rights because there are not 
sufficient judges to hear their cases.
  I mentioned the Ninth Circuit. That is the circuit in which my home 
State of Arizona is located. I am very familiar with the delays in that 
circuit. It is hurting the economies of our States. It is hurting the 
rights of litigants in our States. I will mention a couple of details 
to make the point.
  The Ninth Circuit is the largest circuit in the country. It hears 
appeals from California, Arizona, Nevada, Idaho, Montana, Washington, 
Oregon, Alaska, and Hawaii. There are over 5,200 cases pending in the 
Ninth Circuit. It has the largest civil docket in the Nation, more than 
1,500 cases. Since early 2001, cases filed in the district court of the 
Ninth Circuit and that make their way through the court of appeals take 
longer to resolve than they did 2 years ago. In 2001, it took 30 months 
for a case to go from original filing to a final decision on appeal. By 
June 2003, it took 31 months. This 1-month increase in delay may seem 
small but the delay adds up across the circuit. There are more than 
4,100 cases in the Ninth Circuit affected by this delay.
  That means there are more than 123,000 extra days that have been 
spent by both parties waiting for a decision. It takes 5 months longer 
to resolve a case in the Ninth Circuit than the national average of 
courts of appeal, 31 months versus 36 months. That is what has affected 
my State and other States in the United States Court of Appeals. The 
filibuster that has been conducted by the Democrats is responsible for 
the inability to fill these vacancies. Not just vacancies, but judicial 
emergencies.
  The last point I make before yielding time, if the Senator from 
Alabama is still here and would like to speak briefly, to answer a 
question that has been asked of me by constituents in Arizona. They 
remember the movie ``Mr. Smith Goes to Washington'' with Jimmy Stewart. 
A couple of them have read in the history books about the great 
filibuster Strom Thurmond conducted over 24 hours. They asked me, if 
the Democrats are filibustering these judges, why can't you make them 
talk all night? The answer to that question is, that is not the nature 
of a modern filibuster. When Jimmy Stewart and Strom Thurmond were 
speaking that long, they were trying to hold the floor, as our 
colleague from Nevada did a couple of nights ago when I think he spoke 
over 8\1/2\ hours. He did not want to give up the floor because he did 
not want business to be conducted.
  In the case of Strom Thurmond and Jimmy Stewart, in the movie, they 
did not dare give up the floor because they were a one-man band for 
their cause. They may have had one or two colleagues with them, but 
basically they were it. They knew as soon as they gave up the floor, 
the leader would say: I ask unanimous consent we now vote on the matter 
they were arguing about. They would object and say, I object, and under 
Senate rules that is enough. It only takes one person to object to go 
to the next stage. The next stage is filing a cloture motion and then a 
vote occurs. If 60 Senators say, ``We are ready to vote,'' you take the 
vote on whatever matter it is. In this case, it would be the nomination 
of these judicial nominees. They might pass by 51 votes, but you cannot 
take the vote until 60 Senators agree.
  That is the rule that applies on the legislative calendar. Up until 
now no one thought it would be a rule that would be abused with respect 
to the Executive Calendar, the calendar on which the judicial nominees 
are considered.
  The Democrats have decided to seek to apply that 60-vote rule so if 
more

[[Page 28636]]

than 40 of them vote no to take a vote, we would not have the 60 votes 
necessary to take that vote and the majority rule would never be 
permitted to prevail. That is the way it has been for the last several 
months. We have taken a cloture vote several times and each time there 
are 44, 45 Democrats who vote against cloture. They vote against taking 
the final vote. That means there may be 55 or 56 on the other side with 
some Democrat support, obviously, willing to take the vote. But we 
cannot get that number up to 60.
  Up until now, in the interpretation that has prevailed, we cannot 
take the final vote which would pass for all of these nominees; 51 
votes would be secured for every one of the nominees that have been 
filibustered. That is why we cannot make someone talk all night. If our 
colleagues on the Democrat side wished, they could have one person on 
the floor all night tonight and simply object to our request to go to 
these votes. But they would not have to talk if they did not want to.
  I am pleased they are joining in this debate so we can actually have 
a discussion about these candidates. In that sense, I guess we have 
forced an all-night discussion. It is a discussion that should have 
occurred a long time ago. It is a useful discussion, but it is not a 
discussion at the end of the day that I suspect will change any of 
their minds, as a result of which, as long as we adhere to the 60-vote 
rule that has always been the rule in the past, we cannot get to a vote 
where the majority would be able to prevail. That is what the Senate 
rules are.
  On Friday, we will have a vote to change the rules. That vote 
requires a two-thirds majority to pass. It is unlikely that will occur, 
either.
  That is the state of play right now. That is why, to answer the 
question, ``Can you make somebody talk all night,'' the answer is no, 
not if they have 40 friends, because if they have 40 friends, all they 
have to do is vote ``no'' when you have a cloture vote and you cannot 
go on to your final vote. That rule may sound arcane, but I also say on 
legislative matters, it has been used by both parties to defeat 
legislation that did not have a 60-vote majority. It is a right 
Senators have always felt important, for important matters to require 
60 votes. To pass a treaty, it takes two-thirds. The Constitution 
explicitly spells that out. But to confirm a judge, the Constitution 
has no supermajority requirement.
  There are a lot of people who believe the real intent of the Framers 
was that a simple majority should apply. Perhaps one day that issue 
will be tested. Until then, we are with the proposition that as long as 
any Senator objects, it takes 60 votes to get to a final vote in which 
a simple majority would prevail. As of right now, that is what is being 
applied in the case of these judicial nominees.
  The important point for Americans to understand is the minority has 
thwarted the will of the majority; that the consequences are 
significant for the country; that emergency judicial vacancies are not 
being filled; and while this is unfair to nominees themselves, it is 
even more unfair to the American people because the judicial vacancies 
remain vacant.
  It is a solemn responsibility of the Senate to act on the President's 
nominees. We are not fulfilling that responsibility. It is for that 
reason the Republican majority decided to take this time tonight and 
tomorrow to try to bring this matter to the attention of the American 
people to urge our colleagues to reconsider their position in 
opposition to even taking a vote on these nominees so eventually we can 
get to the point where we can simply have an up-or-down vote on the 
nominees President Bush has made for these important positions.
  I reserve the balance of the time allotted to the Republican side 
during this hour. If there is another Republican wishing to speak, I am 
happy to recognize that person. If not, I am happy to yield the floor 
to colleagues on the Democrat side for whatever time is remaining and 
pick that up a little bit later.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. I am happy to yield to my colleague.
  Mrs. HUTCHISON. I am happy for the Senator to go forward and then we 
will come back at the end of the hour.
  Mr. KYL. Mr. President, I inquire how much time remains of the half 
hour?
  The PRESIDING OFFICER. Two and \1/2\ minutes.
  Mr. KYL. If either Democrat who is on the floor would like to speak, 
fine. Otherwise I will go ahead and use that time.
  Mr. REID. Mr. President, it works better when we use our time and do 
not get mixed up so no one owes time.
  Mr. KYL. I am happy to follow the precedent we have established and 
use the remaining 2\1/2\ minutes.
  I wanted to speak to the qualifications of some of these nominees. 
Obviously, during the short period of time I have, I am not going to be 
able to do that except that I said I wanted to mention the 
qualifications of one of these nominees, Judge Carolyn Kuhl, nominated 
to the Ninth Circuit Court of Appeals, a judge who would be sitting on 
cases I might argue to the Ninth Circuit Court.
  She has been a judge in a State trial court in Los Angeles since 
1995. The American Bar Association rated her ``well qualified,'' their 
top rating for the Ninth Circuit Court of Appeals. She has served as a 
superior court judge in Los Angeles County in both the criminal and 
civil divisions and supervising judge of the civil division, the first 
woman to hold that position. Before that, she was a partner in a 
prestigious law firm in California. Before that, she served in the 
Department of Justice. She worked as a deputy solicitor general of the 
United States and argued cases before the United States Supreme Court 
in that capacity. She has extraordinary bipartisan support. A 
bipartisan group of 23 women judges on the superior court who serve 
with Judge Kuhl have written to our Judiciary Committee and said, ``As 
sitting judges, we, more than anyone, appreciate the importance of an 
independent, fair-minded and principled Judiciary. We believe that 
Carolyn Kuhl represents the best values of such a Judiciary.'' That is 
from a bipartisan group of judges.
  A bipartisan group of nearly 100 judges who serve with her said: We 
believe her elevation to the Ninth Circuit Court of Appeals will bring 
credit to all of us. As an appellate judge, she will serve the people 
of our country with distinction, as she has done as a trial judge.
  There are a variety of other endorsements that have been made of this 
fine candidate. The bottom line is we reviewed her record, we heard her 
testimony. She made a tremendous impression on all of us on the 
committee. The worst a couple of people on the other side can say is 
they disagreed with a couple of her decisions. I daresay if that was 
the test of every one of us as Senators, we would be in a sorry 
position because we cannot go very long without people disagreeing with 
us philosophically on positions.
  Judge Carolyn Kuhl, it is plain, will follow the Constitution. She is 
one of the candidates we need to act upon. I urge my colleagues to 
consider these remarks in consideration of her nomination.
  Mr. REID. Mr. President, the first 15 minutes will go to the Senator 
from California, Mrs. Boxer, and the second 15 minutes to the Senator 
from New York, Mr. Schumer.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. I am glad Senator Kyl brought up the Kuhl nomination 
because I will be talking a little bit about that nominee and her 
background and the number of people from all sides of the spectrum who 
oppose this nominee and the fact there is a very serious case involving 
a breast cancer patient who she ruled against in terms of her privacy 
rights. I will get into that. Judge Kuhl was overturned immediately. I 
will get into that and why it is we have taken a stand on a handful of 
these very extremist, very controversial judicial nominees.
  First, I remind us of the scorecard. If I were the Republicans and I 
got 168 of the judges I wanted and only was

[[Page 28637]]

turned down for 4, I would do what my mother said when I was a kid: 
``Honey, if you get 90 percent of what you want, say thank you, give 
the person a hug, and leave the room.''
  Instead, what do we have? We do not have smiling, we do not have 
thank you's. We have 30 hours of wasted time to hear people complain 
and whine about the fact they did not get four.
  Somebody wrote a book once, called ``All I Really Need to Know I 
Learned in Kindergarten.'' I honestly think this is the most childish 
situation. The President gets 168 and does not get 4 and his party is 
up in arms.
  How does that compare to President Clinton? Let's take a look at 
that. President Clinton had 63 nominees blocked, or 20 percent of his 
nominees. President Bush has, up to now, four--I suspect if we get 
these new two women we are talking about coming forward on Friday, 
hopefully, there will be six, but tonight there are four. That is 2 
percent, and we have complaining going on.
  I do not get it. I feel like Barbara in Wonderland. It makes 
absolutely no sense. I cannot figure it out. It is like the kid who 
comes home from school and says to his dad, ``Dad, I got 98 percent; 
aren't you proud of me?'' Dad says, ``What happened to that other 2 
percent?'' What is it about? We all learn to be gracious when we win. 
When we win 98 percent, we should be gracious.
  Here are the names of the Clinton nominees who were blocked. Fifteen 
times more judicial nominees blocked than that of President Bush. Why 
were they blocked? The other side felt, for whatever reason, maybe they 
did not feel they came from the mainstream.
  I remember speaking to Senator Hatch. He actually called me into his 
office. We had a very good talk. This is when he was chair of the 
Judiciary Committee and President Clinton was President. He said to me: 
``I just want you to know, Barbara, if your side sends over from 
California liberal judges, they will never go anywhere. Do not send me 
liberal judges.''
  I said: ``Orrin, I get it. I am a pragmatist. I have a committee 
advising me. I will so instruct them.'' We got almost all of our 
nominees through.
  When President Bush was elected, I said to Senator Hatch: ``I hope 
you are not going to send us rightwing nominees, because they are out 
of the mainstream and this President promised us mainstream nominees.''
  Remember the night the Court decided he had won the election? The 
President came out--I will never forget it--we needed healing, and he 
came to the mike. It was very healing. He said: ``I will govern from 
the center. I am a uniter, not a divider.''
  Yet we see some of these nominees who are coming down who are so far 
off to the right they are falling off the charts. I want to be clear. I 
want to say this unequivocally to my colleagues. I don't deserve to be 
here if I don't exercise the right given to me in the Constitution of 
the United States, which I revere. If I don't exercise that right, I do 
not deserve to be here. If I don't stand up and block some of these 
people, I do not deserve to be here. It is as simple as that. You can 
come to my State, you can call me every name in the book, it does not 
matter to me, because my constituents want me to stand up for what is 
right. What is right is to support mainstream candidates for the 
judiciary and stand up to extremist nominees and those who are out of 
the mainstream. I have to do it. It is my job.
  Do you want to come and talk about it for 30 hours when we could be 
doing other things? That is fine with me. I can talk about it for 630 
hours. That is how strongly I feel in my heart about what we have done.
  What does the Constitution say about our job? The Constitution says: 
The President--that means this one and every other one--must seek the 
Senate's advice and consent. It does not say ``sometimes.'' It does not 
say ``usually.'' It does not say ``when you feel like it.'' It says 
very clearly, the President must seek the Senate's advice and consent. 
That does not mean notifying Senators, ``This is who we are coming up 
with.'' It means sitting down with us. It means talking to us. I have 
to say, this administration falls short.
  When Carolyn Kuhl was nominated, I said to Alberto Gonzales, the 
President's man on this, Give me some time. I wanted to support a woman 
for this judgeship. Members know my record. I said, Let me get back to 
you. Lo and behold, what did I find out? I want to tell you what I 
found out.
  First I found out about this case. Think of yourself as the woman in 
this circumstance, perhaps as her husband or as a relative. A woman had 
a mastectomy. It is a brutal operation. She is frightened. She is sick. 
She is going to the doctor for a followup exam. She is in the office. 
The doctor has another person in the office, dressed in a white coat, 
and the exam takes place. This other gentleman is leaning over this 
woman in one of the most embarrassing moments, her most frightened 
moments, her most humiliating moments, and he is fanning her. He is 
involved in this. He is staring at her the whole time. When she leaves 
the doctor's office on the way out, something did not feel right to 
her. She asks the receptionist, ``What doctor was that in the office 
with me?'' The receptionist said, ``That was no doctor; that was a drug 
salesman.''
  The woman was appalled. A drug salesman had been in this room with 
her without her permission, without her knowledge.
  The bottom line of all of this, she sues. The case comes before Judge 
Kuhl, who is a new judge in the State. Judge Kuhl rules against this 
woman. The case is appealed and Carolyn Kuhl is overturned.
  Is this someone you think should be rewarded with a lifetime 
appointment? I say not.
  Let's see what the National Breast Cancer Coalition has written. This 
is a group that does not get involved in politics. This is a group that 
does not get involved. They were so upset, they said:

       We cannot afford to have Judge Kuhl on the court of appeals 
     where she will have a greater effect on women with and at 
     risk of breast cancer and our family and friends.

  The National Breast Cancer Coalition getting involved in a judicial 
nomination. I will tell you, if I did not stand up for the women across 
this country--how many of us get breast cancer? About one in nine. If I 
did not stand up for them, I do not deserve to be here.
  So if you want to talk about it for 30 hours, for 40 hours, for 50 
hours, count me in--count me in--because if I were to roll over and 
allow someone such as that to get on the bench, someone who is hostile 
to women, someone who is hostile to civil rights, someone who is 
hostile to privacy rights, someone who is off the deep far right end of 
the spectrum, I do not deserve to be here because I promised my 
constituents I would support mainstream judges. I have supported many 
judges, 90 percent of the judges President Bush has brought forward. 
But once in a while you have to take a stand.
  Let's look at the number of groups that are against Carolyn Kuhl's 
nomination, which is going to be brought up on Friday. I cannot even 
read all of these to you. It would take too long. But I will give you a 
few: the AFL-CIO, the American Association of University Women, the 
American Federation of School Administrators, the Asian Pacific 
American Labor Alliance, Breast Cancer Action, the Breast Cancer Fund, 
the Women's Law Center, Clean Water Action, Communication Workers, 
Defenders of Wildlife, the Feminist Majority, the Foundation for a 
Smoke-Free America, Friends of the Earth, the International Federation 
of Professional Technical Engineers, Los Angeles County Federation of 
Labor, NARAL, Moveon.org, National Breast Cancer Coalition, National 
Center for Lesbian Rights, National Council of Jewish Women, National 
Employment Lawyers Association.
  It goes on and on and on, and there are reasons why these groups have 
gotten involved in this. Because all you have to do is see the record 
of this woman and you understand why these groups are against her.
  Office and Professional Employees International Union----
  Mrs. HUTCHISON. Mr. President, will the Senator yield?

[[Page 28638]]


  Mrs. BOXER. No, I will not. People for the American Way, Physicians 
for Social Responsibility, Planned Parenthood, Pride at Work, 
Progressive Jewish Alliance, the Sierra Club, Smoke Free Educational 
Services--this goes on--Taxpayers Against Fraud, United American 
Nurses. It goes on and on.
  There is more: the Wilderness Society, the Women's Leadership 
Alliance; the Members of the California delegation: the Honorable Nancy 
Pelosi, Barbara Lee--all the women of California who are on the 
Democratic side in the Congress.
  So you want to talk about it for 30 hours? We will talk. We will 
talk.
  This is from 102 law professors from across the United States on 
Judge Kuhl:

       Judge Kuhl has spent her entire professional life--in the 
     Government, in private practice, and on the State bench--
     aggressively promoting an extremist agenda that is hostile to 
     women, minorities, injured workers, and the environment.

  Judge Kuhl's record goes back to when she worked in the Reagan 
administration and tried to persuade the Reagan administration to say 
that it was OK that Bob Jones University get a tax deduction. She was 
called part of a band of zealots who did that.
  So you want to talk about Judge Kuhl. I know her record inside out. I 
wanted to support a good woman from California. My whole life is spent 
promoting women but not women who would be hostile to other women and 
hostile to the guy who maybe needs to join an organization and perhaps 
get into a law suit. She does not even like the fact there are juries. 
She does not like the fact there are juries.
  So here we are. It is a quarter to 12 at night. I am all perky now. 
The reason is, I feel deeply about this. This is a chance to stand here 
and say, ``What are you doing?'' to the other side of aisle. You have 
168. You did not get four. You are whining and you are complaining and 
you are crying and you are marching into the Senate and you are 
stopping progress.
  What about the millions of jobs that have been lost? Three million 
jobs lost, 2.6 million in manufacturing. Let's talk about that for 30 
hours--instead of crying, crying about not getting 100 percent but only 
98 percent of what you want.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mrs. BOXER. I ask for 1 more minute, and then I will turn it over to 
my colleague from New York.
  Mr. SCHUMER. I yield a minute to my colleague from California.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. So here we see the problems. We have lost jobs. You do 
not want to talk about that. I think right now I ought to ask unanimous 
consent that the Senate now return to legislative session and proceed 
to the consideration of Calendar No. 3, S. 224, the bill to increase 
the minimum wage, that the bill be read the third time and passed, and 
the motion to reconsider be laid upon the table.
  Mrs. HUTCHISON. I object.
  The PRESIDING OFFICER. Is there objection?
  Mr. SANTORUM. Mr. President, reserving the right to object.
  Mrs. BOXER. Was there an objection?
  Mr. SANTORUM. Mr. President, reserving the right to object.
  Mr. REID. Mr. President, there was either an objection or no 
objection.
  Mr. SANTORUM. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. BOXER. Just finishing up my minute, this proves my point that 
they want to complain about four judges who already have jobs. But they 
do not want to deal with the people who are unemployed and this 
terrible economic situation we have in our country today.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mrs. BOXER. I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Thank you, Mr. President.
  First, I thank my colleague from California. She is feisty any time 
of the day but, not only feisty, on target. I very much appreciate her 
great work, particularly in bringing to our caucus's attention the 
problems with Judge Kuhl.
  Now, I would like to review the bidding so far. First, we have had a 
lot of talking, virtually none of it new. Second, there have been 
repeated refusals to go on to issues that we do not talk about, such as 
minimum wage, loss of jobs, health care. Third, we believe this debate 
is helping us because the rightwing radio and the rightwing groups have 
talked about their argument.
  I mentioned the Wall Street Journal editorials that never mention 
this number, what anything fair would be. We are getting this number 
out: 168 to 4.
  When I go to parades in upstate New York, conservative areas, they 
say: Why are you stopping the President's judges? I say: It is 168 to 
4. They say: Never mind. Well, that is what this debate is doing. The 
American people are going to say: Never mind.
  Finally, I think we have revealed how our colleagues' arguments are 
outcome-determinative. Lawyers will tell you they are the weakest 
arguments. You pick your outcome and then you determine it.
  Are they against filibusters? No. Again, I will repeat my challenge: 
Let a Senator on the other side show me that they got up and demanded 
30 hours or 3 hours or 5 hours when Members on their side attempted to 
filibuster Judge Barkett, Judge Sarokin, Judge Marsha Berzon, Judge 
Paez. Did anyone get up and complain? No.
  So you are not against filibusters and you are not against blocking 
judges. Here they are. You have blocked a whole lot of judges. You did 
not use filibuster. You refused to give them a vote. But they were 
blocked--same effect. The only thing you seem to object to is a 
successful filibuster. Where is the logic there?
  Finally, you want to have viewer-successful filibusters? Talk to us. 
Come and meet with us. Nominate judges who may be conservative but are 
not so far out of the mainstream, such as Justice Brown who believes 
that Government is evil. She is against all zoning laws, at least 
according to her speech to the Federalist Society. And she thinks the 
Lochner decision, one of the most discredited decisions which said the 
State government could not regulate the number of 60 hours--New York 
State said 60 hours is when a bakery worker could not work any longer. 
They can't do that.
  So nominate some people who are conservative but not so far out that 
they want to make law, not interpret law. That is the bidding so far.
  Now, one other point that was made since I last spoke. My good friend 
from Idaho, I love him. He is a fine guy. We even worked together on a 
gun control bill, so it shows you anything is possible around here. But 
he is saying Judge Abe Fortas was not filibustered? What is this 
argument? A cloture vote is not a filibuster? As my daughter would say: 
``Hello.''
  Why do we have a cloture vote? Because there is a filibuster. Here is 
the headline in the New York Times: ``Critics of Fortas Begin 
Filibuster. . . .'' Why is that not a filibuster? But the New York 
Times, they are one of those wacky, liberal publications, and this is 
one of these slanted liberal headlines.
  So let's take the U.S. Senate Web site. What is the headline? October 
1, 1968: ``Filibuster Derails Supreme Court Appointment.'' I am 
paraphrasing: In June 1968, Chief Justice Earl Warren informed 
President Lyndon Johnson that he planned to retire because of a 
filibuster.
  Mr. President, I ask unanimous consent to have a document from the 
Senate's own Web page printed in the Record. I would ask all of my 
colleagues who believe that Abe Fortas was not filibustered to make a 
motion to correct the Web site.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              Filibuster Derails Supreme Court Appointment

       In June 1968, Chief Justice Earl Warren informed President 
     Lyndon Johnson that he planned to retire from the Supreme 
     Court. Concern that Richard Nixon might win the presidency 
     later that year and get to choose his successor dictated 
     Warren's timing.

[[Page 28639]]

       In the final months of his presidency, Johnson shared 
     Warren's concerns about Nixon and welcomed the opportunity to 
     add his third appointee to the Court. To replace Warren, he 
     nominated Associate Justice Abe Fortas, his longtime 
     confidant. Anticipating Senate concerns about the prospective 
     chief justice's liberal opinions, Johnson simultaneously 
     declared his intention to fill the vacancy created by Fortas' 
     elevation with Appeals Court Judge Homer Thornberry. The 
     president believed that Thornberry, a Texan, would mollify 
     skeptical southern senators.
       A seasoned Senate vote-counter, Johnson concluded that 
     despite filibuster warnings he just barely had the support to 
     confirm Fortas. The president took encouragement from 
     indications that his former Senate mentor, Richard Russell, 
     and Republican Minority Leader Everett Dirksen would support 
     Fortas, whose legal brilliance both men respected.
       The president soon lost Russell's support, however, because 
     of administration delays in nominating the senator's 
     candidate to a Georgia federal judgeship. Johnson urged 
     Senate leaders to waste no time in convening Fortas' 
     confirmation hearings. Responding to staff assurances of 
     Dirksen's continued support, Johnson told an aide, ``Just 
     take my word for it. I know [Dirksen]. I know the Senate. If 
     they get this thing drug out very long, we're going to get 
     beat. Dirksen will leave us.''
       Fortas became the first sitting associate justice, 
     nominated for chief justice, to testify as his own 
     confirmation hearing. Those hearings reinforced what some 
     senators already knew about the nominee. As a sitting 
     justice, he regularly attended White House staff meetings; he 
     briefed the president on secret Court deliberations; and, on 
     behalf of the president, he pressured senators who opposed 
     the war in Vietnam. When the Judiciary Committee revealed 
     that Fortas received a privately funded stipend, equivalent 
     to 40 percent of his Court salary, to teach an American 
     University summer course, Dirksen and others withdrew their 
     support. Although the committee recommended confirmation, 
     floor consideration sparked the first filibuster in Senate 
     history on a Supreme Court nomination.
       On October 1, 1968, the Senate failed to invoke cloture. 
     Johnson then withdrew the nomination, privately observing 
     that if he had another term, ``the Fortas appointment would 
     have been different.''

  Mr. SCHUMER. I thank you, Mr. President. So I guess I have caught a 
little of the feistiness of my friend from California.
  Now, Senators, this is a serious issue. Many of my colleagues have 
done a great job of bringing up the issue of jobs and health care and 
all of that. I think we should do that because we have heard these 
arguments over and over and over and over again. We have not talked 
about the minimum wage once or for providing health care for the 
uninsured or many other issues. But so be it.
  Let me again go over what our Constitution says. Does our 
Constitution say, ``Do not filibuster''? It does not say that. In fact, 
our Constitution says the Senate ought to be the cooling saucer.
  We all know the story. James Madison was explaining, I believe it was 
to Thomas Jefferson, why there was a Senate. Jefferson thought it 
looked too much like the House of Lords. He had been over in Paris. And 
he had not written the Constitution.
  He came back and he goes over to James Madison's house and Madison is 
pouring tea. He says: You see. He pours the boiling water into a cup, 
and he says: You see the boiling water in the cup? That is the House of 
Representatives, where the people's passion bubbles over. Then he 
poured some of the water into the saucer, and he said: The Senate is 
the cooling saucer.
  Well, James Madison, we have been, by stopping these four nominees, a 
little bit of that cooling saucer. Our job, when the President goes too 
far, as he has with some of these nominees, is to be the cooling 
saucer.
  Now, unfortunately, our being the cooling saucer gets some of the 
others on the other side very hot. But we are defending the 
Constitution. The idea that a successful filibuster is bad has nothing 
to do with the Constitution. That comes from a few of my colleagues' 
view that they want to get every nominee. So let's make an argument. 
Because if a successful filibuster is bad and an unsuccessful 
filibuster is OK--and we have been through that before--then you cannot 
make any argument about a filibuster.
  Again, I would like my colleagues to read this over and over and over 
again. There is nothing in there that says: No filibuster. There is 
nothing in the Constitution that says: A majority will decide judges, a 
51-to-49 majority. It says the President must seek the Senate's 
``Advice and Consent.''
  Constitutional scholars will tell us that the reason we have these 
rules in the Senate--unlimited debate, two-thirds to change the rules, 
the idea that 60 have to close off debate--is embodied in the spirit 
and rule of the Constitution.
  Yes, my colleagues, we are the cooling saucer. When the President's 
passion for hot rightwing judges who might make law rather than 
interpret law gets overwhelming, we will cool the President's passion. 
That is what the Constitution is all about, and we all know it.
  By the way, when, again, my colleagues thought President Clinton was 
nominating a few judges too far left, what did they do? What did you do 
over there? You filibustered. Paez and Berzon were very liberal, no 
question about it. But because President Clinton had, by and large, 
nominated moderate nominees, nominated moderate people, your filibuster 
could not last.
  Let me say something to my colleagues. We did not want to undertake a 
filibuster. Many of us on the Judiciary pleaded with Chairman Hatch to 
go to the White House and say: Meet with us. No. Many of us pleaded 
with Counsel Gonzales to come meet us a little bit of the way. No.
  So we had no choice. Either we could be a rubberstamp or we could use 
the only means we had at our disposal to stop the President from 
getting every nominee, and that was the filibuster. Again, it is in 
keeping with the Constitution. We believe we are fulfilling our 
constitutional obligation.
  Again, I see my colleague from Pennsylvania brought up his chart: No 
successful filibusters. Did my colleague object to the unsuccessful 
filibusters of Barkett, Sarokin, Berzon, and Paez? Did my colleague say 
he wanted 30 hours on the floor because a filibuster was wrong?
  Mr. WARNER. Will the Senator yield for a question?
  Mr. SCHUMER. I am happy to yield. I want to finish my point and then 
I will yield to my friend from Virginia, who is one of the most 
respected and erudite Members of this body, and I consider him a friend 
of mine.
  I would simply say that the argument that filibusters are OK but 
successful filibusters are not OK just melts under even the sunshine of 
a distant logic.
  I yield to my colleague from Virginia.
  Mr. WARNER. Mr. President, I have had the privilege of leaving the 
floor and talking with a number of visitors. It is remarkable how many 
people have come from all across the country to be here. They have 
asked me, in a very straightforward manner: Senator, we have followed 
this debate and we cannot understand how one side says there is no 
filibuster and the other side says there is a filibuster.
  So, Mr. President, I would hope we could enter into a colloquy and 
allow the colleagues here--the former attorney general of Alabama, who 
is on the Judiciary Committee, and the distinguished Senator from 
Pennsylvania, who has taken such a leadership role--to see whether or 
not in colloquy we can provide some clarity to those trying to follow 
this very important debate on this highly technical use of the word 
``filibuster.''
  So I am just wondering if you would state what your understanding is, 
and then my colleagues on this side will state their understanding.
  Mr. SCHUMER. I thank my colleague from Virginia for that excellent 
inter--I do not mean interruption--I mean it in the classical sense, 
trying to bring us together.
  I will be happy to yield to either of my colleagues from Alabama or 
Pennsylvania and ask them, because I would like to have debate here 
instead of each of us getting up and making speeches. I asked a few 
times and my colleagues were not on the floor.
  Mr. WARNER. So, Mr. President, you have your chance. So let's go.
  Mr. SCHUMER. Well, this is a good interjection by my friend from 
Virginia.

[[Page 28640]]

  Why is it that a successful filibuster is wrong but an unsuccessful 
filibuster is OK? Because we have had them before, and many on your 
side participated in them. We did not hear any of these arguments about 
the Constitution or anything else. I would be happy to yield to my 
colleague from either Alabama or Pennsylvania for an answer. Maybe we 
can come to some meeting of the minds.
  Mr. SESSIONS. Mr. President, maybe I would suggest, as we go forward 
here, the time be counted to each side. We are now in the next hour 
anyway. Is that where we are?
  The PRESIDING OFFICER. We are 15 seconds from the minority's time 
running out.
  Mr. SESSIONS. All right. So in the next time block we set aside 
perhaps we can count the time against each side if we speak.
  Let me explain what happened. The Senator from New York was not 
here--
  The PRESIDING OFFICER. The minority's time has expired.
  Mr. SESSIONS. I thank the Chair.
  Mr. SANTORUM. Mr. President, I ask unanimous consent that, during 
this colloquy, whatever time is consumed by whatever party member run 
off the time of that hour of that side of the aisle.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. So we make sure we understand, what we are saying is 
whoever is talking, time will be taken off their side; is that right?
  Mr. SANTORUM. That is correct.
  Mr. SESSIONS. The Senator from New York was not here during the 
Clinton years in the Senate; he was in the House.
  Mr. SCHUMER. Will my colleague yield? I was here the last 2 years of 
the Clinton years. I was here for Berzon and Paez.
  Mr. SESSIONS. Let's talk, then, about Berzon and Paez and get this 
straight. That is real good to remember. I just assumed the Senator 
couldn't have been here or he might have understood a little 
differently.
  Holds are placed on legislation by Senators. Holds are placed on 
nominees by Senators. One way to break that hold is to file for cloture 
which guarantees an up-or-down vote. Holds were placed on Berzon and 
Paez. President Clinton was President of the United States. These were 
two of his most liberal nominations to the most liberal circuit in 
America; the one that struck down the death penalty, struck down the 
Pledge of Allegiance, struck down the ``three strikes and you're out'' 
law in California, and Berzon and Paez participated in all those 
opinions.
  Anyway, when they were up for nomination, I strongly believed those 
were not good nominees and opposed them. We discussed these nominations 
within the Republican ranks. Somebody said: Why don't we filibuster? 
The chairman of the Judiciary Committee, Senator Orrin Hatch, said: No, 
filibusters are not appropriate for judges. We should not enter a 
filibuster.
  A Democrat said: We want a vote on Berzon and Paez. We have waited 
long enough. So we got to the point where Trent Lott, the Republican 
majority leader, the equivalent of Tom Daschle in this circumstance, 
filed for cloture. He said: Let's bring these two nominations up for a 
vote.
  I and a whole lot of others did not support the Berzon and Paez 
nominations but did not believe in filibusters. The Senator from New 
York suggested we were unprincipled. He suggested that we are now 
opposing filibusters which we then favored. But when Trent Lott moved 
for cloture, I voted for cloture. Only half a dozen or so voted against 
cloture, and the nominees came up, and they got an up-or-down vote. 
Trent Lott voted against the nominees. I voted against the nominees. 
They had an up-or-down vote, and they were confirmed.
  You can say that is a filibuster, but it is not the same thing as a 
filibuster organized by the Democratic leader and unified Democratic 
ranks to block now six nominees from even getting an up-or-down vote. 
It is not the same. I don't think there is any doubt about it, it is 
the first time a filibuster has been used systematically under these 
circumstances.
  Mr. SCHUMER. If I might respond to my colleague from Alabama, let me 
say to everyone here, I have great respect for my colleague from 
Alabama. We work together on the Judiciary Committee quite well. We 
have had some legislation together. Let me make a few points.
  First, I don't disagree that Paez and Berzon were very liberal. There 
could be made an argument--I didn't agree with it--that they may have 
been out of the mainstream and maybe should have been blocked. 
Certainly, that is what our former colleague, Mr. Smith from New 
Hampshire, believed.
  In fact, I agree with the Senator from Alabama. I think the Ninth 
Circuit is a very liberal circuit. I voted for Jay Bybee, who is far to 
the right of me, because I thought the Ninth Circuit could use some 
balance. I don't have a problem with people saying Paez and Berzon were 
very liberal and we ought to try to block them.
  Let me make two points in reference to what is a hold. A hold is 
saying ``I am going to filibuster.''
  Mr. SESSIONS. No.
  Mr. SCHUMER. If I might finish. That is why the hold is able to hold 
things. There is nothing in the rules about one Senator can hold things 
up, but the way things work around here, you say: If you bring this to 
the floor at this point, I am going to keep talking and you are going 
to need 60 votes. I don't know it to be any different than a 
filibuster. It is certainly not a difference that makes a difference. 
One may call it a hold rather than a filibuster, but it is a 
filibuster.
  Second, I say, in all due respect to my colleague, again, let's not 
get semantical here. It is true that my good friend from Alabama 
opposed cloture. How many Senators voted for cloture? How many voted 
against? Thirty-one? I don't think there was a Democrat among them--
maybe; maybe one. I don't recall if Senator Miller was here then. 
Thirteen voted against Judge Berzon.
  But immediately after on the vote for Paez, my colleague from Alabama 
got up and made a motion to ``indefinitely postpone the nomination.''
  Let's not get semantical here. If you are indefinitely postponing the 
nomination, you are seeking to do what we are seeking to do, which is 
block a nomination you thought was ideologically incompatible.
  The bottom line is this: I will make this argument and then yield--I 
defer to our great whip here--we have divided up all our time and I am 
taking somebody else's time; maybe my friend from Minnesota, and I 
don't know who the other Senator was--Senator Boxer. So I don't want to 
take too much of it.
  I simply say, again, these arguments sort of, a little bit, contain a 
bit of sophistry. Blocking a judge is the goal--successful filibuster, 
unsuccessful filibuster, a motion to indefinitely postpone, not 
allowing a judge to come to a vote. When either side has thought a 
judge out of the mainstream, they have used the device that was 
available to them to allow the Senate, I would argue, to do what the 
Founding Fathers wanted us to do, which is to be the cooling saucer. 
Sometimes it was successful, sometimes it wasn't, but it is not a 
difference that makes a difference, as the law professors used to say.
  I yield the floor.
  Mr. REID. Parliamentary inquiry, please: How much time remains on our 
side following the statement of the Senator from New York?
  The PRESIDING OFFICER. Twenty-six and a half minutes.
  Mrs. HUTCHISON. No, Mr. President, parliamentary inquiry: It is now 
the majority's time, as I understand it. The minority time has 
finished.
  The PRESIDING OFFICER. The time that is used will be taken off the 
sides. It has been taken off when it was being used.
  Mrs. HUTCHISON. That is right, but Senator Sessions and Senator 
Schumer took equal amounts of time. Wouldn't the majority time follow 
since the minority time----
  Mr. REID. We know that.
  The PRESIDING OFFICER. The majority has 26 minutes left and have a 
priority on that unless they wish to

[[Page 28641]]

continue the agreement they had of having an open debate.
  Mr. REID. Mr. President, we will go back to the original system we 
had.
  Mr. SESSIONS. I object to the change, if he is making a point.
  Mr. SCHUMER. If I might make a parliamentary inquiry.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, while the Senator from New York is here, 
and he is such a good advocate, as we say in Alabama, you make soup out 
of slop. A motion to postpone is not a filibuster. It is an up-or-down 
vote to delay.
  I was in negotiations with the Senator from California and the White 
House to say we can let Berzon and Paez go but at least put more 
decent, more mainstream judges in California. We didn't get that 
agreement, and they moved forward with the vote. That was not a 
filibuster.
  I want it to be clear that the leadership on this side, the chairman 
of the Judiciary Committee, the majority leader, and this Member of the 
Senate did not vote to maintain any kind of extended debate but voted 
for cloture which would have guaranteed a vote and did guarantee a vote 
for them. That is not a classic filibuster.
  Mr. GRAHAM of South Carolina. Will the Senator yield for a question?
  Mr. SESSIONS. Yes.
  Mr. GRAHAM of South Carolina. The Senator from Virginia made a good 
point. There are a lot of people confused, and the Senator put me in 
that category. I sat here and listened to this debate.
  Is it true that the main difference between the example they are 
using and our problem is that these two people are on the court?
  Mr. SESSIONS. That is certainly a distinct and obvious difference. 
Both of these nominees were moved forward by the action of Trent Lott, 
the Republican leader, to move a Clinton nominee for an up-or-down 
vote. He got the up-or-down vote. Both those nominees were confirmed. 
That is exactly correct.
  And you want to talk about consistency, I ask the Senator from New 
York if he still stands by his statement he made that the basic issue 
of holding up judgeships is the issue before us, not the 
qualifications, which we can always debate; it is an example of 
Government not fulfilling its constitutional mandate because the 
President nominates and we are charged with voting on the nominees?
  And Patrick Leahy, the chairman of the Judiciary Committee----
  Mrs. HUTCHISON. Will the Senator yield?
  Mr. SESSIONS. I will for a question.
  Mrs. HUTCHISON. I want to clarify a point because the Senator from 
New York tried to equate a filibuster with a hold. I was hoping the 
Senator from Alabama would show the difference between a hold and a 
filibuster. If we start calling a hold a filibuster, then we have 
really changed the rules around here because holds are used for a 
variety of purposes. They are used for negotiation, and they may or may 
not lead to a filibuster, and usually they don't.
  To say that someone put a hold on someone and then there was an 
effort through extended debate to get those holds taken off is a 
filibuster is a misreading of the rules; would the Senator agree?
  Mr. SESSIONS. I would certainly agree, and as the Senator from 
Georgia suggested, we do that a lot around here.
  Mr. CHAMBLISS. Will the Senator yield for a question?
  Mr. SESSIONS. I will.
  Mr. CHAMBLISS. I noticed my friend, the Senator from New York, for 
whom I have great respect, made a comparison between a hold and a 
filibuster but yet at the same time he has shown this chart over and 
over again, showing where we have 168 approved and only 4 filibustered. 
But as the Senator well knows, the Senators from Michigan have had 
holds on numbers and numbers of judges for months and months. So his 
number four, instead of being four, should be about eight, if he really 
believes a hold was equivalent to a filibuster. So his argument simply 
doesn't hold water, if I may pose that in the form of a question to the 
Senator.
  Mr. SESSIONS. I agree, if a hold is a filibuster, then there are a 
lot more Bush nominees now being filibustered than have been suggested. 
I think there are four being held by Senator Levin.
  Mr. SESSIONS. I yield for a question from the Senator from Virginia.
  Mr. WARNER. In the nature of a question, first, I ask the Presiding 
Officer to inquire of the Parliamentarian if the word ``filibuster'' 
appears in any of the rules of the Senate. My understanding is that it 
does not.
  The PRESIDING OFFICER. The Senator from Virginia is correct.
  Mr. WARNER. So the word ``filibuster'' is not in the rules. I want to 
clarify that. I have done a lot of study on this question, and I think 
I can work our way through it. It is not in the rules. Let's go to 
Webster's Dictionary. It is rather interesting, the word has been used 
throughout history in many ways.
  Filibuster--the first definition: ``An irregular military adventurer; 
an American engaged in fomenting insurrections in Latin America in the 
mid-19th century.'' But then we get to the last definition, and herein 
I think is some guidance: ``a: the use of extreme dilatory tactics in 
an attempt to delay or prevent action, esp. in a legislative assembly. 
b: an instance of this practice.''
  I think somewhere in between lies the truth. So perhaps with this 
background and the assurance it isn't in the rules, the Senator from 
Alabama can continue to educate the Senate as to his perspective, and 
the Senator from New York can continue to educate the Senate from his 
perspective, and let us hope we have brought some light on this issue.
  Mr. SCHUMER. I thank the Senator.
  Mr. WARNER. Mr. President, if I can add one more thing, there is a 
very fine book issued by the Library of Congress. I ask the Presiding 
Officer the title of that book. The Parliamentarian knows of it.
  The PRESIDING OFFICER. The title would be ``The History of the 
Cloture Rule.''
  Mr. WARNER. Yes, I have studied that, and it is issued by the Library 
of Congress; am I not correct in that?
  The PRESIDING OFFICER. That is correct.
  Mr. WARNER. For those who want to pursue this in great depth. I thank 
my colleague for this colloquy, and I hope perhaps we got some clarity 
to the issue.
  Mr. SESSIONS. I thank the distinguished chairman of the Armed 
Services Committee, Senator Warner. He has brought wisdom here and 
helped us to keep from going around in circles.
  There is an argument that can be made by the Senator from New York 
that holds that were ended by cloture votes are filibusters, but they 
were not really filibusters in the sense we are facing them today. What 
we are seeing today is a sustained deliberate attempt by the leadership 
of the Democratic Party to block judges by having less than 50 votes to 
do so. They block judges by requiring through the procedural rules of 
the Senate that we have to have 60 votes to confirm a judge instead of 
51.
  We know that in each one of these nominees that have been held up 
that more than 50, usually as many as 55, 54, 53 votes are there to 
confirm the nomination, but they have been blocked by a sustained 
filibuster led by the Democratic leadership and Tom Daschle and his 
team. That is what has brought us to this point. I think we have 
clarified that issue.
  I say on the question of are we changing our views on this side, I 
reject that point. This side was principled during the Clinton years. 
This side did not resort to the filibuster as a tool of the opposition, 
as the Democrats have. There can be no debate about that. Their 
nominees were moved forward. We did not adopt this policy.
  I see the Senator from Texas is here. She has some thoughts she would 
like to share with us about a particular comment that was made about 
the nominee from California, Judge Kuhl. I yield time to her.

[[Page 28642]]


  Mr. REID. Parliamentary inquiry: How much time is left on both sides?
  The PRESIDING OFFICER. Seventeen minutes on the majority side; 25\1/
2\ on the minority side.
  Mr. REID. It would be, I think especially for the wee hours of the 
morning, better if we continue with what we started with so there is 
not a fight for who gets recognized. Does anybody have a problem with 
the way we have done it?
  Mr. SESSIONS. I am not exactly sure of the way we have done it.
  Mr. REID. What we have done since 6 o'clock; the majority would take 
the first half hour and we take the second half hour.
  Mr. SESSIONS. En bloc.
  Mr. REID. Yes. I hope we can go back to that arrangement. That is my 
request.
  The PRESIDING OFFICER. I assume you mean during this hour the 
majority would get its 16 minutes----
  Mr. REID. Absolutely, and we will get our 25.
  The PRESIDING OFFICER. And the next hour would be half hour first for 
the majority and----
  Mr. REID. Yes, starting at 1 a.m. going back to the regular system.
  The PRESIDING OFFICER. Unless the Senator agrees to an alternate 
position, that would be the policy.
  Mr. REID. That request is granted?
  The PRESIDING OFFICER. That is the way the unanimous consent was set 
up to begin with.
  Mr. REID. Thank you, Mr. President.
  Mr. SESSIONS. I yield 5 minutes to the Senator from Texas.
  Mrs. HUTCHISON. Mr. President, I wanted to tell the rest of the story 
on Judge Carolyn Kuhl because I think a misimpression was left by the 
Senator from California regarding the case of the woman who was having 
a breast exam, and when she left the office, she asked who the doctor 
was, and the receptionist said: That wasn't a doctor, that was a 
pharmaceutical company representative.
  When I first heard about that, I definitely wanted to hear more 
because that did not sound like the kind of judge I would want on the 
bench, a judge who would dismiss the case against the pharmaceutical 
company for having a person in the room when the patient was not even 
told this person was not a doctor or who this person was. I, in fact, 
did look at the rest of the story and I found a very different story. 
In fact, the plaintiff sued both the pharmaceutical company and the 
doctor. The doctor was sued for negligence in not informing the patient 
and asking the patient's permission, or having the patient have the 
right to say, no, I do not want that person in the room. The plaintiff 
sued the doctor, the doctor's firm, and the pharmaceutical company.
  Judge Kuhl allowed the case to stay open, which she dismissed against 
the pharmaceutical company, because the case against the pharmaceutical 
company was common law intrusion upon seclusion, which was not settled 
law in California at the time, but she kept the case against the doctor 
for his failure to consent. The judge allowed the cause of action, the 
trial, to go forward against the doctor and the medical partnership for 
failure to obtain consent, and the plaintiff did recover. The plaintiff 
should have recovered, and the plaintiff did recover. Judge Kuhl 
allowed that to happen by keeping the lawsuit open against the doctor 
who was the person negligent in this case.
  I think it is very important that when we know the full story it 
shows Judge Kuhl, in fact, was very sensitive to this woman's claim and 
allowed it to go forward. She made sure it went forward, and, in fact, 
the woman did settle for a full recovery.
  I just wanted to set the record straight because I thought there was 
a misimpression in the record about Judge Carolyn Kuhl, and I would 
hope we would acknowledge she did let this case go forward and there 
was a recovery.
  I think Judge Kuhl is an outstanding judge. After looking at her 
record very fully, I am very pleased to support her. I am very aware 
she is supported in a bipartisan way by many people in California, and 
most certainly when we talk about needing some balance on the Ninth 
Circuit Court of Appeals I think Judge Carolyn Kuhl would be an 
excellent addition to bring some balance to this circuit that is the 
most reversed circuit in the entire United States of America. Of all 
the circuit courts of appeal in the United States of America, the Ninth 
Circuit is the most reversed by the Supreme Court. I think that would 
tend to show we need some balance on this court, and I would hope Judge 
Carolyn Kuhl would get a fair vote, because if she does, she will get 
the majority in this body. They will look at the facts in her record. 
They will see how qualified and balanced she is, and she will get 
confirmation if she has a fair shot.
  I thank the Senator from Alabama for letting me bring out the rest of 
the story, as Paul Harvey would say, and make sure the record is 
complete on behalf of Judge Carolyn Kuhl.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I thank the Senator from Texas so much 
for those comments. I remember when that came up in the Judiciary 
Committee. We heard these allegations that this woman, Carolyn Kuhl, 
was insensitive about the rights of women and she had made this big 
error in this case. What she said simply was, as the Senator mentioned, 
the doctor allowed this man to come into the room, and not the drug 
company who hired this gentleman. They did not even know about it, I am 
sure. The permission was given by him, and if anyone committed a wrong, 
it was that doctor. She allowed the case to go forward, and under 
California law, the full recovery can come out of any one defendant who 
is liable, and the full recovery did come in fact from the doctor. It 
is an important matter to note.
  I will just share, since the issue was raised, about this side not 
being principled and I pointed out during the 8 years of President 
Clinton's administration, the leadership on this side of the aisle 
absolutely rejected filibusters. During that same time when President 
Clinton was seeking to get judges confirmed, the Democratic Senators 
also were attacking filibusters and used a lot of language that would 
make that clear.
  For example, Senator Boxer on May 14 of 1997 said: It is not the role 
of the Senate to obstruct the process and prevent numbers of highly 
qualified nominees from even being given the opportunity for a vote on 
the floor.
  Senator Feinstein said: A nominee is entitled to a vote. Vote them 
up, vote them down.
  Senator Daschle, now the Democratic leader, said: I find it simply 
baffling that a Senator would vote against even voting on a judicial 
nomination.
  Senator Leahy, the chairman of the Judiciary Committee during the 
time of the Democratic majority, said: I think the Senate is entitled 
to a vote in this matter. I think the President is entitled for the 
Senate to vote--he is talking about President Clinton--and I think the 
country is entitled for the Senate to vote.
  Now Senator Leahy is leading the filibuster. So is Senator Daschle. 
They are completely changing their position, and this side did not do 
that.
  Senator Hatch explained to us why filibusters were bad, so this side 
rejected that and did not go forward.
  Senator Kennedy said: It is true that some Senators have voiced 
concerns about these nominations, but that should not prevent a 
rollcall vote which gives every Senator the opportunity to say yes or 
no.
  Mr. CHAMBLISS. Will the Senator yield?
  Mr. SESSIONS. I would be pleased to yield to the Senator from 
Georgia.
  Mr. CHAMBLISS. Just like the Senator from Alabama, I was somewhat 
shocked by the comments of the Senator from California about the fact 
that if you get 98 percent you ought to be happy with what you get and 
go home. The fact of the matter is, never before in the history of the 
United States of America has any President gotten 98 percent. Every 
other President, prior to this President, prior to the obstructionism 
coming from the other side of the aisle on these judicial nominees, has 
gotten 100 percent. It is zero and four filibusters out there right 
now.

[[Page 28643]]

  I remind the Senator from California of her comment made back on 
March 9, 2000, as per the Congressional Record: I make an appeal, if we 
vote to indefinitely postpone a vote on these two nominees or one of 
these two nominees, that is denying them an up-or-down vote, that would 
be such a twisting of what cloture really means in these cases. It has 
never been done before for a judge, as far as we know, ever.
  So the Senator from California agreed with us back in March 9 of 
2000. Again, it would be in line with what Senator Lott said when he 
said these people deserve an up-or-down vote.
  The thing about these votes is that if people disagree with them, if 
any Senator on the other side of the aisle or if any Senator on this 
side of the aisle disagrees any judicial nominee is qualified to serve 
on the Federal bench at the district level or on any circuit court, 
they should have the right to vote against them, but they are entitled 
to a vote.
  I agree 100 percent with the Senator from California when she made 
her comment in March of 2000 that we ought to have an up-or-down vote; 
that it has never--and I repeat her statement--it has never been done 
before for a judge, as far as we know, ever. It has never been done.
  When it comes to saying ``has there been a filibuster'' or ``has 
there not been a filibuster,'' I agree with the Senator from 
California; there has never been a filibuster before of a circuit court 
nominee. There ought not be a filibuster that continues on these 
judges. We ought to have an up-or-down vote.
  I yield back to the Senator from Alabama.
  Mr. SESSIONS. Mr. President, how much time remains on our side?
  The PRESIDING OFFICER. The Senator from Alabama has 5 minutes 40 
seconds.
  Mr. SESSIONS. If the Senator from South Carolina wants to make a 
comment, I will yield to him.
  Mr. GRAHAM of South Carolina. Just very briefly. I thank the Senator 
for yielding.
  I never thought in a 30-hour debate you would have to fight to get 
something to say. We may want to extend this thing.
  It has been good to hear everybody's perspective about what has gone 
on in the past. I am really more worried about the future. I am new to 
the Senate. This is my first year here. I do not know who shot John 5 
years ago or 10 years ago, and who is still mad about what happened 
during Clinton, Bush 1, or George Washington. That is not my concern.
  My concern is I am in the Senate at a time when I know that if this 
continues, we are going to destroy the judicial nominating process as I 
have understood it to be since law school. We are going to drive good 
men and women from wanting to serve because the nominees who are being 
filibustered--I have been on the Judiciary Committee--have had a 
hatchet job done on them. They have had an opinion here and a 
dissenting opinion there taken out of context. They are all well 
qualified by the American Bar Association. They all come highly 
recommended by the people who know them best.
  For one of the nominees, they used a letter he and his wife wrote to 
his diocese about Christian marriage. Mr. Pryor from Arkansas was asked 
about whether or not he chose to take his kids to Disney World during 
Gay Pride Day. You are asking people questions I feel are unbelievably 
uncomfortable asking anybody as to whether they are qualified to be a 
judge.
  This process is broken. The past has its abuses on both sides, but 
this process is broken. There is no precedent for what is going on 
here.
  I may be wrong, and if I am wrong somebody correct me, but it is my 
understanding, in the history of this country, over 200 and something 
years of following the Constitution, we have never had an occasion 
where somebody came out of the Judiciary Committee, was voted out of 
the committee, and was unable to get a vote on the floor, until now.
  If that is the case, then we are doing something different that is 
really bad, in my opinion, because it will be answered in kind down the 
road. If this is successful, to expect the Republican Party to sit on 
the sidelines if there is a Democratic President and not answer in kind 
is probably too optimistic.
  If that happens, you are taking the Senate in a death spiral of where 
40 people, 41 people, answering to special interest groups, are going 
to hijack the Constitution. This is a big deal. This is wrong and it 
needs to stop. It has never happened before. It should not happen now. 
Whatever problems we have had in the past with judges, you have taken 
it to a new level that will destroy the ability to follow the 
Constitution, and you will take politics to a level that it has never 
been before in a rule-of-law nation and we will all suffer greatly.
  Mr. SESSIONS. Mr. President, how much time remains?
  The PRESIDING OFFICER. The Senator from Alabama has 2\1/2\ minutes.
  Mr. SESSIONS. Mr. President, I agree so strongly with the Senator 
from South Carolina that this has the real danger of undermining the 
independence of the judiciary and injecting politics into the judiciary 
in a way we do not want to do.
  I had the opportunity to obtain information from one of our greatest 
understanders of Senate rules on holds. I think I would like to share 
that with the Presiding Officer, Senator Enzi, who is as skilled on the 
history of the Senate as anyone.
  He just notes this: What is a hold? A hold is a request by a Senator 
to be notified so a unanimous consent request can be objected to. If 
somebody is going to move a bill, legislation, or a judge, and you want 
to talk more about it or so forth, you put a hold. They have to call 
you before they will do a unanimous consent without your knowledge and 
slip something through you want to talk about or debate. It is not a 
filibuster.
  A filibuster would be a continuous success by less than a majority of 
the Senators to stop progress to a vote in an action or a matter. It is 
a success continually by a minority of the Senate to stop the majority 
from bringing a matter to a vote. A cloture, more than a majority, 
stopped by a minority, 55 votes for cloture to stop debate, can be 
defeated by 45 Senators who vote contrary to that, is a filibuster, as 
has been admitted by the Senators on the other side.
  I think we have been playing some games with words, but the bottom 
line is what has occurred this year is unprecedented. It is a 
systematic, organized filibuster by the Democratic leader, Tom Daschle, 
and his team and the assistant leader and most of the Members on the 
other side--but not all--but on these now six nominees to date we have 
not had 60 votes to shut off debate.
  That is what we are talking about. You can call a hold a filibuster 
if you choose. Maybe you could justify that. But I do not think it is.
  The PRESIDING OFFICER. The majority's time has expired.
  Mr. REID. We will divide the time on this equally between the Senator 
from California and the Senator from Minnesota.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, how many minutes do I have?
  The PRESIDING OFFICER. The Senator has 12 minutes 42 seconds.
  Mrs. BOXER. Well, here we go, more of complaining and more upset from 
the other side. They just did not get 100 percent of what they wanted. 
They only got 98 percent. The score is 168 to 4. Other charts can be 
printed, but here is the truth. Do my colleagues want to see it another 
way? Here are the names of the people we have confirmed to the Federal 
bench for George Bush, 168 strong, and there are 4 we believe are out 
of the mainstream, who we believe would actually hurt the rights of our 
people to privacy, to dignity, to fairness, to justice, and we have 
stood up and we have said, no. The other side cannot believe they did 
not get 100 percent of what they wanted. Maybe in their life they get 
100 percent of what they want. Most of us do not. Most of us work hard 
for what we believe and we are happy to get maybe close to what we 
want.

[[Page 28644]]

  We have more complaining and more bickering, more upset, 30 hours 
taken away from other issues. This is where we are. We even had Senator 
Graham stand up and throw out this fact: No one is going to apply for 
judgeships. No one is going to apply for lifetime judgeships that pay a 
lot of money because Democrats stood up and said 4 did not meet the 
test of fairness, 4 were outside the mainstream and, yes, 168 were 
fine. So now people are not going to apply for judgeships anymore? 
Well, if I spoke to someone who said, do you think I ought to apply for 
a judgeship, the first thing I would say is, well, your odds are pretty 
good, 168, and only 4 did not make it. So I would say your chances are 
pretty good.
  Then we hear all this talk about we Democrats are doing something 
different, we have never filibustered, never, even though on the Senate 
Web site itself there is discussion that there have been filibusters, 
and Chuck Schumer put that in the Record.
  Let me read something much more recent than that one. This is just a 
couple of years ago, when we had the Berzon and the Paez nominations. 
The other side today is saying those were not filibusters. Well, let's 
hear what Republican Bob Smith said as he launched, yes, a filibuster.
  I wish my colleagues would listen, but it is okay, their minds are 
made up. He said: It is no secret that I have been the person who has 
filibustered these two nominees.
  Let me say that again. A couple of years ago, Bob Smith said: It is 
no secret that I have been the person who has filibustered these two 
nominees, Judge Berzon and Judge Paez.
  The issue is, why are we here? What is the role of the Senate in 
judicial nominations? The Constitution gives the Senate the advise-and-
consent role. We are supposed to advise the President and consent if we 
think the judge should be put on the court.
  Republican Bob Smith, who led the filibuster against two 
Californians, goes on to say--do I remember it? It is etched in my mind 
forever. These were two terrific people who were held up, one for 4 
years and one for 2 years, and then we finally got them to the floor 
and Bob Smith launched a filibuster saying a filibuster in the Senate 
has a purpose. It is not simply to delay for the sake of delay. It is 
to take the time to debate, to find out about what judges' thoughts 
are, et cetera.
  Can we please not have a debate over whether the other side ever 
launched a filibuster? They admitted it. I ask unanimous consent that 
this be printed in the Record at this time.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                          The Paez Filibuster

       So that the record on this point, this dramatic reversal in 
     positions, is clear, I feel constrained to mention that the 
     15 Senators who voted to continue to filibuster the Paez 
     nomination and to, in fact, postpone it indefinitely, (voting 
     both against cloture and for indefinite postponement) were 
     Senators Frist, Bob Smith, Jessie Helms, Wayne Allard, Larry 
     Craig, Michael Enzi, Phil Gramm, Asa Hutchinson, James 
     Inhofe, Frank Murkowski, Sam Brownback, Jim Bunning, Mike 
     DeWine, and Richard Shelby. How many of the current Senators 
     among them have you seen on this Senate floor claiming that 
     [President Bush's] judicial nominees are entitled to an up or 
     down vote and that delaying or filibustering is wrong? I have 
     seen some of them. It is their right to change their minds, 
     but at least acknowledge their past efforts to block 
     President Clinton's nominees, which kept many seats for this 
     President to try to pack.
       I will let the words of the Senators who filibustered 
     Clinton nominees speak for themselves. For example, in 2000, 
     just three years ago this month, Senator Smith noted during 
     the filibuster of Judge Paez and Marsha Berzon, a Ninth 
     Circuit nominee:
       ``[I]t is no secret that I have been the person who has 
     filibustered these two nominees, Judge Berzon and Judge Paez. 
     The issue is, why are we here? What is the role of the Senate 
     in judicial nominations? The Constitution gave the Senate the 
     advise-and-consent role. We are supposed to advise the 
     President and consent if we think the judge should be put on 
     the court. . . .
       Filibuster in the Senate has a purpose. It is not simply to 
     delay for the sake of delay. It is to get information.
       It is to take the time to debate and to find out about what 
     a judge's thoughts are and how he or she might act once they 
     are placed on the court.''
       So, those who came before the Senate and said no Republican 
     ever filibustered a Clinton nominee were dead wrong. Senator 
     Smith went on to explain:
       ``As far as the issue of going down a dangerous path and a 
     dangerous precedent, that we somehow have never gone before, 
     as I pointed out yesterday and I reiterate this morning, 
     since 1968, 13 judges have been filibustered by both 
     political parties appointed by Presidents of both political 
     parties, starting in 1968 with Abe Fortas and coming all the 
     way forth to these two judges today.
       It is not a new path to argue and to discuss information 
     about these judges. In fact, Mr. President . . . [w]hen 
     William Rehnquist was nominated to the Court, he was 
     filibustered twice.
       Then, after he was on the Court, he was filibustered again 
     when asked to become the chief Justice. In that filibuster, 
     it is interesting to note, things that happened prior to him 
     sitting on the Court were regurgitated and discussed. So I do 
     not want to hear that I am going down some trail the Senate 
     has gone down before by talking about these judges and 
     delaying. It is simply not true.''
       This straight-forward Republican from New Hampshire 
     proclaimed:
       ``Don't pontificate on the floor and tell me that somehow I 
     am violating the Constitution . . . by blocking a judge or 
     filibustering a judge that I don't think deserves to be on 
     the court. That is my responsibility. That is my advise-and-
     consent role, and I intend to exercise it.''
       Thus, the Republicans' claim that Democrats are taking 
     ``unprecedented'' action, like the White House claim that our 
     request for Mr. Estrada's work while paid by taxpayers was 
     ``unprecedented,'' is simply untrue. Republicans' desire to 
     rewrite their own history, while understandable, is just 
     wrong. They should come clean and tell the truth to the 
     American people about their past practices on nominations.
       They cannot change the plain facts to fit their current 
     argument and purposes. It is also noteworthy that, before the 
     debate on Bush nominations this year, the distinguished 
     chairman of the Judiciary Committee, my good friend from 
     Utah, admitted that the Republicans had filibustered Judge 
     Paez's nomination in 2000. After cloture was invoked in 
     Paez's nomination, Senator Sessions made a motion to 
     indefinitely postpone a vote on the nomination; this motion 
     failed by a vote of 31 to 67.
       Senator Hatch then admitted there had been a filibuster: 
     ``I have to say, I have served a number of years in the 
     Senate, and I have never seen a `motion to postpone 
     indefinitely' that was brought to delay the consideration of 
     a judicial nomination post-cloture. ``Indeed, I must confess 
     to being somewhat baffled that, after a filibuster is cut off 
     by cloture, the Senate could still delay a final vote on a 
     nomination. A parliamentary ruling to this effect means that, 
     after today, our cloture rule is further weakened.''

  Mrs. BOXER. Let me quickly say about Judge Kuhl, Senator Hutchison 
said, in fact, that Judge Kuhl showed a lot of compassion to this 
victim who went into a doctor's office and was subjected to the 
humiliation of having a drug salesman witness her exam without her 
permission. Senator Hutchison said she was very, very kind to this 
victim.
  Let's see what the victim says about Judge Kuhl.

       My name is Azucena Sanchez-Scott. I am a survivor of breast 
     cancer and Judge Kuhl's courtroom. I stand before you now 
     because I want to tell my story so that other people will 
     never have to relive it.
       Nothing about my cancer is easy. Not the chemotherapy, not 
     the fear, and certainly not the emotional pain of 
     disfigurement. As a person battling cancer each visit to the 
     doctor brings questions about my future and my health. That 
     is where I was when my doctor and a stranger walked in. The 
     doctor offered no introduction and proceeded to examine me 
     and asked that I disrobe. It was only when I left the office 
     and inquired with the receptionist that I learned that the 
     stranger was a sales representative for a drug company with 
     no medical reason for being there.

  The bottom line, Carolyn Kuhl ruled against this woman, and when 
Senator Hutchison said she allowed the case of the doctor to go 
forward, that is what Judge Kuhl said. Then she retracted that and 
said: I made a mistake; I never had the doctor's case before me.
  So let's get the facts straight here. Why do you think we have three 
major breast cancer organizations--Breast Cancer Action, Breast Cancer 
Fund, the National Breast Cancer Coalition--asking us to defeat Carolyn 
Kuhl? Not because Carolyn Kuhl was compassionate. But because of the 
opposite reason: She turned her back on a woman in need, on a sick 
woman. And Carolyn Kuhl was overturned in a unanimous vote by the court 
of appeals. For that, my friends want to

[[Page 28645]]

promote her to this lifetime appointment.
  I say if I caved in to that, again, I do not deserve to be here. 
Sometimes you have to stand up for people who need protection. Carolyn 
Kuhl had that chance. She took a hike. She ruled against this woman. 
This woman has been scarred in more ways than one from that experience.
  Here we are. It is 12:45. We could be working on issues that really 
matter to people instead of rehashing these judgeships. They got almost 
everything they wanted. But they are going to pound their fists and say 
the same thing over and over, ``This has never happened before''--
despite the fact it has and make it sound as if we are being unfair 
when we are not. We are just doing our job. But there we are.
  Look at what we could be doing. We have lost almost 3 million jobs in 
this country. This President has the worst record of any President 
since Herbert Hoover on private-sector employment. Why don't we spend 
30 hours talking about that? Why don't we pass the 6-year highway bill? 
We got it out of our committee thanks to Senator Reid and Senator 
Inhofe today. Why not bring that bill down, I say to my friend, Senator 
Reid? Let's vote on the 6-year highway bill. Do you know how many jobs 
we would create in this country? In my State, 80,000 jobs.
  Let's pass a manufacturing jobs tax credit so that manufacturing 
stops leaving this country. Let's raise the minimum wage. I tried to do 
that by unanimous consent. The other side objected. They do not want to 
do that.
  With our salary, we make the minimum wage for a year in just a couple 
of months here. But no, they are spending 30 hours talking about 4 
people who already have jobs and they do not want to talk about the 3 
million jobs that were lost. They do not want to protect overtime. As a 
matter of fact, they tried to take it away from workers. They do not 
want to extend unemployment insurance.
  Nothing is getting done that really matters to people. That is a sad, 
sad situation.
  Long-term unemployment: These are the people who have been out there 
and out there--2 million, plus. That is a terrible record. Long-term 
unemployment tripled since George Bush took over.
  How about the tax cuts? Let's look at how fair they are. They are 80 
times larger for millionaires than for middle income households earning 
about $50,000 to $75,000.
  The Bush economic record? The only administration going back to 
Eisenhower with a decline in manufacturing output--big manufacturing 
job losses.
  No, we cannot talk about that. We cannot have an action plan to get 
people back to work. And I have not even talked about school 
construction, which would really employ a lot of people. I visit some 
of my schools and the tiles are falling off the ceiling. No, we cannot 
talk about that. We do not have time. But we have time to discuss, for 
30 hours, judgeships that we have gone over and over. And they are 
winning. They got 168 through and they did not get 4. They are worried 
about 4 people; I am worried about 3 million people. I am worried about 
the unemployed in my State, the people without health insurance.
  I will tell Members what else I am worried about. We have a President 
who has rolled back so many environmental laws--I have them on a scroll 
and I cannot show them because it is not allowed by the Senate rules. 
But I will hold this up. If I took this scroll and I rolled it across 
the Chamber, it would go from one end to the other. It goes on and on 
and on. It is small print. It shows all of the environmental rollbacks 
of this administration.
  Just 2 weeks ago they came up with an incredible idea. When there are 
PCBs on your land--those are the most toxic chemicals there are; they 
are carcinogens--we always had a rule if you had PCBs on your land you 
had to have a plan to clean it up and EPA had to oversee it. No. Gone. 
Now you can sell your land and God help the people who buy it with PCBs 
on it.
  Superfund under President Clinton, 80 sites a year we cleaned up--the 
most toxic sites. Now we are down to 40 a year.
  How about arsenic and playground equipment? In the latest hit of the 
administration, they announced they will allow the use of arsenic-
treated lumber for playground equipment. Wake me up when this 
environmental nightmare is over.
  It is 12:35 in the morning and I can still feel it in my heart that 
we are doing the wrong thing tonight. Why not try to reverse this 
horrible record and protect our children and protect the health of our 
people and get our people working again? Instead, we are debating 168 
to 4.
  I close with this, and I will probably dream about these numbers all 
night--what is left of the night. They got 168, and they did not get 4. 
They cannot accept the fact that 98 percent is pretty good. I don't 
know what else we are supposed to do, but I will say, whatever it 
takes, I will not be intimidated into voting for nominees that are so 
far right they would roll back the hands of time. They will not protect 
the health of the people, the privacy of the people, the safety of the 
people. I am not going to do that.
  I was sent here on a promise that I would stand up for the people of 
my State. That is what I intend to do. With 168 to 4, they ought to be 
smiling instead of whining.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. DAYTON. Mr. President, I have learned politicians' priorities can 
be measured by their passions. What do they care about most? What stirs 
their souls? For that reason, the exultation of my colleagues across 
the aisle about this session, their fervor, their apocalyptic 
predictions, their press announcements, other than tax cuts for the 
rich and the super-rich, I have not seen that much passion across the 
aisle in my 3 years in this Chamber. Frankly, it does not do that for 
me.
  My passion tonight is what my colleague from California said: to work 
on other matters. We would be far more aroused talking about how to put 
Americans back to work, the over 3 million who have lost their jobs 
since this administration took office less than 3 years ago. And not 
just a return to any jobs, but jobs that are the same as, as good as or 
preferably better than the jobs they held before. Not minimum wage jobs 
with no benefits, no health coverage for spouses and children, no 
pensions, no protections, no real future.
  I would like us to talk about how we replace the 2.6 million 
manufacturing jobs lost in this country in the last 3 years, jobs moved 
offshore to someplace other than America. Many of them, I fear, are not 
coming back to America.
  The majority of the Republican caucus leadership has the authority to 
decide the Senate's agenda and has decided we will spend 30 hours on 4 
jobs. We have not spent 30 minutes on jobs for the other 3 million 
Americans out of work who are looking for jobs. We have not spent 3 
minutes on jobs and survival assistance for the over 2 million 
Americans who cannot find jobs for so long that they have exhausted 
their unemployment benefits. Many are completely broke. If we do not 
provide them with some support soon, more will be completely broke.
  Every time we have tried to bring up a bipartisan bill to extend 
unemployment benefits for Americans out looking for work, except one 
time last year, someone has objected across the aisle and we cannot 
proceed. No one has objected to spending 30 hours on 4 people, but we 
do not spend 30 seconds on most people affected by unemployment in this 
Nation.
  I will try again. I ask unanimous consent that the Senate proceed to 
legislative session and the Finance Committee be discharged from 
further consideration of S. 1853, a bill to extend unemployment 
insurance benefits for displaced workers; that the Senate proceed to 
its immediate consideration, the bill be read the third time and 
passed, and the motion to reconsider be laid on the table.
  That would extend the basic program unemployment for 6 months. It 
would extend the long-term unemployment for an additional 13 weeks and 
would benefit 5 million Americans.

[[Page 28646]]

  The PRESIDING OFFICER. Is there objection?
  Mr. SESSIONS. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. DAYTON. As I said, you can tell the priorities and what arouses 
people's passions. I could get really compassionate about the Senate's 
whole last week and the disaster aid for Minnesota and elsewhere where 
crops have been devastated by the summer's drought. Many of Minnesota's 
farmers had their crops totally destroyed. I did not detect as much 
passion and priority or concern among Members of the caucus, combined, 
as in one of them tonight for the misfortune falling on thousands of 
Minnesotans.
  I get passionate talking about prescription drug coverage for seniors 
on Medicare, which went to the Republican-controlled conference 
committee last July and has not come out since. That is only half as 
good as the resources committed to the Members of Congress, which is 
why I introduced my ``taste of their own medicine'' amendment which 
passed the Senate months ago by a vote of 93 to 3. It says that 
prescription drug benefits that Members of Congress receive can be no 
better than what we vote for seniors and others under Medicare.
  Over 17,000 Minnesotans were compassionate enough about that 
principle that they signed a petition at the Minnesota State Fair in 12 
days. That is what Minnesotans are passionate about.
  I could get passionate about learning the truths about the present 
conditions in Iraq. After being told for weeks now how much they are 
improving and that things are getting better, I read today a CIA report 
disclosed by two people high up in the administration who cannot get 
their message through at that level any other way than going to the 
American people and saying, You do not know all the facts. You do not 
know even the right perspective on what is going on there.
  We have sons and daughters and husbands and wives and children of 
Minnesotans who have given their lives, who are giving their bodies and 
well-being or giving their livelihoods, and we cannot find out the 
truth about when they are coming home or whether their stay of duty 
will be extended and for how long.
  Those are things that Minnesotans can get very passionate about. That 
is real life or death.
  What is important to people? If we do not manifest it here, people 
will not care about the institutions such as the Senate. I do not 
question my colleagues' right to their choice of priorities. I don't 
question their right to have different views on policies and judges or 
any other matter. That is the nature of our process. That is the 
strength of our process. That is the wisdom of our process.
  I have been, in less than 3 years, in the parity, even, 50-50 Senate, 
with the Vice President, the tiebreaker, but in committee and 
conference committees equal, and in the majority for a year and a half 
and this last year in the minority. The previous year and a half there 
were 69 cloture votes that the Democratic leader, the majority leader, 
then had to file to move to proceed to legislation, to consider 
legislation, voting on legislation, issues that were far more important 
and affected a far greater number of Minnesotans and other Americans 
than a particular judgeship: health care for senior citizens; benefits 
for our veterans; environmental protection. And now this year, the 
conditions have changed.
  As somebody once said, how a minority reaching majority, seizing 
authority, hates the minority. So we have, as colleagues across the 
aisle noted, and I agree, seen a certain role reversal. But that is, in 
part, the different responsibilities of minority and majority caucuses, 
and it is particularly the difference of the responsibilities of those 
in the party other than the President and in the party the same as the 
President.
  I don't question the right of my colleagues, one of them or all of 
them, to support the President, whether he is right, whether he is 
wrong, whether they believe he is right or wrong. Those are individual 
decisions of conscience and politics.
  The Founders of this country--and this applies whether the President 
of the United States is Democrat or Republican, in which case the 
situation is reversed--understood that the incredible foresight and 
wisdom of the separation of powers, this coequal authority of the 
legislative branch, equal to that of the executive branch, was critical 
in every respect, critical to this country's genuine freedom and 
preservation of our democracy.
  Judge Brandeis, almost 100 years ago, said the separation of powers 
was adopted by the convention of 1787 not to promote efficiency but to 
preclude the exercise of arbitrary power. The purpose was not to avoid 
friction but, by means of the inevitable friction inherent in the 
distribution of governmental powers among the three branches, to save 
the people from autocracy, to save the people from despotism, from 
tyranny. That is what they were concerned about. That is the practice 
that has served us well in this Nation and in this institution of the 
Senate for 216 years.
  So it concerns me, and I do not question anyone's right to take 
whatever position they wish, but it concerns me as I read my colleagues 
on the other side who were designing this debate, this forum, have a 
combined number of years of experience in the Senate that amounts to 
less than one half of 1 percent of the combined collective wisdom 
achieved by nearly 1,900 men and women who have served in this body in 
its 216-year history. Yet I hear Members of this body who have been 
here less than a year saying emphatically this system is broken and it 
should be radically overhauled and that somehow the process we are 
engaged in is one that illserves our country and is even, they say, a 
violation of our Constitutional responsibilities. That is one of the 
most serious charges that anyone can make against a fellow Senator, 
because when we take this office, we stand, each of us, and recite the 
same pledge----
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. DAYTON. To uphold the Constitution of the United States.
  Mr. President, I ask unanimous consent for 1 minute to complete my 
thought.
  The PRESIDING OFFICER. Under the time agreement----
  Mr. REID. What was being asked?
  Mr. DAYTON. A unanimous consent request for 1 minute to complete my 
thought.
  Mr. REID. Well, we will just take that out of our time from the next 
half hour.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DAYTON. Thank you, Mr. President.
  That is the most solemn oath I have ever taken, to uphold the 
Constitution of the United States. I do not question the commitment of 
anybody in this body to upholding that oath and carrying it out as he 
or she believes is right, which is the reason we are elected 
independently, to exercise that independent authority.
  But when people put out releases saying these matters we are engaged 
in are dangerous and irresponsible, that we have no right to be doing 
this, that it is a dangerous dereliction of our constitutional duty, 
those are very serious accusations.
  If anyone in this body believes what we are doing is 
unconstitutional, they should take that question to the proper court. 
If anyone believes what we are doing in this body is a violation of 
Senate rules and procedures, they should take that question to the 
Parliamentarian.
  I was told earlier today that the Parliamentarian has not been asked. 
I believe the Parliamentarian, based on all the rules and precedents of 
the Senate--this book of 1,400 pages of precedents that have been 
adopted over 216 years--would find we are acting responsibly and within 
that authority which is our responsibility and our right.
  Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER. The minority's time has expired.
  The Senator from South Carolina.
  Mr. GRAHAM of South Carolina. Thank you, Mr. President.

[[Page 28647]]

  As we go into the 1 o'clock hour, Jimmy Buffett says it is 5 o'clock 
somewhere. But it is 1 o'clock here. We will try to reorient ourselves 
as to what was going on in the last hour. It is kind of an update, a 
CNN headline update.
  The last hour was pretty interesting, I thought. We had examples used 
by our friends on the Democratic side to say basically that what we 
Republicans have done in the past we complain about now. I reiterate, 
as far as I am concerned, the past is the past, and I am more worried 
about the future. I have been here a year and all I have known since I 
have been here is fussing and fighting about everything, particularly 
judges. It has not been too pleasant to be on the Judiciary Committee 
because a lot of good men and women have had a hatchet job done on 
their professional qualifications and who they are as people, to not be 
allowed to be voted on. There have been a lot of manufactured reasons.
  But as I understand, from having listened to the debate the last 
hour, the idea of holding a judge has been used as an example of an 
abuse, that holds have been put on judges, which is apparently a 
process in the Senate to deny somebody from going through the committee 
process, or to go forward.
  The example Senator Schumer used was two judges: Paez and Berzon. I 
hope I have their names right. They were two judges who were appointed 
by President Clinton, and I think Senator Smith from New Hampshire 
tried to block their nominations, put a hold on it. There was a real 
contention about what was going on with those two judges. But the 
curious thing to me was there was an intervention in those cases, in 
those two nominations by the Republican leadership, as I understand it, 
that basically brought to a close the process of blocking those judges 
from having a vote after they came out of committee.
  To me, that illustrates that in the past, when efforts were tried or 
were being used to basically hijack the constitutional requirement of a 
majority vote, once the nominee was presented to the Senate, there has 
been intervention to right the ship.
  Since I have been here, the only intervention I have seen is to shut 
down what has been going on for 200-some years. Now, it is like a 
cricket match. It is 168 to 4. It is 168 to 16. Cricket goes on for 3 
days. It is pretty interesting for the first hour or 2, but 3 days 
later I kind of get blurry-eyed watching cricket--the same way here 
with these numbers.
  The point is, there never has been in the history of the country a 
situation where somebody was reported out of the Judiciary Committee to 
come to the floor of the Senate to be voted on as a judicial nominee, 
that they were not eventually voted on--until now. There have been 
cloture motions made, but they were always made to bring about a vote.
  There has been a concerted effort by the Democratic leadership to 
block judicial nominees in an unprecedented way. That is why we are all 
here tonight. Not only is it unprecedented, it is very dangerous. The 
reason I think it is dangerous is because it effectively changes the 
constitutional standard.
  I am going to read, since we have 30 minutes here, where the 
Constitution talks about a supermajority vote: The ``Concurrence of two 
thirds'' of either the House or the Senate is required to ``expel a 
Member'' of Congress.
  That is kind of self-serving. But we do not want to throw each other 
out until we get two-thirds of our colleagues to agree we should be 
thrown out. So that is a real check on us keeping our jobs.
  Also: ``And no Person shall be convicted'' by the Senate in an 
impeachment trial ``without the Concurrence of two-thirds of the 
Members present,'' according to article I, section 3.
  I have a little experience with that article. That is a very high 
standard to achieve. And it should be a high standard to achieve. Can 
you imagine what would happen if, by Senate rule, we changed the 
impeachment standards so the President of the United States could be 
impeached by a majority vote?
  I am sure the Supreme Court would not allow that to happen. I am sure 
there would be a great outcry by the public if we, in a partisan 
fashion, changed the way you impeach a President because we did not 
like that person or their agenda. There would be a huge outcry in the 
country because we would have subverted the Constitution.
  That is exactly what is going on here in reverse. Instead of a two-
thirds requirement to confirm a judge, like we have to throw somebody 
out of the House or the Senate, or to impeach the President, or to 
ratify a treaty--why two-thirds to ratify a treaty? The Founding 
Fathers were worried about a President making a deal with some foreign 
power that was not in the best interests of the country, so you had a 
high standard to ratify. You had a check over Presidential power.
  They give the power in the Constitution for the President to veto 
legislation coming out of these bodies, to make sure we do not get off 
track. The only way we can override a Presidential veto is the two-
thirds vote.
  There was a lot of thought going into supermajority votes. It was not 
just by accident that the Constitution has six or seven provisions that 
require a majority vote, and I would argue strongly it is not by 
accident that the majority vote requirement applying to judges was put 
there on purpose.
  Our job, as I see it, is not to say what we would do if we were 
President. Our job, as the Constitution lays out for us, is to advise 
and consent by a majority vote to make sure the President--whoever he 
or she might be--is not sending over their brother-in-law or sister-in-
law or unqualified people.
  What we have done this year, different from other years, is we have 
taken our political differences and our desire to make the court go one 
way versus the other and we have hijacked the Constitution for 
political reasons.
  Our friends on the other side of the aisle lost badly in 2002. There 
was an article right after the election where the conference came 
together and started inventorying: Why did we lose? There was a strain 
of thought on the Democratic side that they lost because they were too 
accommodating to the President, and the Democratic base was deflated; 
that you are working with them too much on taxes, you are helping him 
with homeland security, that you are doing this and that with President 
Bush. One thing you might want to do to fight back--and this is in the 
article; and I do not have it with me--is to go after his judges.
  Well, that certainly gets people fired up. Republican and Democratic 
base voters very much follow issues such as this: who the President may 
pick for the Supreme Court, who the President may pick for the Federal 
bench.
  I am asking, in all sincerity, that somehow we find a way out of the 
box that we are in. Because I have been in the Senate for a year--I do 
not know how much longer I will be here but I do understand what is 
going to happen down the road.
  If this is successful--and why they pick people, I really do not 
know. I have been on the Judiciary Committee. They do not do this to 
everyone. But they pick certain people for court of appeals jobs right 
below the Supreme Court and they will pick a few out of the herd, and 
they will start saying awful things about them--I will talk about that 
in a moment--and they will wind up, after they come out of committee, 
not getting an up-or-down vote in the Senate--for the first time in 
history. I will talk about this later when I have more time.
  There are dozens of quotes by Democratic Senators saying it is really 
an abuse of the Senate's power not to allow somebody to be voted on up 
or down. They were right then. They were talking about a situation in 
President Clinton's term where they thought the Republicans were 
denying people a chance to go through committee and they were latching 
on to the constitutional provision of a majority vote, the advise and 
consent vote, saying: The high road for the Senate to take is if you do 
not like these people, if you do not like their philosophy, and if you 
do not think they are qualified, vote against them, but do not change 
the constitutional standard because it would be bad for the country.

[[Page 28648]]

  That way of thinking has been replaced. I think the reason it has 
been replaced is because the political moment is so hot. We are a 
divided nation. The year 2000 was a very close election. In 2002, there 
was a change in the Senate's makeup. It is 51 to 49. And we are being 
consumed by the political moment.
  I can tell my colleagues on the other side of the aisle, and my 
Republican colleagues, that if we keep up this practice, it will do 
long-term damage to this country.
  The one thing I like most about America is it is a rule-of-law 
nation. Instead of having to go in the parking lot and fight people, 
you have a court to go to. There is a way in this country for the weak 
to make the strong answer; and that is called the courtroom. The people 
you put in the courtroom are important. We have constitutionally, in 
the Federal system, given that power to the President. We, by majority 
vote, say yes or no to that nominee.
  What we have done is politicize this process in an unprecedented way, 
in a dangerous way. If you don't think down the road it will be 
answered in kind by the Republican Party, I think you are very naive. I 
hope I will have the courage not to go down that road as an individual 
Senator.
  But the animosity being generated by this practice is red hot among 
both bases, and it will be almost impossible, in my opinion, for this 
not to become the norm. Payback is hell. That is a phrase with which we 
are all familiar. Payback, when you are messing with the Constitution, 
is dangerous. Political payback has to have boundaries. When you are 
messing with the constitutional standard about judges, I think you have 
gone too far.
  The question is, is this really a filibuster?
  It is obvious that it is a filibuster in terms of these nominees 
because they have come out of committee and they cannot get a vote 
because our Democratic colleagues, behind their leadership, have 
united, with a few breaking away, to deny a vote. We have had hours of 
debate on all these nominees. They cannot come to the floor for an up-
or-down vote. The Democratic Party has changed its whole opinion about 
whether that is a good or bad idea, and they have adopted a practice 
that no one has done before in the history of the country.
  But we are having a hard time. It is 1:15 in the morning and we 
cannot get the other side to admit that their filibuster going on here 
is different than anything that has happened before.
  I used to be a prosecutor, and the old saying was: Follow the money. 
If you want to know what happened in the criminal enterprise, follow 
the money.
  Well, let me tell you about an e-mail that was sent by a good friend 
of mine. Senator Corzine is a very nice person. His job is to retake 
the majority for the Democratic Party. He is in charge of the 
Democratic Senatorial Committee. Senator Allen, who sits right next to 
me, is in charge of the Republican Senatorial Committee. Their jobs are 
to go out and recruit candidates and raise money so the party will be 
effective in taking over the majority, if you are a Democrat, or 
retaining it, if you are a Republican.
  Here is what an e-mail said about what is going on right now:

       Senate Democrats have launched an unprecedented effort. By 
     mounting filibusters against the Bush administration's most 
     radical nominees, Senate Democrats have led the effort to 
     save our courts.

  November 3, 2003, it was an e-mail to donors from Senator Corzine. I 
would argue that when he said they are engaging in ``an unprecedented 
effort . . . mounting filibusters against the Bush administration's 
most radical nominees'' that he was not tricking people, that he was 
telling them: We are up here fighting by using the filibuster.
  One of two things are true: The e-mail is accurate, which I think it 
is, and it is designed to get people to send in money; or he is 
tricking people and he ought to give their money back. Because if you 
listen to our Democratic friends on the other side, this e-mail is 
wrong, and these people deserve a refund. They are raising money on the 
idea that they are filibustering Bush's nominees. That is the best 
evidence of what has gone on here. They are trying to get people to 
open up their wallets to give their money because they are doing 
something that is unprecedented. What is that something? We are 
``filibuster[ing] against the Bush administration's most radical 
nominees.''
  There are a bunch of quotes out there. Senator Boxer:

       Frankly, from my perspective, if people are off the charts 
     on the right wing, I am not going to vote for them. I will 
     not filibuster them.

  February 26, 2003.
  One of the people being filibustered comes from California, Justice 
Brown.
  Let me tell you a little bit about her, and then I will yield to my 
friend from Georgia.
  Justice Brown sits on the California Supreme Court. She has been 
there since May of 1996. In California, people get to vote on who they 
want to be on the court. She received 76 percent of the vote in her 
last election.
  Now, the last time I checked, California is not a hotbed of 
Republican conservatives. I do not know why we lose so badly; and we 
do. We have lost almost every national election in California since 
Ronald Reagan. But she received 76 percent of the vote from people who 
live in her State.
  A little more about her: She is the daughter of a sharecropper, born 
in Greenville, AL. She attended segregated schools. I grew up in South 
Carolina. The first African American I ever went to school with, I was 
in the 6th grade--not something to be proud of but a fact. She preceded 
me.
  She has an academic record that if she were your daughter you would 
be unbelievably proud. She received a BA in economics from California 
State, her JD from the UCLA School of Law. She received an honorary 
degree from Pepperdine University. She has authored more majority 
opinions for the California Supreme Court than any other justice.
  This is how nasty this has gotten. This is a cartoon from something 
called ``The Black Commentator,'' September 4, 2003. This person is a 
racial stereotype. Your eyes can tell you better than I can. It says: 
``Welcome to the Federal bench, Ms. Clarence . . . I mean, Ms. Rogers 
Brown. You'll fit right in.'' And the people clapping are a caricature 
of Justice Thomas, Colin Powell, and Condoleezza Rice.
  This is what people are having to go through. This is the way they 
are being characterized and being attacked. I think it is a low for the 
Senate. I am very sorry that she had to go through it, but she is being 
filibustered after having come out of committee.
  If you don't like Justice Brown, then you can vote against Justice 
Brown, but you don't have the right to take the Constitution and turn 
it upside down for petty politics, and that is exactly what is going on 
here.
  I can tell my friends on the other side, if they think we are not 
going to fight back, they are dead wrong. They are going to have a 
fight on their hands as long as this goes on, and at the end of the 
day, the loser is going to be the American people if we don't find a 
way out of this mess because 40 people are a lot easier to gather up 
than 50 when it comes to politics. Sixty is really hard to get.
  What is going to happen if this continues is that we are going to 
have special interest groups, whether it is environmentally driven, 
abortion driven, gun driven--there is a group for everything out 
there--that is going to be upset with a particular nominee, and they 
are going to try to get 40 Senators to jump on their side.
  The people being empowered from this practice are special interest 
groups, and the big loser is the average, everyday American. The big 
loser is the 76 percent of the people who voted for Justice Brown.
  I yield to my friend and colleague from Georgia to talk about another 
abuse that exists in California.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I thank my friend from South Carolina. 
He and I served together for 8 years in the House of Representatives. 
We were both elected in 1994 and came in with a

[[Page 28649]]

bunch of revolutionaries who came to Washington to change the world. We 
were staying up all night on the House side on a regular basis. He and 
I looked over at the Senate, and said: The decorum is great; they go to 
bed at a reasonable hour. What do you know, here we are.
  I am sorry the Senator from California has left the floor because she 
made the point over and over that President Bush had his nominees 
confirmed 98 percent of the time. The fact is, the Constitution of the 
United States must be complied with 100 percent of the time. Ninety-
eight percent of the time is not good in that particular instance.
  There are some other situations where 98 percent of the time isn't 
that great, and that is why I am really sorry she is not here. If I 
told my wife that I was faithful 98 percent of the time----
  (Disturbance in the Galleries.)
  She wouldn't be all that happy with me. I wouldn't be happy if my 
food was 98 percent free of E. coli bacteria. I would not be happy if 
my car started 98 percent of the time.
  The PRESIDING OFFICER. The Senator will suspend. The Galleries are 
not allowed to react to any statement on the floor. The Senator will 
resume.
  Mr. CHAMBLISS. I would not be happy if my soap was only 98-percent 
pure. I would not be happy if our voting machines had a 98-percent 
accuracy rate.
  I would not be happy if the power worked only 98 percent of the time. 
And I would be awfully nervous if the airplane that I was flying on had 
a track record of landing safely 98 percent of the time.
  So the Senator's reference to this President getting 98 percent of 
his judicial nominees confirmed simply does not hold water.
  I wish to talk for a minute about Carolyn Kuhl. Again, she was 
referenced by the Senator from California about her qualifications and 
her abilities to serve on the Ninth Circuit Court of Appeals.
  Carolyn Kuhl is a very special lady. She has been a judge in 
California since 1995. But prior to that, Carolyn Kuhl had an exemplary 
record that includes service both as a committed advocate as well as an 
impartial jurist. She has outstanding qualifications and bipartisan 
support.
  Her qualifications include having graduated cum laude from one of 
those liberal universities--excuse me, one of those conservative 
universities called Princeton University and having graduated Order of 
the Coif at Duke University Law School. The Senator from South Carolina 
and I graduated from the University of South Carolina and the 
University of Tennessee, respectively.
  Order of the Coif means you were in the top one or two, not percent, 
the top one or two in your class. Neither one of us was there. That is 
something special. She was a law clerk to then-Judge Anthony Kennedy of 
the Ninth Circuit. She then worked in the Department of Justice as a 
Special Assistant to the Attorney General, Deputy Assistant to the 
Attorney General, and Deputy Solicitor General.
  She was a partner in the very prestigious law firm of Munger, Tolles 
& Olson. She was the first female supervising judge of the civil 
department of the Los Angeles County Superior Court. Carolyn Kuhl 
brings excellent, outstanding educational credentials to the bench.
  There are a number of individuals who have registered their support 
for Judge Kuhl. There has been some indication that maybe some female 
members of the bar are upset with her over some of her decisions, and 
one decision in particular.
  Let me show you what 23 members of the Los Angeles Superior Court, 23 
women judges on the Los Angeles Superior Court bench said about Judge 
Kuhl, and this was a bipartisan group:

       Judge Kuhl approaches her job with respect for the law and 
     not a political agenda. Judge Kuhl has been a mentor to new 
     women judges. . . . She has helped promote the careers of 
     women, both Republican and Democrat. . . . As sitting judges, 
     we more than anyone appreciate the importance of an 
     independent, fairminded and principled judiciary. We believe 
     that Carolyn Kuhl represents the best values of such a 
     judiciary.

  There was a case that, if you listened to the Senator from 
California, you would have thought that Judge Kuhl was the doctor in 
the office who was being sued, not the judge on the bench who was 
reviewing the case.
  Let me tell you what the appellate court judge who wrote the opinion 
in the case, referenced by the Senator from California, said about 
Judge Kuhl and about that specific opinion that he reviewed:

       On appeal, I was the author of the Sanchez-Scott opinion. . 
     . . Judge Kuhl's order sustaining the demurer without leave 
     to amend was not an act of bias or insensitivity. . . . In 
     fact, a strong argument can be made that she correctly 
     assessed the competing societal interests the California 
     Supreme Court requires of all jurists in this State to weigh 
     in determining whether the tort of intrusion has occurred. 
     With respect to those who have criticized Judge Kuhl as being 
     insensitive or biased because of my opinion in Sanchez-Scott, 
     they are simply incorrect.

  Judge Kuhl brings impeccable credentials to the bench. She brings 
impeccable educational credentials, as well as jurist credentials, to 
the bench. She brings bipartisan support from the women, from the men, 
from the Republicans, and the Democrats in the State of California who 
know her best.
  For us to have to go through the exercise here of, once again, 
contending with a filibuster from the folks on the other side of the 
aisle with respect to the nomination of Carolyn Kuhl, is truly an 
injustice and is one of those injustices that, as my friend from South 
Carolina has said, there will be a payback on. That is not the way we 
want to operate. It is not the way this body has operated for well over 
200 years since we have been approving judges, and it is not the way we 
should operate in the future.
  There is still time to correct the process that we are going through, 
and based upon what we are doing here tonight, I hope the profile of 
this issue is going to be brought home to the household of every 
American and every voter, and that they will understand there is a 
group in the Senate who wants to move forward to make sure their lives 
are made better because good judges are going to be put on the bench, 
and good judges ought to be confirmed by the Senate; and that there is 
another group in the Senate who is being obstructionist and is doing 
everything within their power to prevent the President of the United 
States from having the judges that he thinks are the best qualified 
from being put on the Federal bench all across America.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Thank you, Mr. President. On this half hour to which we are 
entitled, the two Senators from Arkansas are going to split the time, 
with Senator Lincoln taking the first time, whatever time she may 
consume, leaving the remainder to the junior Senator from Arkansas.
  The PRESIDING OFFICER. The senior Senator from Arkansas.
  Mrs. LINCOLN. I thank the Chair. Mr. President, I am proud to be here 
this morning to see that this age-old institution is acting as it 
should. We are looking at, reviewing, and exercising our constitutional 
responsibilities.
  I am not, however, proud of the fingerpointing that is going on--as 
we say to young children, I hope no one's eyes get put out--and all the 
fingerpointing that goes on in these 30 hours of discussion and debate, 
the warnings we have just heard: There's a payback; there's a payback.
  I do rise this morning, however, to express my extreme disappointment 
and dismay that we are expending such a large portion of our remaining 
time and energy on this unnecessary debate. We probably have only a few 
days left in this session to deal with important issues on which we 
have not yet completed action this year. How many seniors have my 
colleagues talked with in their travels back home to their States about 
the need for prescription drug coverage for our elderly?
  How many of them have they talked with as they traveled with Meals on 
Wheels and other programs and talked with these seniors who are telling 
you

[[Page 28650]]

that they are cutting their medications in half, that they are not 
going to be able to afford their heating bill this winter and their 
prescription drugs?
  I implore my colleagues, how many have you talked with in your 
travels back home?
  Looking at education funding, how many teachers have my colleagues 
spoken with as they traveled back home--teachers who are telling them 
they are going to have to spend their own money on supplies come 
February because they don't have enough glue and construction paper for 
their children or that they are having to spend an undue amount of time 
meeting demands that we have put on these school districts and yet have 
been unwilling to provide the resources for them to meet those demands?
  How many of those single mothers who are working day and night to 
pull themselves up by their bootstraps, to leave the welfare rolls and 
bring dignity to their children and to put bread on the table--how many 
of those have my colleagues spoken with as they have traveled home to 
their States when we could be doing the welfare reauthorization bill 
and making it bigger and better than we did before?
  The highway bill: How many people have they talked with when they go 
home to their States? I had a group come to me the other day who said: 
We come to you all in Congress begging every year for a few million 
dollars to try to create the infrastructure that we need in rural 
States, such as Arkansas, to improve our economy, and all of a sudden 
$87 billion falls out of the sky? What about us at home? Are you all 
going to talk about us? Are you going to bring us up? Are you going to 
do something about the things we need to make our lives stronger, to 
make our families better, to strengthen the fabric of this Nation?
  Those are the issues about which we should be talking, Mr. President, 
and I wish we were. We have not yet completed action on all the 
appropriations bills. We have an Energy bill that should have been 
finished in 2002 to bring our country into the 21st century. For the 
last 25 years, we have needed a new energy policy in this country. 
Other countries are leaving us behind in the new and innovative ways 
they are looking to provide renewable fuels to improve not only their 
economy and their environment but to lessen their dependence on foreign 
oil.
  These are the issues about which we should be talking, and genuine 
concern about what we want to do to strengthen our Nation.
  We are still waiting. We are still waiting for these to be completed, 
time tonight that could be spent in dealing with those very important 
issues.
  Faced with these and many other pressing issues and faced with a 
tight schedule, what does the leadership propose? They propose to spend 
30 hours of our time, and far more time in preparation and staff hours, 
overtime for police officers and multitudes of others who are here for 
these 30 hours, debating four or five judicial nominees, all of whom 
have been debated, generated significant opposition where they live and 
work. All have been given adequate review time, and all of whom, in my 
judgment, should not be promoted to a lifetime appointment on the 
Federal bench.
  Instead of focusing so much time and attention trying to promote a 
lifetime position for these individuals who already have very good 
jobs, my wish would be that President Bush and the Republican 
leadership would focus more of our time on issues that truly impact the 
lives of all of our constituents, and particularly the lives of the 
Arkansans I represent--issues such as creating good paying jobs in 
Arkansas, improving public education and expanding access to affordable 
health care and prescription drugs for our seniors, and, yes, providing 
something we all have agreed would make a big difference in people's 
lives: a refundable child tax credit, something that got overwhelming 
support in the Senate but is buried in a couple of conferences and 
here, there, and yonder because it is not a priority.
  Those people in this country who make between $10,500 and $26,650 are 
not important enough for us to deal with. Somehow they don't work hard 
enough, although they have to work, they have to bring home a paycheck, 
and they have to be raising children to be eligible for a refundable 
child tax credit. But for some reason, they are not a priority here 
anymore.
  We could have done that months ago, but we didn't. Here we approach 
the holidays, people have been in school, a multitude of needs that 
families across this country have, and we fail once more to even look 
at the small ways we can be helpful.
  There are any number of issues that merit careful and lengthy 
consideration in the Senate, but filling a handful of judgeships should 
not be given a priority given the backlog of pressing issues the Senate 
has yet to complete this year.
  Unfortunately, this is a manufactured crisis to distract the American 
people from the very real crises that we are going through; the ones 
that we are facing, such as the fact that in the next 15 to 20 years, 
we are going to go from 41 million Americans over the age of 65 to over 
70 million Americans over the age of 65. We as a nation are so 
completely underprepared for that crisis.
  We have 126 medical schools in this country. Only three of them have 
a department in geriatrics. We are training less geriatricians, and we 
are training even less academic geriatricians who will teach those 
geriatricians who might be there to take care of me, and I am the 
youngest in this body.
  We are so underprepared with health care, a reform in Medicare, and a 
prescription drug package to meet these unbelievable numbers that will 
cause a crisis in this country.
  We are here tonight, tomorrow, until midnight tomorrow talking about 
four people who did not get a job they wanted. It is unbelievable.
  What about our children? What about educating our children to be 
prepared in the 21st century, to be competitive in a global economy, 
teaching our children the skills they are going to need to be 
competitive? They are the future of this country. They are our future 
workers. They are our future leaders.
  We came up with a great bipartisan bill to educate our kids, and we 
do not have the guts to pay for it. Out of the $8 billion for the 
education plan for our kids, we are only funding $2 billion of it from 
the President's budget, a quarter. I have to say, that is a misspent 
priority there.
  We have record deficits that are going to be heaped on the shoulders 
of our children. Sixty-six percent of that debt comes due in 4 years. 
What happens to our constituents if all of a sudden somebody comes up 
and says, ``Guess what, your debt is due and I want it on demand. No, 
you cannot refinance, no way. I am going to call that debt on you''?
  These are serious crises we should be addressing and we are spending 
our time pointing fingers and not addressing the issues of the American 
people.
  We have a conflict in Iraq that is taking the lives of American 
soldiers every day, and there is no end in sight. These are crises, not 
the fact that four people who wanted a job did not have the support of 
enough Senators and that is what we are spending all this time on.
  Today, 95 percent of Federal judicial seats are filled. This is the 
lowest number of judicial vacancies in 13 years. This 5 percent vacancy 
rate is lower than the U.S. unemployment rate and the poverty rate, and 
I know because I represent a State that is very high in poverty. I come 
from one of the 20 highest poverty counties in the country.
  Today there are more lifetime-appointed Federal judges serving than 
at any time in our Nation's history. Furthermore, since President Bush 
was elected, the Senate has confirmed 168 Federal judges and rejected 
only 4--2 percent of his nominees.
  By comparison, when Republicans controlled the Senate during 
President Clinton's administration, more than 60, or 20 percent, of his 
nominees never received a vote in the Senate.
  Sadly, I think the Senate's record on this matter truly speaks for 
itself. I believe all executive and judicial nominations that come 
before the Senate are

[[Page 28651]]

entitled to courtesy and respect, but I also believe the Senate's role 
of advice and consent is a very important check and balance our 
forefathers designed and instituted. It is an obligation I do not take 
lightly.
  Senators are not elected to play a ceremonial role in the nomination 
process. This is not an issue of whether one likes the President or 
does not like the President. This is not an issue of whether one thinks 
these nominees are good people. They are all good people. Ours is not a 
ceremonial role in this nomination process. Instead, we have an 
obligation to carefully consider each nominee individually, to help 
ensure the judiciary is fair and balanced and to ensure the American 
public maintains faith in our judicial branch of Government. We have a 
responsibility to make sure these judicial nominees will not be 
partisan in their decisionmaking, that they will not be biased or 
partial to their own personal beliefs, but will institute the rule of 
law, the Constitution, and the precedent of the higher courts.
  Given the undue attention that has been lavished on these four 
nominees, I certainly believe it is worth revisiting a bit of their 
cases just to reconsider why they have not been confirmed. In each 
case, it is clear each of the nominees who has not been confirmed has 
shortcomings that in my opinion disqualify these individuals for the 
important positions to which they have been nominated. This does not 
mean I do not think they are good people. It does not mean I do not 
like the President. It simply means I am doing the job the people of 
Arkansas sent me here to do, to evaluate these people.
  When we look at Ms. Owen, after reviewing the record and meeting with 
Judge Owen, discussing her tenure with members of the bar who practice 
in Texas and in Arkansas, I was not satisfied this nominee could set 
aside her personal views and give each side a fair hearing. She had not 
in the past. In some instances, it is not just me. Judge Owen's own 
colleagues have criticized her failing to understand and abide by the 
plain meaning of statutory provisions before her as a judge on the 
Texas Supreme Court.
  Likewise, we look at the case of Alabama's Attorney General William 
Pryor. He is one of the most strident and outspoken nominees we have 
seen. After reviewing some of the statements General Pryor has made 
about sitting Supreme Court Justices and the decisions of that Court, I 
am concerned that he does not possess the necessary judgment and 
temperament to be a Federal judge, to oversee that element of the 
judiciary.
  Judge Pickering of Mississippi, who I do think is a good man, has 
also been invoked in this debate and his record does bring me concern. 
His record raises serious questions about his ethical conduct on the 
bench. His repeated contacts with the Justice Department in an attempt 
to obtain a lesser prison sentence for a convicted defendant, and his 
solicitations of letters of recommendation from lawyers in Mississippi 
who had cases before him are well-known examples.
  Finally, consider the case of Miguel Estrada, who withdrew himself 
from consideration earlier this year. By many accounts, Mr. Estrada was 
a distinguished attorney with a very talented legal mind. However, when 
we in the Senate attempted to verify this assessment by asking Mr. 
Estrada to come before the Judiciary Committee to answer additional 
questions and submit all of the relevant information that was 
necessary, and the burden of proof was in his court--we asked the same 
of President Clinton's nominees--Mr. Estrada indicated he would rather 
not. To me, and many of my colleagues, Mr. Estrada's response simply 
was not acceptable.
  It is important to note there are good, solid reasons as to why these 
people were not confirmed. These reasons had nothing to do with any 
personal beliefs or characteristics. They had nothing to do with 
partisanship. They had nothing to do with working against the 
President. I opposed these nominees because I am not convinced they 
meet the requirements of what is expected of those who receive a 
lifetime appointment to the Federal bench. That is my job.
  Again, these are 4 nominees. Out of 172, 4 have not been confirmed. 
Do 4 nominees constitute any sort of judicial crisis? Of course not. Of 
course they do not. If we do math, the Senate has confirmed 98 percent 
of President Bush's nominees. I do not know about you, but you are 
right in that we do not want our automobile to work at 98 percent, but 
let me tell you 98 percent is pretty good. It is not 100 percent, but 
that makes me think about my kids. If they come home from school after 
they make 98 on their test, am I going to send them to their room? Am I 
going to punish them for that? Am I going to say, well, I cannot 
believe you did not do 100? No.
  What I am going to do for my children is what we should be doing. I 
am going to sit down with them and I am going to help them reach 100 
percent. I am going to work with them. That last 2 percent may be the 
most difficult, but the most difficult is worth working towards. When 
we work together, we can get there. In working together, we could reach 
that. But the administration does not want to do that. No, telling them 
they had not done good enough is not what I would do. I would work hard 
with them to get to where we needed to be.
  It is my sincere belief if President Bush would make a good-faith 
effort to work with Democrats in a spirit of cooperation, all of his 
nominees would be confirmed, with little or no controversy or 
opposition. Unfortunately, it has become apparent the President is more 
interested in staging a fight and casting blame, which is really a 
recipe for gridlock. In gridlock, the only ones who get hurt are the 
American people.
  It is disappointing the President and the Senate leadership are 
expending so much time and energy to secure jobs for four people who 
already have good jobs, particularly considering the millions of people 
who are out of work and finding it increasingly difficult to make ends 
meet. The people who lose out in this fictional crisis are the American 
people. Tying up the Senate for 30 hours on 4 judicial nominees means 
we are not talking about the issues that matter most to the people we 
represent. It means we are not talking about how we are going to finish 
that prescription drug bill in order to help seniors cope with the 
rapidly rising cost of those prescription drugs. It means we are not 
spending our time focused on improving our schools and educating our 
children, so they can get the best possible start towards competing in 
that global marketplace. It means we are not doing all we can to create 
jobs and move our economy forward. It means we are not building that 
infrastructure that is so necessary in rural America and elsewhere 
across this country.
  Just this week, I learned Arkansas has experienced its highest rate 
of unemployment in a decade. While my colleagues on the other side of 
the aisle point to the improving economic indicators as evidence that 
the doldrums are behind us, I can assure them that for most people in 
Arkansas those numbers are just abstractions. They want to see jobs, 
and they want to see real action in the Senate to get things done on 
behalf of the voters who sent us here.
  Unfortunately, I think we have taken this time and used it most 
unproductively. Many Members have come to the floor tonight to talk 
about the past. I have heard some very eloquent speeches about their 
times as pages and debates they have heard, many quoting history from 
centuries ago. I think the most important thing we can talk about 
tonight is the future. I think we must talk about the future. I think 
we must talk about all of these crisis issues we are faced with, and I 
think we must come back to our children and let that be our focal 
point.
  All of us in this body are so blessed. I started out speaking about 
how blessed I feel to even be in this body, to be in this place 
tonight, to be a part of an institution that is so incredible that it 
has lasted over 200 years. We are all blessed in many things, and for 
whatever faults some people may find in our Government, I believe, and 
I think the American people believe, we still live

[[Page 28652]]

in the greatest country on the face of this Earth.
  Tonight I looked at one of my greatest blessings, my children. I put 
them in bed before I came over. I tucked them in. I thought about what 
we were going to talk about tonight. I thought about this great country 
we live in. I thought about the conflict in Iraq. There were mothers 
who were putting their children to bed tonight whose husbands may be 
stationed abroad. There were children who were being put in bed tonight 
tucked in by their grandparents because their mothers had been called 
up and were in a strange and dangerous land. I thought about the fact 
my children are so blessed to live in this country under a rule of law 
that separates us from the rest, a rule of law that, when it is 
administered without bias, without the interjection of political issues 
or personal views, can create security and safety. It creates freedom. 
It creates a life I want my children to have.
  I look in the eyes of mothers across the globe who do not put their 
children to bed in a nice, warm home, who have not been fed. They live 
in violence and terrorism. They live in a land that is stricken with 
famine because there is no rule of law, or what law exists is 
implemented through a political regime. That is what separates us from 
them, that we have a system designed specifically to separate the 
political from the rule of law.
  I am proud to be here. I do not have the background many of my 
colleagues do, having been Governors and attorneys general, having 
served in this body for a long period of time, but I challenge any of 
them to match my pride, my pride of this country and in what that rule 
of law represents to me, not only as an American but as a mother and as 
a Senator.
  I have no qualms in doing my job the people of Arkansas sent me here 
to do, to make sure these individuals we send to the Federal bench to 
implement the rule of law in this Nation, the Constitution, and the 
precedent of the higher courts do not interject their political views, 
their bias, or their personal views because we know that through these 
years a nonbiased judicial branch of government has served us well. It 
is what has separated us from those countries that right now we work so 
hard to change.
  I yield time to my colleague who I am extremely proud to serve with, 
the other Senator from Arkansas.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. PRYOR. Mr. President, how much time do we have remaining?
  The PRESIDING OFFICER. Two and one-half minutes.
  Mr. PRYOR. Mr. President, in this 2\1/2\ minutes, I would like to 
thank some people for tonight. I would like to thank the staffers who 
are here on both sides. I would like to thank the Senate staff, the 
Sergeant at Arms staff, the doorkeepers, the cloakroom staff, all the 
various people who make the trains run on time around here, because I 
certainly understand they have families to go home to, that they have 
lives outside of these halls. I know the sacrifice they are making 
tonight to be here.
  I also want to thank my colleagues on the other side of the aisle for 
their viewpoints. We may differ on some of these issues, but I 
appreciate their opinions and respect their viewpoints and the 
zealousness by which they approach the subject at hand.
  I want to thank colleagues on my side who are here in the wee hours 
of the night and will be here throughout the day tomorrow to talk about 
these issues that are very important to the people of this country. I 
know members of the Senate on our side of the aisle are equally 
passionate about these issues. Some of this is a matter of opinion. 
Some of it is a matter of fact and history and tradition. Certainly 
people on this side of the aisle are very passionate about this.
  In the couple of minutes I have remaining, I want to acknowledge some 
of the hard work the people in this institution and around this 
institution have put into this 30-hour filibuster or marathon debate, 
whatever one wants to call it, because it has come at quite a sacrifice 
to the members of the staff in this body.
  Do I have any time remaining?
  The PRESIDING OFFICER. Twenty seconds.
  Mr. PRYOR. I would again thank my colleague from Arkansas. We have a 
great tradition in our State of sending strong Senators to Washington, 
and certainly Senator Lincoln is one of those. She shows great 
leadership not just for the State but for the Nation. I want to thank 
her for her contribution tonight.
  The PRESIDING OFFICER. The time of the minority has expired.
  The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I am very proud of the State I 
represent. The State of Georgia is, in my opinion, the greatest State 
in our country because that is where I come from, and I am very blessed 
to represent that State. A number of great individuals from our State 
have served in this very august body. We have had a tradition of strong 
leadership in the Senate from Georgia, the Walter Georges, the Richard 
Russells, the Sam Nunns, the Paul Coverdells.
  Outside of the Senate, we also have had a history of strong 
leadership coming from our State. For the past 30 years the man who has 
epitomized political leadership and strength in our State is now our 
senior Senator. It has been a great privilege and pleasure for me to 
have the opportunity, No. 1, to know this man over the past 35 years or 
so, but to have an opportunity to serve with him in the Senate and for 
him to be my senior Senator has truly been a great honor to me.
  It is with great pride, and I consider it a great privilege, to be 
able to yield such time as he may consume to the Senator from Young 
Harris, GA, senior Senator from Georgia, Mr. Miller.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. MILLER. Mr. President, I stand here proudly next to a copy of the 
U.S. Constitution. It is a document that has stood the test of time. It 
is a document that is revered throughout the world. As a history 
professor, I have read it many times. But I need to know tonight where 
in the U.S. Constitution does it say the President's nominees for the 
judiciary must have a supermajority to be confirmed? Where does it say 
that? I have searched high and low for that clause and that provision. 
I cannot find it. Maybe these old 71-year-old eyes are getting kind of 
dim. Perhaps I need a magnifying glass.
  I seek. I search. I hunt in vain. For is it not there. Even if I had 
the eye of an eagle I could not find it because it is simply not there.
  No, the U.S. Constitution says only the Senate is to advise and 
consent on the President's nominees. Somehow that has been twisted and 
perverted into this unmitigated mess we have today where 59 votes out 
of 100 cannot pass anything because 41 votes out of 100 can defeat 
anything. Explain that to Joe Sixpack in the Wal-Mart parking lot.
  Explain that to this man, James Madison, who wrote that Constitution. 
He predicted and he feared some day someone would try to finagle this 
system, that they would try to plot and conspire and pervert the 
process in just the way they have. James Madison warned about this in 
Federalist Paper 58. He said: If that should happen, ``The fundamental 
principle of free government would be reversed. It would be no longer 
the majority that would rule. The power would be transferred to the 
minority.''
  But don't just take my word for it. Look at others who are far 
smarter, far wiser than I will ever be and how they have expressed the 
kinds of things that are going on around here.
  On June 1, 1950, a brave woman who was then the Senator from the 
State of Maine, Margaret Chase Smith, gave one of the most courageous 
speeches ever given on the floor of this Senate. It has been called the 
``declaration of conscience'' speech. Senator Smith questioned what was 
happening at that time in the Senate. It was not about filibusters but, 
make no mistake, it was about intrigue, and it was about character 
assassination.
  Let me give you a few excerpts from Senator Smith:


[[Page 28653]]

       The United States Senate has long enjoyed worldwide respect 
     as the greatest deliberative body in the world. But recently 
     that deliberative character has too often been debased to the 
     level of a forum of hate and character assassination 
     sheltered by the shield of congressional immunity.

  She went on:

       It is ironic that we senators can during debate in the 
     Senate [and in committee], directly or indirectly, by any 
     form of words, impute to any American who is not a Senator 
     any conduct or any motive unworthy or becoming an American--
     and without that nonsenator American having any legal redress 
     against us.

  She went on:

       It is strange that we can verbally attack anyone without 
     restraint and with full protection, and yet we hold ourselves 
     above the same type of criticism here on the Senate floor. 
     Surely, the United States Senate is big enough to take self-
     criticism and self-appraisal. Surely we should be able to 
     take the same kind of character attacks we dish out to 
     others.

  She continued:

       I think it is high time for the United States Senate and 
     its members to do some real soul searching and to weigh our 
     consciences as to the manner in which we are performing our 
     duty for the people of America and the manner in which we are 
     using or abusing our individual powers and privileges.
       I think it is high time we remembered that we have sworn to 
     uphold and defend the Constitution. I think it is high time 
     that we remembered that the Constitution, as amended, speaks 
     not only of the freedom of speech but also of trial by jury 
     instead of trial by accusation.

  So said Margaret Chase Smith in 1950.
  Let me tell you what Thomas Sowell, in his recent book ``The Quest 
for Cosmic Justice'' writes about the role of a judge:

       The traditional conception of the role of judges was 
     expressed thousands of years ago by Aristotle, who said that 
     a judge should ``be allowed to decide as few things as 
     possible.'' His discretion should be limited to ``such points 
     as the lawgiver has not already defined for him.''
       A judge cannot ``do justice'' directly in the cases before 
     him. This view was strongly expressed in a small episode in 
     the life of Justice Oliver Wendell Holmes. After having lunch 
     [one day] with Judge Learned Hand, Holmes entered his 
     carriage to be driven away. As he left, Judge Hand's parting 
     salute was: ``Do justice, sir, do justice.'' Holmes ordered 
     the carriage stopped. ``That is not my job,'' Holmes said to 
     Judge Hand. ``It is my job to apply the law.''
       Elsewhere Holmes wrote that his primary responsibility as a 
     judge was ``to see that the game is played according to the 
     rules whether I like them or not.''
  Lastly, I want to quote a Georgian named Phil Kent. In his book ``The 
Dark Side of Liberalism,'' he takes the liberal argument in this 
controversy and states it. He says:

       The United States [according to the liberals, according to 
     the Democrats in this debate we are in today] comprises 
     diverse people and cultures. As such, judges should have the 
     power to change laws when circumstances dictate. The U.S. 
     Constitution is a document in flux, and is many times 
     irrelevant in modern society. Therefore, federal judges 
     should be chosen on the basis of their views or the positions 
     of their issues and should be tested on their ideologies.

  That is what the Democrats have been saying to us in all this debate. 
Then Kent answered that premise:

       We are a nation of laws, not of men. Our government is 
     constitutional, not political. Our highest court is the 
     arbiter of constitutional controversies, and the protector of 
     unalienable rights. As former President Ronald Reagan 
     underscored, ``Freedom is indivisible--there is no ``s'' on 
     the end of it. You can erode freedom, diminish it, but you 
     cannot divide it and choose to keep some freedoms while 
     giving up others.''
       Ignoring the law, whether seen as politically expedient or 
     ideologically sound, suggests that the courts are merely 
     devices to be used to change policy.
       The courts, however, are partners with specific duties 
     separate and apart from lawmaking and law execution. We've 
     missed that point as a nation for too long, to our great 
     peril.

  That brings me to this map of the United States. I ask you to look at 
the faces on this map. They are the faces of America. These are the 
faces of America. There is Miguel Estrada, who spoke little English 
when he came to this country as a teenage immigrant from Honduras. But 
a few years later, this immigrant graduated magna cum laude from 
Columbia College in New York and from Harvard Law School. He clerked 
for Justice Anthony Kennedy on the highest court in this land, the U.S. 
Supreme Court. He continued to soar with a very distinguished law 
career. Yet the Democrats in this Chamber have decided this man could 
not even have an up-or-down vote. It is a shame, and it is a disgrace.
  There is Bill Pryor, a devout Catholic and a southerner who grew up 
in a house where both John F. Kennedy and Ronald Reagan were revered. 
He graduated magna cum laude from Northeast Louisiana University and 
Tulane University Law School. He also has had a very distinguished law 
career, including winning statewide election twice as Alabama's 
attorney general. Yet the Democrats in this Senate will not give him an 
up-or-down vote.
  Then there is Charles Pickering, another southerner, a grandfather, a 
courageous and a deeply religious man. He graduated at the top of his 
law school class at the University of Mississippi, served in elective 
office for 12 years, practiced law for 30 years, and has served this 
country ably on the U.S. District Court since 1990. Yet the Democrats 
in this Senate refuse to give Judge Pickering an up-or-down vote.
  There is Priscilla Owen, who grew up on a farm in rural Texas and 
later rose to win election to the Supreme Court of Texas. Along the way 
she graduated in the top of her class at Baylor University Law School 
and practiced law for 17 years. In her successful reelection bid to the 
Supreme Court in 2000, every major newspaper in Texas endorsed her. Yet 
in this Senate, this woman cannot get an up-or-down vote.
  Finally, there is Janice Rogers Brown. I have spent a lot of time 
with this woman. I have read dozens of her speeches. I love and admire 
her. The daughter of an Alabama sharecropper who rose to serve on the 
California Supreme Court, she attended segregated schools until she was 
in high school and decided to become a lawyer after seeing African-
American attorneys in the civil rights movement praised for their 
courage. In 1998, 76 percent of Californians voted to retain Justice 
Brown, an approval rating most of us can only dream of. Yet this 
African-American woman will not be given an up-or-down vote because the 
Democrats in this Chamber refuse to let her do it. They are standing in 
the doorway and they have a sign: Conservative African-American women 
need not apply, and if you have the temerity to do so, your reputation 
will be shattered and your dignity will be shredded. Gal, you will be 
lynched.
  These are the faces of America, men and women who pulled themselves 
up, who worked hard, who played by the rules, and excelled in the field 
of law, and now all of their hard work and success has landed them in 
the doorway of the Senate, and each one of them is having that door 
slammed in their faces. The very least they deserve, the very least 
they deserve is an up-or-down vote. Surely, in the name of all that is 
fair and reasonable, surely, in the name of James Madison, surely in 
the United States of America in 2003, that is not too much to ask, just 
an up-or-down vote, just an up-or-down vote, just an up-or-down vote.
  The majority of this Senate deserves to have its voice heard.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I thank my colleague from Georgia for 
his always direct, forthright, from-the-heart statement. He knows he 
and I share an awful lot with respect to this issue and so many others. 
Again, it has been a pleasure for me to serve with him.
  I want to talk about one of the men he just mentioned who is one of 
the faces on that map and is one of the individuals who is being 
filibustered. That is Judge Charles Pickering.
  What an injustice to an individual is being carried out with respect 
to the filibuster of the nomination of Judge Charles Pickering to the 
Fifth Circuit Court of Appeals. I feel a very special relationship to 
the Fifth Circuit because when I began practicing law in 1969, I was a 
member of the Fifth Circuit. At that point in time, all of Georgia was 
a part of the Fifth Circuit.
  Then I believe it was 1979 or 1980, we split off. We became the 
Eleventh Circuit and the Fifth Circuit became the

[[Page 28654]]

circuit that handled cases from Texas, Louisiana, and Mississippi.
  This man, Charles Pickering, grew up in Mississippi. It has been said 
by his critics on the other side of the aisle--and I quote because I 
was in the chair presiding Monday when this statement was made by one 
of the individuals from the other side of the aisle on the floor, in 
talking about his record on race, ``He has a bad record.''
  Nothing could be further from the truth. Judge Pickering has been a 
strong advocate of the civil rights movement since the very early days 
of his career. Judge Pickering was one who came through a very 
difficult time in the history of our country, particularly coming from 
the South. Those of us who grew up in that same South, particularly in 
the rural South during those days, know the difficult times we faced 
and how far we have come since then. We are still not where we need to 
be. But boy, what strides we have made. It is only because of men like 
Judge Charles Pickering that we have made those strides.
  So for anybody to say this man has a bad record on race is simply not 
just incorrect, but it does a grave injustice to a man who worked so 
hard to make sure civil rights did come to his part of Mississippi.
  Judge Pickering, in 1967--you have to think back. In rural 
Mississippi, a part of Mississippi where the Ku Klux Klan, which today 
we would brand as terrorists--at that point in time, they were very 
active in that part of Mississippi. Judge Pickering stood face to face, 
eye to eye with the Ku Klux Klan. He went to court and testified 
against the Imperial Wizard of the Ku Klux Klan in Mississippi. For 
those who had not lived through that time, you cannot have a real 
appreciation for what he did, how brave, courageous, and how much 
integrity this man showed by doing this. He testified against the 
Imperial Wizard in a criminal action, in which the Imperial Wizard of 
the Ku Klux Klan was charged with the murder of a man named Vernon 
Dahmer.
  Unfortunately, although Judge Pickering did that, now on the floor of 
this Senate it is said he has a bad record when it comes to civil 
rights. Judge Pickering is a strong, religious man. He has a very 
strong faith. He believed there ought to be equality among children in 
schools. For that reason, he made sure his children went to integrated 
schools from the very first day they were eligible to go to school.
  Again, for those of us who grew up in the South during those days 
when integration began, this was not a very popular thing to do in the 
white community, to say the least. But Judge Pickering, again, stared 
racial injustice in the eye and he said we have to do the right thing 
and we have to make sure all of our children have an equal opportunity, 
so he sent his children to the same schools as the African-American 
community sent their children to during, again, this very difficult 
time.
  The list goes on and on about what Judge Pickering has done with 
respect to race relationships, from organizing local committees, to 
organizing statewide committees dealing with the issue of racial 
justice in the State of Mississippi.
  Judge Pickering served on the Federal bench in the district court 
where he lived for several years. He has been criticized for having a 
bad judicial record. Well, let me tell you about his judicial record. 
Some 99.5 percent of his cases have either been affirmed or not 
appealed--99.5 percent. They have either been affirmed or not appealed. 
Of those appealed, Judge Pickering has only had a reversal rate of 7.9 
percent, which is 20 percent lower than the U.S. Department of 
Justice's national average of 9.1 percent, and 2 times lower than the 
average district court judge under the Fifth Circuit Court of Appeals.
  Judge Charles Pickering is not just a good man, Judge Charles 
Pickering is an outstanding judge. This is the kind of man the folks on 
the other side of the aisle are being obstructionist about and are not 
allowing an up-or-down vote with respect to his confirmation on the 
floor of the Senate. It is wrong, it is unjust, and it ought not to 
continue.
  I want to talk to you about one other individual very quickly, and 
that is Miguel Estrada. Miguel Estrada has withdrawn his nomination, 
after being under consideration for years. He decided he was not going 
to put his family through this any longer and he decided the best thing 
to do was withdraw his nomination and move on.
  Miguel Estrada came to the United States as a teen from Honduras. He 
spoke very little English. He made sure he learned English quickly 
enough to enter school and he graduated cum laude from undergraduate 
school and went to Harvard Law School, where he graduated with honors 
and was a member of the Harvard Law Review. He has given his life to 
public service. Most recently, his public service included being in the 
office of the Solicitor General of the United States of America under 
both a Republican President, President George Herbert Walker Bush, and 
a Democratic President, Bill Clinton. In both instances, he served 
under a Solicitor General who has now come forward and said this man is 
a good man, an outstanding lawyer, and this man deserves to be 
confirmed to the DC Circuit Court of Appeals.
  Obstruction came from the other side of the aisle, and they would not 
even give Miguel Estrada an up-or-down vote to confirm his nomination 
to the DC Circuit Court of Appeals.
  I want to spend the last part of my time here talking about this 
issue of cloture. The Senate has operated under various different rules 
on cloture, which is the ability of the Senate body to terminate debate 
on a pending matter. From 1789 until 1806, the Senate cloture rule 
allowed debate to be shut off by a simple majority vote. For 17 years 
after the country began operating under the U.S. Constitution, the 
Senate rules provided a simple majority vote was all that was needed to 
cut off debate.
  In 1806, the Senate eliminated its first cloture rule which, in 
effect, put the Senate under a system where unanimous consent was 
required to end debate. This unanimous consent system lasted for over 
100 years and survived 3 unsuccessful attempts to bring back some sort 
of cloture rule.
  In 1917, the Senate filibustered a proposal supported by President 
Woodrow Wilson to arm American ships against German submarines, prior 
to America's entry into World War I. This filibuster was rather 
controversial and led to support for the Senate approving the first 
version of today's cloture rule, which is rule XXII. That required a 
vote of two-thirds present and voting to end debate on ``pending 
measures.''
  Rule XXII was again amended in 1949 to extend cloture to any measure, 
motion, or other matter, but cloture became inapplicable to any rule 
change, making it more difficult to change the rules again. Part of 
this 1949 rule change raised the required number of Senators for 
cloture from two-thirds of those present and voting to two-thirds of 
all Senators.
  Ten years later, in 1959, rule XXII was extended to rule changes, but 
the number of required Senators was moved back to two-thirds of those 
present and voting. In 1975, our esteemed senior Senator from West 
Virginia, Senator Byrd, championed another amendment to rule XXII that 
changed the required number of Senators for cloture to three-fifths of 
Senators duly sworn and chosen--in other words, a hard 60 Senators, 
without regard to how many are present and voting. The 1975 rule change 
left the cloture requirement for rule changes at two-thirds of Senators 
present and voting.
  In 1979, Senator Byrd again proposed another amendment to rule XXII. 
This time, the amendment imposed a 100-hour limit on post-cloture 
debate. This was reduced to 30 hours in 1986.
  We started off in 1789 with the cloture rule that closed off debate 
by a simple majority vote. The original rule was clearly constitutional 
because it didn't impose more than a simple majority to end debate and 
proceed to the question of an up-or-down vote on the President's 
nominees. Now it is interesting, and I think very telling, that the 
Framers of the Constitution set out only five instances where they 
thought the Senate needed more than a

[[Page 28655]]

simple majority vote to act. That is what is referred to as a 
supermajority, such as three-fifths, two-thirds, and such--anything but 
a simple majority.
  Those five instances requiring a supermajority are: impeachment, 
expulsion of a Senator, the override of a Presidential veto, 
ratification of a treaty, and adoption of a constitutional amendment.
  I ask unanimous consent that I be allowed to continue and that my 
time be taken off of the next hour, same as we have been doing.
  The PRESIDING OFFICER. Is there objection?
  Mr. DASCHLE. I have no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CHAMBLISS. I thank the minority leader.
  In contrast, the approval of Federal judges should occur frequently. 
I would go so far as to say 100 percent of all qualified nominees 
should be approved by the Senate. This is why there is no requirement 
in the Constitution for more than a simple majority to confirm these 
nominees. The Constitution charges this body with the responsibility of 
advice and consent on the President's nominations.
  With this in mind, when the Senate began operations, it required only 
a simple majority vote to end a filibuster. We have come a long way in 
the last 214 years. As you have just heard, we have tinkered with the 
cloture rule on a number of occasions. I am of a mind that the number 
of cloture rules we have had since the original rule were, or are, 
unconstitutional, including the present rule XXII, where they are 
applied to prevent a majority of Senators from confirming the 
President's judicial nominees. But that has never happened before this 
year. We have never in our Nation's history had a minority of Senators 
try to prevent a vote on the President's nominees under the guise of 
rule XXII.
  By acting in this way, a minority of Senators has found a way to make 
the cloture rule unconstitutional in practice. The Framers of the 
Constitution knew the situations where they wanted more than a simple 
majority for the Senate to act. Confirmation of the President's 
nominees was not one of these instances.
  If you look at the text of article II, section 2, in the second 
paragraph, you see in the very same sentence where the Framers require 
two-thirds of Senators present to ratify a treaty, they charge the 
Senate with responsibility for advice and consent without a word said 
about a supermajority requirement; just a simple majority is clearly 
all they thought was needed to advise the President.
  With respect to the Senate's consideration of nominees, I think the 
only constitutional cloture rule we have ever had was the first one, 
which stood for the first 17 years the Senate was in operation. We have 
tolerated a number of different accommodations over the years, 
including the absence of any cloture rule for over 100 years, where we 
could only end debate by unanimous consent and a lot of other 
compromise cloture rules along the way. Ultimately, what decides 
whether a rule is constitutional is whether 51 Senators say it is 
constitutional.
  We have another proposal offered this year to resolve the impasse 
that has prevented the Senate from discharging its constitutional duty 
to advise the President on nominations of the individuals we are here 
talking about.
  Senate Resolution 138, of which I am a cosponsor, was introduced by 
Majority Leader Frist and has bipartisan support from the senior 
Senator from my State, Senator Miller, who is an original cosponsor of 
the resolution.
  S. Res. 138 is a reasonable compromise to break the impasse we now 
face. Instead of setting a fixed supermajority requirement of 60 votes 
to end debate and bring a nominee to a vote, S. Res. 138 starts with a 
60-vote requirement and gradually reduces the number of necessary votes 
until ultimately a simple majority of Senators present on the floor can 
decide whether to consent to the President's nominee. While respecting 
that the filibuster has a historic role in the Senate, this bill 
assures that, ultimately, the will of the majority will prevail. Over 
the past few years, measures similar to S. Res. 138 have received 
bipartisan support at various times.
  We have a history of support of this concept from people on both 
sides of the aisle for a needed change to the cloture rule. Now is the 
time to come together and make it happen. We can end this filibuster by 
cooperation in a bipartisan fashion, or we will have to decide other 
options that might work.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The minority leader is recognized.
  Mr. DASCHLE. Mr. President, when will the Democratic allotment of 
time expire?
  The PRESIDING OFFICER. At 3:05.
  Mr. DASCHLE. I thank the Chair for the information.
  Mr. President, the distinguished Senator from Arkansas has been a 
stalwart participant during the wee hours here. I want to publicly 
acknowledge his presence and laud him for his willingness to not only 
be on the floor, but to stay on the floor. I asked if he would mind if 
I would take a couple of minutes, and then I will relegate the balance 
of time for this allotment to him. He has some important remarks to 
make and I, like others, would like to hear him.
  Let me respond briefly to the comments made by the distinguished 
Senator from Georgia. He noted, of course, that the Constitution 
provides the authority to the Senate to write its rules. That, in 
essence, is what we have done, as he has also noted. There have been 
various ways with which the Senate addressed the issue of unlimited 
debate, which is the essence of this institution. Having unlimited 
debate means an opportunity for Senators to be heard for whatever 
length of time, but it also means an opportunity to protect the 
minority--the minority being whatever the case may be, whether it is a 
political minority, ethnic minority, minority on a given issue, 
regardless. That was really the essence of what the Founding Fathers 
saw with regard to the delegation of this authority to the Senate to 
write its rules with an expectation that filibusters, this extended 
debate, would be part of the deliberative spirit and soul of this body.
  But my colleague from Georgia fails to recognize, and certainly 
others have ignored the number of times our Republican friends have 
used the rules of the Senate, the filibuster, to advance their 
position. There have been a number of occasions over the course of the 
last three decades where filibusters and cloture votes have been cast. 
There were 63 occasions where nominees from the Clinton administration 
did not even reach the floor because of an effective filibuster within 
the committee. One Senator would say: I will not allow this nominee to 
go forward. That assertion was respected and, ultimately, 63 of the 
Clinton nominees never got out of committee because of a Republican 
filibuster. That has not happened, of course, during this Congress. The 
Republicans have moved their nominees at will, and the only option we 
have available to us, of course, is to vote either against or for the 
nominee in committee, and then on cloture as some of these nominees 
with whom we have grave concern come to the Senate floor.
  No. 1, this is not unprecedented. No. 2, it was used to a far greater 
degree by our Republican colleagues during the 8 years of the Clinton 
administration--as I said, on 63 occasions.
  That issue should not be debated. It is not even arguable. I don't 
think this debate should be about 4 jobs, which, by the way, are 
generating incomes of over $100,000. It is our view that the debate 
tonight should be about the 3 million jobs that have been lost under 
this administration and the 9 million jobs which are lost and for whom 
people are attempting to find some way to survive financially and 
economically.
  Those 3 million jobs have been lost, in our view, because of a 
mismanaged economy that needs to be addressed if indeed we are going to 
bring this economy back. All one has to do is look at the comparison 
between the Clinton and Bush administrations to gain some understanding 
of the degree of difference between the Democratic approach and the 
Republican approach to

[[Page 28656]]

the economy. The Clinton administration created 22 million jobs in 8 
years. The Bush administration has lost 3 million jobs in 3 years. Our 
view is, if we are ever going to turn this around, it is important we 
do three things.
  First and foremost, we address the concerns of those who are 
unemployed today by providing unemployment compensation beyond the 
limits that have now been put in place. There are too many people who 
have, through no fault of their own, been unable to get employment and 
who have run out of unemployment benefits. We need to address that. I 
hope the Senate will do so before we leave this year.
  The second thing we need to do is to ensure those who are employed 
have the kind of incomes they deserve. That means, in some cases, 
increasing the minimum wage for the first time in now almost 7 years 
and addressing the fact that at minimum wage we are at the lowest 
purchasing power in the history of minimum wage.
  It also means we protect people's overtime. Contrary to what the 
administration would like to do, we need to ensure those 8 million 
people who could see their overtime lost are provided the confidence 
and the knowledge they will not lose the overtime and will be 
compensated as we have done now for almost 70 years, for time they have 
worked over a 40-hour work week.
  Finally, I think it is critical we understand we must provide some 
relief for the extraordinary costs our working people especially are 
facing with regard to health care. Health insurance costs have 
skyrocketed--some 15 percent a year.
  There are a number of ways with which to create jobs--the highway 
bill, the manufacturing job tax credit. We offered tonight unanimous 
consent requests with the hope our colleagues might join us in at least 
allowing this legislation to go forward. Obviously they have objected. 
But that is the first thing we need to do--create the jobs for those 3 
million people who have lost their jobs in this administration.
  Second, we need to ensure the incomes of those who are working are 
protected.
  Third, I hope we can recognize that, even with incomes, they can't 
afford their health insurance today unless we help them to find ways in 
which to bring its cost down.
  There is a lot more to talk about with regard to jobs and this 
economy, but as I said, the distinguished Senator from Arkansas has 
been waiting. He has done an extraordinary job of representing this 
caucus on the Senate floor and I yield the floor now for his remarks.
  The PRESIDING OFFICER (Mr. Chafee). The Senator from Arkansas.
  Mr. PRYOR. Mr. President, I would like to acknowledge and thank my 
colleague from South Dakota, who has done such an outstanding job 
tonight, and always.
  Tonight I would like to read a portion of a book that won the 
Pulitzer Prize recently. It is called ``Master of the Senate.'' It is 
about Lyndon Baines Johnson as a Senator, not as President. It was 
written by Robert Caro. It is 1,040 pages. I assure you I am not going 
to read all thousand pages tonight. I am just going to read a few 
excerpts from chapter one. Chapter one is entitled ``The Desks of the 
Senate.'' I am only going to read a small portion of chapter one. I 
will be starting on page 3. But I think it is important for us to all 
put this in context and remember what the Senate is all about and how 
it works and how it is designed to function within our constitutional 
system. So, if I may start midway down, on page 3.

       When a person stood on the floor of the Senate Chamber, 
     however--in the well below the dais--the dais was, suddenly, 
     not plain at all. Up close, its marble was a deep, dark red 
     lushly veined with grays and greens . . .

  In fact, on this pilaster behind me you can see those colors Mr. Caro 
is referring to here.

     . . . and set into it, almost invisible from the galleries--

  We have a number of people in the gallery tonight.

     . . . almost invisible from the galleries, but, up close, 
     richly glinting, were two bronze laurel wreaths like the 
     wreaths that the Senate of Rome bestowed on generals with 
     whom it was pleased, when Rome ruled the known world--and the 
     Senate ruled Rome.
       From the well, the columns and pilasters behind the dais 
     were, suddenly, tall and stately and topped with scrolls, 
     like the columns of the Roman Senate's chamber, the columns 
     before which Cato spoke and Caesar fell, and above the 
     columns, carved in cream-colored marble, were eagles, for 
     Rome's legions marched behind eagles. From the well, there 
     was, embroidered onto each pale damask panel, an ornament in 
     the same pale color and all but invisible from above--a 
     shield--and there were cream-colored marble shields, and 
     swords and arrows, above the doors. And the doors--those 
     seven pairs of double doors, each flanked by its tall columns 
     and pilasters--were tall, too, and their grillwork, hardly 
     noticeable from above, was intricate and made of beaten 
     bronze, and it was framed by heavy, squared bronze coils. The 
     vice presidential busts were, all at once, very high above 
     you; set into deep, arched niches, flanked by massive bronze 
     sconces, their marble faces, thoughtful, stern, encircled the 
     Chamber like a somber evocation of the Republic's glorious 
     past. And, rising from the well, there were the desks.

  Let me pause here because these desks have a lot of history. In fact, 
I think it is safe to say almost all of American history in some way or 
another has flowed through the Senate. I don't think that is an 
overstatement.

       The desks of the Senate rise in four shallow tiers, one 
     above the other, in a deep half circle. Small and spindly 
     individually, from the well they blend together so that with 
     their smooth, burnished mahogany tops reflecting even the dim 
     lights in the ceiling so far above them, they form four 
     sweeping, glowing arcs. To stand in the well of the Senate is 
     to stand among these four long arcs that rise around and 
     above you, that stretch away from you, gleaming richly in the 
     gloom: powerful, majestic. To someone standing in the well, 
     the Chamber, in all its cavernous drabness, is only a setting 
     for those desks--for those desks, and for the history that 
     was made at them.
       The first forty-eight of those desks--they are of a simple, 
     federal design--were carved in 1819 to replace the desks the 
     British had burned five years before. When, in 1859, the 
     Senate moved into this Chamber, those desks moved with them, 
     and when, as the Union grew, more desks were added, they were 
     carved to the same design. And for decades--for most of the 
     first century of the Republic's existence in fact; for the 
     century in which it was transformed from a collection of 
     ragged colonies into an empire--much of its history was 
     hammered out among those desks.
       Daniel Webster's hand rested on one of those desks when, on 
     January 26, 1830, he rose to reply again to Robert Hayne.

  I am not going to go into that story because it should be known by 
most people who follow Senate history, one of the more famous exchanges 
in the history of the Senate. Let me skip on to page 7 and talk about 
what I really think is important for us to consider this morning:

       The long struggle of the colonies that were now become 
     states against a King and the King's representatives--the 
     royal governors and proprietary officials in each colony--had 
     made the colonists distrust and fear the possibilities for 
     tyranny inherent in executive authority. And so, in creating 
     the new nation, its Founding Fathers, the Framers of its 
     Constitution, gave its legislature or Congress not only its 
     own powers, specified and sweeping, powers of the purse (``To 
     lay and collect Taxes . . . To borrow Money on the credit of 
     the United States . . . To coin Money'') and powers of the 
     sword (``To declare War, grant Letters of Marque and Reprisal 
     . . . To raise and support Armies . . . To provide and 
     maintain a Navy . . .'') but also powers designed to make the 
     Congress independent of the President and to restrain and act 
     as a check on his authority: power to approve his 
     appointments, even the appointments he made within his own 
     Administration, even appointments he made to his own Cabinet; 
     power to remove his appointees through impeachment--to remove 
     him through impeachment, should it prove necessary; power to 
     override his vetoes of their Acts. And the most potent of 
     these restraining powers the Framers gave to the Senate. 
     While the House of Representatives was given the ``sole power 
     of Impeachment,'' the Senate was given the ``sole power to 
     try all Impeachments'' (``And no person shall be convicted 
     without the Concurrence of Two Thirds of the Members 
     present''). The House could accuse; only the Senate could 
     judge, only the Senate convict. The power to approve 
     presidential appointments was given to the Senate alone; a 
     President could nominate and appoint ambassadors, Supreme 
     Court justices, and all other officers of the United States, 
     but only ``by and with the Advice and Consent of the 
     Senate.'' Determined to deny the President the prerogative 
     most European monarchs enjoyed of declaring war, the Framers 
     gave the power to Congress as a whole, to House as well as 
     Senate, but

[[Page 28657]]

     the legislative portion of the power of ending war by 
     treaties, of preventing war by treaties--the power to do 
     everything that can be done by treaties between nations--was 
     vested in the Senate alone; while most European rulers could 
     enter into a treaty on their own authority, an American 
     President could make one only ``by and with the Advice and 
     Consent of the Senate, provided two thirds of the Senators 
     present concur.''

  I will skip to page 8. It is a discussion of James Madison, the 
primary designer of our constitutional system of government. Certainly 
it was a committee effort, but James Madison has been historically 
credited with playing the major role in its creation, in its design:

       How, Madison asked, is ``the future danger''--the danger of 
     ``a leveling a spirit''--``to be guarded against on 
     republican principles? How is the danger in all cases of 
     interested coalitions to oppress the minority to be guarded 
     against? Among other means by the establishment of a body in 
     the government sufficiently respectable for its wisdom and 
     virtue, to aid on such emergencies, the preponderance of 
     justice by throwing its weight into that scale.'' This body, 
     Madison said, was to be the Senate. Summarizing in the 
     Constitutional Convention the ends that would be served by 
     this proposed upper house of Congress, Madison said they were 
     ``first to protect the people against their rulers; secondly 
     to protect the people against the transient impressions into 
     which they themselves might be led.''
       ``The use of the Senate,'' Madison said, ``is to consist in 
     its proceeding with more coolness, with more system, and with 
     more wisdom, than the popular branch.'' It should, he said, 
     be ``an anchor against popular fluctuations.'' He drew for 
     parallels on classical history, which, he said, ``informs us 
     of no long-lived republic which had not a Senate.'' In two of 
     the three ``long-lived'' republics of antiquity, Sparta and 
     Rome, and probably in the third--Carthage (about whose 
     governmental institutions less was known)--senators served 
     for life. ``These examples . . . when compared with the 
     fugitive and turbulent existence of other ancient republics, 
     [are] very instructive proofs of the necessity of some 
     institution that will blend stability with liberty.'' Thomas 
     Jefferson had been in Paris during the Convention, serving as 
     minister to France. When he returned, he asked George 
     Washington over breakfast why the President had agreed to a 
     two-house Congress. According to a story that may be 
     apocryphal, Washington replied with his own question: ``Why 
     did you pour your tea into that saucer?'' And when Jefferson 
     answered, ``To cool it,'' Washington said, ``Just so. We pour 
     House legislation into the senatorial saucer to cool it.'' 
     The resolution providing for a two-house Congress was agreed 
     to by the Constitutional Convention with almost no debate or 
     dissent.
       And to ensure that the Senate could protect the people 
     against themselves, the Framers armored the Senate against 
     the people.
       One layer of armor was bolted on to allay the fears of the 
     states with fewer people, that the more populous states would 
     combine to gain a commercial advantage or to control 
     presidential appointments and national policies; the small 
     states were determined that all states should have an equal 
     voice in the Congress, so, in what became known as the 
     ``Great Compromise,'' it was agreed that while representation 
     in the House would be by population, in the Senate it would 
     be by states; as a result of that provision, a majority of 
     the people could not pass a law; a majority of the states was 
     required as well. But there were other, even stronger, 
     layers. One was size. ``Numerous assemblies,'' Madison 
     explained, have a propensity ``to yield to the impulse of 
     sudden and violent passions, and to be seduced by factious 
     leaders into intemperate and pernicious resolutions.'' so the 
     Senate would, in Madison's phrase, be ``less numerous.'' Each 
     state, the Farmers decided, would be represented by only two 
     senators; the first Senate of the United States consisted of 
     just twenty-six men.

  Now I am going to skip to page 10.

       Senators would also be armored against the popular will by 
     the length of their terms, the Framers decided. Frequent 
     elections mean frequent changes in the membership of a body, 
     and, Madison said, from a ``change of men must proceed a 
     change of opinions; and from a change of opinions, a change 
     of measures. But a continual change even of good measures is 
     inconsistent with every rule of prudence and every prospect 
     of success.'' What good is the rule of law if ``no man . . . 
     can guess what the [law] will be tomorrow?'' Guarding against 
     ``mutable policy,'' he pointed out, requires ``the necessity 
     of some stable institution in the government.'' Edmund 
     Randolph, as usual, was more blunt. ``The object of this 
     second branch is to control the democratic branch,'' he said. 
     ``It it not be a firm body, the other branch being more 
     numerous and coming immediately from the people, will 
     overwhelm it.'' Senators, he said, should ``hold their 
     offices for a term sufficient to insure their independency.'' 
     The term sufficient, the Farmers decided, would be six years. 
     Senators would hold office three times as long as the members 
     of the ``democratic branch.'' They would hold office longer 
     than the President held office. And around the Senate as a 
     whole there would be an additional, even stronger, layer of 
     armor. Elections for senators would be held every two years, 
     but only for a third of the senators. The other two-thirds 
     would not be required to submit their record to the voters 
     (or, to be more accurate, to their legislatures) at that 
     time. This last piece of armor made the Senate a ``stable 
     institution'' indeed. As a chronicler of the Senate was to 
     write almost two centuries after its creation: ``It was so 
     arranged that while the House of Representative would be 
     subject to total overturn every two years, and the Presidency 
     every four, the Senate, as a Senate, could never by 
     repudiated. It was fixed, through the staggered-term 
     principle, so that only a third of the total membership would 
     be up for re-election every two years. It is therefore 
     literally not possible for the voters ever to get at anything 
     approaching a majority of the members of the Institution at 
     any one time.''

  Now I'm going to skip to page 11.

       The coat of constitutional mail bolted around the Senate 
     was sturdy indeed--by design. Under the new Constitution, the 
     power of the executive and the power of the people would be 
     very strong. So to enable the Senate to stand against these 
     powers--to stand against them for centuries to come--the 
     framers of the Constitution made the Senate very strong. 
     Wanting it to protect not only the people against their 
     rulers but the people against themselves, they bolted around 
     it armor so thick they hoped nothing could ever pierce it.
       And for many years the Senate made use of its great powers. 
     It created much of the federal Judiciary--the Constitution 
     established only the Supreme Court; it was left to Congress 
     to ``constitute tribunals inferior,'' and it was a three-man 
     Senate committee that wrote the Judiciary Act of 1789, an Act 
     that has been called ``almost an appendage to the 
     Constitution.'' The Judiciary Act established the system of 
     federal and district courts, and the jurisdictional lines 
     between them, that endure to this day, and established as 
     well the principle, not mentioned in the Constitution, that 
     state laws were subject to review by federal courts. And 
     when, sixteen years later, this new creation was threatened 
     by a concatenation of the very forces the Framers had 
     feared--presidential power and public opinion--the Senate 
     saved the Judiciary.

  By the way, Mr. President, the Senate has a history of saving the 
judiciary in critical times. That should be a discussion for a later 
time. But there is no question that the Senate has served as protector 
of the judiciary in our system of government.

       The desks (there were thirty-four of them by 1805) had been 
     removed for this occasion, and the Old Senate Chamber had 
     been arranged as if it were a tribunal. In the center of one 
     wall stood the chair of the presiding officer, Vice President 
     Aaron Burr, as if he were the chief judge, and extending on 
     his right and left were high-backed, crimson-covered benches, 
     on which the senators sat, in a long row, judges in a court 
     from which there was no appeal.

  Mr. Caro goes on to explain the impeachment trial of Supreme 
Court Justice Samuel Chase; here again, the rule of law and the fact we 
are a nation of laws and not men built up by the Senate. It is the 
Senate's tradition to stand up for our liberty and for our law.
  I wanted to bring this to the Senate's attention. I know my time is 
drawing to an end. At this point, I yield the remainder of my time.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, thank you.
  The Democratic leader came to the floor and spoke, as many have on 
that side of the aisle, attempting to change the subject on the issue 
of jobs.
  The number keeps coming up about 3 million jobs being lost in this 
administration since this administration took office. I want to share 
with you a chart that looks at the survey of the U.S. employment level. 
This includes everybody. The numbers that the Democratic leader 
referred to do not include everyone. It was a different survey of jobs. 
This is the most comprehensive one. You can see from this comprehensive 
survey, here we are: the most jobs in the history of the United States.
  If these include all the jobs, whose jobs does the Democratic leader 
say don't count? What jobs don't count, according to the Democrats? If 
you are self-employed, if you are an individual doing work, you don't 
count. The Democratic leader is not going to count you as someone who 
is working. If you are a domestic worker or you work for a private 
household, you don't

[[Page 28658]]

count--you are not a worker; you don't have a job. If you are self-
employed, if you are a domestic worker for a private household, you 
don't count. If you work on a farm, you don't count. If you are someone 
who works--it is probably some of the hardest work that is done in this 
country--on a farm, according to the Democratic leader, your job 
doesn't count. If you work in a family-run business part time, you 
don't count. In fact, there are 8 million workers on farms, family 
businesses, households and self-employed, under the Democratic leader's 
survey, who don't count. We believe you do.
  By the way, when it comes to paying taxes, the Democratic leader 
counts your job. He makes sure we collect your taxes. But, as far as 
being employed or not, for political purposes, you don't count. It is 
138 million, a record and growing.
  Why are they coming up here and talking about this? Because they want 
to criticize the President's plan for turning this economy around. It 
probably says they do not have a plan.
  Mr. COLEMAN. Mr. President, will the distinguished Senator from the 
Commonwealth of Pennsylvania yield for a question? I want to talk about 
judges in a second.
  Mr. SANTORUM. I am happy to yield.
  Mr. COLEMAN. Is the distinguished Senator familiar with some of the 
statistics that came out recently regarding jobs and growth in the 
economy?
  Mr. SANTORUM. I have seen some of them. In fact, they were revised a 
couple of months prior to the most recent report--I believe it was 
August and September--the net new jobs created on the original 
projection was 16,000. They have revised them up to almost I think 
150,000.
  Mr. COLEMAN. I believe about 50,000 double to over 100,000. As the 
distinguished Senator from the Commonwealth of Pennsylvania is aware, 
that payroll employment increased by 126,000 jobs in October.
  Mr. SANTORUM. If you look at the last 3 months, almost 300,000 new 
jobs, net new jobs were created in this economy.
  Mr. COLEMAN. Is the distinguished Senator from the Commonwealth of 
Pennsylvania aware that the gross domestic product--by the way, the 
gross domestic product is the way we measure growth in this economy--
increased at a 7.2-percent annual rate?
  Mr. SANTORUM. I believe that is the highest rate of growth in almost 
20 years.
  Mr. COLEMAN. Is the Senator from Pennsylvania aware of the actions 
that this Senate has tried to take to grow jobs? One of the things we 
attempted to do was to pass a bill regarding class action reform. Does 
the distinguished Senator from the Commonwealth of Pennsylvania believe 
that class action reform, if it were passed, would help grow jobs?
  Mr. SANTORUM. I don't think there is any question that the drain on 
this economy is one of the major impediments to creating jobs, 
increasing the standard of living in America and giving a better 
quality of life for the average American.
  Mr. COLEMAN. I ask the Senator from Pennsylvania, on the issue of 
malpractice litigation regarding doctors and the impact that has on the 
cost of health care, and the impact the cost of health care has on 
small business and growing jobs, does he see a correlation between the 
increased litigation costs and the impact it has on the condition of 
the economy?
  Mr. SANTORUM. The No. 1 crisis in my State with regard to health care 
is medical lawsuit abuses.
  Mr. COLEMAN. Would it be fair to say that our friends on the other 
side of the aisle have obstructed our efforts to pass malpractice 
reform?
  Mr. SANTORUM. They have blocked every form of reasonable and balanced 
litigation reform that balances the interests of those who rightfully 
have a plea before a court for compensation and the right of society 
not to have outrageous awards, which make us unproductive, which raises 
the cost of health care, and which limits the availability of health 
care to millions of Americans.
  Mr. COLEMAN. If the Senator will yield the floor--and I would very 
respectfully disagree with his last assertion that our colleagues on 
the other side of the aisle have no plan; they have a plan. The plan is 
to roll back the President's tax cuts. Listen to the candidates. They 
want to roll back that tax cut. The lowering of the tax rates has 
generated more income in the pockets of Americans.
  Mr. SANTORUM. They want to roll back the reductions that the 
President put in place. They do not like the dividend proposal. The 
stock market has added $2 trillion in value. What does that mean to the 
millions of Americans who now participate in the market? You are 
talking about real wealth. You are talking about retirement security 
for millions of Americans because of the economic plan of this 
administration passed by the Senate. And they would like to roll that 
back. I guess they do not like markets going up. I guess they do not 
like employment going up. I guess they do not like economic activity 
and job creation.
  Mr. COLEMAN. Has my colleague from the Commonwealth of Pennsylvania 
talked to small business owners about the impact of accelerated 
depreciation?
  Mr. SANTORUM. We saw in just the last few quarters the business 
community--which has really been lagging, and which is an indicator in 
all of the economy--as a result of the accelerated depreciation 
expensing provision in the tax package that we passed, is finally 
beginning to invest, and by doing so they are increasing productivity 
which means higher wages for workers. It is a little bit of a 
challenge. If productivity goes up, that means higher quality jobs, 
higher paying jobs, and more productive jobs. As growth continues, so 
will the employment.
  Mr. COLEMAN. Is the distinguished Senator aware that business 
investment increased in the last quarter about 15 percent? Does that 
have a relationship to growing jobs?
  Mr. SANTORUM. Absolutely. The fact is that incentives for businesses 
to invest in capital and equipment and purchasing capital equipment for 
manufacturers here in this country means they are improving their 
productivity. They are being more competitive internationally. We are 
not losing those jobs. We are keeping those jobs here. They are more 
productive jobs and higher paying jobs. It is a win-win all across.
  Mr. COLEMAN. Mr. President, I would respectfully suggest again that 
our friends on the other side of the aisle have a plan. The plan is to 
roll back the tax cuts. Again, look at the statistics. Look at what is 
happening in the economy. Any American being out of work is a terrible 
thing. I am a former mayor. I always understood the best welfare 
program, the best housing program, and the best health care is jobs. 
But you have to plan a vision. The Bible said people without a vision 
will perish.
  This President has a vision, and that vision is producing results. We 
are seeing it. There is an increase in consumer spending as a result of 
tax cuts.
  Mr. SANTORUM. I thank the Senator from Minnesota for his questions. I 
think we settled this issue pretty clearly as to the importance that we 
have put on jobs and the response of the Republicans in the Senate and 
this President to grow the economy as a result of a recession which 
started in the Clinton administration and which was exacerbated by 9/
11. The President responded with certainty and with a dynamic plan, 
with an innovative plan, and it is working in our economy.
  Now we turn to another area where the Democrats have obstructed; the 
issue of Federal judges we are spending the evening here tonight on. I 
have said throughout the time I was going to be on the floor that we 
are going to ask for votes. We should be able to get votes--up-or-down 
votes.


                       Unanimous Consent Request

  I ask unanimous consent that the Senate now proceed to consideration 
of Calendar No. 455, the nomination of Janice R. Brown to be a United 
States Circuit Judge for the District of Columbia Circuit; provided 
further that there then be 20 hours of debate equally divided for the 
consideration of the

[[Page 28659]]

nomination; provided further that following the debate the Senate 
proceed to the vote on the nomination, and that there be no further 
intervening action or debate.
  Mr. PRYOR. I object, Mr. President.
  The PRESIDING OFFICER. Objection is heard.
  Mr. SANTORUM. I have just asked that a justice who was elected in the 
State of California by 76 percent of the vote--no elected official from 
California in this Chamber can make that claim--76 percent of the vote 
in the State of California and we can't get a vote on her nomination, 
up or down; a judge who wrote more majority opinions than any other 
member of that court, who is a qualified African-American woman; we 
cannot get a vote on the floor of the Senate after 20 hours of debate. 
I will agree to 30 hours. I amend it to 30 hours of debate. I ask 
unanimous consent that the previous unanimous consent that I read be 
modified to allow for 30 hours of debate.
  Mr. PRYOR. I object, Mr. President.
  The PRESIDING OFFICER. Objection is heard.
  Mr. SANTORUM. This is not a matter of debate. This is not a matter of 
due consideration. This is a matter of not allowing a qualified judge, 
a justice of the supreme court of the largest State in this country, 
who was elected by 76 percent of the people in the State of California, 
who is now being assailed as not being within the mainstream. How small 
is the stream? How small is the stream that 24 percent of Californians 
are in compared to the rest of America? That is not mainstream? That is 
extreme. We are not talking about the mainstream judges. We are talking 
about fighting to only put on extreme judges. This is a travesty. If 
this woman were nominated 10 years ago, we wouldn't even have had a 
vote on the floor of the Senate; or 5 years ago, she wouldn't have even 
been voted on. We would have confirmed her with a voice vote, and 
everybody in this Chamber knows it.
  This body was once a place where sense of history and duty and 
responsibility meant something, to be a steward of this incredible 
body, this famed institution. It used to mean something to be a Senator 
to uphold the tradition of this body.
  That is why for 214 years no one put their partisan whim, their 
short-term political gain in front of the process that kept this 
institution whole. But tonight in this session of Congress we are 
throwing that all away. What is so important? What is so sacred to 
those who would contort the rules of the Senate as never done in the 
history of this Senate? Senators have a chance to do it. But there is 
some higher calling not to give in, not to give in to that notion, You 
know, I really do not like this judge--not to give in because of the 
consequences for the long-term future of this country is just too dire. 
What caused so many to be so willing to give up and give in and thereby 
fail the Senate and cause this body to become so rancorous?
  I ask my colleagues, as someone who never voted against a cloture 
motion--I have never voted against a cloture motion for a judge, judges 
who I thought would be the worst judges who are against everything I 
believe in. Paez and Berzon are two examples. I lost sleep because I 
knew the damage they could do with the Ninth Circuit and are doing. By 
the way ``under God,'' Paez and Berzon, stricken from our Pledge of 
Allegiance.
  These are radical activist judges. I knew it. They will destroy the 
very fabric of our Constitution. I knew it. I gave them an up-or-down 
vote because this body, this Constitution, the process by which we do 
business here is more important.
  No more. The puppeteers of the special interest groups around 
Washington, DC now carry much more weight than the Constitution. This 
is a sad time. People ask why we are doing this. Because we have a 
right to tell the public what is going on. This is ugly. This is the 
worst of our nature. I plead, as someone who wanted to do what you are 
doing worse than you could possibly imagine but didn't because there 
are bigger things than the next election.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Allard). The Senator from Minnesota.
  Mr. COLEMAN. Mr. President, I have the greatest respect and 
compassion for my colleague from the Commonwealth of Pennsylvania and 
for his commitment to what this institution is all about.
  I don't know if I can find the words to describe the feeling that I 
have, elected just this year to the Senate, to these hallowed halls. I 
listened to the reading from my friend and colleague from Arkansas from 
Caro's ``The Master of the Senate.'' It is a humbling honor to be part 
of this body, to be part of the flow of history, a flow that has helped 
develop the greatest nation in the world. We got there due to divinely 
inspired guidance from the Founders of this great Republic who gave us 
a Constitution which provides a sense of clarity of our roles and 
responsibility. If we decide to only abide by it 98 percent of the time 
and the folks who follow us decide to abide by it 98 percent of the 
time, we are in trouble. My colleagues across the aisle have a sign 
that says 168 to 4. They are proud of that. I am stunned. I am 
absolutely stunned. If the airline I flew back and forth to Minneapolis 
would advertise 98 percent of the time they would get me there safely, 
I wouldn't fly.
  Think about the Constitution. I could walk you through it. First 
amendment of the Constitution; Congress shall make no law respecting 
establishment of religion or prohibiting the free exercise thereof or 
abridging the freedom of speech or of the press. If there were 172 
newspapers in the United States and I said 168 of them are going to 
have freedom of the press, but not the other 4, where would we be?
  Second amendment to the Constitution: Right to bear arms.
  In Minnesota, we bear arms. A lot of folks were out deer hunting last 
weekend there. If I were to tell a group of 172 Minnesotans that 168 of 
you have the right to bear arms, but not 4, 98 percent, I don't think 
they would be happy Americans.
  I could go through every amendment. Third amendment: no soldier shall 
in a time of peace be quartered in any house without the consent of 
owner, nor in time of war but in a manner prescribed by law, the third 
amendment to the Constitution. If I went to a group of homeowners and 
said, you are going to quarter soldiers, 2 percent of you are, they 
wouldn't be very happy, and they shouldn't be.
  We took a solemn oath to preserve and defend and abide by the 
Constitution of the United States. That is how we got here. That is our 
obligation once we got here. It wasn't a partial thing. It wasn't an 
almost thing. It wasn't a but-for thing, and it wasn't a 98 percent 
thing. It was to preserve the Constitution.
  The fifth amendment to the Constitution: Individuals cannot be 
compelled to testify against themselves. Can you imagine if we said 
that applies 98 percent of the time? It doesn't work that way. It 
should not work that way. There is a reason why. You have to think 
about this. Again my colleague read the history of the Senate. It is a 
magnificent history. But the public out there has to ask the question: 
Why in the over 200 years of this Republic has there never been up 
until now a partisan filibuster that has stopped judges from being 
confirmed.
  Yes, we have the right to advise and consent. The Constitution gives 
the President the opportunity to appoint judges. We are then to advise 
and consent. He nominates. We advise and consent. But we do it by a 
simple majority. We cast our vote. If you don't agree, you vote them 
down. If you agree, you vote them up. But for the history of this 
Republic, we have a process which we abide by, the Constitution. That 
was reflected in the readings from my colleague from Arkansas. 
Treaties, as he noted in his comments, require in the Constitution a 
supermajority, but not judges.
  Mr. TALENT. I wonder if the Senator from Minnesota will yield for a 
question.
  Mr. COLEMAN. I yield.
  Mr. TALENT. I wonder if the Senator knows how many court of appeals 
appointments Presidents on average have

[[Page 28660]]

gotten over a 4-year term since Jimmy Carter? It is 40. There were 10 
per year. I went back and looked. Does the Senator know how many court 
of appeals judges the other side has filibustered or will filibuster by 
Friday? It is six.
  Does the Senator know how many more they have threatened to 
filibuster? It is another six. I wonder if the Senator is aware of the 
fact that out of 40 court of appeals judges President Bush figures to 
get in a 4-year term, the other side has filibustered or threatened 12. 
So it is not four out of 168. It is 12 out of 40, or 30 percent. I 
don't know how the Senator feels about that. I wonder if he doesn't 
think that is a more relevant figure that maybe we should be using.
  Mr. COLEMAN. Even if it was 2 percent, we don't disregard the 
Constitution. Certainly if you are looking at 30 percent, that is 
outrageous. That is outrageous. One of the things that troubles me as a 
new Senator, as is my colleague from Missouri, as is my colleague from 
Arkansas--I think we still have this great kind of sense of awe, but 
one of the things that troubles me--and I haven't been here, but I have 
heard so much of the debate--they say, they did it to us in the past.
  Let the record be very clear. Of the past 11 Presidents' judicial 
nominees, there were 2,372 confirmed. None were stopped by a 
filibuster. This whole thing about what you did to us in the past, of 
course, now we are doing to you. Then what will those who follow us do? 
What are the consequences of that?
  I will tell you, I will stand on the floor of the Senate and say I 
will apply the same standard to judges with a Republican President that 
I will if there were ever to be a Democratic President and I am serving 
in this institution. Are they competent? Are they committed to 
preserving and upholding the Constitution? That is what the judges we 
are talking about all have said.
  You have to get right to it. They are being opposed because there are 
special interest groups who don't like their position on a particular 
issue, most probably abortion. Judge Pickering, by way of example, is 
somebody. When I ran for the Senate, I had a debate with the former 
Vice President of the United States, Walter Mondale, a magnificent 
American, a great public servant, who I simply disagreed with on 
certain issues. But in the debate that came up, I talked about it at 
that time, saying: We can't obstruct.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Who seeks recognition? The Senator from New Jersey.
  Mr. CORZINE. Mr. President, I would like to start with a little bit 
of perspective on the judiciary, and I would like to respond a bit to 
the economic arguments I heard discussed over the last 30 minutes which 
are sort of not in touch with reality, certainly not in touch with the 
reality of those folks who live and work in New Jersey and those across 
the country.
  Let's start with a simple proposition that there are 172 nominations 
before the Senate. The commonsense reality is, 168 have been confirmed, 
4 have been held up. I hear this view that people should not have the 
ability to express their point of view about judicial philosophy, 
temperament, the perspective of the individual judges. But I don't know 
what we are here for if we are not supposed to exercise our judgment 
and work within the rules as established. One hundred sixty-eight to 
four seems to be a pretty favorable ratio by most human standards 
anywhere across America, when you look at judgments about the quality 
of folks you would interview for a job. It is sort of common sense.
  In my own State of New Jersey, we are six for six, including a 
circuit court judge. We worked very carefully with the folks at the 
White House about background, worked in a cooperative sense. That has 
not happened across all of America. That is what people are arguing is 
now the case with the four who are on this board. There is a legitimate 
right to debate one's judicial philosophy. The rules of the Senate are 
very clear and have been used many other times.
  This idea that there have been no filibusters is blatantly false. We 
can go back to the Abe Fortas situation, and there are other situations 
where it may not have been the end game but it was certainly the 
starting point for holding back, going forward with judicial 
nominations. There are a number of them. I am sure these have been 
identified here on the floor, whether it was the Fortas nomination for 
chief justice; Rosemary Barkett, a judicial nominee, had a similar 
situation; Supreme Court Justice Steven Breyer, Judge Paez, Lee 
Sarokin, and Marsha Berzon.
  It has been argued and researched that 63 judicial nominees of the 
committee and 6 judicial nominees on the floor have been filibustered 
in the past. It is not something that is new. But what is really 
hypocritical, in my view, is we are focused on a technique that has 
been used to stop four judges many of us on this side of the aisle find 
extreme, when 55 Clinton nominees were not given hearings to be even 
discussed, 55. I could read the list of them. That is about, if my 
mathematics are correct, relative to the number, 30 percent stopped, 
cold dead stopped, without even having an opportunity to be reviewed, 
55 Clinton nominees against 4 Bush nominees.
  I don't know that it serves a useful purpose to say, we did this and 
we did that. The fact is we need to have a serious review of judges, 
and people ought to be able to express their opinions within the rules 
about whether they think they are qualified on the basis of standards 
that are generally accepted: Judicial philosophy, whether they will 
uphold the Constitution, settled law, all those kinds of issues.
  The fact is in another time or another place, people primarily used 
the committee process to keep judicial nominees from even being 
reviewed.
  What is the result? I want to reconfirm that 98 percent of those 
nominees President Bush has put forward have been confirmed. Only 2 
percent have not. Again, that is an overwhelming commitment to moving 
judges through this process and significantly better than has occurred 
in previous administrations.
  Again, the filibuster has been used as well. I just don't think we 
are reciting facts properly and history right.
  There is another very fundamental situation here. Contrary to the 
claims we hear, we think there is some kind of vacancy crisis in our 
Federal courts. I would like to have 100 percent myself, but 95 percent 
of Federal judicial appointments are now filled. When we had a change 
of administration, because of that 55 and the process that went 
through, it was only 75 percent. There was a distinct process of 
holding back, pushing back with regard to what the folks on the other 
side were prepared to do when working with another President. That is 
why when people talk about 168 to 4, that perspective is not being 
brought to the discussion.
  It is very simple: 55 folks stopped in the last 4 years, and there 
has been 4. People can argue that somehow from their perspective those 
55 were outside the mainstream. Some were not brought up for discussion 
in the committee. But the process we are using here is to make sure the 
debate on the floor brings out these extreme views, operating within 
the rules. I think we have facilitated a significant improvement in the 
ability of the courts to fulfill their function. That is what is the 
practical element. Those 168 are real because they are dealing with the 
issues the American public has to deal with. Our court system is 
actually functioning better than it has because we have been very 
facile in making sure judicial appointments have gone through. It is 
just a matter of perspective.
  Mr. TALENT. Will my friend from New Jersey yield for a question?
  Mr. CORZINE. Certainly.
  Mr. TALENT. Are you aware with regard to any of those committee 
actions or inactions to which you refer, was there ever a case where a 
majority of the committee expressed a desire to vote up or down on 
those nominees?
  Mr. CORZINE. The Senator from Missouri maybe has reviewed all of the 
transcripts from those committees. I have not. I do know the President 
of the United States sent nominations

[[Page 28661]]

here and in most instances they were. The 55 that I have, and there are 
a number of them I haven't reviewed, there was an attempt to try to get 
a number of those before the committee, and they were not allowed to be 
debated. It never got started. I can't speak to all 55. I have not 
reviewed all of the transcripts.
  Mr. TALENT. I am not going to intrude on the Senator's time. He 
referred to a lack of respect. I think the reason is because I don't 
believe there has been a situation where a majority of the committee or 
body wanted to vote up or down on a nominee when they didn't have that 
chance. I thank the Senator for yielding.
  Mr. CORZINE. I appreciate the discussion with the Senator from 
Missouri.
  What we have here, in my view, at 20 minutes of 4 on a Thursday 
morning, is a view that there were different techniques used by the 
folks on the other side of the aisle to restrict a President from 
having the kinds of judges and the number of judges they wanted to put 
into the courts which actually led to something that wasn't good for 
the American people; that is, a much higher vacancy rate in the Federal 
district courts than is the case today. I know in my own case and in 
the State of New Jersey, we are five for five on district judges and 
one for one on circuit judges, because we are working in a cooperative 
manner to try to get to a result that will allow the courts to have the 
judges to be able to deal with the cases. I think 168 is showing that 
happened across this country. So because there are three or four judges 
people believe are outside the mainstream--the special-interest stuff I 
have a hard time understanding. I am not a lawyer, but I read some of 
these cases where people don't believe in the incorporation of 
businesses and want to take away fundamental purposes of how that works 
in this world. That is outside the mainstream. That is difficult for me 
to understand. Therefore, I think it is perfectly reasonable to 
question whether that is an appropriate appointment to one of our most 
important appeals courts.
  So, again, one of those four--or maybe it will be six, as the Senator 
talks about, by the time we get to whatever hour in the morning we vote 
on this stuff on Friday; maybe that will be the case. But I think it is 
important we as Senators review the record and, within the rules, use 
our judgment to decide whether someone is in the mainstream of judicial 
philosophy. Apparently, that was happening in previous administrations 
for 55 folks; they were just using a different technique as opposed to 
this particular one.
  Again, I go back to the fundamental issue. It left a gaping hole in 
the ability of our courts to deal with the American public's needs in 
the Federal courts--the 75 percent fill ratio, or 25 percent vacancy 
ratio. Now we have a 4.8 percent vacancy ratio. I think, ultimately, 
somebody is going to say what is going on here? Are we actually dealing 
with the issues the American people need, which is having the judicial 
system that actually works.
  I have to talk a little bit about the economy because I heard some 
other questions, and we talked about payroll employment versus other 
measures. Frankly, I don't know a single serious economist in America 
who doesn't say we measure the standard job performance of this 
economy, this country, by looking at payroll employment. It is accepted 
as the base standard by economists across the country. The kinds of 
comparisons to other standards, those are all well and good. I think 
they reflect, frankly, the growth in the population.
  We are not creating jobs rapidly enough to actually reduce the level 
of unemployment. That is why payrolls have always been used as a basic 
issue, because it takes into account the growth of the population as 
well, which, by the way, we are at about the lowest--I think we had a 
little uptick, a minor uptick in the last 2 months in the percentage of 
Americans who are working out of the total population. The fact is we 
have lost something approaching 3 million payroll jobs under this 
administration. What is more important is to get to the basic fact, 
which is 9 million Americans are unemployed. That is the real deal. It 
is not whether it is growing--certainly, it is a painful experience for 
those who lost jobs, but there are 9 million Americans who want to work 
and cannot do it. It is up by 3 million since this administration took 
hold. Nobody is pulling that number out of the air. That is why we are 
trying to talk about those jobs versus the four judicial jobs within 
the perspective I tried to relate.
  When you have 95 percent of the positions filled in the judiciary, I 
think somebody is doing their job filling those holes. But we are not 
doing the right things about creating jobs for Americans. That is just 
fact. It is not hyperventilation. Nine million Americans are looking 
for work and they don't have it. By the way, 2 million of them have 
been unemployed longer than 6 months. One could ask what are we doing 
about that. You know, we have not passed a minimum wage, we have not 
extended unemployment insurance for people who are now coming on the 
rolls of the long-term unemployed. We are not really creating a jobs 
program in a serious sense. We have certainly cut taxes and I guess--to 
go back to Econ 101, at some point if you throw enough money into the 
system, we will create some jobs. We have about a $300 billion budget 
deficit and a 1 percent interest rate, and we have had them for a very 
long period of time, at these stimulative levels. At some point, you 
are going to get job growth. Was it an efficient way to do it? I 
wonder, when we have created about $5,000 in debt for every individual 
in America. That doesn't seem to jibe with an efficient use of 
resources. It certainly is not a rampage of growth or a booming economy 
that we have for most Americans.
  The latest economic statistics came out and everybody said how 
wonderful they were. They weren't too good in New Jersey. We lost 
another 11,800 jobs--11,800 manufacturing jobs in the month of August. 
We have a little bit of lag between when the State numbers come out and 
the Federal numbers. We are about to close our last two auto plants in 
New Jersey. We are closing the Ford plant for sure, in Edison, and we 
have the GM plant, which they are going to extend at about half 
production for the next 2 years, and they are going to look at shutting 
it down.
  Every week, we get another major employer laying off manufacturing 
jobs in the State of New Jersey. New Jersey probably has had as strong 
an economy as anyplace because we have the pharmaceutical industry, 
which is growing. But our manufacturing base is out the window.
  We don't talk about those 9 million jobs. We are talking about four 
jobs here, and I don't get it. I don't see what our priorities are. We 
are trying to talk about minimum wage and about transportation and we 
are trying to talk about a whole host of things that would allow us to 
have the opportunity to get this economy going and create jobs for 
those 9 million people--not these 4 folks, where we have already 
approved 98 percent of those interviewing for those jobs.
  I don't know. I am sort of simple, but I think a 98 percent positive 
conclusion out of 172 folks interviewing for these jobs is pretty good. 
We have actually filled in the holes in the Federal judiciary, and we 
have a major problem with 9 million Americans who are looking for work. 
We don't spend any time talking about how we are going to create jobs 
here, except we are going to have tax cuts every hour on the hour 
between now and the next decade, which will put debt on my kids and 
then their kids to follow. We may get some job growth as a function of 
doing this, but was it efficiently provided to the American people? I 
think that is very hard to say.


                   Unanimous Consent Request--S. 224

  Mr. President, I ask unanimous consent that the Senate return to 
legislative session and proceed to the consideration of calendar No. 3, 
S. 224, a bill to increase the minimum wage, that it be read a third 
time and passed, and the motion to reconsider be laid upon the table.
  The PRESIDING OFFICER. Is there objection?

[[Page 28662]]


  Mr. COLEMAN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. CORZINE. Again, I think we have our priorities mixed up here. 
There are a whole bunch of folks in this country who benefit enormously 
from the minimum wage. When they go out and buy things, that will 
stimulate the economy. One of the great opportunities for us is to deal 
with some of these economic issues that we have, instead of haranguing. 
I think, unfortunately, about these four folks, about whom I think 
there is legitimate reason to have a debate--where they stand on 
judicial philosophy, and how their history is, or how their writings 
fit with settled law and from a constitutional perspective.
  Again, we have put 98 percent of the nominees to work. We have not 
done anything about the 9 million Americans who don't have a job, who 
want to work. There are a whole bunch more who have dropped out of the 
system--I think about 4 million, if memory serves me correctly. It 
strikes me we have our priorities mixed up. I don't understand it. By 
the way, I will go through some other statistics. It is actually mind-
boggling to me that we are spending so much time on four people, when 
the unemployment rate is 6 percent, and 9 million folks are without 
jobs. That is up from 4.1 percent 3 years ago. The poverty rate is up 
from 11.3 percent to 12.1 percent; I think that is 4 million people. 
The percentage of uninsured has gone up from 14.2 percent to 15.2 
percent. About 2 million people have lost their health insurance in the 
last 3 years. The deficit has gone from a $236 billion surplus to a 
$304 billion deficit.
  If somebody was running my company and they had a negative cash flow 
of 500 some odd billion dollars, I think I would find a new CEO. The 
national debt went from $5.6 trillion to $6.8 trillion. I guess that is 
for my grandkids to worry about, and it will be explosive. And judicial 
vacancies have gone down from about 10 percent to 4.6 percent. What is 
this picture? I just don't know where our priorities are in the scheme 
of things. We are talking about four people and we have 9 million 
Americans and a whole bunch who haven't had an increase in the minimum 
wage in 7 years. We cannot even get a vote on it and haven't been able 
to get a vote on it. They are not interested. Does that make any sense? 
I don't get it.
  This is not the right priority where I come from, or for most 
Americans. I would rather fight like crazy for the 9 million people who 
want to work than just four judicial nominees out of the 168 judges who 
have already been approved. It is very important, in my view, that we 
have a proper prioritization and perspective on what is going on here, 
particularly when you look at it in the context of other techniques 
being used to hold up a whole bunch of judges at another period of 
time. We are talking about four here. I am no great legal 
constitutional scholar, but 168 to 4 is a pretty real number, and 55 
folks left out by the other side is a real number.
  I see my very good friend from Arkansas. It looks like he is chomping 
to go to work here. I would very much appreciate it if he has a comment 
on either of the things I have said, or I am sure he has more brilliant 
remarks to make.
  I yield the floor to my friend from Arkansas.
  Mr. PRYOR. Mr. President, I am not sure we have anybody in this 
Chamber or in this body who is more knowledgeable about the economy and 
economic principles than our colleague from New Jersey. He has proven 
himself on the field of battle on these economic issues.
  How much time do I have left?
  The PRESIDING OFFICER. Seven minutes 15 seconds.
  Mr. PRYOR. I want to spend the next few minutes talking about a man 
who was one of President Bush's nominees for a judicial post in the 
Eastern District of Arkansas. He is from Arkansas. While I was not 
consulted on his nomination, I do support his confirmation. Actually, 
this ties in a little with Senator Talent's question of a few moments 
ago. I notice Senator Talent did not accuse the Democrats of being 
obstructionists. Some have, of course, but I know he did not do that 
tonight.
  This is, as Paul Harvey might say, the rest of the story, or at least 
a part of the rest of the story. Leon Holmes is a very distinguished 
lawyer in Little Rock. His academic accomplishments and his love of 
academia are more than evident when you look at his background and 
qualifications for office. He has been a clerk for the Arkansas Supreme 
Court. He has worked for some very prestigious, very well known Little 
Rock law firms. He has been appointed judge on a couple of occasions 
for the Arkansas Supreme Court. In fact, I had the privilege of 
practicing with Leon Holmes in Little Rock in a law firm called Wright 
Lindsay & Jennings, which is truly a wonderful place to practice law. I 
got to know Leon well there and saw his legal acumen up close.
  I understand Leon's qualifications for office. He has won different 
awards. The American Bar Association gave him a well qualified/
qualified stamp. He and I may differ on some issues; nonetheless, he is 
very broadly supported by members of the Arkansas bar, and I support 
him.
  Let me tell you a little bit about the nomination. He was nominated 
by President Bush on January 29 of this year. He went to the Judiciary 
Committee. He got out of Judiciary on May 1--over 6 months ago. He got 
out of Judiciary and he has been languishing on the Executive Calendar 
ever since. In fact, today I sent a letter to the Senate majority 
leader, Bill Frist, and the Judiciary chairman, Orrin Hatch, inquiring 
about the status of Leon Holmes' nomination, asking them to bring his 
nomination forward. If I may, I would like to read a portion of this 
letter into the Record. It says:

       I am writing to express my concerns regarding the 
     nomination of Leon Holmes to the U.S. District Court for the 
     Eastern District of Arkansas.
       Mr. Holmes has garnered overwhelming support from the 
     Arkansas State Bar, of which I am a member, and received the 
     rating of Qualified/Well Qualified from the American Bar 
     Association. He possesses the skill, ability, and experience 
     to enable him to serve as a member of the judiciary. While 
     Mr. Holmes and I may differ on some issues, I believe he is 
     well able to carry out his duties according to the 
     Constitution and that he will apply established precedent as 
     judicial canons require.

  The letter goes on basically asking the majority leader and chairman 
of the Judiciary Committee to bring his nomination to an up-or-down 
vote. There is no effort on the Democratic side to filibuster Mr. 
Holmes' nomination, even though I have no doubt a number of my 
Democratic colleagues will vote against him. I remain perplexed as to 
why he has not come to the floor yet.
  I am puzzled why the Republican leadership has yet to bring up his 
nomination. I hope I will receive a response to the letter soon. So as 
Paul Harvey says, that is the rest of the story.
  One reason I wanted to tell this story is because I receive phone 
calls in our office from Arkansas and around the country asking me to 
vote for certain of President Bush's nominations. Our staff will tell 
them: Senator Pryor already voted for 67 of President Bush's judicial 
nominations, and their response is, ``no, he hasn't.''
  Well, sure I have. See, the rest of the story is not being told. I 
think a lot of people around the country perceive we are blocking every 
single judicial nomination that comes down the pike, but that is not 
true. As Senator Corzine mentioned a few minutes ago, the 168 
nominations is a historically high number, just like the 98 percentage 
number is a historically high percentage for approved judicial 
nominations. I don't think you will find that repeated in American 
history.
  We need to keep this in context. Here I am from Arkansas, and I 
support one of the President's nominees, but I cannot get him to the 
floor. There is no obstruction on Mr. Holmes, and there is not going to 
be a filibuster. I have talked to many Senators on our side and on the 
Republican side. Yet he has not come up for a vote yet.
  There is one other thing I want to mention in the time I have 
remaining,

[[Page 28663]]

and that is, back in April, I signed a letter with a number of my 
Republican colleagues, freshman colleagues, about this judicial 
nomination process. I asked the leadership, Senator Frist and Senator 
Daschle, to try to work together with the White House to try to make 
sure we don't get to this point where we are this morning--that is, 
gridlock over some of these nominations.
  There is enough blame to go around, and the last thing I want is a 
30-hour blame-a-thon. I don't want to participate in that. But I do 
think we need to revisit what we are doing. I think we need to put 
things in the past and leave them there and move forward on these 
nominations. If it is payback upon payback, we are never going to get 
anything done. Both sides have some responsibility there.
  Also, I say I believe a big portion of the responsibility rests with 
the White House. After all, the White House starts this process. The 
President is the one, under the Constitution, who does the nominating, 
and I know many of my Democratic colleagues feel they have not been 
consulted--I know I have not been. They feel they have not been 
consulted and, in fact, they have been deliberately shut out of the 
process. I think we need to work with the White House to try to make 
this better.
  I think the White House has a responsibility. We all have some 
responsibility. I think if we work hard, we can make this process work 
much better.
  How much time do we have on our side?
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. TALENT. Mr. President, I wish I could say it is a pleasure to be 
here with you at 4 o'clock in the morning. It is certainly always 
enjoyable to see you. This is a subject that is certainly worth 
discussing and it is extremely important. I have not been all that 
involved in it before. There are a number of other issues on which I 
have been working.
  I am here this evening because, when I look at the qualifications of 
the four nominees we are considering, Judge Owen, General Pryor, Judge 
Kuhl, and Justice Brown, those qualifications to me seem so outstanding 
that it seems that, had these nominees come up in the past, they would 
not only have been voted on but they would have been approved, and not 
only approved but approved by an overwhelming majority; as the Senator 
from Pennsylvania said a little while ago, approved by a voice vote. 
Now they are being filibustered.
  For the first time in the Nation's history, court of appeals 
nominations by the President of the United States are being stopped on 
the Senate floor by a minority using the filibuster. It never happened 
before. They filibustered four to this point. I hope that the minority 
will not filibuster two more on Friday.
  I understand there are six other nominations the President has made 
to the court of appeals for whom there is a threat of a filibuster. So 
it is quite possible that by the end of the year a minority of this 
body will have filibustered and stopped on the Senate floor, 12 court 
of appeals nominations, and that has never happened, not even once, in 
the history of the United States.
  Then there are some who stand here and say this is nothing new. It is 
not only new, it is unprecedented. It is not only unprecedented, it is 
action on a scale that nobody even contemplated before. You cannot look 
at the total number of nominations; you have to look at the nominations 
for the courts of appeals. You have to compare apples to apples and 
oranges to oranges if you want these figures to mean anything.
  The President of the United States has nominated 46 people for the 
court of appeals so far; 29 of them have been confirmed, 6 of them have 
been filibustered or very probably will be filibustered by Friday; 
another 6 are threatened to be filibustered. I certainly invite my 
friends who have been part of this filibustering minority to stand here 
and tell us tonight if they don't intend to filibuster any more besides 
the six we are talking about. I don't think they are going to do that. 
That will make a total of 12 filibustered or threatened to be 
filibustered, 12 out of the 46 nominations the President has made to 
the court of appeals.
  One-quarter of the nominations the President has made to the court of 
appeals have been or are threatened to be filibustered. In the past 200 
years, not one was successfully filibustered. It is an unprecedented 
usurpation or attempt to usurp the President's power from the 
Constitution, and the traditions of this body, to nominate people and 
get them appointed to the court of appeals.
  I heard the senior Senator from New York speak. He is my friend and I 
work with him on a number of issues. I find him to be delightful--well 
maybe not delightful, but he is my friend. He is a delight.
  He said the problem is, if they just come to me, I am the ranking 
member of the courts subcommittee, if the White House will just come to 
me before they make these nominations and consult with me. What he was 
saying is that together we could come up with good nominees. I think 
this is what the minority here is aiming to do. When I say the 
minority, I mean the group of people who are filibustering. They want a 
co-Presidency, as far as this is concerned; they hope the President 
will consult with them before making the nominations.
  I love my friend, the senior Senator from New York. Nobody from 
Missouri had a chance to vote for him. We have one President. He makes 
the nominations. The Senate's job is to vote to confirm. How has that 
job been conducted in the past, and exercised in the past? It is worth 
looking at. I say this not as a person who has been a Member of this 
body before this year, but as a citizen of the United States. I have 
looked at what happened in the past when we had these vacancies.
  When the President nominates, what do Presidents traditionally look 
at? What do you think? They look, first, at personal integrity. They 
want to nominate people who have integrity and a reputation for 
integrity. They look for people who they know or people who they know, 
know. In other words, if you want to be nominated to a judgeship, you 
try to talk to people in the administration you know or talk to people 
who know people in the administration. So you contact your Senator or 
you contact somebody in the Department of Justice, just like applying 
for any other job. If you know somebody, you contact him.
  And, of course, Presidents look at qualifications. They look at the 
achievements of prospective nominees in particular fields and then they 
look at relevant biographical information that may be specific to that 
appointment. Perhaps they are looking for a particular ethnic diversity 
or geographic consideration. Then the President and Department of 
Justice put all that together and they nominate somebody and send him 
down here. And then the Senate votes to confirm.
  How has the Senate done that in the past? The Senate has acted as a 
kind of check. The Senate looks at these nominees to make certain they 
have the positive qualifications that the President has said they have. 
The Senate looks at nominees to make certain they have minimum 
achievements and experience so that a lawyer, looking at a nominee, 
would say, yes, that is what a person ought to have to be on the 
Federal court bench.
  The nominee may have been a law professor. They may have been a 
practicing lawyer or a public official. Have they been out of law 
school long enough, received awards, published in their fields, 
litigated enough cases? The Senate looks at that for a minimum. We 
don't want to confirm somebody where the bench and bar around the 
country would look at that person and say, no, they haven't been out of 
law school long enough to serve on the Federal bench.
  Then, of course, the Senate looks at integrity. That is really a 
negative check: to make certain what they don't have. To make certain 
that they don't have stains on their record such that they should not 
serve on the Federal bench. They didn't cheat in law school. They have 
not been found guilty of ethics violations in the practice of law.

[[Page 28664]]

There are not any notorious examples of incompetence in their 
background.
  That is what the Senate has looked at in the past: where nominees 
have met those qualifications; had that minimum that the Senate looks 
for; have not had the negative things the Senate wants to make certain 
they have not had. In the past, those nominees got a hearing. They were 
voted out of committee. They not only were put on the floor, but they 
got a vote on the floor. They not only got a vote on the floor, but 
they were confirmed, and they were not only confirmed, they were 
typically confirmed by overwhelming majorities, even by Senators who 
were of a different party, who disagreed with their jurisprudence. That 
is what has happened in the past and we have had a tremendous break 
from that precedent and that tradition in this Senate.
  Of that action in the past--some here have said that the Senate 
should not be a rubberstamp. Was the Senate a rubberstamp for 200 
years? No, it was not. What the Senate did was show a respect for the 
constitutional separation of powers, which a minority of this Senate 
now refuses to show.
  Let's suppose families have, in their own way, constitutional 
arrangements just as this country does. Let's suppose that in some 
family the husband and wife have talked about who is going to handle 
the finances. They have decided that because the wife is maybe better 
at those things, or better able to handle those things, that the wife 
is going to handle the finances. If this is beginning to sound like my 
family, the analogy is pretty apt. So the wife in this specific family 
makes decisions regarding investments, and then goes to the husband and 
says: What do you think, I would like to put some money in this? Or I 
would like to invest in this thing.
  The wife gives him the benefit of the doubt. Is that a rubberstamp? 
That is a recognition, then, of the tradition of that family. The wife 
in that case has traditionally done this because that is how it is set 
up. It is not a rubberstamp; it is giving the benefit of the doubt, 
when appropriate, according to the arrangements that have traditionally 
prevailed in that family. That is what the Senate did for 200 years and 
that is what the minority is not doing now. That is why we are losing 
perspective about it.
  I will say this to my good friend from New Jersey, who is accusing us 
of losing perspective: Yes, we are losing perspective because about a 
quarter of the President's nominees to the court of appeals have been 
filibustered or threatened to be filibustered; because the Members who 
are filibustering want to be consulted. They want to be the ones who 
make the nominations when nobody had a chance to vote for them for 
President. That is enough to cause us to lose perspective.
  Why has it changed? What is causing this to happen?
  My friend from Pennsylvania asked that: Why? Why are we doing this? 
It's disrupting this body, it's dividing us, and it's an injustice to 
these people. I am going to get to that at the end if I have time. The 
worst thing about it is these people, who should be confirmed, or would 
have been confirmed 10 years ago, deserve to serve. They worked hard 
and millions of people around the country are going to wonder what is 
wrong with them because we can't even get a vote. It is not right. Why 
has it happened?
  I hear different things. I don't know. I talked to some people. I 
hear things that maybe Members on the other side at some point went to 
a retreat and a bunch of law professors met with them and told them if 
they didn't do something like this there would be an imbalance in the 
Federal courts. If that is true--I hear this, I don't know--I can 
immediately see a basic part of the problem, because we have law 
professors giving advice about something besides the law. I have a rule 
that when law professors give advice about something besides the law, 
it is almost always wrong. I say this as a person who used to be a kind 
of law professor. I never actually made it. I was a fellow, an adjunct 
professor. And they are brilliant and you get them out of their field 
and it is risky to take their advice about anything.
  Let's go back to imbalance. Going back through the Carter Presidency, 
which is back about 26 years--the last generation in the modern era. In 
the last 26 years, there has been a Republican President 14 years, a 
Democratic President 12 years. By the way, I am going to give overall 
figures for district court and court of appeals numbers but they don't 
vary. If you break them out and separate them, they don't vary that 
much.
  President Carter had confirmed 265 nominees to the bench; President 
Clinton, 377, for a total of 644, which is about 53 confirmed per year. 
President Reagan had 384. He was there for 8 years. The first President 
Bush had 195. Up to this point the current President Bush has had 168, 
for 747 over 14 years which is, Mr. President, about 53 per year.
  Where is the imbalance? That a Republican President for 14 years, 
Democrat President for 12 years, they each got about 53 per year and it 
is the same basically whether you break it out for court of appeals. 
They each got basically 10 court of appeals judges per year. There is 
no imbalance.
  We have had balance for the last 200 years, and the reason it has 
worked pretty well, is that the people have elected Presidents from 
different philosophies and different parties. That is how you get 
balance. The only way you get imbalance is if you have Presidents of 
one particular philosophy or one particular party elected year after 
year, term after term after term, and that has happened and there is a 
technical term for that. It is called representative government.
  Yes, if you lose a lot of Presidential elections in a row, there is 
going to be an imbalance on the Federal bench. That is the way it 
happens. The only time it has happened in the 20th century, by the way, 
is when the Democrats had the White House more than 20 years in a row, 
through President Roosevelt, and then through the only President ever 
from Missouri, our great Harry Truman. I don't recall hearing 
Republicans filibustering and claiming imbalance at that time.
  How much time do I have left?
  The PRESIDING OFFICER. The Senator has 16 minutes.
  Mr. TALENT. I have 16 minutes.
  What is the other argument I hear over and over? This is why I think 
it is really working, and I respect this because it reflects a sincere 
philosophical conviction. I respect that. One of the things I tell 
people as I travel around and talk about the Senate and about the 
Congress is that I am not an institution guy. I don't stand up and wax 
on and on about how great the Senate is, although it is a great honor 
to be here.
  But I will say about my colleagues, that most people who believe out 
there that people in the Senate don't have convictions are wrong. That 
is why we are here at 4 in the morning. That is the one thing that 
unites us. We are here because we have convictions. We all have other 
places we could be--in bed. We are here because we have convictions.
  The other reason, which is what I really think is working here, is 
out of conviction, the sense that these nominees they are filibustering 
or threatening to filibuster are somehow too extreme. We all know what 
they mean when they say that. We use codes here. It means they are too 
extreme on social issues. Those who are filibustering disagree with 
these nominees on the social issues, and particularly, let's say it, 
that one big social issue: abortion. They disagree with them on that. 
So they are too extreme to be confirmed, too extreme to vote for, too 
extreme even to have a vote because they disagree with them on the 
social issues.
  I have to say, because I have convictions on this, too, that we ought 
to look at what a definition of extreme is here. A lot of folks who are 
saying this voted against the ban on partial-birth abortion. I respect 
their conviction an awful lot but that is a pretty heinous procedure 
and I think America is entitled to ask: Who is extreme?
  The truth is, for this process, for the purpose of confirming Federal 
judges, that is not the kind of analysis either side should be using. 
Because the truth is, if we are honest about it, on the social issues, 
there is not a mainstream.

[[Page 28665]]

There are tens of millions of Americans who are on both sides of those 
social issues and they are good people, they are honest people, and 
their views deserve respect. People who hold those views deserve not to 
be disqualified, held as unfit for office under the Constitution of the 
United States, just because we disagree with them.
  My wife and her law firm visited Washington over the weekend so I 
stayed in town with her. Normally I go home every weekend. There is a 
reason for this digression. Members of her firm visited around town, 
had a great time, and visited the Supreme Court. Justice Breyer was 
kind enough to speak for a few minutes to them. And wasn't it great of 
him, Mr. President, to take his time to do that? He is an able jurist, 
one of the smartest people on the Federal bench.
  He wrote the opinion of the Supreme Court striking down a partial-
birth abortion ban. I couldn't disagree with him more on his 
jurisprudence on that issue. It wouldn't occur to me not to vote to 
confirm him for the Supreme Court. It would not occur to me to say his 
view is extreme on that, because his view is shared by millions and 
millions of people who are part of this political community, too.
  This is one of the reasons why I feel so motivated to be here. Can 
the Senate contain the disagreements that we conscientiously have on 
issues such as this or will those disagreements blow up this process 
that has allowed us all to live together and legislate together for 200 
years? That is the question. It will do that, unless we start treating 
these people we disagree with, with respect.
  We can't force people to come around to our view on these issues, as 
passionately as we may feel. We have to persuade them. You can't 
persuade people unless you can talk to them and listen. And that means 
you can't treat them as if they are pariahs. You can't say to Janice 
Rogers Brown, who served for years as a justice on the California 
Supreme Court, and has overcome obstacles in her life that would have 
stopped 99 percent of other people--and you can't say to her: We 
disagree with you about this so you don't even get a vote. We don't 
respect you enough even to give you a vote. Let's not do that.
  In the past, this body has debated a whole lot of difficult issues, 
issues that were tearing at the fabric of the country. But we have to 
continue as one body and we can't do that unless we treat people with 
respect. We have to understand there is not a mainstream on this.
  We may wish everybody would agree with us, but they do not. We can't 
make that a litmus test. That is what is happening here. That is I 
think what is underlying a lot of things.
  I want to focus on the human element a little bit.
  How much time do I have left?
  The PRESIDING OFFICER. Ten minutes.
  Mr. TALENT. Ten minutes left to inflict myself on the Senate at 4:20 
a.m. I think I will talk a little bit about Judge Kuhl. I have gone 
over her background. It is really extraordinary. I am a lawyer. I 
actually clerked on the court of appeals for a great judge, a good man, 
Richard Posner of the Seventh Circuit. I know something about Federal 
judges and how they get there. I don't mean any disrespect. I am 
trained well enough as a lawyer not to do that. I guess we are 
protected by the speech and debate clause here. They couldn't come 
after me if I didn't respect that. I respect Federal judges. I wish 
they all had the qualifications these people have.
  There are some of them who got on the court of appeals because they 
knew somebody; in some cases, because they knew somebody in this body.
  Judge Kuhl has been nominated to the Ninth Circuit. She has been a 
judge since 1995; before that, for 9 years she was a partner in a 
prestigious Los Angeles law firm. She was a litigator. We can forgive 
her that. From 1981 to 1986, she served in the Department of Justice as 
Deputy Solicitor Attorney, as Deputy Assistant Attorney General, and as 
Special Assistant to Attorney General William French Smith. She argued 
cases before the Supreme Court and supervised work of other attorneys. 
She clerked for Judge Anthony Kennedy, then a judge in the Ninth 
Circuit and now a member of the Supreme Court. In 1977, she graduated 
from Duke Law School. She has extraordinary bipartisan support. Listen 
to what people say about her.
  Vilma Martinez, former Director of the Mexican American Legal Defense 
and Educational Fund, said:

       I'm a lifelong Democrat. . . . Even though we don't share 
     the same political views, necessarily, I consider her 
     mainstream. . . . She's careful and she's thoughtful. She's 
     been an excellent [state court] judge, and I think she will 
     be an excellent 9th Circuit judge, one who will approach that 
     job the way I think that job should be approached: with great 
     care and deference.

  I wish everybody in this body had the broadmindedness of Vilma 
Martinez. Congratulations, Ms. Martinez.
  Twenty-three women judges on the Superior Court of Los Angeles say:

       Judge Kuhl is seen by us and by members of the Bar who 
     appear before her as a fair, careful and thoughtful judge who 
     applies the law without bias.

  She can't get a vote. Don't tell me the Senate has operated this way. 
It hasn't operated this way in the past. They have filibustered, or 
they are threatening to filibuster, about a quarter of President Bush's 
nominees to the circuit court of appeals. Not one ever before 
successfully filibustered on this floor; not one ever before 
filibustered with the support of the leader of either party. It isn't 
right.
  Mr. SANTORUM. Will the Senator yield?
  Mr. TALENT. I will yield, and the Senator is probably doing the 
Senate a favor by getting me to yield.
  Mr. SANTORUM. I want to review what the Senator talked about. See 
this chart: 168, but that 168 includes district court judges.
  Mr. TALENT. Absolutely.
  Mr. SANTORUM. Explain the difference between a district court judge 
and a circuit court judge when it comes to matters of law and the 
impact of those decisions.
  Mr. TALENT. I am happy to comment on that. Everybody knows what is 
going on here. They are filibustering the court of appeals judges 
because, yes, they are appellate judges. They are the more important 
ones. They are letting the little fish go. They are filibustering, or 
threatening to filibuster, about a quarter of the court of appeals 
judges. Another reason is they think some of these people might get 
nominated to the Supreme Court.
  Mr. SANTORUM. At the District of Columbia level are trial court 
judges who basically preside over trials and the circuit court or 
appeals courts decide matters of law that apply across the circuit, and 
it can have an influence in other circuits. Is that correct?
  Mr. TALENT. That is absolutely correct.
  Mr. SANTORUM. Most decisions that are appealed from the trial court 
go to the appellate court, or the circuit court, but very few go up to 
the Supreme Court. Is it not true the appellate court makes the final 
decision in a lot of these cases?
  Mr. TALENT. I have read about a group of law professors concerned 
about an imbalance on the court of appeals. That imbalance just doesn't 
exist. The same statistics I read before show Presidents back through 
Jimmy Carter have had each around 10 court of appeals appointments per 
year. It is a little bit more for the Republican Presidents; a little 
over 10, and a little under 10 for the Democrats, but there is no real 
difference. That is why it is very balanced, and we are just coming off 
two terms of a Democrat President. We are now in one term of a 
Republican. The next election is probably going to be close. I think 
that is probably what is working here. I hope my friends on the other 
side of the aisle who are filibustering don't continue to compare 
apples to oranges. Let us at least be fair. If you want to talk about 
how many were filibustered, it isn't 4 out of 168. If they follow 
through on this threat, it will be 12 out of 46, which is about a 
quarter. That was not a high point, even though that is just about a 
quarter. That means that only around 75 percent of them are going to be 
given an up-or-down vote.
  My friend from Arkansas and I work on a lot of things together. She 
is a

[[Page 28666]]

great Senator. She was saying if her kids brought home 98 percent in 
math, she would be pretty pleased about it. I would, too, if my kids 
brought that grade home. I have three kids. If they brought home 75 
percent in math, I would be a little bit concerned, particularly when 
in the past it has been 100 percent.
  Mr. SANTORUM. I think the analogy of the Senator from Minnesota--the 
Senator from Minnesota says if we are forcing what the Constitution 
requires 98 percent of the time, or much worse, 75 percent of the time, 
I think the American public would have a right to throw us out on our 
ears. I think they expect the Senate to enforce the Constitution 100 
percent of the time. Anything less than 100 percent is an abdication of 
that oath we walked over there right there on those steps before the 
Vice President and took. The oath has something to do with defending 
the Constitution--not 98 percent of the time, not 75 percent of the 
time, 100 percent of the time. That is not what is going on.
  Mr. TALENT. I certainly thank the Senator from Pennsylvania.
  How much time do I have left, if any?
  The PRESIDING OFFICER (Mr. Burns). The Senator has 2 minutes 22 
seconds.
  Mr. TALENT. I thank the Senator for his clarification. I think that 
it is very important.
  In the remaining time, I will just close by reading a little bit more 
about Judge Kuhl. These are real people who are getting unjustly 
treated in this body which is supposed to be about justice.
  Here is what Gretchen Nelson said. She is the officer of the 
Litigation Section of the Los Angeles County Bar Association and a 
prominent plaintiff's attorney. She probably gave money to my opponent 
in the last election. Here is what she said:

       I am a life-long Democrat. I am also a plaintiff's 
     attorney. My political views are and always have been 
     liberal. I firmly agree with U.S. Supreme Court's opinion in 
     Roe v. Wade, and I trust that the decision will remain 
     viable. I am opposed to the appointment of any judicial 
     nominee who is incapable of ruling based upon a considered 
     and impartial analysis of all the facts and legal issues 
     presented in any matter. Judge Kuhl is not such a nominee and 
     she is well-deserving of appointment to the Ninth Circuit.

  That is what Senators would have said 5 years ago on this floor. 
Don't say it hasn't changed.
  Anne Egerton, former law partner of Judge Kuhl:

       I understand some have raised concerns about Judge Kuhl's 
     commitment to gender equality and reproductive rights. I 
     don't share those concerns.

  Anne Egerton goes through her background with the Arizona Women's 
Political Caucus.

       I have been a registered Democrat for 30 years, and I have 
     supported [Democratic legislators]. I have no reservations in 
     recommending Judge Carolyn Kuhl for appointment to the Ninth 
     Circuit. I know her to be committed to the rule of law and 
     the application of governing precedents in the area of 
     reproductive freedom; that precedent, of course, includes Roe 
     v. Wade and the many cases which have applied.

  I don't think there is anything more to be said. I wish we could get 
consent to vote on these nominees and then we could go on to other 
business of the Senate. This is important.
  What is happening to these people is wrong. What is happening to the 
Senate is unfortunate and bad for the country. That is why I am here 
and that is why we are all here at 4:30 in the morning.
  I yield the floor.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Rhode Island.
  Mr. REED. Mr. President, we are here this morning to discuss the 
status of judges. My colleagues on the other side of the aisle have 
been rather adamant in claiming they may have been mistreated. I think 
there is a contradiction in their argument. Frankly, what I witnessed 
here as a Member of this body over the last several years in the 
Clinton administration was a process of systematically denying the 
nominees of President Clinton--qualified, indeed, very qualified 
nominees in their positions on the Federal bench--doing it not on the 
floor as we are doing here openly, but using what I would describe as a 
pocket filibuster. We are all aware of the notion of a pocket veto. The 
Constitution allows the President a certain number of days to exercise 
his veto, but at the end of a session he doesn't have to exercise that. 
He simply has to put the bill in his pocket and it will not become law. 
That is essentially what the Republican majority did here to so many of 
President Clinton's nominees. They refused to give these individuals 
hearings. They refused to take up the nominations or to seriously allow 
a process for the committee to deliberate and to consider and to 
recommend them for an up or down vote.
  Today, for the majority to come and claim they are being mistreated 
and that the Constitution is being violated is to me a profound 
contradiction because they have very determinedly and consistently 
denied even a hearing to so many well-qualified individuals who were 
nominated by President Clinton.
  That is not to suggest we are in any way trying to match their 
conduct. The fact we are here on the floor exercising our rights under 
the rules of the Senate and the Constitution of the United States to 
make a statement about judges, to make a statement about individuals 
who we feel for many reasons lack either the qualifications or the 
judicial temperament to serve successfully on the Federal bench, makes 
the record quite clear. That is in contrast to the pocket filibusters.
  We have been very active and cooperative in moving 168 judges through 
the committee process to the floor of the Senate and to ultimate 
confirmation by the Senate. It is a remarkable record.
  In the last year alone, I believe we have confirmed more judges than 
were confirmed under President Reagan's tenure with a Republican Senate 
at the time. This is not a record of evasion of our constitutional 
responsibilities. This is a record of meeting our constitutional 
responsibilities, one of which is to exercise our individual judgment 
as Senators as to the qualification of anyone to serve on the Federal 
bench. But as I mentioned before, what we saw so consistently and so 
persistently under the previous President was a Republican strategy of 
blocking judges by a pocket filibuster; not here on the floor, but off 
the floor, denying them right to a hearing.
  Let me suggest this has a very pernicious effect on so many women who 
were nominated by President Clinton. This is a report of some of the 
judges nominated by President Clinton for consideration by this Senate:
  Kathleen McCree-Lewis for the Sixth Circuit--again, my colleagues 
have been going on and on about the importance of the circuit judges. 
They are important. What happened when President Clinton nominated 
Kathleen McCree-Lewis to the Sixth Circuit? She never got a vote; never 
got around to the process of hearings, a debate in committee, a 
recommendation to the floor of the Senate; never got through to us for 
a vote. Helene White to the Sixth Circuit, never got a vote; Elena 
Kagan to the D.C. Circuit, never got a vote.
  By the way, Ms. Kagan is today dean of the Harvard Law School. Is 
there anyone who would suggest she was not qualified to be a Federal 
judge? I think that would be quite an extreme statement. She was more 
than qualified to be a Federal judge, but she never got a vote.
  Elizabeth Gibson to the Fourth Circuit, never got a vote; Christine 
Arguello to the Tenth Circuit, never got a vote; Bonnie Campbell to the 
Eighth Circuit, never got a vote; Patricia Coan to the District of 
Colorado, never got a vote; Valerie Couch to the District of Oklahoma, 
never got a vote; Rhonda Fields to the District Court for the District 
of Columbia, never got a vote; Dolly Gee to the Central District of 
California, never got a vote; Marian Johnston to the Eastern District 
of California, never got a vote; Sue Myerscough to the Central District 
of Illinois, never got a vote; Lynette Norton to the Western District 
of Pennsylvania, never got a vote; Linda Riegle to the District of 
Nevada, never got a vote; Cheryle Wattley to the Northern District of 
Texas, never got a vote; Lynee Lasry to the Southern District

[[Page 28667]]

of California, never got a vote; Wenona Whitfield to the Southern 
District of Illinois, never got a vote; and Anabelle Rodriguez to the 
District of Puerto Rico, never got a vote.
  That is the record of the pocket filibuster; nominated by the 
President of the United States; qualified; and, indeed one of these 
individuals I point out is now the dean of the Harvard Law School, but 
they never got a vote of any kind.
  That is what we saw: The rules of the Senate being used by the 
majority to frustrate the nominees of the President of the United 
States. Then to come to this floor and claim this is now unprecedented 
and a usurpation of the Constitution of the United States when we are 
simply exercising our rights on the floor under the rules of the Senate 
to express our opinion as to the quality and qualifications of nominees 
to the Federal bench is I think certainly a contradiction.
  With respect to some of these judges, I think the key issue here is 
judicial temperament. Indeed, there is a certain degree of sensitivity 
about judicial temperament as one goes from the district court to the 
court of appeals. It is often the case that a district court judge is 
younger and the thought is that person will mature on the bench and 
maybe in future days will be of such experience and demonstrated 
judicial temperament that she or he would be promoted to the circuit 
court of appeals, and then there are direct nominees to the circuit 
court. But again, you have to look at someone's breadth of experience, 
maturity, and intellect, and again their judicial temperament.
  The nominees who have been identified and have been questioned by 
Democrats are individuals by and large whose judicial temperament is 
quite questionable.
  Priscilla Owen has had a long history of putting her own personal 
opinion above the law, of injecting political ideology into the law, 
rather than following precedent.
  One of the things about a circuit court judge is you have to follow 
precedent. The Supreme Court can try to create law, but a circuit court 
must follow precedents of the Supreme Court. In case after case after 
case, there were such situations in which she just defied precedent. 
There is a case of medical malpractice, Weiner v. Watson, when one of 
our colleagues, the junior Senator from Texas, was on the Texas Supreme 
Court Justice, and he unequivocally rejected Judge Owen's argument, 
stating it was contrary to the Texas State Constitution.
  Are we going to put people on courts of the United States who have a 
predilection to not follow the Constitution? I think not. That is one 
example.
  You can see the same with Justice Brown who is a justice of the 
California courts. She has been criticized on the bench for injecting 
her own personal views and not following precedent. On a number of 
occasions, Republican colleagues have criticized her dissenting 
opinions for their judicial activism. In one case, Brown was 
``chastized for imposing a personal theory of political economy on the 
bench contrary to established precedent.''
  In another, she was chastized for refusing to accept acknowledged 
previous judicial precedent. That charge is extremely serious when you 
are dealing with a judge who is charged with following the precedent, 
following the Constitution, and following the law.
  The same may be said about Judge Kuhl; again, ideology rather than 
legal temperament and legal reasoning seems to be her forte.
  There is case after case after case. There are reasons, solid reasons 
to question these nominees. Our job as Senators is to raise those 
questions.
  There have been 168 judges confirmed by the Senate for President 
Bush, a record number, a remarkable number. In fact, vacancies on the 
Federal judiciary are the lowest they have been in recent memory. It is 
because we have been working together. But that does not mean we 
surrender our obligation to question and challenge those judges who do 
not meet the test of judicial temperament, nonpartisan application of 
the law, and nonideological application of the law. And there are those 
whose nominations have failed.
  That is what the Founding Fathers envisioned when they created a 
system of advise and consent. It is not advise and approve. It is 
advise and consent. The Senate plays an active role. There is no group 
of people who played a more active role in considering the nominees, 
certainly of President Clinton, than the Republican majority today. 
They did it persistently. They did it deliberately. They did it 
consciously. We are exercising constitutional powers.
  One of the examples that was used and one of the judges who was an 
eminent jurist in California, nominated for the Ninth Circuit, is Judge 
Richard Paez. He was subject to cloture votes. He was subject to 
situations in which he was challenged. That is the rule. You get to do 
that. In fact, Judge Paez waited 1,500 days even to get a vote. That is 
not the case with these nominees. There were 1,500 days in which he was 
nominated to the Ninth Circuit. His nomination was in limbo. Finally, 
there was a vote and people rose up. Some supported a motion for 
cloture; others rejected it. So this notion that it is unprecedented to 
challenge a nominee for the Federal judiciary through the cloture 
process is fanciful. It has happened very recently. It happened with 
Judge Paez.
  He is not the only one. Sixty-four of President Clinton's nominees 
never received a floor vote. One nominee, Ronnie White, was defeated on 
a floor vote.
  We have a situation where the deeds and actions are not wrapped in 
the dim mist of history. These nominations were before the Senate 2 or 
3 years ago. The deeds don't match the words we are hearing today. All 
of the outrage about the constitutional challenge and crisis. That 
outrage was certainly not manifested a few years ago when Judge Paez 
was waiting 1,500 days for a hearing and then was subject to a cloture 
vote just as these nominees are being subject to cloture votes.
  That is one point. But there is a larger point. We are spending hours 
and hours and hours to demonstrate a supposed crisis, the fact that 4 
individuals out of 172 have not been confirmed by this Senate, when in 
fact there are much greater problems facing this Nation. We have an 
unemployment rate that continues to hover around 6 percent, a budget 
deficit that is exploding and inhibiting appropriate action by this 
Senate on so many important issues--education reform, worker training, 
dealing with issues both large and small.
  We have a crisis internationally that is costing us the lives of our 
soldiers and military personnel and billions of dollars from our 
Treasury. We are spending all night, long, precious hours conducting a 
demonstration, when we should be working on appropriations bills and we 
should be dealing with the issues that confront the families of 
America. I think it is really a demonstration of listen to what I say, 
don't watch what I do. Because when we watch what the Republicans do, 
the record is remarkable, the high number of President Bush's judicial 
nominees who have gone through. It is extraordinary compared to the 
treatment President Clinton received.
  I would hope when we finish this exercise, we can in fact go forth 
and deal with the issues which are essential and should be dealt with. 
We have a minimum wage that has been stuck for years now. It should be 
increased. We have a host of other issues that need addressing. I hope 
we can.
  I yield to my colleague, Senator Corzine.
  Mr. SANTORUM. Will the Senator yield for a question?
  Mr. REED. I am happy to yield.
  Mr. SANTORUM. The Senator from Rhode Island has complained about how 
the Clinton nominations were treated. Does the Senator from Rhode 
Island know there were 42 judges who were not brought forward out of 
committee. But at the end of the Bush presidency, Bush 1, there were 54 
judges not brought forward out of committee? Under a Democratic Senate, 
President Bush 1 had 54 that were not considered. Under a Republican 
Senate, President Clinton only had 42 nominees. I would just suggest 
the record by the Republican Senate was actually better than the last 
Democratic Senate.

[[Page 28668]]


  Mr. REED. Let me reclaim my time. I would simply say regardless of 
the residue of judges in the Bush administration versus the end of the 
Clinton administration, the point I am making is there was apparently a 
very consistent effort on the part of Republicans to deny votes to all 
manner of judges. I think 64 of President Clinton's nominees never got 
a vote, never got to the floor. I have the time. I think what it 
amounts to is a very deliberate protest, which the majority has the 
power to do, of using the committee process to deny hearings and to 
deny votes.
  It is a contradiction then to come to the floor and say: We can use 
the rules of the Senate. We can use these rules and we can deny judges, 
but if the Democrats choose to use the rules of the Senate to challenge 
a judicial nominee of the President, Bush or otherwise, that represents 
a violation of the Constitution.
  That is my point. The point is borne out regardless of the residue of 
judges of either administration. The record today, this Senate and the 
Senate under the leadership of Tom Daschle, shows we have done a 
remarkable job in confirming this President's nominees. That was not 
suggested in the treatment of President Clinton's nominees.
  I yield to my colleague from New Jersey.
  Mr. CORZINE. I appreciate the discussion my colleague from Rhode 
Island brought up. I wanted to clarify one point of questions about an 
individual. Did you suggest Elena Kagan is now the dean of the Harvard 
Law School?
  Mr. REED. I suggested it because that is my understanding, that she 
was nominated for the District of Columbia circuit and she is now the 
dean of the Harvard Law School. She is a remarkable dean. I am somewhat 
prejudiced since I graduated from Harvard Law School, but she is a 
remarkable personality.
  Mr. CORZINE. Was she unable to get a hearing in the Judiciary 
Committee when President Clinton nominated her for circuit court?
  Mr. REED. Let me just say my recollection is she was not given a vote 
after being nominated to the court.
  Mr. CORZINE. So she suffered from what you were suggesting, a pocket 
veto.
  Mr. SANTORUM. Will the Senator yield for a question?
  Mr. CORZINE. Yes.
  Mr. SANTORUM. Do you know when the nominee you are talking about was 
nominated for that position?
  Mr. CORZINE. As the Senator from Pennsylvania knows, I was just 
inquiring myself to try to find out more about this. This is not one of 
those I was aware of. I have a whole list of folks who waited 1,454 
days, 1,000 days for a hearing, 602 days. If somebody looked at one of 
those nominees who was not allowed to come to the floor of the Senate 
for a vote, at least a broad group of folks who review the 
qualifications of an individual, you are qualified enough to be the 
dean of Harvard Law School but somehow not qualified to have a vote on 
the floor of the Senate.
  Mr. SANTORUM. If the Senator will yield for a point of information.
  Mr. CORZINE. Certainly.
  Mr. SANTORUM. My understanding is the nominee you are referring to 
was nominated in August, 2 months before the election.
  Mr. CORZINE. If the distinguished Senator from Pennsylvania would 
allow, I don't know what elections have to do with confirming nominees, 
if they have gone before the Judiciary Committee and they are 
qualified. That seems disingenuous in the context of, we have qualified 
folks. They ought to be dealing with the circumstance of having an 
opportunity to be reviewed and brought to the floor. What we are 
debating is what is the technique that has been used at different times 
in our history--by the way, the pretty immediate history--to deal with 
a very simple question that some people want to understand the judicial 
philosophy and actions, how an individual will deal on the court. 
Sometimes when Republicans are not controlling the White House, they 
are willing to use the committee system to make that happen. Some of us 
on our side of the aisle sort of wouldn't mind debating folks on the 
floor, using the rules to make sure we bring out extremists' points of 
view.
  I point out, 168 to 4. I will go through the circuit courts in a 
minutes.
  Mr. REED. Will the Senator yield?
  Mr. CORZINE. Yes.
  Mr. REED. A question has come up about Elena Kagan's nomination. I 
have some information. Ms. Kagan was nominated in June of 1999. For 18 
months, there was no action on her nomination. I believe her nomination 
was certainly available for action by the committee and by the relevant 
bodies of the Senate for 18 months, yet she never received a hearing 
and there was no floor vote.
  Mr. CORZINE. I appreciate the Senator from Rhode Island helping me 
respond to the Senator from Pennsylvania's question: 18 months, not 2 
months; no hearing; no floor vote; someone who at least some folks who 
look at legal capacity and qualifications thought enough of, after she 
was not reviewed by the Senate either with a hearing or floor vote, to 
become the dean of the Harvard Law School.
  Again, my point is, we seem to be talking out of a sort of surreal 
context. One hundred sixty-eight to four is on the face of it an 
important statement of how there has been cooperation. I went through 
in New Jersey five for five on district court judges and one circuit 
court judge. When people work together, you can get the positive 
results in this whole process.
  The 168 to 4 shows we can have a positive result. Ninety-five percent 
of all judicial positions are filled. That, by the way, is in contrast 
with only 75 percent at the end of the Clinton administration, because 
there had been such a limited number of folks who had been able to 
actually get a hearing and ultimately a floor vote.
  There is also the statement that we are somehow or another being far 
more restrictive. I do want to review that it is 10 times the number of 
nominees blocked by the technique of not giving hearings or allowing 
for nominations to be reported to the floor that occurred in the 
Clinton administration. It was 63 nominees blocked in the 1995-to-2000 
period, against 2 percent so far in the 2001-to-2003 period of Bush 
nominees. There is something about the raw numbers of this that don't 
make sense and wouldn't to anyone if they actually focused on them in a 
commonsensical way.
  I want to get to the circuit court judge issue. If you look back to 
the Carter administration on through, we heard it is roughly 10 circuit 
court judges a year per individual. This is sort of like figuring out 
when the best rate of return in the market is over the last 50 years. 
You can pick certain sections and everything looks wonderful. I would 
just like to look in this 1995-to-2000 period when Clinton nominees 
were languishing in the hearing room. Hearings held for judicial 
nominees averaged for the Clinton administration 9 versus 22 with 
respect to what is going on in the current situation. Judicial nominees 
given hearings, 43 versus 81. Circuit court judges, nominees given 
hearings, 9 under President Clinton, 19 circuit court. That is on 
average. The confirmation is 68 judges confirmed on an annual basis 
versus 38 in the Clinton years. That is 1995 to 2000. Circuit court 
judges, it was only 7, not 10 as we heard before, if you look at that 
1995-to-2000 period. It is 12 judges under the current administration.
  We can pick these numbers, any number you want, to try to make cases. 
But the fact is, we are approving more judges, we are dealing with the 
situation on a much more legitimate basis, on an ongoing basis than 
what occurred in the previous administration.
  I just happen to have the yearbook of those folks who were left out 
in 1995 to 2000. There could be four we would have here supposedly 
under the current situation.
  By the way, I happen to know one of these judges, Stephen Orlofsky, a 
district judge in New Jersey who was unanimously confirmed for district 
court judge and then never got a hearing. I happened to know the 
specifics of

[[Page 28669]]

that because it was closer to home. Ultimately we just filled this 
position with Michael Chertoff who seems to me to be a fine 
appointment, one I recommended, stood by and pushed very hard for 
because people worked together. They cooperated, the White House, the 
folks in the Judiciary Committee, and the Senators from the area. I 
think this can be done. I think 168 to 4 shows it is being done. I 
would contrast that with the over 50 nominees, 1995 to 2000, who never 
got a hearing.
  I am just going to point out two of these. Judge Helene White of 
Michigan was nominated to the Sixth Circuit, waited in vain 4 years, 
1,454 days for a hearing. It may not be a filibuster on the floor, but 
for 1,454 days she couldn't get a hearing. I think it gets to the same 
result. We are not dealing with Presidential nominations. The fact is, 
there were 55 of these folks. In fact, we have only identified four who 
seemed to be so far out of the mainstream that a number of us are 
concerned about how that fits.
  I could go through this. There is a James Beatty from North Carolina 
nominated to the Fourth Circuit. He didn't get a hearing either, waited 
3 years, 1,033 days, never got a hearing. This went on. You could get 
on down into the weeds on a whole series of these folks. But these 
people never got a hearing. It is just a different technique. We are 
talking about four people. There is a legitimate view that their 
actions were outside the mainstream. Maybe they got votes once they got 
to the floor, but they never got out of committee. I think that is a 
major issue.
  The other thing I will segue off into is the issue the Senator from 
Rhode Island talked about. What is really hard about this is there is 
an incredible agenda for America to be discussing. I think we could 
afford to spend 30 hours talking about how we put 9 million Americans 
back to work. I think it is pretty hard to understand how we got the 
priorities. We have 168 positive elements with regard to our judicial 
nominations accepted and only 4 turned down, but we have had 3 million 
lost jobs, 2\1/2\ million manufacturing jobs. We have had the deficit 
go from a $236 billion surplus to a $304 billion deficit. We have seen 
a $500 billion plus negative cashflow because we are managing the 
economy poorly. We have seen it hurt and bite real individuals, 9 
million. Two million people have been unemployed longer than their 
unemployment benefits would allow; 4 million people have dropped off 
the rolls.
  It is an incredible misprioritization, in my view, that we are 
talking about four judges when there are 9 million people that we ought 
to be figuring out how to get back to work.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. CORZINE. I thank the Chair. We will be back.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SANTORUM. Mr. President, I want to respond to what the Senator 
from New Jersey has said. I think to put it into the proper context, 
the Senator from New Jersey is talking about people who were nominated 
by President Clinton who didn't get hearings. Most of the people who 
didn't get hearings had blue-slip problems. Democrats, right now, are 
holding members of their States in committee--right now--with blue 
slips. That has been done.
  In fact, there are a whole bunch from Michigan being held by the 
Senators from Michigan for the circuit court, by blue slips. Democrats 
are holding up judges right now. So the idea that we are going to 
compare that, which has been a historical right of Senators, to the 
home State being consulted on nominations for the district court--
speaking as a Senator from Pennsylvania, I can certainly suggest to the 
President who I would like him to look at for the circuit court from my 
State. But I don't get a right to tell him who it is. The precedent has 
not been that way. The Senators from Michigan are blue-slipping these 
nominees and they have blue-slipped others.
  Some of the nominees pointed out by the Senator from New Jersey, held 
by the Clinton administration, were actually pulled by the Clinton 
administration. The number that were actually not pulled because of FBI 
problems were 42, not 63; 42 did not receive a hearing. Some of them 
had blue-slip problems.
  Members were not properly consulted from the States. Some were 
Democrats and some were Republicans. This has been a practice 
throughout Senate history. The question is not whether that practice 
should be changed. Some suggest--and, in fact, there has been a 
movement by several people to try to change that process. But this is 
something that is a prerogative of home State Senators, which has been 
a prerogative of home State Senators throughout the tradition of the 
Senate. It is one that I think most Members would say is probably a 
good thing.
  Home State Senators are consulted by the President before people from 
their State are nominated. They should have some advice and consent 
into the process. When they don't, some Senators get very upset about 
that and they sign a negative blue slip.
  So let's talk about apples to apples. We have 42 Clinton nominees not 
acted upon for a variety of different reasons; some the committee 
didn't like, some were blue-slipped, some were submitted late in the 
process. So there were 42, after 8 years. There were 377 confirmed 
nominees and 1 was defeated on the Senate floor. There were zero 
filibusters on the floor.
  Under President Bush 41, there were 54 nominees not considered by the 
Democratic Senate Judiciary Committee--more than President Bush, 
substantially less number of nominees confirmed by the Senate.
  Now, we don't know how many George W. Bush nominees are not going to 
be confirmed by the end of this year or next year, but there will be 
some. Some will be nominated late in the process, and it takes a while 
for the process to work. There will always be some in the pipeline. 
That is the way the process works. So the idea that we are going to 
take the normal process of processing judges here and say we have not 
considered every one of them and that sort of makes everything all 
equal, no it does not.
  The issue here is that, once the Judiciary Committee has done their 
job, just as every committee here does their job--lots of committees 
have nominations. It is their job to scrub them and find out whether 
they are qualified and capable to do the job and report them to the 
Senate floor if they think they are.
  I was on the Armed Services Committee. We reviewed thousands of 
nominations; some we didn't report out because we didn't think they 
were proper for promotion or appointment. That is the obligation of the 
committee.
  We get lots of bills in these committees. Is every bill that we don't 
report out somehow as a result of a filibuster in the Senate? I don't 
think so. That is the job of the committee. Once the committee makes 
the determination and the majority of the committee--whatever it is, 
Democrat or Republican, or a combination--reports a nominee out, 
reports a bill out, the question is, what happens on the floor of the 
Senate?
  With respect to nominations, since the filibuster rule was put into 
place, 2,372 nominations have come to the floor of the Senate, and not 
1 has ever been stopped from an up-or-down vote. Not one. All of them 
received up-or-down votes.
  This idea that 168 to 4--we keep hearing that is a good percentage. 
Is it? Is it a good percentage when the four are subjected to a process 
that has never been done before? It is soon to be 6, promises to be 12. 
All of a sudden, 4, 6, 12--exponential growth here. Why? Because we are 
going down a very twisted and tortured path, with the logic that is 
being followed by the minority in the Senate. What is happening here 
has never happened in the history of the Senate.
  This is a great body. Incredible debates have occurred here in the 
past. This is the greatest deliberative body in the world. It should 
be. We should talk about these issues. It is great that

[[Page 28670]]

we are here all through the night talking about this. But in the end, 
our responsibility, according to the Constitution, is what every other 
Senate for 107 sessions of the Senate, for 214 years, has done. Our 
responsibility under the advise and consent clause of the Constitution 
is to consider judicial nominations and give them a vote up or down. 
That is what every Senate leader, every Senator who had the opportunity 
to have an impact on this process--they all came down with the decision 
that that is what this constitutional provision meant--until this year.
  Some have suggested, well, these judges are so far out of the 
mainstream; they are so bad; there have never been judges this bad; 
these guys are really bad; they are not just bad, they are really bad, 
worse than we have ever seen in 214 years; nobody has ever been this 
bad; therefore, we have to change the rules.
  Let's talk about a couple of judges. One who I voted against--I will 
use one of them--was Judge Paez, who was referred to on the other side. 
I voted against Judge Paez. But I voted for cloture. I thought Judge 
Paez would be one of the worst judges this country would ever see. I 
didn't want him to be a judge. He was already a judge in district 
court, but I would loathe to put him on the Ninth Circuit because I 
thought he would absolutely take the Constitution and set a match to it 
and throw it in the trash can and do whatever he damn well pleased.
  Well, they are saying that Judge Pickering is so far out of the 
mainstream that he would light a match to the Constitution and throw it 
away and do whatever he pleases. That is pretty much what they are 
saying. Well, let's look at Judge Pickering and Judge Paez and see what 
they did with two similar cases.
  Judge Paez and Judge Pickering both had cases before them having to 
do with sentencing guidelines. Judge Pickering didn't like the 
sentencing guidelines that were before him in a case. The other side 
has used this case as their principal reason--one of them--of opposing 
Judge Pickering. They didn't like the way he dealt with this case 
because he didn't like the sentencing guidelines. So what did Judge 
Pickering do that they really don't like? They find it deplorable 
conduct that this judge would do this. What did he do? He complained 
about it. He complained about it. That is it. Judge Pickering 
complained about it.
  What did Judge Paez do? He struck it down and said it was 
unconstitutional.
  Now, who is the judge that is throwing the Constitution in the trash 
can? What was the provision that Judge Paez struck down and said was 
unconstitutional? The three strikes and you are out provision, which 
was voted in by the people of California. What happened to Judge Paez? 
His decision was overturned by the U.S. Supreme Court.
  Who is the mainstream and who is the extreme? Every time you hear 
mainstream over there, put an X in front of it. It has nothing to do 
with mainstream. It is extreme. It is dangerous.
  Let's talk about some of other Judge Paez's decisions. He was one who 
tried to stop the California election a few months ago. Yes, he was one 
of the ones who said it is unconstitutional for them to do that. Oh, by 
the way, he was also on the Pledge of Allegiance case and said ``under 
God'' should not be in the pledge. Oh, he is very mainstream, the kind 
of guy we really want. The Senator from New York said tonight, ``I 
think he is in the mainstream.'' Understand, folks, what mainstream is: 
``Under God'' not allowed in the pledge, the three strikes and you are 
out law is unconstitutional, and the California election is 
unconstitutional. If I don't like it, it is unconstitutional. That is 
mainstream? A government of men, not of laws is mainstream? This is 
very dangerous, folks.
  People ask me all the time: Senator, why should this matter to us, 
what is going on here? Why does this matter? What do judges have to do 
with my life? Well, the answer to that question should be: not much. 
That is what the answer should be--not much. Unless you get into 
trouble one way or another, it should not matter that much to you at 
all.
  What a judge should do is as little as possible. They should try to 
make decisions based on the narrowest law possible, not try to make 
pronouncements and change the law from the bench or amend the 
Constitution from the bench. They should do as little as possible.
  See, that bothers a lot of my colleagues on the other side of the 
aisle. They don't want judges who will do as little as possible. What 
they are concerned about with Judge Pickering is not that he will do as 
little as possible. They are concerned he will do as little as 
possible, that he will make decisions based on the narrowest grounds, 
not broad, sweeping grounds, the grounds that change laws and create 
new rights or responsibilities. No, they want someone who will put 
their world view in the law that they cannot accomplish through the 
legislative process. They want judges who will do it through the 
judicial process. That is what they are getting. They don't want 
anybody who will say we are going to stop doing that.
  That is not what the Founders wanted us to do here. If they wanted us 
to respect the legislative branch and presume that what they pass is 
constitutional--if in fact it is not, we have problems--then decide the 
issue on the narrowest grounds. That is what we want. That is not what 
they want.
  I am really troubled. I am really troubled by what I see going on in 
the Senate of people who are willing--for what? For what cause? Are 
they willing to take the Constitution of the United States, when it 
comes to the confirmation of judicial nominees, which has been upheld 
by every Congress in history, and turn it on its ear to accomplish some 
goal?
  My question is--and I asked it earlier--in 214 years, no group of 
Senators ever decided that it was what they cared about, with respect 
to the courts, that it was so important that they were willing to go 
against the Constitution, which says a simple majority for advise and 
consent. It did not require a supermajority. They were going to go 
against the Constitution and raise the bar. No Senate in history said 
we were going to raise the bar and require a supermajority vote, given 
all of the incredible issues that we had to deal with in the Senate; no 
Senate has ever said the issue today is so important that we need to 
raise this bar, that it is best for our country to do that. Why? 
Because most Senators always felt, as I deeply feel, that we are a 
Nation of laws, and this Nation of laws and of constitutional law is 
important to preserve. We should not just throw it over for an 
immediate political whim, or policy whim, because once the process is 
corrupt, once the law is violated, once the procedures are changed, you 
cannot put the genie back into the bottle.
  What this debate tonight is all about, this process we are going 
through is is a plea. Someone suggested it is not a very effective plea 
because the chances of getting a vote up or down on the judges is not 
very high. Yet it is a plea. It is a plea to those who have done 
something unprecedented in the history of this Chamber to stop. If they 
stop and they admit this was wrong, that this was not the way to deal 
with judicial nominations, that this is not a precedent they want to 
set--not 4 times, or 6 times, or 12 times but probably many times after 
that--and that this is not the right way to handle judicial 
nominations, maybe then we can bring some civility back to this 
process. Maybe we can say to the people who want to serve this country 
in one of the most honorable ways they can--to be a judge--a very 
important function in our society, maybe we will be able to attract the 
best and brightest to come here and offer up their services and not 
feel they are going to be put through a washing machine or, worse yet, 
maybe somebody who cares about the long-term health of our judiciary, 
that we don't politicize it by applying litmus tests. Let's just lay 
the cards on the table. What is this cause? What is this cause that the 
other side is so passionate about that they had to change the rules? 
The cause is the right to privacy. That is the cause--Roe v. Wade.

[[Page 28671]]

  I have given many talks on abortion on the floor of the Senate. I 
said the right to privacy under Roe v. Wade has had its tentacles reach 
out and corrupt so many areas of our culture: abortion, eugenics, 
euthanasia, stem cell research, cloning, the right to same-sex 
marriage--all of these rights come from this right to do whatever you 
believe is right for you to do. You are the law. You have the right to 
do whatever you want to do. That is where this right comes from.
  I said it has infected and poisoned the culture beyond what people 
even today realize: the cheapening of the value of human life, the 
debasement of the family, the basic social structure of our country. It 
is corroding and eroding who we are. But I forgot one, it is now 
corroding and eroding the Senate.
  Mr. HATCH. Will the Senator yield for a question?
  Mr. SANTORUM. I am happy to yield.
  Mr. HATCH. I would like to ask the distinguished Senator, we have 
seen this poster they have over there: 168, and only 4 stopped. But 
isn't it true that there are at least 12 circuit court of appeals 
nominees, ones who correct lower courts who many times make mistakes, 
who are being held up in filibusters here--not just four?
  Mr. SANTORUM. I say to the Senator from Utah, the chairman of the 
Judiciary Committee, there have been 28 or 29 circuit court judges 
confirmed. Out of that 168, there are 29.
  Mr. HATCH. Right.
  Mr. SANTORUM. So as the Senator from Missouri said further, the 
little fish they let go through the nets but they catch the big fish, 
the folks who rule on the law, who have the ability to influence the 
character of the law in this country, the appellate level. They catch 
the big fish in the net. They have let 29 go through. But 29 to 12, 
that is about a third of the nominees that the President has put up for 
the circuit court who have been caught.
  I ask the Senator from Utah if he knows what is the usual percentage 
of circuit court--by the way, let me state this. Never have circuit 
court judges ever been filibustered, ever. But let's set aside the 
unconstitutional filibuster occurring right now, the unprecedented 
abuse of the Senate rules that is occurring here right now. Let's go 
back as if this were being done on an up-or-down vote.
  What percentage of Presidential nominees for the circuit court get 
through and are approved in a normal course?
  Mr. HATCH. Normally in the Reagan-Bush I-Clinton years, 80 to 85 
percent--85 to 90 percent.
  Mr. SANTORUM. So 85 percent are approved; the rest are held in the 
committee.
  Mr. HATCH. By the end of the third year.
  Mr. SANTORUM. By the end of the term. Can you recall, let's say, what 
is the percentage in the first 2 years of an administration? What was 
the percentage in the last few years under Clinton, under Bush I, and 
under Reagan?
  Mr. HATCH. Well, in the case of Bill Clinton, President Clinton, 91 
percent, if I recall correctly.
  Mr. SANTORUM. It was 91 percent.
  Mr. HATCH. People don't realize how important these circuit courts of 
appeals are. We have shown this chart that they have is not only 
inaccurate, it is a bold-faced lie. Because they can't really come out 
here with a straight face and admit they are going to filibuster at 
least 12 circuit judges and some district court judges.
  Mr. SANTORUM. I ask the chairman, my understanding is they are only 
putting four up so they are suggesting they are not filibustering 
Janice Rogers Brown and they are not filibustering Carolyn Kuhl.


                       Unanimous Consent Request

  I ask unanimous consent that the Senate now proceed to consideration 
of Calender No. 455, the nomination of Janice Brown to a United States 
Circuit Court for the District of Columbia Circuit, provided further 
that there be--pick a number--50 hours of debate equally divided for 
the consideration of the nomination, provided further that following 
the debate the Senate proceed to a vote on the confirmation of the 
nomination with no further intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. BINGAMAN. I object.
  Mr. SANTORUM. So that is 168 to 5. Let's go to the next.


                       Unanimous Consent Request

  I ask unanimous consent that the Senate now proceed to consideration 
of Calendar No. 169, Carolyn Kuhl to be a United States Circuit Judge 
for the Ninth Circuit, provided further that there be 100 hours of 
debate equally divided for the consideration of the nomination, 
provided further that following debate the Senate proceed to a vote on 
the confirmation of the nomination with no further intervening action 
or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. BINGAMAN. I object.
  Mr. SANTORUM. I think we need to change the chart. It has to be 168 
to 6 now. Anytime the chart comes up I think everybody here, for the 
record, should make it clear, 168 to 4 is now an outdated chart.
  Mr. BINGAMAN. Will the Senator yield for a question?
  Mr. HATCH. It is a total misrepresentation is what it is.
  Mr. BINGAMAN. Will the Senator yield for a question?
  Mr. SANTORUM. I will be happy to yield for a question.
  Mr. BINGAMAN. Will the Senator concede that there is a difference 
between a Senator objecting to a unanimous consent request which had 
not been presented before on the Senate floor and the stage of a 
filibuster?
  Mr. SANTORUM. I say to the Senator that in normal cases I would say 
that may be the case. But it is clear we are going to have a cloture 
vote on Friday on this nominee. It is abundantly apparent to everyone 
who has been listening to these proceedings that the chances of the two 
gentlewomen from California, Ms. Kuhl and Ms. Brown, being given the 
record 60 votes to defeat cloture, or to get cloture, is highly 
unlikely. So we are not going to be able to get cloture. That is at 
least what we have been hearing from the other side. We are not going 
to get cloture. We can't get unanimous consent. It sounds like a 
filibuster to me.
  So I agree in part getting a unanimous consent is not in and of 
itself a grounds for saying it is being filibustered but voting against 
cloture certainly is. Other than the Senator from Georgia, that has 
seemed to be the order of the day on that side of the aisle.
  I am a very optimistic person so I am hopeful I am wrong.
  Mr. ALLEN. Will the Senator from Pennsylvania yield?
  Mr. SANTORUM. I am happy to yield.
  Mr. ALLEN. When my colleague from the Commonwealth of Pennsylvania 
talks about what makes this different for the Democrats, the difference 
is really about 3 years and a different President. I have looked at 
previous statements made by Senators on these issues, though I was not 
a Member of the Senate until 2001, and I am listening to all of these 
arguments being made now. I was earlier in the day quoting--much 
earlier in this day----
  Mr. SANTORUM. Yesterday.
  Mr. ALLEN. Yesterday. Time really passes when you are having fun--I 
feel as if I should be singing like Faron Young: ``Hello Walls.''
  As I was saying, Senator Levin is quoted as saying in 2000:

       We should not be playing politics with the Federal 
     judiciary. Candidates for these vacancies deserve to have an 
     up-or-down vote on their nominations.

  Earlier this morning, I listened to Mr. Reed, the Senator from Rhode 
Island and the Providence Plantation. But in 2000 he said:

       I ask my colleagues to take their constitutional duties 
     seriously and vote for these nominees on the basis of their 
     objective qualifications, not on the basis of petty politics.

  Another quote from Senator Reed of Rhode Island, this is from the 
March 9, 2000 Congressional Record. He said that there is 
``considerable attention'' being paid to various nominations

       . . . especially among members of the Latino community 
     because the Senate is not doing its job. This is troubling. 
     In regards to

[[Page 28672]]

     nominations the public rightly expects us to move judiciously 
     and expeditiously and without regard to politics.

  Those are the prior statements. The statements we hear from our 
Democratic colleagues on this floor--whether late last night or early 
this morning, are inconsistent with previous statements. It is a double 
standard within their own ranks.
  Mr. SANTORUM. I say to the Senator from Virginia that he is 
absolutely right. The Senator from the Commonwealth of Virginia is 
right. But I will tell you who has been consistent. Senate Republicans 
have been consistent. We said all along we are not going to filibuster 
judges. When holds are put on a nomination--a hold meaning I need to be 
notified for a unanimous consent and I may want to talk some on this 
nomination or this bill--we said we are not going to mess around with 
that. We are going to vow to wipe out holds, everything else. We are 
going to move nominations. We are going to get up-or-down votes. We are 
not going--we are going to have cloture. We are going to get the 
people's business done.
  The PRESIDING OFFICER. The time of the Senator has expired. The 
Senator from New Mexico.
  Mr. BINGAMAN. Mr. President, let me speak for a few minutes on this 
issue that brings us here at this early hour and then also talk about 
another issue that I think also deserves some serious attention by the 
Senate; that is, the health care crisis that we face in the country. 
But let me first talk about this process for nominating and confirming 
Federal judges.
  The obvious question is, How is the system intended to work under our 
Constitution, under article II of our Constitution?
  As I understand it, based on my reading of article II of the 
Constitution, the President has the authority to nominate judges and it 
is fairly clear from the language of that document that the intent is 
that he will consult with the Senate, that he will make a nomination 
based on that consultation, that then the Senate will review the 
nominee and confirm or not that nominee--then either go forward or not 
with that nomination.
  In fact, with regard to most nominees I would say the system works 
very well. In fact, it has worked with previous Presidents. It is 
working with this President.
  Yesterday I was present at a hearing of the Judiciary Committee where 
we had a nominee from New Mexico who has been nominated for our 
district court, Federal district court there. I support that 
nomination, the nomination of Judith Herrera for that position. Senator 
Domenici strongly supports that nomination. He recommended her to the 
President for that position.
  Frankly, the White House consulted with me--consulted, I am sure, 
with Senator Domenici but consulted with me as well--and asked if I 
would support this nomination.
  I had the chance to meet with the nominee, to talk with her, and of 
course I have known her for many years, and I was very glad to support 
her nomination. That is essentially the process we have followed with 
regard to all of the nominees for Federal district court positions in 
my State of New Mexico and with regard to the court of appeals position 
which is reserved for our State, New Mexico, on the Tenth Circuit Court 
of Appeals.
  There again, the President and Senator Domenici both consulted with 
me before a nomination was sent forward. I had a chance to review the 
nominee and concluded that I would strongly support that nominee.
  So the system, in fact, generally works the way it is intended to 
work. We get very good people serving on our Federal courts as a result 
of that.
  But for some reason as regards some of these judges we are arguing 
about, the President has chosen not to follow this approach. In some 
cases the President has chosen to nominate people without consulting 
with the Senators from the States those individuals hail from and has 
done so in many cases over the strenuous objection of Senators from 
those States.
  There is strong opposition from the States, for example, to the two 
nominees I was hearing about a few minutes ago from the Senator from 
Pennsylvania, Judge Kuhl and the other is Judge Brown, from California.
  In both of those cases, as I understand it, the President has 
determined to go ahead with nominations. He has nominated those 
individuals and he has done so over the strenuous objection of both 
Senators from the State from which those two nominees come. To my mind, 
it is somewhat unprecedented in the Senate that both Senators from a 
State would object strenuously to a particular nominee and the 
President would say, that's your problem; I am going to go ahead and 
nominate them anyway.
  What's more, the Judiciary Committee would go ahead and confirm or 
recommend those two nominees for confirmation over the strenuous 
objection of the two Senators from the State I involved--to me that is 
unprecedented. We have all this talk about a blue-slip procedure. That 
is out the window as far as I can tell. The blue-slip procedure used to 
mean that unless you got--unless the judiciary had returned to it a 
blue slip signed by each Senator from that State, there would not even 
be a hearing on the nominee. That was the system that prevailed.
  Not only are we to the point where, even if the Senators from the 
State where the nominees come from do not return a blue slip would they 
be voted out, they can even affirmatively object to those nominees and 
the Judiciary Committee goes ahead and votes them out at any rate. They 
put them on the Senate floor and they file a cloture motion and they 
say we are going to have a vote on the Senate floor on these 
individuals; we could care less what the Senators from the State 
involved think about these nominees. That, to me, is an unprecedented 
procedure. I am not familiar with that.
  I think about my own situation. As I have indicated, I have been 
pleased with the courtesy and consideration I have received from the 
White House and, of course, from my colleague, Senator Domenici, with 
regard to nominees by this President for Federal judicial positions. I 
have always been consulted before the nomination was sent forward. I 
have been given a chance to meet with those nominees and have been 
given a chance to get back and say: Yes, these are people I would 
support.
  I have assumed in going through that process that, if I had come to a 
different conclusion, if I had determined that I had a strong objection 
to one or more of these nominees, that would also be honored and that 
the President would find someone else who was acceptable to, of course, 
the President but to the two Senators from the State as well before 
going forward with the nomination. I have assumed that. I still assume 
that. But that has not happened in the case of some of these 
nominations.
  As I understand it, tomorrow we are going to have a vote on a cloture 
motion on the two judges I mentioned. You can argue about the merits of 
the positions that these judges have taken, but the thing that sticks 
in my craw, the issue that I want to focus on is the process. Why would 
I want to vote in favor of going forward to confirm a judge when I know 
the two Senators from the State that the judge comes from strenuously 
object to that judge being confirmed?
  If the shoe were on the other foot, if in fact I was the Senator who 
was objecting, I would hope my colleagues in the Senate would support 
my right to object and to keep that person from being confirmed as a 
Federal judge. I am not sure they would do that, but I would certainly 
request they do that. That is exactly the request we have received from 
the two Senators from California, one of whom serves on the Judiciary 
Committee, and both of whom have spent extensive time looking into the 
records of these two judges. Why in the world are we not willing to 
defer to their view on this and hold up on confirming these judges? It 
seems to me that is the tradition of the Senate and we ought to adhere 
to that tradition. I think the President ought to adhere to that 
position.

[[Page 28673]]

  We are talking here about what might be wrong with the process for 
confirming judges.
  Mr. ALLEN. Mr. President, will the Senator yield?
  Mr. BINGAMAN. I am glad to yield.
  Mr. ALLEN. If I may question the Senator, using the criteria which he 
set forth insofar as the two judges being opposed and which we are now 
debating. My colleague said that the reason or a rationale for him to 
vote against them is because the two Senators from California are 
opposed to these two nominees? In the case of Priscilla Owen, both 
Senators Cornyn and Senator Hutchison are strongly in favor of Justice 
Owen. Does that mean that when we get to a vote on Justice Owen the 
Senator from New Mexico will then vote to move forward to at least 
allow a fair up-or-down vote on Judge Owen since both Texas Senators 
are strongly in favor of her?
  Mr. BINGAMAN. Mr. President, let me first say I think that is a very 
good question. The answer is, no, I would not vote to move forward with 
a vote on Judge Owen because of the other problems that have surfaced 
with regard to her views and her judicial record. But I think as I 
approach this issue we have a threshold question. The threshold 
question is: Do the Senators from the State that is affected support 
these nominees? If they don't, the President shouldn't nominate them, 
and the Judiciary Committee should not report their nomination to the 
Senate floor. If they do support these nominees, there is still an 
obligation on each Member of the Senate to review the nominee and to 
determine whether in fact we believe that nominee should be confirmed 
for a Federal judgeship. That is the process we are going through.
  I would say I do not think just getting the support of the Senators 
from a particular State entitles a person to a lifetime appointment to 
the Federal bench, but I do think that absent the support and in the 
face of strong opposition from the Senators from the State that is 
affected, the Senate should not be considering the nominees under these 
circumstances.
  To criticize those of us who do not want to move ahead with an up-or-
down vote on that on the theory we know how an up-or-down vote will 
come out on these issues, the President has very good ability to line 
up Republican Senators to vote for virtually anything, so far as I can 
tell--not just on judicial nominations, but virtually anything he 
opposes around here. I am amazed, frankly, at some of the willingness 
of some of my colleagues on the Republican side of the aisle to march 
down to the Senate well and cast a vote in favor of positions the 
President is advocating regardless of how it would affect our 
constituents. We know what the outcome will be if we go to an up-or-
down vote. I think it would be a disservice to the Senators from the 
States affected for us to go ahead and confirm these individuals over 
their strenuous objections.
  I hope when we get to these votes on cloture tomorrow on these 
particular judges we have talked about that we will not move ahead and 
invoke cloture.
  I do not think, as far as I know, based on the information I have, 
none of them are individuals I would favor promoting to the positions 
they have been nominated for.
  I know my colleague is here and may wish to speak as well. I don't 
want to use all of our time.
  Let me just talk for a minute about another issue. In many ways, this 
is a very unusual process we have gotten into here with a 30-hour 
diversion from the other business we could be pursuing here in the 
final weeks of this legislative session. There is other important 
business. Frankly, when I go home to my State of New Mexico, it is 
difficult for me to explain to people in my State who I represent why I 
am not dealing with some of the issues that directly affect them in 
their daily lives. Instead, we are here talking through the night about 
judicial nominees in many cases who are strongly opposed by the 
Senators from the States they come from.
  I want to speak for just a few minutes about the health care crisis 
in the country. Earlier this year, I introduced the first part of a 
series of proposals to try to strengthen our Nation's health care 
safety net. That bill is entitled Strengthening Our States, or the SOS 
Act, of 2003. It seeks to protect the Medicaid Program, to improve the 
Medicaid Program. That is a program that is under severe stress and 
pressure because of the budgetary problems in our States. Dianne 
Rowland and Jim Talin of the Kaiser Commission on Medicaid say that:

       Medicaid is the glue that helps hold our health system 
     together. It takes on the highest risk, the sickest and most 
     expensive populations from private insurers and from 
     Medicare.

  That is a lot of people in my State who depend on the Medicaid 
system. We need to take steps to strengthen that system. Like a 
waterfront community that seeks to set up barricades against a rising 
river, defending the Medicaid Program from attacks such as the idea of 
a block grant is a top priority. This administration began this year 
recommending we adopt essentially a block grant approach to Medicaid. 
That concept is one which I strongly opposed. I am glad to see many of 
our Governors have now come out in strong opposition to that concept. 
It would be extremely adverse to those who depend upon this very 
important system in our States.
  It is critical to maintain Medicaid, as it has correctly responded as 
a safety net program by adding coverage to millions of people as the 
country has slipped into recession. We are now pulling out of that 
recession--at least we all hope we are. Certainly the economy indicates 
we are. But as we have been in this slow period of economic growth, it 
has been clear the Medicaid system has been extremely important. The 
total number of individuals who are uninsured in this country have 
increased. Nearly 44 million people are without any coverage. Once the 
future of Medicaid is assured and protected, we also need to take some 
additional steps to confront the fact this nearly 44 million people--or 
15.2 percent of the population--is without health insurance for the 
entire year of 2002. That is an increase of nearly 4 million people 
over those who were uninsured in the year 2000. The numbers for 2003 
undoubtedly have gotten even worse.
  The report of the National Coalition on Health Care says the 
confluence of powerful economic forces fueled by terrorist attacks of 
September 11 have unleashed a perfect storm that increases dramatically 
the number of uninsured in the United States with as many as 6 million 
people in total losing their coverage.
  In light of this, I just make the point again it is somewhat shocking 
to me that we are spending 30 hours--essentially that means this whole 
week. The truth is our ability to get work done this week has been 
substantially impaired by the decision of the majority here in the 
Senate to devote 30 hours to talking about this handful of judicial 
nominees they would like to have confirmed for Federal judicial 
positions in spite of the serious problems that have been found with 
regard to that program.
  The number of people in our country who need health care is 
staggering. New Mexico ranks second only to Texas in the percentage of 
its citizens who are uninsured. In New Mexico, we are the only State in 
the country with less than half of our population currently covered by 
private health insurance. That is a rather shocking statistic when you 
think about it. But it is true. Forty-two percent of the Hispanic 
population has employer-based coverage; that is, nationwide. That is 
not in New Mexico. That is in comparison to 67 percent of non-Hispanic 
whites who have employer-based coverage. To address the growing crisis, 
we have been working with the American College of Physicians since last 
fall on a legislative proposal we are calling the Health Coverage 
Affordability Responsibility and Equity Act of 2003. This legislation 
does a variety of things which I want to educate my colleagues on at 
some time when we have more opportunity to do so.
  Our colleague from New Jersey wishes to speak again on the issue that 
brings us here at this early hour, so I

[[Page 28674]]

will yield to him, but I think the course we are following with regard 
to judges is not a course any of us would choose at this point. If we 
could get the President back into the consulting mode with regard to 
all judges he has pursued, with regard to most judges, I think the 
problem would be eliminated and we would not have the difficulty and 
confrontation which has been required as a result of nominations so far 
this session.
  Mr. ALLEN. Mr. President, will the Senator yield?
  Mr. BINGAMAN. I am glad to yield.
  Mr. ALLEN. The Senator brought up the two Senators from California 
opposing two judges for the Ninth Circuit Court of Appeals as if the 
Ninth Circuit Court of Appeals is only in California. That court of 
appeals covers many States--I believe even the State which the 
Presiding Officer is from, Nevada, but also Idaho, Oregon, Washington, 
Hawaii, Montana Arizona and Alaska. It is not just the Senators from 
one State that are affected when you have a circuit as large as that. 
This is the same court that almost hijacked the Constitution of 
California. Three of these judges attempted to do just that until they 
were all overruled so they could go forward with the California recall 
election. It is not just one State that is affected when you are 
talking about a circuit.
  Let us talk about the District of Columbia Court of Appeals. There 
are no Senators from the District. I will not get into that debate on 
this issue.
  Who is the President to consult in the case of the D.C. Circuit Court 
of Appeals? The President consulted many people and put forth a person 
of impeccable credentials, Miguel Estrada, who is actually a resident 
of Virginia. Senator Warner and I presented him to the committee. I 
will not speak about that wonderful day at this time. The President 
looked for people from all across the country and presented Miguel 
Estrada's nomination to the Senate. Seven times we tried to get an up 
or down vote on Miguel Estrada. The reason we are still fighting this 
right now is because the minority is denying me, as a Senator, and 
other Senators, the ability to advise and consent and fair up or down 
vote. I am not saying people have to vote for any particular judge. But 
we all have a responsibility to vote. From the perspective of the 
Senator from New Mexico, who is the President supposed to consult for 
the District of Columbia Court of Appeals when he put forward a 
superbly qualified and exemplary individual who was held up for over 2 
years and finally could not continue with the years of delay and 
obstruction?
  Mr. BINGAMAN. Mr. President, reclaiming my time, it is a very good 
question. My own view would be we clearly have in the Senate for well 
over a century now delegated the initial responsibility for reviewing 
judges to the members of the Judiciary Committee. I would suggest the 
President should be consulting with members of the Judiciary Committee, 
both Republicans and Democrats, and if he determines he can't get a 
single Democrat on the Judiciary Committee to support his nominee, that 
should be a signal to him he should find a nominee who could be 
supported by Democrats, as well as Republicans.
  It is true the Democrats are in the minority at this point. But a 
great many Members of this body are Democrats and a great many members 
of the Judiciary Committee are Democrats. If to a person they are 
opposed to the nominee after they learn of the qualifications and the 
positions taken by the nominee, I think that is a signal to the 
President he should find someone else. Clearly, that is not the course 
he has chosen to follow.
  I see my colleague from New Jersey. Let me yield the balance of my 
time to him.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. CORZINE. Mr. President, I thank the Senator from New Mexico for 
what I think is a very appropriate underscoring of the unprecedented 
nature of not working with the Senators from the State which the judge 
has been nominated.
  I concur with the Senator from New Mexico. In New Jersey's case, we 
are 5 for 5 on district court judges because there has been strong 
cooperation back and forth between the White House and Senators from 
New Jersey. We are one for one on the circuit court judges where people 
work together to try to move things. That is how we ended up, frankly, 
in general with 168 to 4 because this process has worked a lot more 
smoothly than I think this 30-hour talkathon has indicated.
  I want to use the last few minutes of my time this morning to talk 
about priorities.
  One hundred sixty-eight to four--scratch that and make that six, if 
you want. The fact is that is about 97\1/2\ percent if it were 6 of all 
of the judges who come up have been approved. When there is an outreach 
toward cooperation, things work pretty well around here. For some 
reason that has worked pretty well in most instances, and we are trying 
to look at a very narrow segment of something I think reasonable people 
can have differences of view about--the qualifications of the 
individuals. That is exactly why the rules are being used the way they 
are.
  I want to place this in context. It is really more important in how 
it plays off of what the Senator from New Mexico said.
  We have real issues in this country right now. The fact is we have 9 
million Americans unemployed. We can spend 30 hours here talking about 
four or six judges when we have 9 million people unemployed.
  By the way, the statistics going down in national terms don't seem to 
fit New Jersey. The latest statistics we have show we have had 11,800 
jobs lost in the last reported period. Unemployment has grown by about 
258,000 since the year 2000. New Jersey has brought 55,000 
manufacturing jobs in the Nation.
  These are real people. At least when I go back to the streets of 
communities I represent, people are more interested in what is going on 
with their jobs and what is going on with the economy than whether we 
have a difference of opinion about four judges or five judges when we 
have confirmed 168.
  It seems to me we have our priorities all messed up here when there 
are 9 million Americans left out of the economic system.
  It is hard for me to understand why poverty is growing in this 
country. The number is up almost 1 percent--from 11.3 to 12.1 percent. 
In New Jersey, that is 69,000 people who have gone onto the poverty 
rolls who weren't there before the current administration's economic 
policies were put in place, and 148,000 New Jerseyans have gone off the 
rolls of those who have health care. These are real issues. These are 
the things that impact people's lives.
  These 4 judges out of 172--it is pretty hard to understand why we are 
spending all night and all day talking about that when we ought to be 
doing something about health care in this country; when we ought to be 
doing something about prescription drugs, while we have been waiting 
for somebody in the dark of night to try to put together a bill. It 
doesn't make sense that we have the focus on something that is so 
narrow and is not even in the context of actual reality because we are 
actually filling those jobs. But we are not doing anything about the 9 
million Americans who are losing jobs.
  We can't get, by the way, an increase in the minimum wage. It has 
been 7 years since we increased the minimum wage around here. We can't 
get a debate on that.


                       Unanimous Consent Request

  I ask unanimous consent that the Senate now return to legislative 
session to proceed to the consideration of calendar No. 3, S. 224, the 
bill to increase the minimum wage, that the bill be read a third time 
and passed, and the motion to reconsider be laid upon the table.
  Mr. ALLEN. Objection.
  The PRESIDING OFFICER. Objection is heard.
  The time has expired.
  Who yields time?
  The PRESIDING OFFICER (Mr. Thomas). The Senator's time has expired. 
The Senator from Virginia.
  Mr. ALLEN. Mr. President, we are now entering the 13th hour of this 
debate. The reason it has taken so long is

[[Page 28675]]

because some Democrats have denied a fair up-or-down vote on many 
nominees. The sun is rising, of course, along the eastern seaboard from 
Miami and Jacksonville. It is rising in Charlotte and Myrtle Beach and 
Virginia Beach, all the way up to Maine. I am sure there are truck 
drivers from Bangor, Maine to Bakersfield, California who have been 
listening very intently to this debate. It is nice to be here this 
morning with my Senate colleagues, but surely we did not start this day 
as advised by the great country singer Charlie Pride, ``to kiss an 
angel good morning.'' I do not see any angels around here. My angel is 
at home with our children getting them ready for school.
  You hear arguments from the other side that they just have to stop 
these nominees as in the case of Miguel Estrada. In the case of Miguel 
Estrada, he even had the support of several Democrats. There were four 
Democrats who did vote for moving Miguel Estrada's nomination to an up 
or down vote. But the minority is setting a new standard, and I dare 
say not a constitutional standard. This new standard has crept into the 
Senate. While the Constitution says you are supposed to advise and 
consent and a nominee is confirmed by a majority vote, my colleagues on 
the other side have set a new standard for a supermajority. Because of 
that, a majority of us in the Senate have been denied our opportunity 
to act responsibly for our constituents and have the guts to stand up 
and vote yea or nay after examination, deliberation, exploration, 
inquisition, in some cases, interrogations of judges to determine their 
judicial philosophy.
  I care a great deal about judicial philosophy. I believe strongly 
that judges should be interpreting and administer the law, as opposed 
to inventing the law.
  Earlier the Senator from New Jersey was talking about economic 
matters. I clearly want to say, for all those who are bright eyed and 
listening this morning, the number one goal of us on this side of the 
aisle is to make sure America is competitive--to have the right tax 
policies, the right regulatory policies so businesses can invest, 
whether in New Jersey or Virginia or elsewhere in this country, and to 
help create more jobs. We have to have the right policies in place for 
this to occur.
  And America's competitiveness directly relates to our courts. We have 
to make sure there is class action fairness so as a nation we make sure 
those who have grievances or injuries due to negligence have access to 
the courts, while helping to reduce frivolous lawsuits. Obviously, this 
is something that means a great deal for jobs.
  What happened to the class action bill that was going to help create 
jobs and defend against junk lawsuits? We had obstruction on that. We 
were able to get 59 votes, but we had to get 60. This reform is 
important for jobs and the retention of jobs. We want to pass an energy 
bill, an energy bill that will help create 500,000 new American jobs 
with clean coal technology, advancements in hydrogen fuel cells as well 
as hopefully development of our domestic reserves of oil and gas. We 
want to create more jobs by passing an asbestos bill that ensures that 
people who have asbestosis or asbestos-related diseases can actually 
get compensated as opposed to the lawyers.
  We successfully passed the Small Business Administration bill that 
will help create 3 million jobs. We want to make sure we get homeland 
investment or repatriation of profits to come back into this country. 
We have to pass a variety of other measures so families, individuals, 
and businesses can prosper.
  We have done a lot so far, and you are seeing the results of it. I 
was listening to the Senator from New Jersey. He seems not to have been 
listening in some regards to recent economic facts. We have had great 
gross domestic product growth in every quarter since we passed the 
economic growth and tax relief package in 2001. This most quarter we 
had the biggest growth in almost 20 years as far as gross domestic 
product. You are seeing in the beginning more jobs being created--
126,000 net new jobs. The reason for this is businesses and individuals 
are reacting favorably to tax cuts. The Senator from New Jersey did not 
vote for those tax cuts. If it were up to the Senator from New Jersey, 
taxes would be higher on individuals, on families, and on small 
businesses. You would have less investment, fewer jobs, and less hope 
for opportunity, prosperity, and jobs in the future.
  We are going to continue working to make sure our economy is running 
as strongly as possible. Are we satisfied with where it is? No. There 
are people still looking for work, and we need to make sure we address 
those issues. But it does not mean we ignore the issues of the third 
branch of our Government, the judicial branch. What we have here is an 
abrogation of our constitutional responsibility. What we have here is a 
diminishment of the accountability and responsibility of Senators. What 
we have here is a perpetuation of unfairness and an injustice to many 
judges.
  The Senate has a clear responsibility in the judicial nomination 
process, as seen in Article II, section 2 of the Constitution. It is to 
advise and consent. It is not to obstruct and delay. Senators can be 
expected to examine different nominees in a fair method. We can have a 
debate. I don't expect any Senator to be a rubberstamp for any 
President. The Senate can properly give thorough and honest 
consideration of a nominee prior to a vote in deciding whether consent 
should be granted. That means every Senator has every right to vote 
against a nominee if they feel that person is unsuited to the bench.
  The advise and consent in our Constitution does not, though, give the 
Senate the right to deny a simple up-or-down vote to a nomination once 
that nominee has been thoroughly debated and evaluated in the Judiciary 
Committee of the Senate and brought forward to the floor. The 
Constitution requires fairness and accountability from the Senate in 
confirming nominees. Without a proper up-or-down vote, I am afraid what 
you are finding here is the judicial nomination process, as laid out in 
our Constitution, is being hijacked by the minority--not every single 
Democrat, but a majority of the Democrats. Their position is one that 
is irresponsible and an obstruction of our constitutional 
responsibilities. There is no accountability. There is no fairness.
  For over 214 years, the President has had the responsibility of 
nominating persons to vacant positions on federal courts. That is 
spelled out in the Constitution. This is essential to maintaining the 
constitutional framework of a separation of powers.
  Five years ago, the New York Times said the Senate should ``rise to 
the occasion and address the institutional responsibilities of the 
Senate rather than surrendering to the petty tactics of the blockading 
few.'' This was in 1998. On this rare occasion, I agreed with the New 
York Times.
  I would say to my colleagues, if you do not like Judge Janice Rogers 
Brown, Judge Carolyn Kuhl, Justice Priscilla Owen, or any other 
judicial nominee for whatever reason that may be, whether I consider it 
justified or not, vote against their nominations, but vote. Take a 
stand up or down. Show your constituents where you stand. Don't hide 
behind the arcane procedural maneuvers of the Senate.
  What we have here is justice being delayed and being denied. It is 
beyond me how some Senators can continue to practice blatant political 
maneuvering at the expense of these well-qualified, respectable 
nominees, when the administration of justice is so important to our 
country. They cannot continue to use these machinations and procedural 
rules to perpetuate this obstructionist agenda. I believe Americans are 
astute. They can see these arguments being made are to avoid an up-or-
down vote. They are not based on reason but rather petty partisan 
politics.
  It is not just the people's work and business that is being made a 
victim when the other side denies these nominees a fair up-or-down 
vote. It is justice in our courtrooms that is also a victim to this 
obstructionism. Justice delayed is justice denied. It means cases that 
need to be litigated are delayed longer. It means in criminal

[[Page 28676]]

cases, it may take a longer period of time for cases to be heard and 
decisions to be made. It affects victims of crime, as caseloads back 
up. Access to our courts for legal disputes and an expeditious decision 
making process by the courts are both important.
  Let's consider Miguel Estrada. This is a gentleman I feel very 
passionately about because I got to know him in the midst of his 
consideration before the Senate. Miguel Estrada now lives in Virginia. 
He came to this country as a teenager, unable to speak English. He 
applied himself. He worked hard. He is the modern day Horatio Alger 
story and exactly the model we tell our children about. If you work 
hard, apply yourself, do well in school, get a good education, then you 
can have great opportunities in life. That is what Miguel Estrada did 
when he came from Honduras as a teenager.
  He worked hard, learned English, and ended up going to Ivy League 
schools. He clerked for a Federal judge. The American Bar Association, 
after looking at his record when working in the Solicitor General's 
office and a variety of other positions, gave him their highest 
unanimous rating. Indeed, he argued 15 cases before the Supreme Court 
of the United States, winning most of them.
  I remember that hearing in the Judiciary Committee, as my good friend 
and colleague John Warner and I presented him. His sister was there. 
His wife was there. His mother was there, so proud of Miguel. I was 
thinking, this is just a wonderful day in America to see that dream of 
America, the land of opportunity for people of qualifications and 
performance, is still there. I remember speaking for all Virginians, 
congratulating Miguel Estrada.
  Then to see what happened to him, the injustice of holding it up, not 
just for consideration for 3 months, not consideration for 6 months, 1 
year, but over 2 years, with repeated efforts to bring it to a fair up-
or-down vote on the Senate floor--not once, not twice, not three times, 
four times, five times or six, but seven times. Finally after 2 years, 
this wonderful gentleman decided that he had to get on with his life 
and that this process was too stressful to him and to his family. 
Undoubtedly you could understand why being held up this way in such an 
unfair and unjust matter that he finally decided that he had to go on 
with his life.
  To me that was a very sad day in the history of the Senate. It does 
not reflect on the views of the majority of the Senators because we had 
a majority of Senators for Miguel Estrada. We just didn't have 60. To 
me that is an injustice.
  Some of my colleagues will talk from time to time about Miguel 
Estrada. I see that the Senator from New York, Senator Schumer, is 
here. Senator Schumer called Mr. Estrada ``a far right stealth nominee, 
a candidate who will drive the Nation's second most important court out 
of the mainstream.'' Mr. President, we cannot allow the politics of 
personal destruction, evident by this statement by the Senator from New 
York, to continue to infiltrate our judicial nomination process. After 
2 years of refusing to vote, that was enough injustice without these 
gross mischaracterizations.
  I will tell you what Virginians across the Commonwealth are saying. 
The Fredericksburg Free Lance Star said that ``the filibusterers are 
abusing the Senate's advice and consent role under the Constitution'' 
and that ``Senate Democrats need to stop snacking on sour grapes and 
give this President his due.''
  The local newspaper in Staunton, Virginia, said: ``Regarding 
filibustering engaged in by Democrats in the U.S. Senate to block 
Bush's judicial picks, either vote them up or vote them down, then live 
with the consequences. Filibustering is one of the least palatable 
tactics politicians can engage in, one which only serves to bolster the 
public's lack of confidence in our elected representatives. It's no 
accident that the word ``filibuster'' derives from a Spanish term for 
pirate--``filibustero.'' It's an apt description for a process whereby 
politicians seek to board and hijack the legislative process.''
  The Richmond Times Dispatch said: ``According to the ``gold 
standard,'' each [of President Bush's] candidate's ability to serve on 
federal appellate courts is impeccable. Yet [Senator] Leahy and his 
calculating cohorts presume the judicial nominees' perceived ideology 
to be more important than their ability--and have resorted to stall 
tactics perfected decades ago on the Carolina hardwood.'' That is 
basketball terminology for those who don't remember the four corners.
  From the same newspaper:

       Miguel Estrada did not deserve such shabby treatment. No 
     one does.

  The Manassas Journal Messenger argues:

       The worst part about the Democrats' continued stonewalling 
     on Federal judicial nominations is the legacy that it leaves.

  The Winchester Star, a newspaper owned by a former Senator who served 
as a Democrat and an independent, Harry F. Byrd, Jr., predicted that:

       The precedent set here is ghastly. If this threat continues 
     to go unchallenged, advice and consent in the future will be 
     tantamount to obstruct and destroy.

  And just last month that same paper said:

       The constitutional prescription of a simple majority for 
     confirmation no longer applies. A 60-vote supermajority . . . 
     is now standard operating procedure in a process held hostage 
     by a liberal minority.

  They went on to call the Democrats' actions ``lamentable'' and 
``reprehensible.''
  Mr. CORNYN. Will the Senator yield for a question?
  Mr. ALLEN. I yield to the Senator from Texas.
  Mr. CORNYN. The Senator has talked about Miguel Estrada and his 
admirable qualities, the fact he emigrated here as a young man at 17, 
barely spoke the English language, and yet rose to the top of his 
profession and, indeed, represented the United States Government before 
the highest Court in the land in 15 cases, which is a remarkable 
professional accomplishment. But you also alluded to the comments made 
by our colleague from New York, and you gave us some quotes about the 
nature of President Bush's judicial nominees. I believe at another time 
he accused the President of loading up the judiciary with rightwingers 
who want to turn the clock back to the 1890s and warning that America 
is under attack from the hard right, the mean people. They have the 
sort of patina of philosophy, but underneath it is meanness, 
selfishness, and narrowmindedness.
  If I may ask the Senator, how in the world can you reconcile the 
public record of Miguel Estrada and this sort of characterization? Do 
you have an explanation for what is happening here?
  Mr. ALLEN. There is no justifiable explanation. Miguel Estrada is a 
person of very calm demeanor. He is very mild mannered and soft spoken. 
He is one who, throughout the entire nomination process, was willing to 
subject himself to whatever written interrogatories submitted to him by 
Senators. He was willing to and did meet one on one with Senators. So 
that characterization is not accurate.
  Do you know what that characterization is? It is pure politics. It 
doesn't matter what the truth is because they have not justified it. 
What is unfortunate about statements such as that is that it is the 
politics of personal destruction. We should rise above that.
  I say to the Senator that my very first speech on the Senate floor 
was about judges. I said that I care about treating people as 
individuals rather than partisans. I spoke about Roger Gregory. 
President Clinton had appointed him as an recess appointment. This had 
many Republicans, understandably, infuriated. I examined and talked to 
Roger Gregory to determine his judicial philosophy. I studied his 
records of accomplishment, considered his temperament, and all of the 
attributes judges who are appointed for life should have. You have to 
be sure you are not going to end up with some judge who is a radical 
one way or the other, an activist, but rather one who interprets the 
law and applies the facts of the case, rather than inventing or 
creating laws. My first speech was to say, ``let's rise above that and 
to be statesmen.''
  I found Roger Gregory to be very qualified. The first thing I said to

[[Page 28677]]

President Bush when he asked me my thoughts on this nomination was that 
I had interviewed judges for various positions when I was Governor and 
that one can never be absolutely sure about a nominee. But I told 
President Bush that I felt that Roger Gregory truly had the right 
philosophy and capabilities, and I hoped he would appoint him. And 
President Bush did.
  That is an example of rising above partisanship, rising above this 
picky, partisan process in the Senate, which denies an opportunity for 
me, as a Senator, to vote up or down. But it also denies the American 
people the accountability and responsibility they expect for their 
Senators.
  Mr. CORNYN. Will the Senator yield for one other question?
  Mr. ALLEN. Yes.
  Mr. CORNYN. The Senator has characterized what he thinks is happening 
here in terms of these attacks on qualified nominees, such as Miguel 
Estrada. I just wish to ask the Senator this. We all know, in order to 
get to the Senate, we have to run for election; and I just ask the 
Senator what his reaction is, or whether he would include this in the 
category of petty partisan politics that he just described in terms of 
the way Miguel Estrada has been attacked.
  Most recently, in a fundraising electronic newsletter to potential 
donors, the chairman of the Democratic Senatorial Campaign Committee, 
our colleague from New Jersey, recently acknowledged--he boasted that 
the current blockade of judicial nominees is ``unprecedented.'' But the 
context in which he used that is to raise money for Democratic 
candidates to the Senate and the statement we are hearing on the floor 
regarding the figure 168 to 4, that they have only blocked 4. But at 
the same time we see they are using these unprecedented filibusters to 
block the highly qualified nominees of the President. Is that what you 
would characterize as a political use of this obstructionism of 
President Bush's nominees?
  Mr. ALLEN. It is worse than that. I was not aware of that, I say to 
the Senator from Texas. That is more than just petty partisan politics. 
That is disgusting. This will lead to a continual downward spiral of 
our constitutional responsibilities. You can say you are against a 
judicial nominee, but to use it to brag and to admit that it is 
unprecedented in an attempt to raise money--to me, that is the sort of 
retaliation and retribution that is a real loser, and not just to 
Republicans or Democrats; the real loser is the justice system of the 
United States, which has been the pinnacle of the protection of our 
liberties and freedoms under the Constitution, which was created and 
designed to protect our God-given rights.
  Mr. INHOFE. Will the Senator yield for a question? I know his time is 
running out.
  Mr. ALLEN. Yes.
  Mr. INHOFE. I have been observing this all night long and all of 
these legal scholars. I admire you so much, although I have to admit I 
have often said that perhaps one of my best qualifications for being a 
Senator is that I am not a lawyer. When I read the Constitution, I know 
what it says. It is very clear what it says. It says advise and 
consent. It is a very important process.
  The reason I wanted the Senator to yield is you have been justly 
talking about the qualities of Miguel Estrada. I have met him, too. He 
is such a humble man. When you hear the horrible things said about him, 
it makes you cry inside. There was one thing that all of these nominees 
the President nominated have in common, and that is they are also 
eminently qualified. You have talked about his qualifications. Besides 
that, he worked in both the Bush and Clinton administrations.
  Also, look at the rest of the nominees. William Pryor is the youngest 
attorney general at the time he was appointed and was nominated by the 
President. He has the highest ranking of the American Bar Association. 
Priscilla Owen has the highest ranking of the ABA. In 2000, she won 84 
percent of the vote. She was supported by three former Democrat judges 
from the Texas Supreme Court. Judge Pickering--99.5 percent of his 
cases were affirmed and not appealed.
  I think we are talking about people who the President has done such a 
great job of singling out and finding, the most highly qualified 
people. I wanted to ask you that question. Isn't it true that 
everything you have said about Miguel Estrada and his qualifications is 
true about all these nominees?
  Mr. ALLEN. It is. I very much agree with the Senator from Oklahoma. 
Miguel Estrada, Priscilla Owen, Judge Pryor, Judge Brown, and Judge 
Kuhl--they all have impeccable records. They have different experiences 
but great experience, and they are highly recommended by the people who 
know them best. This is a great way of judging their capabilities. 
Nonetheless, the facts don't seem to matter.
  I close and say we need to act in accordance with the Constitution. 
The Constitution is important. Accountability is important. Fairness 
and justice are important. As a matter of principle, our judicial 
nominees deserve a fair and simple up-or-down vote. These nominees are 
individuals who are important for the function of justice in these 
various courts. And it is not just these three; there are others being 
obstructed.
  I ask my colleagues to show some guts. Stand up and vote yes or vote 
no. Act responsibly. Since I started off with a Charlie Pride 
admonition and, unfortunately, we have not been able to ``Kiss an Angel 
Good Morning'' here on the Senate floor, why don't we follow Aaron 
Tippin's advice that ``you got to stand for something.'' So why don't 
you stand. Vote yes or no on these judges but vote.
  Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER. The majority's time has expired.
  Who yields time?
  The Senator from New Mexico is recognized.
  Mr. BINGAMAN. Mr. President, let me first compliment my colleague 
from Virginia for his vast knowledge of western song lyrics. I think he 
has recited several of his favorite lyrics. I always preferred the 
famous western song ``Who Drank My Beer While I Was in the Rear.'' That 
always seemed to be one that isn't played near enough. I am sure that 
is part of the Senator's repertoire.
  Let me comment on a few of the things the Senator said. First, he 
said that justice delayed is justice denied; there is a terrible burden 
we are putting on the American people by not filling these judgeships.
  Let me call to the attention of my colleagues what has happened as 
far as judicial vacancies during the last 8 years. You can see from 
this chart that, in January of 1995, there were 63 judicial vacancies. 
That was when the Republican majority was here in the Senate. That 
number increased to 110 judicial vacancies by January of 2002.
  At that time, the Democrats took the majority in the Senate and the 
number came down precipitously, down to 60 vacancies by the time the 
Republicans gained control in the Senate and, at that point, of course, 
it has continued to go down. So now, in January of 2004, the 
expectation is that we will have 40 judicial vacancies.
  This is the best record as far as filling judicial positions, 
vacancies, of the Senate in many years. We have fewer vacancies today 
and will have fewer by the end of this year than we have had for a very 
long time. So we do not have this problem that the public is being 
denied judges, judgeships.
  I am very proud of the record of accomplishment that we have achieved 
so far in this Congress. I think we have approved a great many judges. 
We have approved a great many of this President's judges. This other 
chart, which has been up several times during last night's discussion 
says the whole thing. It basically makes the point that we have 
approved 98 percent of the judicial nominees who have been sent to us.
  In my State, we have approved several very good nominees for Federal 
judicial positions. I have supported those. As I indicated earlier, 
those nominations were brought forward, in my view, in the way the 
system is supposed to work. That is a system whereby the President and 
the White

[[Page 28678]]

House--the President's legal counsel--essentially contacted me, as well 
as, of course, Senator Domenici, my colleague, and assessed our views 
with regard to people they were intending to nominate. That is the way 
the system is supposed to work. That is what advice and consent has 
come to mean and should mean in our system. The President seeks advice, 
the Senate gives its consent, or withholds its consent.
  I have been very pleased to give my consent to the nominations that 
the President has chosen to send forward with regard to nominees for 
judicial positions in New Mexico. I also know and would like to say 
that I have assumed--and I continue to assume--that after my advice is 
requested and after my consent is sought, that if I had strenuously 
objected to some of those nominees and had stated so, the President at 
that point would decide to go ahead and choose someone else.
  In my State, we have a great many people who are practicing 
attorneys, who have held key positions in our State in various 
capacities, who are qualified to serve as Federal judges. That is one 
of the great strengths of our legal system. I am sure that is true of 
every State in the Union. If one of those individuals, for some reason, 
is not the appropriate choice and Senators from the State involved 
determine that, then the President should take that into consideration.
  My colleague from Virginia talked about being consulted by the 
President about Roger Gregory before the President made a decision on 
that appointment. That is entirely appropriate. That is the way the 
system ought to work. The President and his legal counsel should be 
consulting Senators about the appropriateness of various candidates for 
judicial office before the nominations are sent to the Senate for 
consideration.
  I think the reason we are here tonight, the reason there is angst 
about this issue about these four judges who have not been confirmed, 
the 2 percent, is because as to those 2 percent we did not have that 
consultation. The members of the Judiciary Committee, the ranking 
member of the Judiciary Committee, Senator Leahy, the other members of 
the Judiciary Committee on the Democratic side, did not have that 
opportunity to be consulted, and nominations were sent forward that, in 
fact, were not acceptable, were not strongly supported, had no support, 
and had strong opposition to them. Accordingly, we have agreed not to 
move forward with those nominations, which I think is entirely 
appropriate.
  The notion that the Senate should have the right to consent--and that 
is contained in article II, section 2 of our Constitution--implies in 
it the idea that the Senate should have the right to withhold its 
consent, and that, in fact, we have exercised that right with regard to 
4 of the 172 nominees who have come to the Senate floor so far for 
consideration. That is a pretty good record for this President. I think 
this President has done much, much better than the previous President 
in getting his nominees confirmed.
  There was great frustration on the part of many of us in the prior 
administration, and it has been expressed here on the floor, that very 
good nominees were being sent forward by President Clinton and were not 
afforded a hearing. It was not as though there were objections that 
would be expressed, there were not articulated objections. It is just 
that they would not be given a hearing because of some view by some 
Member that the person should not be entitled to a hearing before the 
committee.
  That practice has not been followed with regard to President Bush's 
nominees. We did not follow that when the Democrats were in the 
majority in the Senate, since President Bush has been in office, and, 
of course, it is not being followed at this time.
  Let me put this in a larger context, which is something we have tried 
to do here during the recent hours; that is, the context that we have 
major issues facing our country today. There is significant work--
undone work--still crying out for attention in the Senate before this 
session of Congress is over. The majority leader tells us we will 
adjourn on November 21. That is a week from tomorrow. I don't know if 
we will make that deadline or not. We have had other deadlines that 
have not been made. But that is the schedule as we now know it. We will 
adjourn a week from tomorrow, and we are essentially wasting this week 
talking about a set of issues that have been talked about and talked 
about and talked about during recent months.
  I hope that before we leave this year, we will not only finish the 
appropriations bills, which clearly need to be done to keep the 
Government functioning; I hope we will also conclude work on a Medicare 
prescription drug bill, which will preserve the Medicare system but 
which will provide a genuine benefit to Medicare recipients. I am 
informed that some time--perhaps by the end of the week--we will have 
some better indication as to what resolution is finally coming out with 
regard to those issues that have been in conference.
  I hope, also, we get a decent Energy bill. I have complained 
repeatedly about the process that has been followed with regard to the 
Energy bill because Democrats have been excluded from those conference 
meetings. But I still hold out hope that the final product, which we 
have been assured we will be able to see 48 hours before the final 
meeting of the conference--I am informed--I still hold out hope that 
final product will be something that will be good for the country and, 
on balance, will be a step forward. I don't know that that is the case. 
Until we see the bill, we will not know that is the case. We don't know 
what is being put in the bill that was not in the Senate-passed bill. 
We don't know what is being put in the bill that was not in the House-
passed bill. But clearly there is important work the Senate needs to be 
doing.
  We have very few days in which to accomplish that work. I regret that 
we are spending so much time on this single issue. Frankly, in my 
State, if I go around New Mexico and ask people what do they think we 
ought to be having all-night sessions to resolve here in the Congress, 
this would be a very distant item on the list of priorities. I think 
the first priority would probably be, Why don't you do something 
significant on the health care crisis? Why don't you do something about 
the 44 million people who have no health care coverage in this country? 
That number continues to rise.
  I have served in the Senate now for a little over 20 years, and that 
number has risen during most of that time. We have not acted 
effectively to deal with that health care crisis and, accordingly, we 
have a great many people in my State who do not have access to quality 
health care, do not have access to affordable health care. We need to 
do something about the cost of health care. We need to do something 
about the availability of health care.
  Of course, we need to do some things to try to maintain our job base, 
the jobs about which we all are concerned. We have lost over 3 million 
jobs since this President came into office. I am glad to see we are 
finally, now, in the last month, beginning to see some jobs created on 
a net basis. We created more jobs last month than we lost. I hope that 
will continue. It is going to have to continue for some period before 
we are at a break-even point. But I hope we are at a break-even point 
in the near future because, clearly, there are a lot of people looking 
for jobs, looking for good-paying jobs, and we see too many of those 
jobs going overseas, too many of our better paying jobs, particularly 
manufacturing jobs, leaving for other parts of the world.
  My colleague from New York is here. He is a member of the Judiciary 
Committee and has been intimately involved in these issues related to 
judicial nominations. I know he spoke last night. He is ready to speak 
again and give his views on this issue, so I will yield the remainder 
of my time to him.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, I thank my colleague from New Mexico for, 
as usual, his thoughtful, balanced, and fair remarks.
  We have, I guess, now been debating 13 hours 45 minutes here. I don't 
think

[[Page 28679]]

too many new arguments have come out. I don't think we have 
accomplished anything. But let's proceed, although I couldn't agree 
more with my colleagues that we could have devoted some of this time to 
speaking about issues we have not debated on the floor at length--jobs, 
the yearning of the average American to have a secure and good job; 
health care, and the millions who are not covered and millions more who 
are covered and cannot afford health care; even a debate on the war in 
Iraq, where we are going and what we should be doing. It would be far 
more instructive and illuminating to the American people than what we 
have done here.
  But we are here, and I think we should be talking about the judicial 
nominations. One point I make, just before getting into the substance: 
We heard some paeans to Miguel Estrada; Horatio Alger, we heard. He is 
a bright man of accomplishment, but let's be fair here. His father was 
a banker in Honduras. He came from a privileged background. America 
welcomes people of all backgrounds. That is wonderful. But the bottom 
line is he was not typical of an American immigrant. His father was a 
banker, they were part of the Honduran elite. The Senator from the 
other side said he didn't speak English when he came here. We think he 
probably did.
  But Horatio Alger? No. Horatio Alger was somebody who started off 
poor. There are indeed, I would like to inform my colleague from 
Virginia, millions of immigrants who came here poor as church mice and 
struggled and worked their way up. It is sort of interesting that the 
hero to those on the other side is a wealthy Honduran who became a 
wealthy American--that is the modern-day Horatio Alger story. So let's 
be straight here.
  Miguel Estrada, to be fair, is a very bright man. But just because he 
is bright and just because he came from a good background doesn't give 
him carte blanche to become a judge. He didn't answer any of our 
questions. How many Americans would get a job if they told the boss: I 
refuse to fill out the questionnaire. I don't want to answer that 
question.
  These were not esoteric questions; these were not demeaning 
questions; they were very simple questions: What is your view of the 
first amendment and how expansive it ought to be? What is your view of 
the commerce clause? The very things on which he would opine as a 
judge.
  These have been regarded as legitimate questions from the day of the 
founding of the Republic. Let me say, why are my colleagues so appalled 
that we would ask such questions? I will tell you why. It is very 
simple. Because this President, George Bush, despite his wanting his 
image to be moderate, on the issue of judicial nominations has been the 
most hard right President we have seen. His nominees are not 
mainstream, many of them.
  People on this side of the aisle have voted for many of them with 
whom we do not agree. But when some go so far, we believe the Founding 
Fathers almost importune us to question them thoroughly, and to block 
them if necessary.
  Again, this chart, I would say to the American people, says more than 
all the words and rhetoric and name calling we have heard from the 
other side: 168 to 4.
  Is the process broken down? No. Is the process so much so that a 
reasonable judge can't get through? Obviously not, unless you think 
George Bush is not nominating any reasonable judges.
  What has happened here? There is such anger on the hard right that 
they can't get every single judge they are pushing many on the other 
side, against their own will, to engage in performances like we have 
seen over the last 14 hours. We want every single judge approved. That 
is their goal. That is the goal. And then we come up with the 
arguments.
  So we went through this last night. Filibusters are OK, as long as 
they fail. That makes no sense. We have had filibusters in the past. We 
have had six of them, four by the Congresses in the 1990s and 2000. If 
a filibuster is wrong, it should be wrong whether it passes or it 
fails.
  But then look at the other argument. Over 50 judges were blocked by 
the other side. We didn't hear any speeches about Constitution in 
crisis. They weren't even giving hearings.
  The logic defies me: It is OK to block judges by not giving them 
hearings, and it is OK to filibuster as long as you fail; the only 
thing that is wrong is to have a filibuster succeed and that brings the 
Constitution in disrepute and brings the Republic to its knees.
  My colleagues, that argument does not hold up in first year law 
school. It is just totally hypocritical and contradictory. It is 
saying, I want my results so I am making whatever argument it takes. 
Sort of like the judges we don't want. A little like Justice Brown's 
way of arguing--of deciding cases. Blocking is not bad because they 
blocked 50 of them and there was no outcry. Filibusters aren't bad 
because they filibustered six of them, or four of them, and that was 
just fine.
  So let's be honest here. For some reason, there is white hot anger 
among a small, narrow group of people that they can't get every judge. 
Again, I welcomed--I don't think this serves our time well--but I 
welcome it, in the sense that all of those talk shows and all of those 
radio programs and all of those editorial boards leave out the one 
overwhelming fact, which is 168 to 4.
  I will march in parades in conservative parts of my State and once in 
a blue moon--most people don't care about this issue, to be honest, 
compared to the things that make their lives better, compared to the 
relief American families want when they sit down at the dinner table on 
Friday night to figure out how to pay these bills. But the occasional 
time somebody called out, ``Why are you blocking the President's 
judges?'' because they listen to the radio or read a biased article in 
the editorial pages, I would say: ``We approved 168 to 4,'' whatever 
the number is, and they say, ``Oh, OK.''
  You can do all the sophistic arguments you want, how many angels are 
on the head of a pin, say this way to block judges is OK.
  By the way, I would like one of my colleagues to defend, in the 30 
hours we have, was it all right to block the 50 judges of President 
Clinton? Was that OK? Do we ignore that fact? It is not ancient 
history; it was in the last decade. Was that OK? I would ask any of my 
colleagues to answer that.
  Then I would ask them to point out to me when Senators on the 
Republican side of the aisle launched filibusters, who got up and 
complained and said the Constitution was being violated?
  No, no, no. The arguments here, again, are outcome determined. There 
is no internally consistent logic. It just says: We want all the 
judges; we will take whatever argument it takes. When they originally 
put forward Miguel Estrada, they said he was a rags-to-riches case, and 
then of course the facts came out. Now he is Horatio Alger: Honduran 
banker's son becomes successful American lawyer. I don't know if that 
is going to tug at the heartstrings of most Americans. Most, I think, 
would say Horatio Alger is the person who came here penniless and 
worked in a factory, who tried to struggle to provide for his family, 
who started a small business and struggled, the whole family worked in 
it and then they got a little money, and they got richer and God bless 
America. That is what is wonderful about this country.
  But again, whatever argument fits. Is there a solution to this 
conundrum? Obviously, there is. There is. It is to follow the 
Constitution, not to come up with this idea that somehow, buried in the 
Constitution--by the way, that is not being literalist. When my 
colleagues say the Constitution says you can't filibuster a judge, they 
are reading words into the Constitution. I believe in a flexible 
Constitution. I think most people do in the 21st century. But if you 
want literal reading of the Constitution, find the word ``filibuster.'' 
Find me the number 60. Find me the sentence that says everything in the 
House and Senate, or just the Senate, should be supported by majority 
rule.
  If majority rule were so important, then we should not have 
committees because when committees block judges,

[[Page 28680]]

as they did, we don't even know what the majority thinks. The Senate 
has a very important function in this Republic. It has had for 200-
some-odd years. It is to be, as Madison put it, the cooling saucer.
  As I mentioned last night, I didn't have qualms about some of my 
colleagues trying to stop Judges Paez and Berzon. The Ninth Circuit is 
a very liberal circuit. It is too liberal for my taste. To put more 
liberal judges on there probably didn't increase the balance. That is 
why this year I supported the nomination of Judge Bybee, Jay Bybee. I 
don't agree with him on almost anything, but on the Ninth Circuit to 
have a hard right conservative is probably a good thing.
  My view is there ought to be moderation on the courts. And probably 
it is great to have one Justice Scalia on the Supreme Court and one 
Justice Brennan. You should not have five of either. Judges should not 
be at the extremes because they are the ones who tend to make law.
  We have a nominee coming up Friday, Justice Brown, who wants to go 
back and reratify the Lochner decision that has been in disrepute for 
70 years. Is that justice, someone who is interpreting the law? 
Lochner, which said a State couldn't pass a law that said bakery 
workers could work only 60 hours a week? We have come a long way since 
then.
  But it is true, there are some in America who say: We don't want the 
Government doing anything. If I am a businessman, I should be able to 
do whatever I want. I should be able to pollute the air. I am a self-
made person. Or I should be able to take my property and do exactly 
what I want with it--no zoning.
  That is a view, certainly a view that can be argued in this Chamber 
or anywhere else. It is not the view close to the mainstream of the 
American people.
  So the bottom line is a very simple one. We believe--it may drive 
some crazy, but we believe we are defending the Constitution. We 
believe that through whatever sophistry and sophistic arguments we hear 
that every one of the President's judges should be approved does not do 
justice to this wonderful document, this living, breathing document, 
the Constitution. We believe that if the only way you were to reject a 
judge was because the judge didn't have high enough grades in law 
school or because they smoked marijuana when they were in college, it 
would demean the process. We believe that asking questions about a 
judge's judicial philosophy--that is what is at the core of what makes 
a good judge. We believe that when a President brings ideology into the 
nominating process--we didn't, he did, and he said it. To his credit, 
he was honest. He said he is appointing judges in the mold of Scalia 
and Thomas. That wasn't about their law school grades or diversity; it 
was about a philosophy: Let's take the courts and change the way they 
view things.
  We believe that our examination of these nominees and their views, 
and what they do as judges, is not only appropriate but obligatory.
  I say this to the American people, to those of you who may be 
watching here at 7 in the morning. Judges have a tremendous effect on 
all of our lives. It is hard to see because it is not like a debate 
here in the Senate, this wonderful institution, or the President 
deciding a policy. It is done on a case-by-case basis. That is the 
beauty of this country. But that can determine, if you are a woman or a 
minority or disabled, what kind of discrimination might be allowed to 
exist against you. They can determine, if you are a worker, what kind 
of structure there is to protect your rights.
  The PRESIDING OFFICER. The time of the minority has expired.
  Mr. SCHUMER. Thank you, Mr. President.
  The PRESIDING OFFICER. Who seeks time?
  The Senator from Texas.
  Mr. CORNYN. Mr. President, I have to give my colleague from New York 
credit. He is a determined, articulate advocate of his point of view. 
The problem is the facts just don't sustain that point of view. This 
has been refuted time and time again, but we see the same charts being 
trotted out time and time again that just are proven not true by the 
facts that we all know. I want to talk a little bit about those facts. 
I want to talk a little bit about what Democrats in the past have said 
about filibusters and their conviction that they should never occur and 
that they are, in fact, unconstitutional. In fact, those are the 
arguments we are making today, and we will use their own words to prove 
it.
  My colleague from New York time and time again trots out a chart that 
claims that a number of judicial nominees have been filibustered by 
Republicans when in fact, those same nominees have been confirmed and 
are today sitting on the Federal court. How he can claim that what a 
Democrat minority is doing to Miguel Estrada or Priscilla Owen, Janice 
Brown, Carolyn Kuhl, Bill Pryor, and Charles Pickering is somehow the 
same thing Republicans did in the past is just disingenuous at best.
  He claims that Stephen Breyer was filibustered. The last time I 
checked, Stephen Breyer sits on the U.S. Supreme Court. You go down his 
list, and, frankly, the chart is not worth the paper it is printed on.
  Don't take my word for it. Listen to the words of Tom Daschle on 
January 30, 1995. The minority leader said:

       The Constitution is straightforward about the few instances 
     in which more than a majority of the Congress must vote: A 
     veto override, a treaty, and a finding of guilt in an 
     impeachment proceeding. Every other action by the Congress is 
     taken by majority vote.

  That is our position. They are denying those very words here today.
  I just hope the American people are listening, even though the hour 
is early and even though we have been talking for a long time now.
  My question is, should we believe you today or should we believe what 
you said in 1995, Senator Daschle, when you said, other than a veto 
override, a treaty, or a finding of guilt in an impeachment proceeding, 
every other action in Congress is taken by majority vote?
  I believe he was correct then and because of the politics of the 
moment he is not correct today.
  Senator Tom Harkin, in 1994, said:

       I really believe that the filibuster rules are 
     unconstitutional. I believe the Constitution sets out five 
     times when you need majority or supermajority votes in the 
     Senate for treaties, impeachment.

  We could go down the list:
  Lloyd Cutler, White House Counsel under President Carter and 
President Clinton; Senator Biden; Senator Boxer; Senator Feinstein; and 
Senator Kennedy. Senator Kennedy said: ``Nominees deserve a vote.'' He 
is not saying that here today. He is voting to obstruct a vote where a 
bipartisan majority of the Senate stands ready to confirm these 
nominees. Senator Kennedy said: ``Nominees deserve a vote. If our 
colleagues do not like them, vote against them.''
  I would prefer the Senator Kennedy of that era because I think he was 
right then. None of our colleagues on the other side of the aisle have 
made any explanation for why they have changed their position on what 
the Constitution means. But yet we have heard from Senator Allen and 
others that the characterization we are hearing from the other side 
about these fine judicial nominees is nothing more than politics.
  The Senator from New Jersey, Mr. Corzine, in a moment of stark 
candor, had this to say. This was an e-mail he sent to prospective 
donors to the Democratic Senatorial Campaign Committee. He said:

       Senate Democrats have launched an unprecedented effort.

  How he could call it unprecedented if, in fact, as Senator Schumer 
and others have said, it hasn't happened in the past? Senator Corzine, 
I guess, is guilty of telling the truth here. He said:

       Senate Democrats have launched an unprecedented effort by 
     mounting filibusters against the Bush administration's most 
     radical nominees. Senate Democrats have led the effort to 
     save our courts.

  Of course, we understand what is going on. This is about raising 
money.

[[Page 28681]]

This is about stirring people up by throwing them some red meat. We all 
understand what is going on. The American people understand what is 
going on, that this is about politics. This is not about politics as 
usual, this is about politics at its worst.
  The reason I say that is not because it is unusual for us to disagree 
in this body. In fact, that is one of the things I love about this 
body--that any Senator can stand up and talk about what they truly 
believe to be in the best interests of this country. We know many times 
there are disagreements. But then ultimately we have a vote because we 
believe in majority rule in this country. That, in fact, is what 
distinguishes this form of government from others--that sooner or 
later, after we have talked--and we have talked about some of these 
nominees for 2\1/2\ years or more--but sooner or later, we vote. Sooner 
or later, we vote. That is what democracy is about. That is not what is 
happening with regard to these filibusters, and it is wrong.
  The thing that really concerns me--there are a lot of things that 
concern me about this process. I believe it is not simply in need of 
tinkering. I think the system is broken down completely and we need a 
fresh start.
  Together, myself along with my colleagues who are new Members of this 
body who have been here now for just about a year, we sent a letter to 
the majority leader and the minority leader, the chairman and ranking 
member of the Judiciary Committee, and said: We are really not 
interested in this game of tit for tat or recrimination, pointing to 
the past and saying we were entitled to treat President Bush's nominees 
today badly because we believe you treated President Clinton's nominees 
badly. Frankly, I wasn't here then. I don't endorse treating any 
nominee badly. These are honorable men and women who have been chosen 
by the President to serve in positions of important public service, and 
they deserve to be treated better than the nominees we are talking 
about today have been treated. Perhaps there were excesses in the past. 
I regret that. Unfortunately, I wasn't here to do anything about it. 
But I am here today.
  What I believe is that we need a fresh start. We need to agree among 
ourselves that what has happened in the past in terms of the way 
judicial nominees have been treated does not reflect credit on this 
institution, and the people we are talking about, people who have risen 
to the very top of the legal profession and who should be treated with 
honor, it is wrong to treat them as common criminals. It is wrong to 
treat them as a caricature of their true selves. It is wrong to call 
them names. We can disagree with them. We can have a great debate. But 
ultimately, we need to treat them respectfully.
  That doesn't mean a Senator has to vote for them. Every Senator has a 
clear right to vote their conscience--to vote up or down. That is 
really all we are asking for today and last night and for the remainder 
of this day, and as long as it takes to make clear that what is 
happening is wrong. It is unconstitutional, as Democrat leaders have 
said in the past--a fact which they have apparently forgotten, to put 
it charitably.
  But I think the thing that really concerns me more than anything 
else--and as I have said, there is a lot to be concerned about--is the 
tactics used against some of these nominees, and the way they are 
treated after they have volunteered to offer their services to the 
American people on the bench.
  We have seen charts that say 168 to 4. As we pointed out before, the 
real number, if we are being honest, should be zero to 4, zero being 
the number of filibusters against judicial nominees from 1789 to 2002. 
That is right. It never happened before--never in the history of the 
United States of America. It has never happened before, until this 
year. This year we have seen four filibusters. What has changed? Has 
the Constitution somehow changed? For those Senators who decried 
filibusters in the past and who now embrace them, what has changed to 
cause their change of opinion and change of view? I think we know what 
has happened.
  That is why the number should be zero to 4--zero filibusters since 
1789 until 2002 and 2004, in this last year, in an attempt to block 
President Bush's highly qualified nominees.
  But as I was saying, where I come from we don't treat people as 
statistics. Where I come from, if you are going to attack someone and 
call them names, you at least give them a chance to meet with you and 
sit down and talk face to face. Yet obstructionists have time and time 
again refused to even meet with these nominees. Any Member of the 
Senate who would like to meet with these nominees and talk about their 
concerns and to see if they are justified, to listen to the response, 
has that right, and indeed every Senator has had that opportunity, but 
many have turned it down rather than take advantage of that opportunity 
and reach understandings and then vote.
  We have even had this process sink to a new low when it comes to 
embracing the idea that a nominee's personal views on religious issues 
should play a role in determining whether or not they are fit to serve 
as a judge.
  I strongly disagree with that concept, and I think all of us should 
reject it. I believe that when a nominee's personal theological beliefs 
become a legitimate course of debate before the judiciary and before 
the Senate, when we insert ourselves somehow between the relationship 
between an individual and their God, we violate both our conscience and 
our Constitution.
  I have sensed in the Judiciary Committee that some of my colleagues 
are genuinely alarmed and uncomfortable when a nominee speaks about his 
or her faith in honest terms in the public arena. Indeed, it is so rare 
today where people feel free to talk about things that are most 
important to them.
  I would like to read a comment that unnerves some of these folks, who 
are uncomfortable with such frank and honest discussions.
  We are inspired by a faith that goes back through all the years to 
the first chapter of the Book of Genesis. God created man in his own 
image. We on our side are striving to be true to that divine heritage. 
We are fighting, as our fathers have fought, to uphold the doctrine 
that all men are equal in the eyes of God. There never has been, there 
never can be, a successful compromise between good and evil. Only total 
victory can reward the champions of tolerance and decency and freedom 
and faith.
  This was not the comments or the testimony of a nominee to the 
Federal bench. These were the words of President Franklin Delano 
Roosevelt. I seriously doubt that anyone in this body at that time took 
President Roosevelt to task for speaking frankly and honestly about his 
deeply held personal religious beliefs. President Roosevelt was 
certainly within his rights to say that in 1942, and it is just as 
right and proper that our nominees today express their deeply held 
religious beliefs when they are talking about things that concern them 
in response to questions, whether it be about abortion or any other 
issue. I wonder today if, testifying before the Judiciary Committee, 
President Roosevelt himself would be challenged for these very remarks.
  We have most recently witnessed the strident animus directed toward 
Judge Carolyn Kuhl and Attorney General Bill Pryor who have faced 
challenges over their religious beliefs, particularly concerning the 
matter of abortion. Both nominees have, from a legal scholar's point of 
view, criticized the legal analysis used to support the Roe v. Wade 
decision. These nominees personally hold beliefs that are absolutely 
consistent with their faith and the doctrine of their church. Their 
understanding of religion holds to the doctrine that abortion is wrong. 
Yet, still, the obstructionists have argued that for both of these 
nominees--and Bill Pryor, in particular, who is repeatedly challenged 
over his philosophy and deeply held views above all those arising from 
his religious beliefs, rendered them simply unqualified to be 
confirmed.
  I would point out that these nominees are hardly alone in criticizing 
the Roe decision as a legal matter. Numerous legal scholars and jurists 
across the political spectrum who call themselves pro-choice and pro-
life have publicly criticized the legal analysis in

[[Page 28682]]

Roe, and indeed that is what lawyers do and judge us do. They parse 
words. They challenge an analysis to try to sharpen legal thinking. But 
Supreme Court Justice Ruth Bader Ginsberg, who was overwhelmingly 
approved by the Senate, has described Roe as ``heavy-handed judicial 
intervention'' that was ``difficult to justify.'' Allan Dershowitz, a 
law professor from the Harvard Law School, described Roe as a ``case of 
judicial activism more appropriately left to the political process.'' 
Edward Lazarus, former law clerk to Justice Blackmun, the author of 
Roe, said that ``Roe borders on the indefensible as a decision and, at 
its worst, is disingenuous and results oriented.''
  I read these quotes not for any other reason except to show that 
there has been over time serious scholarly concern about the legal 
justification for that decision.
  But perhaps more to the point, even though Attorney General Pryor and 
Judge Kuhl have criticized the reasoning of Roe, they recognize that 
Roe v. Wade is the law of the land. Indeed, one of the things I admire 
most about Attorney General Bill Pryor, as the Senator from Tennessee 
noted in his comments last evening, is that he has said: ``No matter 
what my personal beliefs are, I believe in the morality of enforcing 
the law.''
  Indeed, I believe as a public servant, as attorney general, as a 
judge, it is the obligation of a judge to interpret the law as written, 
not as I would have it be. Indeed, some of the problem we have had is 
judges who have elevated their personal beliefs, their political agenda 
above the law. I submit that a judge who is a lawmaker is, in fact, a 
law breaker.
  We understand in this country what was settled well over 200 years 
ago at the Constitutional Convention in Philadelphia; that is, we have 
three branches of Government. We have the Congress or legislative 
branch, which everyone understands. That is the reason we run for 
election, tell people what we believe, and then we are either accepted 
or rejected by the public because they believe that same way or not. 
But then we have a President, the executive branch, whose job it is to 
execute the law that Congress has written. Indeed, they are servants of 
the law as well because we recognize they, too, must comply with the 
law and that no President is above the law; that we are a nation of 
laws, not of men.
  Then there is the judicial branch of Government. The Federalist 
Papers refer to the judicial branch as the ``least dangerous branch.'' 
I wonder whether James Madison and Alexander Hamilton are spinning in 
their graves today when they see what the Federal judiciary has become 
in too many instances, where judges have assumed the role of lawmaker, 
something that was anathema to the Framers.
  My point is simply this: People such as Priscilla Owen, with whom I 
served for 4 years on the Texas Supreme Court, understand that no 
matter what their personal beliefs are, when they put their hand on the 
Bible and they take an oath to uphold the law of their State and of the 
United States of America, they have a sacred obligation not to elevate 
their personal views above the law. Indeed, the judicial philosophy we 
should all embrace is that of a judge who interprets the law and not 
makes law.
  As I said earlier, a judge who is a lawmaker is indeed a law breaker 
because they violate the fundamental commitment that all of us have 
made to enforce and uphold the law, including the Constitution that 
dictates those respective roles for the various branches of Government.
  When I see people such as Priscilla Owen, who received 84 percent of 
the vote in her last election by the people of Texas and who has been 
twice selected to the Texas Supreme Court; when I see people such as 
Justice Janice Rogers Brown, who was supported by 76 percent of 
Californians in the last election in 1998, the highest of four justices 
on the ballot; these are not out-of-the-mainstream judges, unless words 
no longer have meaning.
  I agree with Senator Santorum who has said, to many it appears that 
their definition of ``mainstream'' is extreme. But these are mainstream 
judges who have received the support of the people they currently 
serve, both in Texas and California, because they have faithfully 
interpreted the law. They have been true to their oath. They have been 
true to the Constitution.
  We live in a pluralistic society. People across this country have a 
variety of different beliefs on a variety of different matters. Indeed, 
that is what makes this country so great and so strong because we 
believe everyone is entitled to believe as they wish, to speak and say 
what they want, but that ultimately we are all governed by the same 
rules: the rule of law.
  It does my heart great sadness to see that people who have dedicated 
their life to upholding the law are treated so shabbily in this, the 
world's greatest deliberative body, and that reputations that have been 
earned with a lifetime of public service are degraded and denigrated to 
the point that we would not recognize them; that their families, who 
listen to these unfair and, in some instances, scurrilous attacks, must 
certainly suffer when they hear the name calling and the unfair 
characterization of these good and decent human beings.
  Just one example of this, perhaps, has taken us to a new low. This 
cartoon appeared in the Black Commentator on September 4, 2003. This 
was displayed at the hearing of Janice Rogers Brown before the 
Judiciary Committee, someone who currently serves on the California 
Supreme Court. I had the honor to introduce her to the committee 
because her two home State Senators refused to do so. But it was my 
honor to do so.
  This is the kind of scurrilous, mean attack that is embraced by some 
who oppose these nominees. I know it is not necessarily easy to see, 
but this depicts a caricature of President Bush, a picture of Janice 
Rogers Brown in the most extreme sort of racial stereotype you can 
imagine, Justice Clarence Thomas, Secretary of State Colin Powell, and 
Condoleezza Rice, National Security Adviser to the President. The 
President is saying: ``Welcome to the Federal bench, Ms. Clarence . . . 
I mean, Ms. Rogers Brown. You'll fit right in.''
  Our colleagues on the other side would do well to disavow this kind 
of support for the obstruction of these judicial nominees. Indeed, I 
would think every fairminded and decent human being would decry and 
denounce these sort of vial and loathsome tactics. We can disagree. We 
can have different points of view. Indeed, I think that is what makes 
this body so unique and so important. But we should agree to maintain a 
certain minimum level of civility in our discourse and, indeed, when 
there are those who inject this sort of scurrilous attack on President 
Bush's nominees, or anyone else for that matter, we ought to stand up 
and say: Unfair, unjustified, and we repudiate it.
  Frankly, I have not heard the kinds of repudiation that I would 
expect for those who are joining in this obstruction against Janice 
Rogers Brown and denying her the right to a vote.
  That is all we are asking for, an up-or-down vote.
  The PRESIDING OFFICER (Mr. Bennett). The Senator from Florida.
  Mr. NELSON of Florida. Mr. President, I have said often what a great 
privilege it is for me to be here and to represent the State of 
Florida. Little did I think 3 years ago when I came into the Senate 
that I would be speaking to an empty Chamber at 7:30 in the morning. 
But, indeed, it is a privilege to be here and to offer the ideas of 
this Senator and the perspectives.
  It is pretty clear to me that when I vote for 172 judges and only 4 
of 172 are rejected, I am doing my duty. It happens to be this Senator 
from Florida. Of those 4 who were rejected, I voted for 1 of those 4. 
But the notion that somehow this is not being fair for the Senate to 
advise and withhold consent on 4 judges out of 172 just seems to me to 
be something that we in the South would say is ``just beyond me.''
  Mr. President, 172 judges have come in front of this Chamber. I have 
voted for 169. I have voted against 3 of those judges. Now why? Why did 
I?

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  Well, because what I want is a judge, particularly at the level of 
the appellate court, but for that matter any Federal judge because they 
are there for a lifetime appointment, they are there beyond any kind of 
influences that would remove them from the bench save for skulduggery 
and unethical behavior, they are there to be free to exercise their 
judgment--in so doing that, I want a judge who is open-minded, who 
approaches the bench in a fairminded way. I don't want a judge who 
comes to the bench and his mind already made up.
  In the South we have a phrase for that. It is a ``know-it-all.'' I 
don't want a know-it-all as a judge. I want a judge who has an open 
mind, who is going to listen to the facts, and apply the law. That is 
what the security and sanctity of this judicial system is based on: 
Fair and equal justice for all.
  That means that a judge ought to have judicial temperament to open 
their mind and not have all the answers as they approach the bench.
  So for this Senator, it is pretty clear, when I vote on 172 judges, 
and 3 of those 172 don't meet my test, and in the will of this body, 4 
of those 172 don't meet the test, it seems to me that is a fairly 
reasonable point of view. That is inserting the check and balance of 
the constitutional system that is so unique to our system of 
government, where a legislative branch offsets, and checks and balances 
the executive branch, and so, too, a judicial branch offsets and checks 
and balances the other two branches.
  I am delighted to be here with my colleague from Oregon today and to 
share the floor as we give some of our ideas about this all-night 
session. It was quite a challenge getting here. There is a real wind 
storm in Washington today. Fortunately, since the power went out at my 
residence, my stopwatch and also alarm clock wristwatch went off, and I 
had to stumble around in the dark with a flashlight and race over here. 
But I am delighted to be here and to join with my colleague from 
Oregon.
  Mr. WYDEN. I thank my friend. I think he has made a number of 
important points about judges. The fact is, there is an alternative 
path. I think about how I have had a chance to work with my colleague 
in the Oregon delegation, Senator Smith. We have gotten judge after 
judge confirmed because we have felt, while some consider it quaint, 
that you ought to try to work in a bipartisan way. We have not applied 
an ideological litmus test. I think what the Senator from Florida is 
saying is that is the kind of approach we ought to be pursuing, to try 
to find common ground to get the Senate together.
  As I begin my comments this morning, I will say that I think a lot of 
Americans look at what is going on now on the floor of the Senate and 
say that it is sort of like the great wall of China, an almost 
impenetrable barrier surrounding a forbidden community where their 
voices just go unheard.
  I know what I hear from my constituents--I have open community 
meetings in all of Oregon's counties--is awfully different than 
essentially what the Senate has been doing through the night.
  For example, what I hear about is how medical costs are just gobbling 
up everything in sight. I hear, for example, about how the crushing 
small businesses, scores of them dying to cover their people, have been 
unable to do it. I hear about providers, physicians, and others leaving 
the system because of inadequate reimbursement. I hear about so many 
who are not poor enough for Medicaid, they are not old enough for 
Medicare, and they fall between the cracks. Again, there is an 
alternative approach to all of the partisanship.
  The senior Senator from Utah, Orrin Hatch, has worked with me for a 
number of years now on the Health Care for All Americans Act. It is 
absolutely critical that the Senate get moving on this issue because we 
all understand that there is a demographic tsunami coming. Millions of 
baby boomers are about to retire in a few years. All of the problems we 
are seeing today are going to be multiplied three or fourfold.
  Yet the Senate isn't tackling that kind of issue because, in effect, 
things have ground to a halt over exactly the kind of polarization the 
Senator from Florida has talked about.
  I would hope that as we wrap this up, we understand that nothing 
important is going to get accomplished in the Senate unless there is an 
effort to work in a bipartisan kind of fashion.
  Mr. NELSON of Florida. Will the Senator yield?
  Mr. WYDEN. I am happy to yield.
  Mr. NELSON of Florida. On that point, we have been fortunate to have 
a bipartisan approach in Florida with regard to the confirmation of 
judges as well. My senior colleague, Senator Graham, as Governor back 
in 1978 to 1986, was able to get the legislature to pass a series of 
panels called the Judicial Nominating Commission. This would be 
composed of lay people and members of the bar, leaders of the community 
who would receive applications for a vacant judgeship, and then that 
committee would screen them, interview them, look at their credentials, 
and nominate three, and then the Governor would select. That is still 
law today.
  When Governor Graham was elected to the Senate in 1986, he started to 
institute a similar situation, but rather by custom instead of law, in 
the confirmation of nominees to the Federal bench. It has worked well, 
while there have been two Senators of the same party and, indeed, while 
Florida has had two Senators of both parties. Indeed, the judicial 
nominating commissions formed back in Florida nominate three for the 
vacancy. The Senators sit down and interview all three of those. Now we 
are operating under a system that we have worked out with the existing 
Governor of Florida that it will be six nominees for the vacancy.
  Senator Graham and I sit down and interview all six, and we make a 
recommendation to the White House if we have an objection.
  Otherwise, the White House then goes about and selects which one they 
want. It is a way of working this in a bipartisan fashion, with a 
bipartisan commission; and all of our judges have gotten through 
without controversy.
  The fact is exactly what the Senator from Oregon says. If you put 
your mind to it and you want to be bipartisan, you can have this 
process work, work efficiently, work effectively, and work timely in 
order to have good, fair, and open-minded judges.
  Mr. WYDEN. The Senator from Florida is being logical. Heaven forbid 
that logic break out sometimes in this area that is often called the 
``logic-free zone''--this area surrounding the Capitol. It just seems 
that in so many of these areas, the institution just takes leave of its 
senses because both of us have described a bipartisan way to deal with 
the issue of judges--an approach that works in Florida and has worked 
for Senator Smith and I in Oregon. I do not think the Senate has the 
time or luxury for a lot of this pettiness.
  I mentioned the health care issue with Senator Hatch that I have felt 
strongly about since my days as codirector of the Oregon Gray Panthers. 
This demographic revolution is coming on us, and the prescription drug 
issue we are tackling now is vitally important. But if there is one 
thing the Senate has learned, health care is like an ecosystem. What 
you do in one area affects all other areas. Senator Hatch and I have 
pulled together an approach that has now gotten the support of the 
Chamber of Commerce and the AFL-CIO to get back on track for what, 
regrettably, was not finished back in the early 1990s. In the health 
care area, you see an alternative path.
  I see my good friend from Virginia here, Senator Allen. He and I are 
working on at least five major technology issues right now on the 
question of Internet access, and we are working in a bipartisan way 
with the States and localities to ensure that the Internet medium is 
allowed to grow and prosper. We have come together on nanotechnology, 
and we are working together.
  I want to give some additional time to the Senator from Florida 
because I know his schedule is short. If you look at the big issues of 
our day, including

[[Page 28684]]

the health care question, where I have outlined what Senator Hatch and 
I are talking about on so many issues that are social and ethical; and 
the technology question, where it just seems fitting that the Senator 
from Virginia is here, Senator Allen, my friend and partner on so many 
of these technology issues, the Senate has a choice either to listen to 
our constituents and take the bipartisan approach that will lead to 
real solutions or continue what is seen by most Americans as just small 
food-fight-like exercises.
  I want to give additional time to my friend from Florida because of 
his schedule. I appreciate, particularly, his outlining, as we have 
tried to do in Oregon--Senator Smith and I working together--the kind 
of bipartisan approach that the Senator from Florida has described in 
his State for choosing judges.
  Mr. NELSON of Florida. Mr. President, I will pick up on that theme 
the Senator from Oregon has mentioned. I must say this has been one of 
the greatest experiences, and most enjoyable, to get to know all of 
these Senators. I must say there is not one Senator here I do not 
personally like. I must also say that my degree of frustration--and 
usually if I am frustrated, it is with a smile because of enjoying my 
colleagues here so much; but my one frustration is that this place is 
way too partisan. And, from time to time, this place is way too 
ideologically extreme. When you have a country as big and as broad and 
as complex and as diverse as ours, it is very difficult to govern this 
country when it becomes highly partisan and ideologically extreme. It 
makes it very difficult for the people who are in the political center 
trying to reach out and bring people together to build consensus when 
there is sharp, highly charged partisanship and ideological extremism. 
It is very hard to build that consensus.
  Mr. ALLEN. Will the Senator from Florida yield?
  Mr. NELSON of Florida. I would love to yield to my colleague, but it 
is my understanding that, under the rules, we are given, in each hour, 
one-half hour for the Senator from Oregon and me to make a 
presentation, and one-half hour is given to the Senator's colleagues to 
make their presentation. It would be my intention for Senator Wyden and 
I to continue our remarks, since we only have about 12 minutes left.
  Mr. ALLEN. Mr. President, I thought it had been agreed that any 
speaking or questioning I may do would get charged against our time in 
the next hour.
  Mr. NELSON of Florida. Mr. President, it is my understanding that I 
have the floor. I have some thoughts I want to express. Rather than 
have those interrupted, I prefer to just continue on.
  The PRESIDING OFFICER. The Senator from Florida has the floor.
  Mr. ALLEN. Thank you, Mr. President.
  Mr. NELSON of Florida. Mr. President, I thank the Senator from 
Virginia, who is one of my favorites here. I have the privilege of 
serving with him on a number of committees.
  Back to what I was saying, if we would stop this excessive 
partisanship--you cannot get things done with this excessive 
partisanship. Especially, you cannot get it done in a Senate that is 
basically split down the middle, 50-50. I think it is 51-49 now. So if 
you are going to get anything done, we ought to be Americans first, not 
partisans first. That is what part of all this fight is. That is what 
part of this all-night session has been.
  Do you know what. The folks out there in America--and I think all of 
you know this--don't like these partisan food fights.
  I would like the perspective of the Senator from Oregon on that.
  Mr. WYDEN. Mr. President, I think the Senator from Florida and I have 
tried to spend our half hour talking about specific ways in which the 
Senate, on a bipartisan basis, can come together to find common ground. 
Let me repeat them as we move to the end of our half hour. The Senator 
from Florida and I have talked about an alternative approach on judges, 
which works in the State of Florida and in the State of Oregon. I have 
talked about the health care issue, the issue that I feel the most 
passionate about, going back to my days when I worked with the elderly, 
and the wonderful help I have gotten from Orrin Hatch, trying to focus 
on getting the country ready for this huge set of population changes 
that is coming. I thought it was very fitting that the Senator from 
Virginia was here, Mr. Allen, who has worked with me on technology 
issues.
  A fourth area--something that is fresh in the Senate's mind--is that 
just a few days ago, we got 80 Senators--far more than anyone could 
have imagined--to support a major natural resources bill dealing with 
the forest fire issue. This is something of enormous concern in my part 
of the country and, obviously, all Americans. Our hearts go out to the 
people in California where they have had this terrible tragedy. Senator 
Feinstein and Senator Cochran--I always wanted to work with Senator 
Cochran on an issue as chairman of the Agriculture Committee. I haven't 
had the opportunity until now. He could not have been more constructive 
and helpful. I think that is why the Senate got 80 votes for that 
forest rebuild.
  So I think the Senator from Florida is setting the right tone and 
certainly, in our 20 minutes, on the question of judges, health care, 
technology, and on the question of forestry, the two of us have shown 
that there is an alternative to a lot of the smallness, a lot of the 
harshness that we are seeing dominate this debate.
  I thank my colleague for all of this extra time, and I believe the 
tone he is setting is one that will respond to what I hear the country 
talking about, and certainly what I hear people of Oregon talking about 
at our 36 town meetings in every part of the State.
  Mr. NELSON of Florida. If the Senator will yield, I want to discuss 
another subject where partisanship gets in the way, and that is putting 
our fiscal house in order.
  The Senator will remember about 2\1/2\ years ago, the wonderful 
optimistic view that we had of the Federal budget, where we were 
sitting on a budget surplus in the year 2001--something in excess of 
$250 billion in that 1 year, with a projected surplus over the next 
decade that was going to allow us to pay down and almost pay off the 
entire national debt, and still have enough left over in order to enact 
a substantial tax cut, and still have enough left over to start new 
programs that were needed, such as the adequate funding of the bill 
that we ultimately passed but did not adequately fund--the No Child 
Left Behind Act--and modernizing Medicare with a substantial 
prescription drug benefit. We had the opportunity to do all of that and 
still be fiscally conservative and fiscally responsible in not invading 
the Social Security trust fund, letting that Social Security trust fund 
surplus pay off the national debt over the next decade.
  Instead, 2\1/2\ years later, we are looking in this fiscal year at a 
budget deficit--not a surplus but a deficit--of a half trillion 
dollars. That means we are spending $500 billion more than we have 
coming in in tax revenue. What do we do? We go out and borrow it. Who 
do we borrow it from? We borrow it in part from the average American 
citizen when we buy Treasury bonds. Do you know what surprises people? 
We end up borrowing it from countries such as China and Saudi Arabia.
  If we are going to get out of this fiscal briar patch, it is going to 
take bipartisanship. The excessive partisanship gets in the way, just 
like it has gotten in the way of having us in session all night for 
that side of the aisle to make their point of view, and our side of the 
aisle to say that we have taken up 172 judges and approved 168 of them.
  This country has its challenges and we have not even talked about 
Iraq and Afghanistan and the war on terror. But it certainly has its 
challenges with this fiscal mess that we are in of bleeding to the tune 
of deficit financing of $500 billion in this fiscal year.
  Again, I thank my colleague. What he represents, my colleague from 
Oregon, and our colleague from Louisiana, who is with us--what they 
represent is the bipartisanship of reaching

[[Page 28685]]

out and trying to bring people together and build consensus. That is 
what we need to do when we are dealing with Iraq and Afghanistan, the 
budget deficit, the environment, education, prescription drug benefits, 
and the approval of judges.
  Mr. WYDEN. Will my colleague yield?
  Mr. NELSON of Florida. Yes.
  Mr. WYDEN. I think you have given us an ideal way to wrap up our half 
hour. I want to tick off yet another area where we have outlined an 
opportunity for an alternative path. We have spent our half hour 
describing a way in Florida and Oregon where you can deal with judges 
in a bipartisan fashion. We have talked about health care issues. Orrin 
Hatch and others have helped me, as have other Democrats. I think that 
has been constructive and a real path to try to deal with what is 
coming in 2010 and 2011.
  Senator Allen was here and we talked about technology and the fact 
that the Senate got 80 votes a few days ago for forestry legislation--
an unprecedented bipartisan vote. Finally, the Senator from Florida 
puts us on this question of fiscal responsibility, another avenue for 
cooperation between the parties.
  I think about the outstanding work done by the Senator from Maine, 
Ms. Collins, who chairs the committee overseeing the operations of 
Government. She and I have been very concerned about the lack of 
openness in competition in the contracting process for these 
reconstruction contracts. It looks, given the events of this week, as 
though you are going to get more information out of Baghdad than you 
are going to get out of Government agencies in Washington, DC. There 
wasn't a shred of partisanship with respect to how we tackle this 
issue. So I think what we wanted to do in our half hour of time--the 
Senator from Florida and I--is not just talk about everything that has 
gone wrong, but to outline on specific issues an alternative path--a 
path that shows that we are listening; that the notion that somehow 
Washington, DC, is like a great wall of China, an unpenetrable 
community for the American people doesn't have to be that way. Whether 
it is judges, health care, technology, forestry, or the fiscal morass 
that the Senator from Florida has talked about, we want people who are 
listening this morning to know that we do think there is another way 
for the Senate to do its business.
  I say to my friend from Florida, we came to Congress essentially 
together in the other body and then here. I have really enjoyed this 
and particularly the tone that I think he set out when we began--that 
the Senate needs to do better, and if you want to get anything 
important done--which is why we are sent here--it has to be bipartisan. 
I thank my colleague.
  Mr. NELSON of Florida. Mr. President, has the half hour expired?
  The PRESIDING OFFICER. The minority has an additional 1 minute 50 
seconds.
  Mr. NELSON of Florida. Mr. President, I thank my colleague from 
Oregon, and I thank the Senator from New York, who has already shared 
his comments. I am looking forward to the comments of the Senator from 
Louisiana and also the Senator from Iowa.
  Bottom line: What is this about? This is about fair and equal 
treatment for the American people and producing a Federal judiciary 
that will be open minded. Over two centuries ago, a group of political 
geniuses got together and crafted a written document called the 
Constitution, which would not allow power to be concentrated in the 
hands of any one person or any one institution but, rather, that an 
arrangement of sharing of power would occur. Each institution would 
have a check and balance against the other.
  You are seeing that check and balance play out now in the nomination 
and confirmation, and/or the advice or nonconfirmation of this body, 
the Senate. So it is a great privilege for me to participate in it, 
along with the Senator from Oregon.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Nickles). The Senator from Virginia.
  Mr. ALLEN. Mr. President, I listened to the words of the Senator from 
Florida and the Senator from Oregon. As the Senator from Oregon said, 
we have worked together on things from cybersecurity to nanotechnology, 
important initiatives for the competitiveness of our country. We have 
worked together to prevent access taxes on the Internet and other 
matters, particularly in the technology area.
  I listened to the Senator from Florida. This is why I wanted to pose 
a question to him. I realize both sides were out of time so I bring up 
the issue now.
  In the way he was speaking earlier, I would say, the Senator from 
Florida, Mr. Nelson, said we approved all these judges and there were 
four we have not approved. Indeed, on one of them he actually voted 
for; that was Miguel Estrada. Miguel Estrada received 55 votes for 
cloture to actually go to a vote.
  In the case of Miguel Estrada, the majority of Senators were in favor 
of Miguel Estrada. I commend Senator Nelson as one of the four or five 
Democrats who, on Miguel Estrada's nomination, thoroughly examined his 
qualifications and decided that he should be accorded a vote. But we 
now have a supermajority requirement for judicial nominations, a 60-
vote margin.
  However, to look at a cloture motion as a vote up or down is not 
correct. The Constitution does not require a 60-vote margin. The 
Constitution requires advice and consent in a simple majority, one way 
or the other, with a simple, fair, and equitable vote. Miguel Estrada 
had 55 votes. Senator Nelson was one who voted to end cloture. Clearly, 
with a fair vote, he would now be on the DC Court of Appeals. Instead 
we had to go through seven cloture votes.
  The same with Attorney General Pryor, Judge Pickering, and Justice 
Owen--all have had majority votes to end cloture. So the reality is, 
and why there is frustration and aggravation and why we are trying to 
get justice and equity done, is that in fact there has not been a 
simple up or down vote on this nominees.
  In the event that one of these cloture votes had only resulted in 47 
or 48, I expect the writing would be on the wall and we would recognize 
the President would have to renominate. That happened years ago with 
Justice Fortas.
  In this situation, it is clear, with Miguel Estrada, Mr. Pryor, Judge 
Pickering, and Justice Owen, the majority are in favor. It there will 
probably be a majority in favor of Judge Kuhl and Judge Rogers Brown.
  I have been talking about country music songs through the night and 
through the morning. This reminds me of an analogy to ``Rawhide,'' 
except the opposite, instead of ``movin', movin', movin','' we have 
``stallin', stallin', stallin'.''
  What we want is people to decide in the Senate, yes or no, whether 
you are going to move them up or move them down; yet, nevertheless, 
move and decide. That is the responsible thing to do, consistent with 
the Constitution, consistent with the accountability of the Senators to 
the Constitution and to their constituents as well as fairness to these 
nominees, to give them the fairness of an up-or-down vote. Simply 
decide.
  Mr. BENNETT. Will the Senator yield for a question?
  Mr. ALLEN. Yes, I will.
  Mr. BENNETT. I am interested to hear the Senator make the point that 
an up-or-down vote is what we are asking for. The Senator was in the 
Chamber when the cartoon was displayed with highly offensive racial 
characteristics attributed to the judge from California. I ask the 
Senator if he is aware that this African-American woman, who in my 
opinion has been slandered, has been the subject of comment by Al 
Sharpton, one of the candidates for President. Al Sharpton said he 
disagrees with the woman and believes she is not qualified to sit on 
the bench but that she is entitled to an up-or-down vote. Is the 
Senator aware of Mr. Sharpton's comment on that?
  Mr. ALLEN. No, I was not aware of that. I thank the Senator from 
Utah, Mr. Bennett, for bringing that up. I hope some of our colleagues 
on the other side of the aisle will look back on

[[Page 28686]]

some of their own statements from 3 years ago and 4 years ago when they 
were saying judges deserve up-or-down votes, and at those 
contemporaneous times, from Reverend Sharpton. I may not always agree 
with Reverend Sharpton, but he seems to be a man of fairness and I hope 
our colleagues on the other side of the aisle will heed his advice.
  Mr. BENNETT. I would say I almost never agree with Reverend Sharpton, 
but I have seen the diligence with which he and other civil rights 
leaders have pounced upon any politician who has ever dared hint at any 
kind of racial slur or attack on an African American. At least he has 
shown this degree of consistency, that he has now spoken up against 
those who are Democrats who may have been guilty of a racial slur, and 
come to the defense of an African American, even though he disagrees 
with her.
  I think it appropriate for us to note that. I appreciate the 
Senator's yielding to me for the opportunity to make that comment.
  Ms. LANDRIEU. Will the Senator from Virginia yield for a question?
  Mr. ALLEN. I thank the Senator from Utah for bringing up, not only 
the Sun, but that enlightening view.
  Ms. LANDRIEU. Will the Senator yield?
  Mr. ALLEN. I yield at the sufferance of the Senator from Tennessee. I 
will yield, but it will be on your time.
  Ms. LANDRIEU. Just a question. I am sorry the Senator from Utah left 
the floor. Perhaps if he hears this question, he might come back to 
respond.
  I am wondering, since he raised the name of Al Sharpton, Rev. Al 
Sharpton, who asked for a vote on one nominee, supposedly. If Al 
Sharpton--I am sure he did, and others--asked for a vote on 60 of 
President Clinton's nominees, which represented 20 percent of the 
nominees sent up by a former President, would the Senator from Utah 
have agreed to a vote, if Rev. Al Sharpton had called him? I don't 
think so. He could come back to the floor and respond to that.
  The issue is not single votes. The issue is whether the Senate of the 
United States, the Democrats, have a right to give advice and consent 
to the President. The facts speak for themselves. The Senator from 
Virginia knows them well. The numbers are 168 of President Bush's 
nominees have been approved with bipartisan support and cooperation 
from the Democrats in the Senate. Only 4--only 4--have been stopped--
only 2 percent. That is in contrast to the thousands--this is my 
question.
  The PRESIDING OFFICER. The Senator may ask a question.
  Ms. LANDRIEU. Did the Senator from Utah or the Senator from Virginia 
know that when President Clinton was in the White House, thousands and 
thousands of individuals--did you know--called to ask for votes on the 
60 percent?
  The PRESIDING OFFICER. The Senator is entitled to ask a question. She 
is not entitled to make a speech.
  Ms. LANDRIEU. I am asking a question: Did you know? That is my 
question. Did they know that when the former President sent hundreds of 
nominees and asked for a vote--and I am sure Reverend Sharpton and 
others--did they know, some of the members and groups involved and 
interested Americans involved--did they know that 55 nominees were not 
given a right to have their vote called?
  Mr. BENNETT. May I respond?
  The PRESIDING OFFICER. The Senator from Virginia has control of the 
time.
  Mr. ALLEN. The question was propounded to the Senator from Utah, and 
I yield to the Senator from Utah. But before I do, the point is here 
and now. The four you are talking about is already six. The Senator 
from Florida was talking about these so-called cloture votes as being 
votes. They are not fair up-or-down votes. That is the point here. 
Don't try to shirk responsibility or shirk accountability. Are you 
going to vote for or against these individuals based upon their merits? 
If you are against them, that is fine. But have the equity and fairness 
of a vote.
  I was not here in those days. All I know is, since President Bush has 
come into office, he has put forward individuals, including Roger 
Gregory, whom I mentioned earlier, who was a recess appointee of 
President Clinton, and it was really difficult for a lot of Republicans 
to act on statements of Judge Roger Gregory based on his qualifications 
and merits, but we did. We think you on the other side ought to accord 
these nominees the same fairness and equity of a fair vote.
  But I will yield to Senator Bennett, responding on the Al Sharpton 
question.
  Mr. BENNETT. Mr. President, I will answer the Senator from Louisiana.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. BENNETT. I am unaware of how many nominees did not get out of 
committee. I am unaware of what may have happened prior to a nomination 
coming to the floor. But I do know I would allow a vote on every 
nominee who comes to the floor, regardless of which party it may be or 
regardless of which President might put that nominee forward. And I 
would agree with Al Sharpton or anyone else who called for an up-or-
down vote, without a filibuster, on any nominee, any judicial nominee 
who has come forward.
  There is no question but nominees get lost in committees. There is no 
question nominees get held up by holds and other activities. But once a 
nominee has been cleared by a majority vote of the committee and placed 
on the floor, that nominee is entitled to an up-or-down vote. I have 
always held that position. I always will hold that position. It is for 
that reason I will support the Frist-Miller rule change that will make 
that position very clear.
  I do not care who the President is, under the Constitution he or she 
has the right to make nominations. The Senate handles those 
nominations. I understand sometimes those nominations will be stopped 
in committee. But once the committee has voted by a majority vote to 
put the nomination on the floor, whether it is my President or someone 
else's President, I will always support and always have supported the 
notion that that individual is entitled to an up-or-down vote.
  Mrs. LANDRIEU. Will the Senator from Virginia yield?
  Mr. ALLEN. I will yield to the Senator from Tennessee.
  The PRESIDING OFFICER. Who seeks recognition?
  The Senator from Arizona.
  Mr. KYL. Will the Chair advise me when I have spoken for 90 seconds? 
I simply want to make one point. That is, the chart that is before us 
on the other side is more than misleading; it is absolutely false. 
There are always judges who are not confirmed at the end of a 
Presidential term. There were at the end of the Clinton term. There 
were at the end of the first Bush term. So it is wrong to say that, 
because there were judges who continue be confirmed because they were 
nominated late, they were rejected.
  What is correct is to say is there have been four nominees rejected 
by filibuster without a fair trial, without an up-or-down vote. I have 
been trying to think of an analogy, watching people say: Look, it's 168 
to 4; we have only filibustered 4. Of course, there are a lot more in 
the wings.
  But here is an analogy that deals with the law: We only hanged 4 
people without a trial. We gave the other 168 a fair trial. We had a 
vote in the jury.
  That is what is going on here. It is not a matter of defeating the 
judges. Judges are defeated by both parties very seldom, and there are 
some at the end of a President's term who can't be voted on just 
because of time constraints, and it is about the same number in every 
party, if I go back in time.
  What is unprecedented is the filibuster where you don't even allow 
them a vote. The analogy I came up with is the one I just mentioned--I 
think it is very apt--to say, Look, we only hanged four people without 
a fair trial; the others got a fair up-or-down vote.
  That to me is wrong. That is what we are talking about here.
  Mrs. LANDRIEU. Will the Senator yield for a clarification?
  The PRESIDING OFFICER. Who seeks time?

[[Page 28687]]


  Ms. LANDRIEU. Will the Senator yield for a clarification?
  The PRESIDING OFFICER. Who seeks time?
  Ms. LANDRIEU. The Senator from Arizona.
  The PRESIDING OFFICER. Is the Senator from Louisiana in control of 
time?
  Ms. LANDRIEU. I think I----
  The PRESIDING OFFICER. The Senator from Tennessee is in control of 
the time. The Senator from Tennessee.
  Mr. ALEXANDER. How much time does the majority have?
  The PRESIDING OFFICER. The majority has 17 and a half minutes.
  Ms. LANDRIEU. Parliamentary inquiry: How much time do the minority 
and majority have at this hour to be allocated?
  The PRESIDING OFFICER. The majority has 17 minutes, the minority has 
28 minutes.
  Ms. LANDRIEU. Thank you.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, insofar as the Senator from Arizona's 
comments are concerned, he said we gave 168 a fair trial and hanged 4 
without a trial. He might have also said we had never done that before 
this year. That is the point.
  Let me step back from this and try to put it in a little different 
framework. I am new to the Senate. I came here in January for the first 
time even though I worked here before, 35 years ago, for Senator Howard 
Baker.
  A lot of people ask me, knowing I was a Governor for a while: What do 
you think of it? How do you like the U.S. Senate?
  I suspect the reason they ask that is that some former Governors who 
have come here have not liked it. It is a very different sort of job. 
But this has been a great privilege for me. It is hard for me to think 
of a thing that has not been good about the last 10 or 11 months.
  The Senator from Louisiana is here. One of the good things is she and 
I have worked together on issues that have to do with the environment 
and energy. So the opportunity to speak, the people with whom I work, 
the issues I deal with, all those things make serving in the Senate a 
great privilege.
  The only real disappointment I have had is this issue of judges, of 
the treatment the Democratic side has given to President Bush's 
appointment of judges. I have been puzzled by that. I have even said to 
some of my friends on the other side: Before this year, before I got 
here, the Republicans must have done something awfully bad to you to 
produce this kind of reaction because I really don't understand it.
  I know something about the appointment of judges. As Governor of 
Tennessee, I appointed about 50 judges. In fact, the other day, I went 
back to Nashville for the retirement ceremony for Chancellor Irwin 
Kilcrease. I appointed him in 1980. He was the first African American 
ever to serve as a chancellor in our State. He served with dignity. I 
didn't ask him his political party before he was appointed. It turned 
out he was a Democrat. I didn't ask him his view on abortion. I still 
don't know what it is. I didn't ask him how he was going to decide the 
cases before I appointed him. I thought it would be totally 
inappropriate.
  I checked to see if he was intelligent, fair, had good character, if 
he would respect people who came before him, and I appointed him and he 
has served with great distinction, as did the others.
  I also worked for a great judge. The Senator from Louisiana certainly 
knows him well, or knew him well. His name was John Minor Wisdom. He 
lived in New Orleans. When I graduated from law school in the mid-
1960s, he was already considered to be one of the great Federal judges 
of the country.
  He and Judge Elbert Tuttle of Atlanta, Judge Richard Rives of 
Florida, and Judge John R. Brown of Texas, all appointed by President 
Eisenhower, Republican judges, presided over the peaceful desegregation 
of the South in the 1960s and into the 1970s. In 1962, they ordered Ole 
Miss to admit James Meredith. They are regarded as heroes in the South.
  Judge Wisdom was a great judge. I am sure, before he was appointed, 
no one in the Senate asked him how he would decide the cases he was 
about to decide.
  What is going on in the Senate today reminds me of the old mountain 
story about the lawyer who came up to the judge at the beginning of the 
case and said: Judge, may I make a few arguments on the law? May I tell 
you about the case?
  The judge said: You don't need to tell me about the case. I got a 
phone call last night. I pretty well know the facts. Just give me a few 
points on the law.
  The importance of judgeships in America is that when we go before 
them, we expect to be treated fairly. We don't believe it is a 
political exercise. And we accept the results. That is why it is so 
inappropriate, it seems to me, for us suddenly to be rejecting 
President Bush's appointments because of their permanent views when it 
is established by their long records that they are able to apply the 
law.
  Let me especially speak about a couple of cases from the part of the 
country I know the best, the South. I want to mention first the 
attorney general of Alabama, Bill Pryor. I want to mention, second, the 
Federal judge from Mississippi, Charles Pickering.
  Let's talk about Bill Pryor. He is a young attorney general, I just 
learned the other day. I had not really focused on him enough to know 
exactly who he is. He also was a law clerk to Judge Wisdom. He was 
editor in chief of the Tulane Law Review. I am certain the Senator from 
Louisiana would agree that would qualify someone, at least on paper for 
good starters, to be a good judge. I know Judge Wisdom hired 
extraordinary people. I know he never hired anyone who wasn't fair. I 
know he would never tolerate anyone in his office who wasn't committed 
to civil rights because he was one of the leading civil rights judges 
in the country. Yet on the other side of the aisle, the argument 
against Bill Pryor--this is no more than a racial smear--is that he is 
not sensitive to civil rights, he is a white conservative from Alabama 
and, therefore, can't be trusted, that is what the point is. But there 
is nothing in his background that would suggest that. That is made up 
out of whole cloth. That is not the reason the other side will not give 
Mr. Pryor an up-or-down vote, something that has never been done in the 
history of our country until this year with Federal nominees.
  Let me just speak about what Mr. Pryor's career has included. When he 
was appointed attorney general of Alabama, he voluntarily said in his 
ceremonial remarks he criticized the State constitution for banning 
interracial marriage. He didn't have to do that. He volunteered that.
  What is he doing today? He is trying to oust the chief judge of the 
Alabama Supreme Court because the judge insists on keeping a copy of 
the Ten Commandments in the courthouse in violation of a Federal court 
order. It is not because Mr. Pryor doesn't believe in the Ten 
Commandments. He believes in the law. He is able to put the law ahead 
of his own views.
  He is a Republican. He took to the Supreme Court of the United States 
a reapportionment case that worked against the Republican Party in 
Alabama. He didn't do it because he wanted to hurt the Republican 
Party, he did it because he was able to put the law above his own 
political beliefs.
  What else did he do? This may be the most serious and difficult act 
that an Alabama attorney general could do. I am surprised that he is 
still in office having done it. He wrote a letter to every school 
district in Alabama--to every superintendent in every school--telling 
them the football coach couldn't lead a prayer before the football 
game--not because he doesn't pray, not because he is not religious, but 
because he believes the law doesn't permit it. He is a Roman Catholic. 
He said so in the hearing. He is pro-life. But on the issue of 
abortion, he wrote all of the district attorneys in Alabama and told 
them they could not enforce an anti-abortion law passed by the State of 
Alabama because parts of it were unconstitutional. He put the law 
before his religious beliefs.
  Here is someone who was the editor in chief of the Tulane Law Review, 
a

[[Page 28688]]

law clerk to the greatest civil rights judge of the last 30 years in 
the South, who has consistently put the law ahead of his own beliefs, 
and the other side won't bring him up for a vote. Why would that be?
  Let us go to Judge Pickering for a moment, another example in the 
South.
  The suggestion has been made that he is not racially sensitive. Those 
are code words. That is to suggest that somehow Mr. Pickering is a 
bigot and is not fair to African Americans. We all know what the slur 
is, what the slander is, what the implication is. We all know what that 
means. But what do the facts show?
  The facts show that Mr. Pickering was not on the sidelines, that he 
was not in the background, that he was out front during the great civil 
rights struggle of the 1960s and the 1970s. He lives in Laurel, MS. He 
lived at the center of the problems of racial desegregation. He lived 
in the same town as the head of the White Knights of the Ku Klux Klan, 
Sam Bowers. The White Knights were organized because they didn't think 
the Klan was mean enough. The White Knights and Sam Bowers, according 
to the Baton Rouge Advocate, was the most dangerous, the most violent 
racists living in the 1960s.
  We hear a lot about terrorists today. The terrorists of the 1960s in 
the United States were the Klan members in Laurel, MS.
  What did Charles Pickering do? He testified in public against Sam 
Bowers, in the courthouse, against the most violent living racist in 
America, according to the Baton Rouge Advocate. That was 1967. He has 
had a whole lifetime of commitment to racial progress. It seems as if 
almost everybody in Mississippi supports him, including most of the 
Democratic leaders.
  William Winter, my friend with whom I served, former Democratic 
Governor, a beacon for racial progress in Mississippi, strongly 
supports Judge Pickering. Frank Hunger, who was a law clerk on the 
Fifth Circuit Court of Appeals where I was--Frank Hunger was President 
Clinton's Deputy Attorney General, he is Al Gore's brother-in-law, and 
he strongly supports Judge Pickering.
  Why in the world would the other side slur Judge Pickering and 
suggest that he is guilty of racial insensitivity when he stood up for 
desegregation? He might have been on the other side that opposed 
segregation, but he wouldn't. He was out front risking his life, 
literally, and putting his own children in public schools when others 
were running off to segregated academies. When we bring him up before 
the Senate--after sticking his neck out and sticking up, in 
Mississippi, for desegregation--we cut his neck off in Washington, DC? 
Why is that being done? I am not sure. I know it is not right 
constitutionally.
  The President nominates the judges. That has always been the way it 
was. Despite the rhetoric on the other side, until this year, this 
Senate has never used the filibuster to deny an up-or-down vote to a 
Presidential nominee who has a clear majority in the Senate. The 
filibuster has been used for other purposes by the other side.
  I was hearing a lot of talk last night about protecting the rights of 
the minorities. There were not a lot of African Americans in the South 
in the 1960s who felt really protected when a filibuster was being used 
by Senators to stop the most important piece of civil rights 
legislation that was offered here. So it is not that great a device to 
have.
  Why are they doing this? I don't know. One clue is to change the 
rules, which we may have to do, but the other is the election, which I 
guess is what I prefer.
  In Senate races in Florida, in North Carolina, in South Carolina, in 
Arkansas, in Georgia, and all across this country, I hope this is an 
issue. I hope people say: Why was President Bush, for the first time in 
our history, not given a chance to have up-and-down votes on men such 
as Charles Pickering and Bill Pryor who were extraordinarily qualified, 
had the majority vote and were courageous leaders in the South? Is it 
because they are southerners? I don't know what it is. But the other 
side is so captured by narrow interests that they are digging a hole so 
deep that I hope it has an important political result next year.
  I would prefer to see us operate differently, and I will pledge to do 
what the Senator from Utah pledged to do. While I am a United States 
Senator, if a nominee comes to the floor for a judgeship by any 
President, Democrat or Republican, I will not participate in a 
filibuster. I will vote to cast an up-or-down vote on any nominee of 
any President. I think that is the right thing to do. The sooner those 
of us on both sides do that, the more we will get back to appointing 
judges in the way Judge Wisdom was appointed, and the way Judge 
Kilcrease was appointed. And we would appoint judges we would respect. 
We would not be asking them how they will decide cases before they come 
in, and we would not be submitting them to an ideological litmus test 
before they are appointed.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Ms. LANDRIEU. Mr. President, I would like to answer a couple of 
points that the Senator from Tennessee raised. My colleague from Iowa 
is here to join me for a few moments to speak on the floor about this 
subject.
  Let me say there really isn't a Member I respect more in the Senate 
than the new Senator from Tennessee. He and I served together on the 
Energy Committee. I am well aware of his very progressive views on 
civil rights. I am aware of his history as a clerk for one of the 
finest justices who has served in the country. I am aware of his 
connection to Louisiana and as a southern leader. As a Democrat, I 
respect the work he did in Tennessee as a Republican Governor of that 
State. I look forward to many wonderful years working with him.
  But I would like to answer the question of why many people in the 
South are upset and concerned about what the Republican majority is 
calling on us to do today.
  I want to start with the charge that the Senator from Virginia said--
stalling, stalling, stalling. The Senator from Tennessee knows very 
well the Democrats did not ask for this 30 hours. The Republican 
leadership is stalling the veterans bill, the Energy bill, and the 
housing bill, which people in our State--as the Senator from Tennessee 
knows, I have 400,000 veterans in Louisiana. He must have 500,000 
veterans in Tennessee. Their bills are pending while we debate whether 
or not it is fair to block 4 of 168 nominees--4 of 168.
  The second point I want to make is that the Senator from Arizona took 
90 seconds to come to the floor and refer to the people who are 
listening--and we do believe the country is interested in the debate 
here in the Senate--that these four individuals were ``not given a 
trial.'' I think the words were ``hung without a jury,'' or some such 
inflammatory language.
  Please let me say for the Record that these 4 judges out of 168, only 
2 percent of President Bush's nominees, were given hearings. The 
nominee from Texas, Priscilla Owen, 1 full day of hearing; the nominee 
from Alabama, Judge Pickering, 2 days of hearings, and 1 day was given 
after the anthrax attack. The Capitol was literally under attack and we 
felt so strongly about providing a hearing the day after the attack 
that the nominee was given a hearing.
  Mr. Estrada was given 1 day of hearing, and Mr. Pryor was given 1 day 
of hearing.
  So the notion that these nominees have not been given their day in 
court, time to express their views and to answer questions, is 
absolutely false. That is in contrast to the 57 nominees of 63 of 
President Clinton's nominees. Let me repeat: 57 out of 63 who didn't 
get 1 minute of a hearing, not 1 minute.
  These 4 we have blocked for reasons that I and my colleagues will go 
into--and Senator Harkin will speak about in a minute--have been 
blocked for very good reasons. All of them got a hearing. I just wanted 
to make that clear.
  I know the Senator from Tennessee will remember those hearings in 
those committees.

[[Page 28689]]

  The third point I want to clarify is the Senator from Utah said he 
would never not give a nominee the opportunity for a vote. The Record 
will reflect that the Senator from Utah has voted seven times against 
cloture for giving a nominee--not a judicial nominee but appointee--a 
vote on the Senate floor.
  I urge Senators to not use words such as ``never'' or ``every'' 
because the fact is, filibusters have been attempted before over the 
course of our history: In 1968, in 1980, in 1994, and in the year 2000, 
but they haven't been successful.
  This filibuster is successful for one reason and one reason only: The 
American people do not want these four judges on the bench. They just 
do not want them on the bench, and they are expressing that through the 
Democrats here in the Senate. I will tell you why.
  Let me talk about Mr. Pryor for just 1 second. I want my colleague 
from Tennessee to know, and my colleague from Alabama will know this. I 
know I am going to aggravate some Democrats when I say this. But I was 
willing to vote for Judge Pryor, and I had basically told that to the 
Senator from Alabama, who is a good friend of mine, someone with whom I 
really enjoy working, who is much more conservative than I am on some 
issues. But I really do like him and I really do trust him in many 
ways. I talked with him and we talked about it. I was prepared to vote 
for Mr. Pryor until this ad appeared. Let me read it to you. Judicial 
Chambers:

       While some in the Senate are playing with religion, 
     Catholics need not apply.

  I am a Catholic. When these ads appear, by right-wing groups that 
want to divide this country, Catholic against Protestant, Gentile 
against Jew, man against woman, straight against gay, it is something 
inside me that just boils up.
  When the Republican leadership tells me I have a problem with 
Catholic judges--my father is a Catholic judge, and my sister is a 
Catholic judge. I don't have problems with Catholic judges. I don't 
have problems with William Pryor. I have problems with this red meat 
rhetoric that is anti-American, anti-constitutional, and defies every 
principle that this country and the men who are dying today and women 
in Iraq fight for. It is not a matter of whether you are Catholic, 
whether you are Jewish, whether you are Protestant. You should be 
judged on qualifications. But the right wing--and I told the Senator 
from Alabama until the National Republican Party repudiates this ad, 
the chairman of the party stands up and says these ads have no place, 
and the Republican Party repudiates these ads, the nominee will not get 
my vote--not because he is pro-life and I am pro-choice, not because of 
this or that, but because of this ad.
  That is what this election is about. I will tell you the people in my 
State are tired of it. I have Catholics and Protestants who want to be 
united, to be together, who want to create jobs, who want to help 
veterans, want to figure out the problem in Iraq, and they are so tired 
of the Republican leadership just using every little wedge issue, 
religion or race to wedge everybody apart. I know Democrats aren't 
completely innocent of these tactics, but it has gotten to the point 
where it has basically shut down the work here.
  I want to be clear. My dad is a Catholic judge; my sister is a 
Catholic judge. I am not against Catholic judges. But we are against 
ads like that, and until they are repudiated we will not allow this 
nominee to go forward.
  I don't even know if I want to go into Judge Pickering from 
Mississippi because I know he is from a fine family. But I will say 
this about that. I know his son well. He is a wonderful man. He is in 
Congress. I know he has beautiful grandchildren, and he has a wonderful 
family. But I will tell you this: The Senator from Tennessee should 
know this better than anyone because I think he is part of the new 
South. I think his whole life has been spent helping us in the South 
deal with the terrible issue of discrimination, to the point where it 
breaks your heart to think about what the laws did to people, crushed 
their spirits, crushed their lives, robbed them of the opportunity for 
anything. I grew up in that kind of place. I spent my whole life trying 
to change it, and I know he has, too.
  One of the reasons we have stopped the Pickering nomination is that 
many of us--and I don't think it is just Democrats, it is Republicans 
and Independents in the South--want the nominees on that Fifth Circuit 
to be about the new South, not the old South. To many of us, many of 
the moderate, middle, mainstream civil rights organizations, this 
Pickering nomination is about the old South. He was not one of the 
strongest civil rights leaders in Mississippi. There are hundreds of 
qualified judges, White and Black, who really sacrificed for civil 
rights. Why couldn't we have somebody like that on our bench? They 
don't have to be liberal. They could be moderate or conservative. Why 
do we have to reach back and find someone from the past? Why not reach 
forward?
  When Judge Pickering got out of law school, he asked his law partner 
to join him. His law partner belonged to the Mississippi Sovereignty 
Commission. My father got out of law school a few years before he did, 
in 1954. Judge Pickering got out in 1961. My father never, in 100 
years, would have asked a member of the Mississippi Sovereignty 
Commission to be his law partner. It just wouldn't have happened, 
because our family was a civil rights family. We rejected everything 
the Mississippi Sovereignty Commission or the Louisiana Sovereignty 
Commission or the Alabama Sovereignty Commission did, which was to 
basically intimidate African Americans. No matter how good they were, 
no matter how hard they worked, no matter how talented they were, no 
matter how many times they went to church or loved their children, 
because they were Black, they couldn't get a job, they couldn't live in 
the neighborhoods. That is what the sovereignty commissions did.
  So you are asking me, after spending 40 years of my life fighting 
against this, to stand here and say it is OK to appoint someone like 
this to the bench? And then get upset when I say I have a problem with 
that?
  Well, I am sorry about it. I do have a problem with it. Most of the 
people in my State have problems with it because, believe me, there are 
lots of people in Mississippi who were in the civil rights movement on 
the right side of the movement, not the wrong side; the forward side, 
not the back side. And I will tell this President or any President, we 
are looking for people in the future, not the past. We are looking for 
a new South. We reject the old South.
  In conclusion, let me just say that my time has expired. Senator 
Harkin is in the Chamber. I thank him for his great patience. I am 
sorry I got a little exercised. But I guess coming from the part of the 
country I do and being Catholic, it has been very hard, especially for 
us, to have to hear some of the rhetoric that is thrown around on the 
Senate floor.
  Again, to my friend from Tennessee, I have the utmost respect for 
him. He has been a real leader in this effort.
  I yield the floor and acknowledge Senator Harkin who is here to 
speak.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Parliamentary inquiry: How much time do I have?
  The PRESIDING OFFICER. The Senator from Iowa has 14 minutes.
  Mr. HARKIN. Is that under a unanimous consent agreement?
  The PRESIDING OFFICER. The Senator has 14 minutes under the consent 
arrangement and 2 minutes remaining under this hour segment.
  Mr. HARKIN. Mr. President, I was driving in this morning and 
listening to NPR. I couldn't turn on the television this morning 
because our house didn't have electricity. The wind knocked out the 
electricity. So I was listening to the radio driving in. They had a 
little snippets of the debate last night: Some people talking about 
this as being theater, whether it was real theater or false theater. I 
don't know that I want to even venture a guess as to whether this is 
real or false, but I will tell you this: It is hypocritical theater. 
This is hypocritical theater going on right now.
  The arguments of my friends on the other side, the Republican side, 
are so

[[Page 28690]]

filled with hypocrisy, so filled with double standards. These arguments 
reek with pure, unadulterated partisan politics.
  I have listened to this, and it is hard to know where to begin. This 
morning I was listening to some of my friends on the other side talk 
about a moral obligation to have a vote on the Senate floor on judges. 
However, I was listening to the words carefully. Evidently, it is not 
morally correct or morally right for Democrats to hold up judicial 
nominees on the Senate floor with extended debate or filibuster, 
whatever you call it. That is morally unacceptable. But it is morally 
acceptable for Republicans to hold up judicial nominees in committee.
  Here is where the words get kind of funny. I have heard the 
Republicans talk about this, and they say: That is not a filibuster in 
committee; that is a hold. Here on the floor it is a filibuster. One is 
morally acceptable; one is not.
  Please tell me where the moral demarcation line is on this. How 
absurd. How reeking of hypocrisy. I remember 15 times more judicial 
nominees were blocked by Republicans. But they did it in committee.
  When this all started last night, I thought, this is so appropriate 
that this theater, this hypocritical theater we are engaged in, is 
happening at nighttime. It is so appropriate for this event to take 
place at night because under cover of darkness is where this majority 
likes to operate, in committee, not open on the floor. No, block the 
nominees in committee. That is not a filibuster. That is a block. That 
is a hold. That is OK. Morally, that is acceptable. It doesn't count. 
But don't dare block them out in the open, on the Senate floor.
  Three years ago, Bonnie Campbell, former attorney general of the 
State of Iowa, head of the Violence against Women Office at the U.S. 
attorneys office here in Washington, did a great job, came before the 
committee. President Clinton had nominated her for judicial appointment 
to the Eighth Circuit. Both blue slips were turned in by the two 
Senators from Iowa. She had a hearing, a great hearing. Not one issue 
was raised in public against Bonnie Campbell, no one said she was unfit 
to be a judge, that there was something bad in her background, that she 
had made bad judgments or decisions as attorney general. Not one thing 
came out against Bonnie Campbell, but she never got on the floor for a 
vote. She was held hostage in Committee never to be seen again.
  Now I say to my friends on the other side: I stood here, asked 
numerous times unanimous consent to bring Bonnie Campbell out on the 
floor to have a debate. Every time, it was objected to. Where were my 
friends who are so sanctimonious now? Where were they 3 years ago when 
I asked unanimous consent to bring Bonnie Campbell out of committee?
  Now I see clearly. The scales have fallen from my eyes. I see 
clearly. It is morally OK to stop them in committee. Don't give a vote 
in committee, under cover of darkness. You pull the cloak over it and 
you don't allow them out of committee. That's OK because no one really 
knows what's going on outside the Beltway.
  It is hypocrisy--sheer hypocrisy.
  The Senator from Arizona earlier said he had an analogy, something 
about, we are going to hang them without a trial. I kind of missed a 
little bit of that. How about this analogy--about Bonnie Campbell's 
analogy? How about all of these judges who were held in committee and 
blocked? They were held in prison forever with no charges, no trial, no 
vote, just lock them up and don't ever let them out.
  Sanctimonious arguments on the other side. My, my, my. Notice the 
nuance of the words. How many times have I now heard Republicans on the 
other side say: I will never, never vote to block a nominee on the 
floor? I hear it all the time. That seems to be a common refrain from 
the other side: I will never vote to block a nominee using a 
filibuster.
  My good friend from Utah said that. But check the record. The Senator 
from Utah, who was recently in the Chamber saying he would never vote 
against cloture, voted against cloture 8 times in the Clinton 
administration, against 8 nominees, Janet Napolitano to be U.S. 
attorney, Ambassador Flynn, Walter Dellinger, Rick Taggert, Sam Brown, 
Edmund DeJarnette, Henry Foster, Derrick Shearer. My friend from Utah 
voted against cloture eight times. Again, where is the moral 
demarcation line?
  I guess it is morally all right for my Republican friends to vote 
against cloture on nominees for attorney general, ambassadors, et 
cetera. It is morally OK to do that. But it is not morally OK to vote 
against cloture on a lifetime appointment to the judiciary.
  Please, someone tell me about the moral demarcation line. You can 
vote against cloture for nominees eight times and come out on the floor 
and say, I will never vote against cloture on a judicial nominee.
  Again, notice the nuance of the words. This is a filibuster. But if 
they're held up in Committee with a hold for no apparent reason, well 
that doesn't count. There's nothing morally wrong about that. I heard 
that from my Republican friends: We didn't filibuster all of these 
judges in committee; they just had a hold put on them. Apparently, 
there's an obvious moral difference that I just have failed to see.
  It is at times such as this I am reminded of one of my favorite 
refrains from one of my favorite plays, ``Finian's Rainbow.'' It goes 
like this: For life is like cricket. We play by the rules. But the 
secret which few people know, that keeps men of class far apart from 
the fools, is to make up the rules as you go. It is a little refrain 
from a song in ``Finian's Rainbow.''
  Republicans just want to make up the rules as they go, change them to 
fit the times and circumstances, change their arguments--these actions 
represent sanctimonious hypocrisy, partisan politics, double standards.
  Well, we have had 30 hours here, I guess. I want to just say, I thank 
all of the staff and the pages, the reporters, the police, all who had 
to stay and work overtime.
  Speaking of overtime, while we are wasting time with this theater of 
hypocrisy, guess what is happening in other parts of this building. 
Guess what is happening under the cover of darkness. The Republicans 
want to take away your overtime pay protection. That is what is 
happening.
  The administration, earlier this year, came out with a new proposed 
rule that will effectively take away overtime pay protection for 8 
million Americans. Not one hearing was held on it. Cover of darkness. 
Not one public hearing was held on that. The Senate voted on an 
appropriations bill to stop the administration from enacting that rule. 
The House of Representatives joined in and voted.
  Yet the administration, the President, says he is going to veto it. 
He is going to veto funding for education, health care, medical 
research at NIH, funding for job training programs, all because they 
want to take away your overtime pay protection. All these people who 
worked here overnight--police, reporters, staff, so many people who 
worked overtime--while they are playing this little shell game.
  It reminds me of that carnival shell game. You watch this hand, but 
with the other hand they are picking your pockets. Let's waste 30 hours 
of time talking about 4 judges to hide the fact that we don't want to 
vote on the issues that really matter to the American people--like 
raising the minimum wage, protecting overtime, extending unemployment 
insurance assistance, passing a real medicare prescription drug benefit 
and responsible energy bill and passing our appropriations bills.
  It is a shell game. Look at these 4 judges that the Democrats are 
blocking. Don't look a the 168 judges this Senate has confirmed under 
President Bush. Hype this up. We will have this theater to hide what's 
really going on.
  The other side may think the American people don't know what is going 
on. But I believe the American people haven't been fooled. They know 
this is a waste of time to hide what the Majority can't or don't want 
to get done.

[[Page 28691]]

  The PRESIDING OFFICER. The Senator's time has expired. For the 
information of our colleague, his time has expired.
  The Senator from Tennessee has 2 minutes.
  Mr. ALEXANDER. Mr. President, I have been listening to my friend from 
Iowa. One thing he said that I agree with: The quote from ``Finian's 
Rainbow'' about making up the rules as they go a long.
  The issue before us is a pretty simple one. I think a lot of other 
Americans think President Bush ought to appoint judges with 
conservative principles who will not make up the rules as they go 
along, who will not make up the law as they go along, who will enforce 
the law as they find it, as Attorney General Bill Pryor does in 
Alabama, as Judge Pickering does in Mississippi.
  The issue here, after all the charts are taken down and all the 
rhetoric is put aside, is very simply this: For the first time in our 
Nation's history, the Democrats are using the filibuster to keep us 
from having an up-or-down vote on President Bush's nominees after they 
have gotten out of committee, after they have gotten to the floor, and 
after it is clear they have a majority of votes. That is the first time 
in our Nation's history.
  Second, they are doing it to extraordinarily well qualified women and 
men. I don't know whether that is grounds to change the rules of the 
Senate or not. But it surely is grounds for the people of the South and 
this country to address in the next election. Should a President have 
the right to appoint judges with conservative principles who will 
enforce the law rather than make it up as they go along? We believe 
that a President of whatever party should have that right. The other 
side, for the first time in 200 years, says: We are going to stop you 
from having an up-or-down vote on people who have the majority vote.
  The PRESIDING OFFICER. The time of the Senator from Tennessee has 
expired.
  The Senator from Iowa is recognized.


                   Unanimous Consent Request--S. 224

  Mr. HARKIN. Mr. President, I ask unanimous consent that the Senate 
return to legislative session and proceed to the consideration of 
Calendar No. 3, S. 224, the bill to increase the minimum wage, that the 
bill be read the third time and passed, and the motion to reconsider be 
laid upon the table.
  Mr. McCONNELL. Mr. President, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. McCONNELL. Mr. President, parliamentary inquiry: The time is 
controlled how?
  The PRESIDING OFFICER. Under the previous order, beginning at 9 a.m., 
the minority and majority each control 30 minutes.
  Who yields time?
  The Senator from Kentucky is recognized.
  Mr. McCONNELL. Mr. President, I rise today on behalf of my 
constituents in the Sixth Judicial Circuit to discuss the plight we 
confront in that circuit. That circuit is made up of Michigan, Ohio, 
Kentucky, and Tennessee. As you can see by this chart, the Sixth 
Circuit is currently 25 percent vacant. If you are a litigant in the 
Sixth Circuit of Kentucky, it takes you 6 months or longer to get your 
case decided than in any other circuit in America.
  Why are we in this situation? We are in this situation because the 
two Michigan Senators won't allow the Senate to go forward on four 
nominees from their own State--the Michigan Four. So we languish with a 
25 percent vacancy rate. Litigants have a 6-month or longer wait than 
anywhere in America, while the two Michigan Senators hold up nominees 
from their own State, presumably because President Bush will not 
nominate people the Democratic Senators from Michigan are recommending 
that he nominate to the Sixth Circuit.
  It may have been a close election, but President Bush won. He gets to 
make the nominations. I can tell you as a Senator from the Sixth 
Circuit, I am not interested in seeing Democratic nominees to our 
circuit court. So what they have done here is set up a standard that 
cannot be met and will not be met, and they are punishing the litigants 
of the Sixth Circuit because of this pique they have that the 
Republican President won't nominate recommendations of Democratic 
Senators from Michigan to the circuit court.
  My recollection--and I have been here a couple of terms myself--is 
that Senators don't get to pick circuit judges. We may have a lot of 
influence on the selection of district judges, but Senators typically 
don't get to pick circuit judges. Maybe we get to make a 
recommendation, but we certainly don't get to pick them under 
Presidents of either party. So what is being asked in this situation is 
that Democratic Senators get to select circuit judges in a Republican 
administration.
  I can tell you if, as Republican Senators from the Sixth Circuit, we 
don't even get to pick Republican judges for the Sixth Circuit, there 
is no chance the Democratic Senators are going to get to pick 
Democratic judges in a Republican administration.
  The National Judicial Conference has designated all four of these 
seats as judicial emergencies. Not surprising. Twenty-five percent are 
vacant. It is a judicial emergency. The President nominated four 
superior jurists to fill these seats. Each of these nominees--all 
languishing in committee because the Michigan Senators object to them 
going forward--has gotten an ABA rating of qualified or well qualified. 
That used to be the Democrats' coveted gold standard.
  But despite the President doing his job and trying to fill these 
seats, the Senate has fallen down on the job. These nominees are from 
Michigan, and the Senate delegation from that State, as I said, has 
objected to the Senate considering them, even though the Sixth Circuit 
is in crisis. It is even rumored that if the nominees were to be 
reported out of committee, they would join the ranks of the 
filibustered nominees we have been talking about since yesterday at 6 
p.m.
  Our friends and colleagues on the other side keep talking about the 
four they filibustered. There are seven more who we understand are 
going to get the same treatment. So maybe we ought to be talking about 
11 who are going to be subjected to a supermajority.
  The wheels of justice in my State and the other States of the Sixth 
Circuit are turning very slowly. Sometimes they are not turning at all. 
Cases are going unheard and grievances unredressed because the Sixth 
Circuit bench is one-fourth empty. Each judge has to handle a much 
larger caseload.
  According to AOC--Administrative Office of the Courts--in 1996, each 
judge on the Sixth Circuit had to decide an average of 364 cases. That 
was just 7 years ago. On the Sixth Circuit, each judge had to decide 
about 364 cases. Last year--in 2002--each judge on the Sixth Circuit 
had to decide 643 cases--from 364 cases up to 643 cases between 1996 
and 2002. That is a 77 percent increase from just 6 years ago. By 
overworking judges on the Sixth Circuit, the Senate is causing great 
delays for litigants. It now takes an excruciatingly long time for 
citizens of the Sixth Circuit to get their appeals decided.
  As this chart shows, the national average for the time to decide an 
appeal is 10.7 months. This is the national average in the circuit 
courts of a delay in getting your decision made--10.7 months. In the 
Sixth Circuit, however, it is 6 months longer than that, 50 percent 
more.
  So if you happen to be a litigant in the Sixth Circuit, because of 
the demand of the Michigan Senators that the Republican President of 
the United States select Democratic nominees of their choosing to the 
Sixth Circuit, if you are unfortunate enough to be a litigant in the 
Sixth Circuit, you are out of luck. I hope your case is not too 
important because it will take 50 percent longer than the national 
average to get a decision. It is all because the Michigan Senators 
believe they should be able to pick one or more circuit judges for a 
Republican President.
  The Sixth Circuit has the dubious honor of being the slowest circuit 
in the Nation--dead last. The blame for that resides not with the 
President of the United States, who has had four

[[Page 28692]]

well-qualified nominees pending before the Judiciary Committee for 
quite some time; the reason for that is the Michigan Senators' refusal 
to sign off on any of them, unless they get to tell the President whom 
to nominate.
  Looking at it another way, if you are lucky to have to be in one of 
the other circuits, if you file your appeal by the beginning of the 
year, you may get a decision by Halloween. If you file at the same time 
in the Sixth Circuit, you will wait until Easter of the following year 
to get a decision. We have all heard the old saying that justice 
delayed is justice denied. So let's put a human face on those 
statistics.
  In the area of criminal justice, Ohio Attorney General Betty 
Montgomery has said that numerous death penalty appeals are 
experiencing prolonged delays. In the area of civil rights, attorney 
Elizabeth McCord had been waiting 15 months just to have an oral 
argument scheduled for her client's appeal in a job discrimination 
suit--15 months to get an oral argument in a job discrimination suit 
because the Michigan Senators won't allow any of the President's 
nominees to go forward. In the interim, her client died. He waited so 
long, he simply passed away.
  According to the Cincinnati Post, delays such as this have become 
commonplace because vacancies have left the court at half strength and 
created a serious backlog.
  Commenting on this sorry state, Mary Jane Trapp, president of the 
Ohio Bar Association, said:

       Colleagues of mine who do a lot of Federal work are 
     continuing to complain. When you don't have judges appointed 
     to hear cases, you really are back to the old adage, 
     ``justice delayed is justice denied.''

  Mr. President, this situation is completely and totally unacceptable. 
I am astonished that our Democratic colleagues want to filibuster 
qualified judicial nominees who could address the problem.
  My Democratic colleagues try to justify their obstructionism based on 
a grievance they believe they have suffered with respect to two of 
these seats. Bear in mind, there are four vacancies. This grievance 
goes back two Congresses and involves an intradelegation spat. The 
``you started it'' excuse is more than just a little wanting in light 
of these troubling statistics and unfortunate stories.
  As I said earlier, let's get back to the first principle: Democratic 
Senators don't get to pick circuit judges in Republican 
administrations. In fact, Republican Senators don't get to pick them in 
a Republican administration. We get to make recommendations. Presidents 
of both parties have long believed circuit court appointments were 
their prerogative.
  So I say to my friend from Idaho, who has joined us on the floor, 
here you have a situation where the Democratic Senators in Michigan, 
with a Republican administration, are demanding that the Republican 
President appoint someone of their choice to the circuit courts when 
even we as Republican Senators don't get to make such selections. I 
think it is safe to say that that is never going to happen. That is 
never going to happen.
  So in the meantime, four nominees the President has made--all from 
the State of Michigan--which would solve this 25 percent vacancy 
problem on the Sixth Circuit, languish because of this desire on the 
part of Democratic Senators to pick circuit court nominations in a 
Republican administration.
  It is important to remember that Michigan doesn't own these seats. 
They don't belong to any particular State. Certainly, historically, at 
least in recent history, these four seats have belonged to Michigan. 
They belong to the people of the United States. If anybody has a 
particular claim, it is the people of the Sixth Circuit, all of whom 
are suffering because of this obstructionism. I know the people of 
Ohio, Kentucky, or Tennessee would be more than happy to have these 
judges if Michigan doesn't want them. If the Michigan Senators don't 
want Michigan judges on the Sixth Circuit, goodness, we would be happy 
to have a good Ohio, Kentucky, or Tennessee lawyer fill the vacancies. 
My people in Kentucky didn't have anything to do with this spat up in 
Michigan. They are having to pay for it, as are the people of Ohio, 
Tennessee, and Michigan.
  I said there are four vacancies in Michigan. Two of the four seats 
the Michigan Senators are blocking don't have any connection to any 
prior intradelegation dispute. There were two of the four judges who 
were involved in all of this dispute during the Clinton years, but 
there are four vacancies. All four of them are being held up. President 
Clinton did not even nominate anyone. Let me repeat, President Clinton 
didn't even nominate anyone for the seat to which Henry Saud has been 
nominated. Henry Saud, if confirmed, would be the first Arab American 
to sit on a circuit court in U.S. history. That is one of the 
nominations they are holding up. President Clinton didn't even nominate 
anyone for the seat to which Henry Saud has been nominated. The seat to 
which David Mackey has been nominated didn't even become vacant until 
the first year of the current President's term. Two seats are being 
held up by the Michigan Senators, one of whom President Clinton 
nominated, and one didn't become vacant until President Bush took 
office. These two vacancies had nothing to do with whatever the spat 
was that went on earlier, and all four seats remain vacant.
  This is simply an unacceptable situation. The American people should 
be aware of what is going on. They should demand that this 
obstructionism cease. This outrage that is occurring in the sixth 
judicial circuit puts a human face on what has been going on around 
here this year.
  Real litigants, real people, are paying the price for senatorial 
pique, for senatorial demands for something that is totally 
unreasonable--where Democratic Senators, in a Republican 
administration, get to pick circuit judges. In the meantime, the 
lawyers and litigants of the Sixth Circuit continue to suffer under 
this 25 percent vacancy crisis, this judicial crisis of the highest 
order, as a result of Senate obstructionism.
  Let me also add, just a month ago, both houses of the Michigan 
Legislature passed resolutions that noted the negative effects of the 
vacancy crisis and urged the U.S. Senate in general, and Michigan 
Senators in particular, to act on the Michigan nominees. The Michigan 
Legislature is passing resolutions asking the Michigan Senators to let 
the nominations go forward.
  Mr. President, I thank the Chair for the opportunity to address the 
crisis in the Sixth Circuit. It is a very serious crisis confronting my 
State. I see the Senator from Oklahoma here.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from Oklahoma is 
recognized.
  Mr. McCONNELL. Mr. President, how much time remains?
  The PRESIDING OFFICER. The majority controls 12 and a half minutes.
  Mr. McCONNELL. Mr. President, I reserve the remainder of our time.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Oklahoma is recognized.
  Mr. NICKLES. Mr. President, I will also be speaking later. I want to 
make a couple of comments after presiding and listening to some of the 
speeches made a moment ago. I think it is important to maybe give a 
couple of viewpoints about the positions of the Senate.
  I have had the pleasure of being in the Senate for 23 years. I plan 
on serving 1 more year in the Senate. I have had a lot of great 
experiences, a lot of high points and low points. One of the lower 
points is the way judges have been treated in the last 2 years. In my 
previous 21 years, we never had a filibuster on a judge, and I never 
heard colleagues say, Wait a minute, President Clinton had nominees and 
they weren't considered. Most of those who were on the list he 
nominated very late in the last year of his term of office. One of them 
was from Oklahoma, and the two Senators from Oklahoma were never even 
consulted. That name was on the list.
  So there is a difference between being nominated, going through the

[[Page 28693]]

process--particularly with district court judges--consulting the home 
State Senators. That is the tradition of the Senate.
  One of the things that bothers me is we are breaking the tradition of 
the Senate by saying now you have to have a supermajority, particularly 
on the appellate court level. I don't know that that has happened on 
district court, and I am glad. We have confirmed a lot of district 
court judges and I am glad. But when it comes to circuit court, the 
next higher level, it may be a higher standard and all of a sudden now, 
the standard for those judges appears to be 60 votes. That is evident 
by the fact of four having been filibustered and there are another two 
who will be filibustered in the process. We will find out tomorrow.
  Another of the traditions that has been trampled upon is what people 
are saying and how they are saying it. We had a speaker just recently 
who mentioned two Senators by name and kept using the words 
``sanctimonious hypocrisy.'' That is in violation, in the opinion of 
this Senator, of rule XIX of the Senate.
  We have rules. And we have rules for a purpose. Those rules should be 
adhered to. When Senators violate the rules, I think they undermine 
maybe to some extent the dignity and esteem of the Senate.
  These rules have a purpose. Rule XIX says:

       No Senator in debate shall directly or indirectly by any 
     form of words impute to another Senator or other Senators any 
     conduct or motive unworthy or unbecoming of a Senator.

  That rule is there for a purpose. It is gradually being ignored in 
debate, time and time again, by some Members--not by most Members, by 
an occasional Member.
  I am giving a warning to Members, if they violate this rule, I am 
going to call it on them and I am going to ask the Parliamentarian if 
their comments are a violation of rule XIX. And if they are in 
violation, they will be seated. It will take an actual vote for them to 
be allowed to participate in debate again.
  It is not right to be coming down mentioning Senators by name and 
using words such as ``sanctimonious hypocrisy'' and impugning a 
Senator's motives. That is in violation of the rules. People ought to 
know the rules. Maybe if we would abide by the rules, we would have a 
higher level of debate, greater civility, and maybe greater 
understanding of some of the challenges we have before us today.
  Let me just make one other comment about there were some judges who 
are maybe left in the queue. President Clinton had a bunch of judges 
left in the queue. I had a judge who was left in the queue at the end 
of Bush 1's administration. His name was Frank Keating and he ran out 
of time. That is one of the traditions of the Senate. When people are 
nominated in the last year or the last few months of an administration, 
a lot of times they don't get confirmed. That is not a filibuster. Some 
people were equating that to a filibuster. It is not. There has not 
been a filibuster of a judge in my term--actually in the history of the 
Senate--until this year, on four individuals, and now we are going to 
find it on a couple of additional judges.
  One other comment. My very good friend from Louisiana said her father 
was a Catholic judge, and God bless him. I am concerned that there is a 
religious litmus test coming. Maybe we can confirm Catholics, but if 
they happen to be pro-life Catholics--I don't know if her dad is a pro-
life Catholic or not. I hope he is. I don't know. That is his business. 
I usually don't ask the nominees I am recommending or the President is 
considering--I usually don't ask them their position on that issue. But 
my guess is if someone is known to be a pro-life Catholic, they cannot 
get through this litmus test for appellate court judges that many are 
using today, and I think that is very regrettable. Maybe if they happen 
to be pro-life Southern Baptists or pro-life Mormons or pro-life Jews, 
I am not sure they can get through this new litmus test now being put 
on us by the Judiciary Committee and, unfortunately, by the minority in 
the Senate. I think that is very regrettable and we need to change 
that.
  Our colleagues on the other side need to realize at some point, 
someday, they will regain the majority. They need to be thinking about 
what that means for the long term. I cannot imagine they assume we are 
going to have a 60-vote litmus test or a 60-vote margin or hurdle for 
confirmation of judges during Republicans but that is not going to 
happen at some point when Democrats might occupy the White House.
  I think this raising the bar to 60 votes--I happen to believe it 
probably is unconstitutional, but I also happen to believe they are 
setting a precedent that they likewise will regret.
  So I hope maybe more mature minds will be thinking about this on the 
Democrat side and say, wait a minute, shouldn't we really give somebody 
such as Miguel Estrada a vote?
  Mr. McCONNELL. Will the Senator from Oklahoma yield for just a 
moment? The Senator from Kentucky is here. I don't know how much time 
we have remaining.
  The PRESIDING OFFICER. The majority holds an additional 6 minutes on 
this side.
  Mr. NICKLES. I will be happy to yield to my very good friend from 
Kentucky.
  Mr. McCONNELL. Thank you. I yield the remaining time on this side, 
during this hour, to the Senator from Kentucky.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. BUNNING. I thank for yielding my good friend from Kentucky and my 
good friend from Oklahoma. I have a question for the senior Senator 
from Kentucky.
  I ask my friend from Kentucky: The Michigan Senators argue that they 
have not been properly consulted on these, the Michigan nominees. Yet I 
understand the White House Counsel's Office consulted extensively with 
the Michigan Senators. This chart reproduces a letter from the White 
House Counsel that shows from April to November 2001, the White House 
consulted with the Michigan Senators no fewer than 13 times. So I ask 
my friend from Kentucky, in light of the record, does it not seem that 
the Michigan Senators are defining consultation as picking the 
nominees, rather than the President picking them?
  Mr. McCONNELL. I would say to my friend from Kentucky, he is exactly 
right. I think what is clearly happening here is the Michigan Senators 
want to pick circuit judges in a Republican administration.
  I remind everyone, the two Michigan Senators are Democrats. My 
recollection is that the Senator from Kentucky and I may get to 
recommend judges for the circuit court but we don't get to pick them in 
a Republican administration, so why should any Democrat Senator expect 
they would get to pick circuit judges in a Republican administration?
  Mr. BUNNING. On the Sixth Circuit Court of Appeals, where these 
Michigan circuit judges are needed so desperately, isn't it true right 
now that Federal district judges are having to go to the Sixth Circuit 
and be seated because of the judicial crisis we have on the Sixth 
Circuit?
  Mr. McCONNELL. My friend from Kentucky is absolutely right. We have a 
25 percent--25 percent of the Sixth Circuit is vacant. Not because of 
the President of the United States. Four Michigan nominees were sent up 
here some time ago. They have been in the Judiciary Committee. They are 
having to draft district judges. It is the slowest circuit in America 
because it is 25 percent vacant.
  Mr. BUNNING. I only say to my good friend, the senior Senator, that 
even some of the newer judges with whom you and I are familiar are now 
having to do 2-week tours of duty over at the Sixth Circuit Court of 
Appeals--they have only been on the district bench for 2 years--to try 
to catch up the backlog we have at the Sixth Circuit Court. If we could 
only get a little better cooperation out of certain Senators from 
Michigan, maybe we could fill those four vacant seats in a rational and 
reasonable way.
  Mr. McCONNELL. I thank my friend from Kentucky for pointing this out. 
It is an outrageous situation.

[[Page 28694]]


  Mr. BUNNING. Mr. President, we have heard from many on this side of 
the aisle this morning and last night. They have made great points 
about President Bush's judicial nominees and the bad situation they are 
in.
  We started this year talking about Miguel Estrada. His nomination is 
no longer before the Senate because of the opposition party's tactics 
and for the sale of his family.
  Today marks 918 days after Miguel Estrada's nomination. He has never 
received an up-or-down vote. That is unfair to him. President Bush, and 
the American people.
  Miguel Estrada is a respected attorney here in Washington. He 
received a unanimous ``well qualified'' rating from the ABA which is 
the rating our Democrat colleagues call the gold standard for judges.
  He would have been the first Hispanic to sit on the prestigious DC 
circuit. He was a clerk at the Supreme Court. He graduated with 
distinction from Harvard Law School and argued many cases before the 
Supreme Court. He even served in the Clinton administration.
  But that is not the most impressive part of Miguel Estrada's story. 
He was born in Honduras and came to America at age 17 speaking little 
English. He overcame that hurdle and graduated from one of our most 
exclusive colleges and law schools.
  He also overcame a speech disability. And this is no small hurdle to 
clear when your career depends on making successful oral arguments in 
court.
  Miguel Estrada became a victim of politics in the Senate when some 
here said his views were unknown. They made unprecedented demands for 
documents every legal office in the country would object to releasing. 
They asked questions that countless Clinton nominees also declined to 
answer. And opponents said that was unacceptable.
  The real issue here is what is known about Miguel Estrada.
  He is a bright young Hispanic lawyer who follows the law and would 
make a great Supreme Court nominee.
  The idea of the first Hispanic on the Supreme Court being a 
conservative is unacceptable to them. I hope his nomination comes 
before the Senate again some day and we can vote to confirm him.
  And then there is Priscilla Owen.
  Her nomination has been pending for 918 days. She has been a supreme 
court justice in Texas since 1995.
  In her last election she received 84 percent of the vote. I'm not 
sure many here know what it feels like to receive that kind of 
percentage. But I bet we would all like to.
  And just like Miguel Estrada, the ABA gave her a unanimous ``well 
qualified'' rating.
  She graduated with honors from Baylor Law School where she was on the 
law review and she earned the highest score in Texas when she took the 
bar exam. Having suffered through several children taking the bar exam, 
I've heard what kind of challenge that can be.
  But most telling is what her colleagues in Texas say about her.
  Justice Owen has the support of three former Democrat justices on the 
Texas Supreme Court. Fifteen bipartisan past presidents of the Texas 
bar endorsed her.
  And running for re-election she was supported by every major Texas 
newspaper. We should all be so lucky to even get our hometown 
newspaper's endorsement.
  We've had three cloture votes on her and we will vote again on 
Friday.
  Each time a majority signaled we should give her an up-or-down vote. 
But again the minority is preventing her from having her day in court.
  What is her crime? Twice in the Texas Supreme Court, Justice Owens 
said the court was wrong and that under Texas law the parents of a 
pregnant child had the right to be informed before their daughter had 
an abortion.
  Several lower courts had already upheld these parental rights and 
that Texas law does not give parents the right to stop the abortion, 
but they did have the right to be informed.
  But that precedent apparently doesn't matter and she is being 
obstructed by a radical minority in this Senate that believes children 
have unlimited rights to abortions and parents should not be able to 
talk to their pregnant child first.
  I know the vast majority of Americans do not believe that. And it is 
well past time we give Justice Owen an up-or-down vote.
  Alabama attorney general Pryor was the next judge to fall victim to 
special interest politics.
  Bill Pryor was appointed Alabama attorney general in 1997 and re-
elected twice, most recently with 59 percent of the vote.
  He has argued before the U.S. Supreme Court, practiced at two law 
firms, and taught law school.
  In law school he was on the law review and graduated with honors. 
After law school he was a clerk at the fifth circuit where he worked 
for a judge who spent years working to desegregate schools in the 
South.
  Attorney General Pryor is supported by Republicans and Democrats in 
Alabama.
  Newspapers praise the lack of partisanship in his office. He is known 
in Alabama for following the law. Ironically that is what his 
detractors say he won't do.
  Bill Pryor is an outspoken man who does not hide his beliefs but he 
has proven that his personal beliefs do not get in the way of following 
the law. He does not support abortion and has never apologized for it.
  But he made sure his office followed Supreme Court precedent in 
enforcing the State's partial birth abortion statute even though he 
disagreed with the decision, and most recently he acted against 
overwhelming public opinion in Alabama to enforce Federal court rulings 
ordering the Ten Commandments display in the Alabama Supreme Court to 
be removed.
  Again a majority of this body has kept Attorney General Pryor from 
getting the up-or-down vote he deserves. He has proven without a doubt 
that he will follow the law even when he disagrees with it.
  Twice a majority of the Senate has said he should get a vote. Next 
time I hope we give him an up-or-down vote.
  Next up on the honor roll of filibustered judges is Judge Charles 
Pickering.
  Judge Pickering was unanimously confirmed by the Senate in 1990 to be 
a Federal district judge in Mississippi.
  He graduated first in his law school class at the University of 
Mississippi. He practiced in a law firm and was both a city and county 
prosecutor. He was a municipal court judge and elected to the 
Mississippi State Senate.
  Judge Pickering has spent his career as a leader in race relations in 
Mississippi.
  His career has been dedicated to tearing down racial barriers against 
minorities in the South, and he was not very popular for it in 
Mississippi in the 1960s and 1970s, but it was the right thing to do.
  I remember traveling around the South in the 1950s and 1960s and 
remember race relations there.
  I remember signs at cafes saying ``whites only'' and then bringing 
food outside with my white teammates and sitting down with our black 
teammates on the bus and eating with them.
  I remember what it was like as professional baseball gradually 
embraced minorities. Judge Pickering helped break down these racial 
barriers and he risked his career and reputation to do it.
  In recent years Judge Pickering served on race relations committees 
in Mississippi. He spent time working with at-risk minority children.
  In 1967 Judge Pickering was a prosecuting attorney in Jones County, 
MS.
  He took the witness stand to testify against a Klan leader in a trial 
for killing a Black civil rights activist.
  By standing up for equality and justice, Judge Pickering put himself 
and his family in danger and lost his re-election. You can never really 
judge the character of a man until standing up for his beliefs costs 
him something.
  Judge Pickering's willingness to stand up against racial violence 
cost him his job as a prosecutor. But that did not keep him from 
continuing to fight for racial justice.
  Probably the most heated race issue in the 1960s and 1970s was 
integration of

[[Page 28695]]

public schools. Integration came to Judge Pickering's town in 1973. The 
Black and White communities in Laurel were split and Charles Pickering 
worked to bring them together.
  He created a plan to integrate schools. In the end many Whites still 
moved their kids to private schools to avoid integration. And Judge 
Pickering could have done the same. But instead, he believed in 
integration and kept his children in public school.
  Many have said he has been soft on civil rights. But that does not 
sound like the story of a man who is soft on racial justice to me.
  Again the special interests that have kept the Senate from voting on 
Miguel Estrada, Priscilla Owen, and Bill Pryor are preventing a vote on 
Judge Pickering.
  A majority of the Senate again has said we should have a vote on 
Judge Pickering and the Senate must fulfill its constitutional 
responsibility and do so.
  Now we come to the nominees who will soon be victims of special 
interest politics--Judge Carolyn Kuhl and Justice Janice Rogers Brown.
  Judge Kuhl is a superior court judge in Los Angeles where she has 
worked on civil and criminal cases. Currently, she is the supervising 
judge of the civil division.
  Judge Kuhl graduated from Duke Law School and clerked for the same 
court she was nominated to. In the 1980's she worked at DOJ and the 
Solicitor General's Office where she argued before the Supreme Court.
  The ABA says Judge Kuhl is ``well qualified.'' Republicans and 
Democrats in California have spoken about her fairness and competence. 
Fellow judges and attorneys who appear before her strongly support her 
nomination and urge an up-or-down vote.
  Judge Kuhl's crime is that she represented her government while 
working for the Reagan administration. One instance our colleagues on 
the other side of the aisle like to point to is when she helped prepare 
a document supporting President Reagan's views in an abortion case.
  In other words, she was doing her job and representing her client.
  One thing they forget to mention is the case was the first major 
abortion case to follow Roe v. Wade when the new law was quite 
uncertain.
  They also forget to mention that it was her job to represent the 
position of the President and not her own views.
  They also forget to mention that three other attorneys who worked on 
that case were Senate confirmed to positions after the case. Judge Kuhl 
has said she will follow the law regardless of her views. Her record 
proves it.
  Finally, we get to Judge Janice Rogers Brown of the California 
Supreme Court. Judge Brown, who a minority of the Senate says is out of 
the mainstream, was recently re-elected with 76 percent of the vote.
  She was born in rural Alabama to a family of sharecroppers. She grew 
up in segregated schools. She lived in an era where laws were written 
to prevent racial equality in the South. Yet Justice Brown succeeded in 
school and became the first black woman to sit on the California 
Supreme Court.
  What do my colleagues say about Justice Brown is out of the 
mainstream?
  Justice Brown voted to uphold a law saying parents have a right to 
consent before their daughter can get an abortion. How far is that out 
of the mainstream? Recent polls tell us well over three quarters of 
Americans think parents should be involved in the abortion decisions of 
their children.
  What else do opponents say she has done that is out of the 
mainstream?
  Her detractors say she wants to undo decades of Supreme Court 
precedent in property rights and government involvement in the economy. 
But none of them can point to any court opinions where she disregarded 
the law and substituted her personal views.
  However, she is supported by a bipartisan mix of professors, judges, 
attorneys, and civil rights activists.
  That does not sound out of the mainstream to me.
  I am convinced these nominees are each qualified and would serve this 
Nation well on the courts they have been nominated to.
  The Senate has a constitutional responsibility to advise and consent 
on nominations made by the President. But so far a minority of the 
Senate has prevented us from fulfilling that responsibility.
  I am not asking my Democrat colleagues to vote for and support these 
nominees. I just ask that they give them the courtesy and right to an 
up-or-down vote.
  If they do not believe the nominee is qualified then they should vote 
no. But by preventing a vote they are ignoring their constitutional 
duty. We should vote on these nominees and we vote on them soon.
  The opponents of these nominees are not just playing around with 
these nominees' lives--they are also toying with the Constitution.
  The PRESIDING OFFICER. The time for the majority has expired. The 
Senator from West Virginia.
  Mr. ROCKEFELLER. I thank the distinguished Presiding Officer.
  Mr. President, I recognize my colleagues on the other side of the 
aisle would like to use this debate time to focus on the employment 
status of four people, all of whom are employed. I would like to talk 
about a different subject, and that is the millions of people who are 
not working. I think we owe it to the American people to discuss the 
millions of Americans who have lost their jobs under the economic plans 
of the sitting President.
  In particular, I would like to focus on the millions of Americans who 
have lost good manufacturing jobs, and that is the subject of my 
discourse. I ask the Presiding Officer to cut me off in precisely 15 
minutes if I have not finished. Since I will be back at 9 o'clock, I 
will finish at that point.
  Let me draw your attention to a few very troubling statistics. 
Manufacturing employment in the United States has now fallen to the 
lowest level in 41 years. In the last 5 years, we have lost 16 percent 
of all of our factory jobs. In the last 2 years alone, we have lost 
more than 2.5 million manufacturing jobs. In my own State of West 
Virginia, we have lost 14,000 factory jobs since January 2001.
  To me, these are frightening statistics. They ought to jolt every 
Member of the Senate and prompt an urgent call for action. A vibrant 
manufacturing base, in this Senator's opinion, is essential to our 
standard of living. For generations, factory jobs have been the path to 
the middle class, providing good wages, health insurance, and pension 
benefits. Advances in manufacturing technology account for most of our 
economy's increased productivity. Every dollar we spend on a finished 
manufactured good is estimated to produce about $2.43 increased 
economic activity.
  Simply put, we cannot become a service-only economy, in the judgment 
of this Senator, and at the same time expect to maintain our high 
standard of living. We ought to act swiftly to ensure Americans will 
produce steel and computers and cars and pharmaceuticals and many of 
the other products which we generally refer to as manufacturing.
  We ought not to be timid in the face of the devastating statistics I 
have cited. We can do something about them. In the Senate, that is what 
we are meant to be doing. And we certainly should not ignore these 
statistics and focus, instead, on the jobs of four judges who already 
have work. We would better serve Americans if we used our time today to 
debate ways to revive the manufacturing sector of our economy, and I am 
going to talk about it. People may not want to hear about it, but I am 
going to talk about it because it affects all the people of the 
country, and my people in West Virginia very much.
  At the end of September, I introduced legislation to provide some 
relief for American manufacturers on several fronts. I am disappointed 
the Senate has not yet debated that legislation. I am not surprised, 
but I am disappointed. The bill I introduced is called the SAFE Act, 
which stands for Securing America's Factory Employment.
  I wish that topic were all we were discussing this morning, today, 
this

[[Page 28696]]

week, this month. Saving our Nation's factory jobs is crucial. I will 
take a moment to discuss what my legislation does.
  The SAFE Act would offer relief to American manufacturers in several 
ways.
  First, the legislation would provide a tax deduction to any company 
that has manufacturing jobs in the United States.
  Second, this bill would help companies cover the cost of providing 
health care for retirees--a huge subject. It is a crippling obligation 
for many of our once-proud industries.
  Third, I propose we strengthen our trade laws to ensure they offer 
the protections that in fact our domestic industries deserve from 
unfair and illegal trade practices practiced by others.
  Let me take a moment to explain in greater detail how these proposals 
can help our domestic manufacturing base. Congress is compelled to 
repeal the Foreign Sales Corporation Extraterritorial Income provisions 
of the U.S. Tax Code in order to avoid $4 billion in trade sanctions 
authorized by something called the World Trade Organization. Regardless 
of my opinion of the WTO decision in this matter, I recognize that to 
protect our economy from a trade war, we may need to update our Tax 
Code. We can do so and still encourage manufacturing by reducing the 
overall effective corporate income tax rate on domestic manufacturing.
  The SAFE Act provides a 9 percent deduction for profits derived from 
the manufacturing activities in the United States. This is the 
equivalent, I would say, of lowering the corporate income tax rate from 
the current 35 percent to 32 percent of the portion of profits that can 
be directly linked to U.S. factories; also mining operations and the 
like.
  This is a very straightforward tax break. It will lower the cost of 
doing business in the United States and will help companies that employ 
Americans to compete in the global marketplace.
  In addition, my bill includes a tax credit to employers to encourage 
them to retain their retiree health insurance coverage--a huge problem 
nationwide. As my colleagues well know, employers know their health 
plan sponsors continue to restructure how they provide health care 
benefits for both workers and retirees. The economy is in a tough 
situation and it makes it difficult for them.
  Interestingly, the percentage of employers who offer retiree health 
benefits has declined substantially over the past 15 years, to wit: 
Two-thirds of all firms with 200 or more workers sponsored retiree 
coverage 15 years ago. According to the most recent data, a little bit 
more than one-third do that today. Despite these reductions, the 
employer-sponsored health system is the largest source of health care 
coverage in the country today, even with that diminution of the 
percentage.
  The SAFE Act would provide employers with a tax credit to cover 75 
percent of the costs associated with providing health care coverage to 
their retirees in order to protect existing coverage and reverse the 
current trend.
  Finally, my legislation would strengthen our trade protections, our 
antidumping and countervailing duties. So-called AD/CVD trade laws are 
often the first and last line of defense for U.S. industries injured by 
unfair labor or illegally traded imports.
  These laws are absolutely essential for the survival of our 
manufacturing sector in an increasingly global market. But some of 
these provisions have become antiquated by recent changes in our global 
economy and the new structure of international trade. The American 
steel crisis has made it very clear that these trade laws need to be 
strengthened. Companies, workers, families, and communities rely 
heavily on fair trade laws to prevent the ill-effects of unfair trade. 
Antidumping and countervailing duty laws need to be updated and amended 
so they work both as intended and as permitted under the rules of 
international trade.
  For example, the SAFE Act includes a provision that allows us to 
consider whether or not an industry is vulnerable to the effects of 
imports in making antidumping and countervailing duty determinations. 
Another provision of this bill will make it tough for our trading 
partners to circumvent antidumping or countervailing duties. I have a 
variety of examples I could give of that, but I will not for the 
moment.
  They could do so by clarifying that such orders include products that 
have been changed in only a very minor respect. What do I mean by that? 
Sometimes companies will make a product in another country, send it to 
a third country, and they will adjust a little tiny piece of something. 
Then that third country will export it into the United States and it 
will count as an export from the third country--not from the first 
country or the second country which actually produced the greatest mass 
of it--thus allowing them to have their trade surplus increased.
  This will help prevent foreign nations from making slight alterations 
to products they are exporting to us in order to skirt existing 
antidumping or countervailing duty orders.
  Another clear problem under our current trade law is that foreign 
producers and exporters of such merchandise may avoid AD/CVD duties by 
using complex schemes that mask payment of countervailing duties 
resulting in the underpayment of duty rates.
  My legislation would restrict such practices by requiring the 
importer, if affiliated with the foreign producers or exporters, to 
demonstrate that the importer was in no way reimbursed for any AC/CVD 
duties that were paid.
  There are certainly other changes we should consider to update our 
trade remedy laws. These provisions are by no means an exhaustive list, 
but we do need to get the debate started. I have offered this bill as a 
way to reenergize the debate. I have 15 minutes and I am using it to 
discuss something I think is useful.
  Steel is a prime example of the need for strong trade laws, strong 
enforcement of the laws on the books, and strong considerations to 
toughen existing statutes.
  As the Presiding Officer well knows, I have long been involved in the 
fight for the American steel industry. Currently, the industry, its 
workers, and steel communities around the country await a decision from 
the President of the United States on section 20 tariffs he imposed on 
steel imports in the face of an unprecedented flood of steel imports 
from foreign countries below price and below the cost of production in 
the home country.
  Some of our foreign trading partners are lobbying the White House 
very hard to lift these tariffs. In fact, the European Union was in 
town just last week making irresponsible and illegal trade threats to 
try to sway the President's decision. I hope they fail. The 
administration has a very clear choice between preserving good-paying 
and hard-earned American jobs or caving in to the threats of our 
foreign trading partners.
  All of the arguments made prior to the imposition of the tariffs 
about the potential damage and consequences of the 201 tariffs have 
been debunked.
  This is important. We have something called the International Trade 
Commission. It is a nonpartisan quasi-judicial body. They found that 
the tariffs have done what they were meant to do--the tariffs on steel: 
give the American steel industry breathing room it needs to 
restructure. The International Trade Commission also found that the 
tariffs have not significantly impacted the U.S. economy in any other 
way.
  If this administration is truly committed to the steel industry and, 
importantly, the communities built around it, the President will leave 
the tariffs just as they are and fulfill his promise to American 
workers. If not, we are facing very hard times indeed, and it may be 
the death knell for steel manufacturing in America--something I don't 
think we want to see.
  I am extremely disappointed that rather than engaging in a serious 
debate, we are spending 30 hours talking about judicial nominees 
because some Senators believe it is an effective way to do whatever.
  Instead of scoring political points, the SAFE Act addresses several 
very dire needs of our manufacturing companies. It improves our trade 
laws, helps with the burden of retiree health care costs, and 
effectively lowers the

[[Page 28697]]

corporate tax rate on manufacturing activities. This package of reforms 
is an effective plan to stem the flow of manufacturing goods from 
overseas.
  I will conclude by simply saying this: The fact that almost 9 million 
Americans are out of work, that is urgent; the fact that employment 
insurance is set to run out for many Americans who have been unemployed 
for a long time, that is very urgent; the fact that 43.6 million 
Americans lack health insurance and manufacturers and other employees 
are dropping health coverage to make ends meet, that is urgent; the 
fact that America has lost more than 3 million private sector jobs 
since our current President took office, that is urgent; the fact that 
the number of Americans living in poverty has increased by 3 million in 
2 years, that is urgent; and the fact that 4.5 million Americans work 
part time because they cannot find full-time jobs, that is urgent.
  I would simply like to suggest that the Senate return to the urgent 
business facing our Nation. We have appropriations bills to consider 
and pass. We have a comprehensive Energy bill to pass. We have a 
highway bill to pass. We have much to do.
  I thank the Presiding Officer, and I yield the floor.
  The PRESIDING OFFICER. The assistant minority leader.


                   Unanimous Consent Request--S. 1584

  Mr. REID. Mr. President, yesterday at 6 o'clock we were working on S. 
1584, a bill that funds the Departments of Veterans Affairs, Housing 
and Urban Development, and other agencies. It is a bill that has $122.7 
billion. It includes $612 billion for the Department of Veterans 
Affairs, veterans benefits, all the health facilities, EPA, and NASA. 
It is an extremely important piece of legislation.
  Therefore, for the veterans of America, I ask unanimous consent that 
at 6 o'clock tonight we move off this and go back to the VA-HUD bill 
and complete it within 2 hours. The two managers of the bill, Senators 
Bond and Mikulski, said they could do that. It would be an important 
part of our legislative agenda. I ask unanimous consent that that be 
the case.
  The PRESIDING OFFICER. Is there objection?
  Mr. McCONNELL. Mr. President, reserving the right to object, and I 
will object, we hope to complete that bill, in the next few days. 
Therefore, for the moment, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. McCONNELL. Mr. President, let me suggest another consent 
agreement that might make more sense. I ask unanimous consent that the 
Senator modify his previous request so that just prior to proceeding as 
requested, the three cloture votes would be vitiated and then the 
Senate immediately proceed to three consecutive votes on the 
confirmation of the nominations with no intervening action or debate.
  Mr. REID. I object.
  The PRESIDING OFFICER. Objection is heard.
  Who yields time?
  The Senator from Florida.
  Mr. GRAHAM of Florida. Mr. President, the two unanimous consent 
requests that have just been made I am afraid might have come out of my 
15 minutes. I would like to ask unanimous consent if I could have an 
additional 3 minutes so that I will have my full 15 minutes.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. GRAHAM of Florida. Mr. President, I thank my colleague from 
Kentucky for his generosity. I intend to use much of my time talking 
about the issue that was discussed by my friend and colleague from West 
Virginia. But I would like to start with some comments on the subject 
which has been before us since 6 p.m. yesterday; that is, the issue of 
judicial confirmation.
  This is a fundamental issue in our democracy. One of the great 
figures in the development of the structure of our Nation's Government 
stands over us every day we are in session in this Chamber; that is, 
the first Vice President of the United States, John Adams.
  Concerned about the structure of government, preceding the War for 
Independence and anticipating there would soon be a new nation which 
would be striving to develop the appropriate structures to maintain its 
democracy, John Adams wrote a series of his thoughts on government. 
These became the essential ideas first for the constitutions of the 
newly independent Colonies and State constitutions, and then in 
Philadelphia the development of the U.S. Constitution.
  One of the central points of John Adams's thoughts on government was 
the essential role which was played by an independent judiciary. He 
said, as quoted in the Pulitzer Prize-winning biography of John Adams 
by David McCollough:

       Essential to the stability of government and to ``enable an 
     impartial administration of justice,'' Adams stressed the 
     separation of judicial power from both the legislative and 
     the executive. There must be an independent judiciary. ``Men 
     of experience in laws of exemplary morals, invincible 
     patience, unrivaled comments and indefatigable application 
     should be subservient to none and appointed for life.''

  There were a number of provisions placed in the U.S. Constitution in 
order to carry out that essential independence of the judiciary. Many 
of those occur after an individual assumes his or her judicial 
position, including lifetime appointments, and the fact that Congress 
cannot reduce the salaries of a member of the Federal judiciary. Those 
are designed to protect Federal judges, both politically and 
economically, from undue interference.
  But the issue of how do you maintain impartiality in the selection of 
judges was one of the most contentious issues of the Constitutional 
Convention. Up until the very end of the Convention, the provision that 
was in the draft Constitution was for the Senate to appoint Federal 
judges. But there was concern that would put too much authority in the 
legislative branch, and thus the final compromise was to have the 
President make the nominations for judges but the Senate to confirm 
those nominations.
  There was not intended to be a subservient position for the Senate. 
Rather, it was to be a position of equality as a fundamental part, as 
John Adams said, of maintenance of the independence of the judiciary.
  What we are debating to date is the fundamental question of how 
should the Senate exercise its equal role in the designation of those 
persons who will become lifetime appointments to the Federal judiciary.
  I believe that in this most serious of responsibilities we have, it 
is appropriate that the rules which apply to the general conduct of the 
Senate, rules which were largely written by John Adams's successor, 
Thomas Jefferson, who also looks down upon us this morning--that those 
rules should apply in order to protect the interests of the minority. 
That is not just a political minority; it might also be an economic or 
a regional minority.
  It has been the practice in this body that there be the provision for 
extended debate and that the termination of that extended debate 
require more than a majority of the Senate. Why should that procedure 
which applies to all other activities not apply to one of the most 
important, if not the most important, activities of the Senate, which 
is to play its equal role in the determination of who will be the 
judges of the Federal system in our Nation?
  Let me suggest that maybe we need to look beyond the confines that 
have dominated much of this debate and ask how can we, within a system 
that is balanced between the President and the Senate, do a better job 
of selecting judges and avoid the kind of contention and delay we are 
currently experiencing.
  Let me make three suggestions. Excuse my egocentric discussion of 
this first suggestion. But for 12 years, the two Senators from Florida 
were one Republican and one Democrat. Over that 12-year period, for one 
period of time the President was a Republican and then later a 
Democrat. During that 12-year period, Senator Connie Mack and I 
established a process. The process was to have a nonpartisan panel of 
citizens roughly divided between lawyers and lay people review the 
applications of persons who were seeking Federal

[[Page 28698]]

judicial appointments. We refused to allow on any of the documentation 
an indication, direct or indirect, of what the party affiliation of the 
applicant was. Senator Mack and I refused in our interviews with those 
who were selected through this process to raise any questions of their 
partisan affiliation. This process proceeded with interviews of the 
applicants and a recommendation of generally three persons to Senator 
Mack and myself. We would select one of the three jointly and then 
submit that to the President.
  Virtually, if not totally, without exception, the President approved 
the person selected through that process, nominated that person, and 
this Senate confirmed that person generally in an expeditious manner--I 
hope because of the confidence of my colleagues in the impartiality and 
the merit orientation of the process we had used.
  I suggest to my colleagues and to the President that maybe a system 
analogous to this could be more broadly utilized at both the district 
court and the circuit court level in order to reduce the instances of 
the impasse in which we currently find ourselves.
  A second recommendation: There are some scholars who are now looking 
at the issue of the judiciary and its relationship to the executive and 
legislative branches, and they are beginning to suggest that possibly 
we should move away from a lifetime appointment of Federal judges at 
the district and circuit court levels--not at the Supreme Court level--
and to establish a fixed term such as 12 years rather than the current 
lifetime appointments. That 12-year term would be nonrenewable. This 
would have the benefit of persons knowing that the person appointed, 
nominated, and confirmed to the Federal judiciary at other than the 
Supreme Court level would serve an extended term but would not be 
permanently in office. Therefore, some of the concerns particularly 
about the philosophical views would be reduced.
  Finally, I think the President should be encouraged to reexamine what 
has become I think an unfortunate pattern and which has elevated the 
importance of the circuit courts, and it has elevated the attention 
given to the nominees for the circuit court, and that is the practice 
that almost all of the recent nominees to the U.S. Supreme Court were 
nominated directly from their service in a circuit court. In fact, 
every U.S. Supreme Court Justice since 1990 came out of the circuit 
court. I think serving on the Federal circuit court is a perfectly 
appropriate preparation for the Supreme Court. What I disagree with is 
that the entire Supreme Court should be made up of persons with that 
background.
  This Nation has been well served with Supreme Court Justices who had 
a variety of backgrounds, including people such as Hugo Black who had 
been a member of the Senate before he was appointed to the Supreme 
Court; Earl Warren, who was Governor of California before being 
appointed to the Supreme Court; persons who came from an academic 
background, such as Felix Frankfurt, or from the active practice of 
law, Louie Brandeis.
  I encourage the President, when there is another opportunity to 
appoint a Supreme Court Justice, to look more broadly than has become 
the pattern at least since 1990.
  With those comments I turn briefly to a discussion of the issue of 
the loss of manufacturing jobs and what we might do to put a 
tourniquet, to a degree, on that loss.
  A very fundamental question facing our Nation is, How can America 
maintain its standard of living substantially higher than the rest of 
the world, during a period of globalization of the economy where so 
much emphasis is going to what parts of the world can produce a product 
at the lowest unit cost. There are some things that we need to do in 
order to revise our trade policy. Many of them were discussed by the 
Senator from West Virginia. I particularly emphasize the importance of 
having the context of trade, issues such as labor, human rights, and 
environmental protection, become part of the trade negotiation. I am 
not suggesting the way to do this is by writing all those provisions 
into each trade agreement; rather, that we look to organizations such 
as the International Labor Organization, if not the oldest 
international organization in the world, an organization to which most 
countries belong and have accepted the labor protocols of, the 
International Labor Organization, to determine which of those protocols 
are appropriate to a specific trade agreement; include that, and then 
either through enhanced enforcement by the protocol itself, which I 
think is the preferable approach, but failing that, through mechanisms 
of the trade agreements, to see those standards become reality.
  Beyond changes in our trade law, we need to look at what is going to 
be required in America to make us as competitive as possible. I 
particularly reference two things: One, we have to have the best 
educated, the most productive workforce in the world if we are going to 
be able to compete globally and maintain our standards of living. John 
Adams was instructive on this point as well. John Adams urged the 
widest possible support for education: Laws for the liberal education 
of youth, especially for the lower classes of people, are so extremely 
wise and useful that to a humane and generous mind, no expense for this 
purpose would be thought extravagant.
  I agree with that assessment of John Adams and add to it the 
importance of training for adults who are finding their current skills 
are less in demand and need to either enhance those skills or to add 
new skills to their capabilities.
  Finally, before I conclude, we need to make a greater investment in 
our infrastructure. Our roads, bridges, water and sewer systems are 
critical to our economic productivity. They are deteriorating. This 
Congress will have an opportunity soon to deal both with adequate 
funding of education, particularly for retraining of adults and to 
enhance our capability to provide a modern set of support systems for 
our economy.
  The PRESIDING OFFICER (Ms. Murkowski). The Senator from Kansas.
  Mr. BROWNBACK. Thank you, Madam President. I am being joined by my 
colleague from Kansas, Senator Roberts, my colleague from Illinois, 
Senator Fitzgerald, and Senator Nickles will join us in our time period 
to talk about the judicial crisis we have in this country and the 
difficulties that have been created now by an unprecedented act of the 
filibustering of circuit court judges. I will take a narrow look at 
this as an issue that has been building for the last 40 years, and what 
has happened during that 40-year time period that the crisis in the 
court has developed.
  We stand on the shoulders of greatness. It was with courage and honor 
and convictions and convictions in religious beliefs that our 
forefathers formed this union of States we now call the United States 
of America. Indeed, the foundation of our country was formed with an 
understanding that there is a recognition of a higher moral authority. 
It is over our mantle, the one right here that I look at which says, 
``In God We Trust.''
  Yet if we are to continue down the precedent set in 1962--and I will 
go into that--it will be likely that in the near future we will have to 
take these words down and remove them as being illegal. This body 
itself committed a criminal act under a determination made by the Ninth 
Circuit Court of Appeals when we opened up and said the Pledge of 
Allegiance; a criminal activity because in 1954 President Eisenhower, 
the great Kansan, with a legislative body inserted, the unbelievable 
words, ``one Nation, under God.''
  The Ninth Circuit Court of Appeals, to which two of the nominees 
would go, has declared that unconstitutional. It would be one thing if 
we said this is just an unusual aberration, but what we have to say and 
see is that this is a continuation of a 40-year march that the court 
has been on to purge any recognition or acknowledgment of God in the 
public square.
  We are on 40 years of judicial activism in this regard. I will go 
through that. The Ninth Circuit is applying the endorsement test, first 
articulated in the 1985 school prayer case of Wallace v. Jaffree. Let's 
be honest about the

[[Page 28699]]

logic behind the test. It is an absolute demand that religious ideas 
and language be thoroughly eliminated and cleansed from government 
activities. If consistently applied, the endorsement test basically 
drives God out of public school and out of our public life.
  For too long we in this body have been silent and stood by while the 
courts have slowly chipped away at our responsibility to this Nation. 
And today we see the effects of our apathy.
  At this critical time in our Nation's history, the Senate stands 
locked in a controversy surrounding the confirmation of judges. But 
this stalemate also underscores the large issues at stake and the 
serious choices we face as a nation. If we look at the judicial trends 
for the past 40 years, the courts have increasingly veered off course. 
As far as religion is concerned, the courts have been on a relentless 
drive to remove God from the public square. It started in 1962 in Engel 
v. Vitale when 39 million students were forbidden to do what they and 
their predecessors have been doing since the founding of our Nation, 
publicly calling upon the name of the Lord at the beginning of each 
school day as we do in this body.
  The following year in the School District of Abington Township v. 
Schempp, the Court held that Bible readings in public schools also 
violate the first amendment. In 1992, in Lee v. Wiseman, prayer was 
removed from graduation exercises. And in 2000, in the Santa Fe 
Independent School District v. Doe, prayer was removed from being said 
at football games.
  None of these restrictions were affirmatively adopted by any 
legislative body. The legislative bodies, either at the Federal or 
State level did the opposite. The Congress added the phrase ``under 
God'' in 1954 to the Pledge of Allegiance, and did so with the explicit 
intention of fostering reverential patriotism--nothing more, nothing 
less. It was done to reflect the values of the American people that 
were as valid in 1954 as they are today. Yet this year, the Court will 
continue to decide these issues, irrespective of what the American 
people believe in and want.
  Along the way during this 40-year time period, the Court also 
discovered the constitutional right to abortion and more recently 
struck down State anti-sodomy laws.
  As the Court has sought to remove God from the public square, we 
should examine the impact it has had on our culture, that amorphous 
atmosphere that helps form our souls and our identities. The culture, 
the following charts demonstrate, has clearly deteriorated. More and 
more Americans are slipping into depression, alcoholism, and suicide. 
Our Nation's schools are plagued with students who not only fall behind 
in educational standards but who are suffering from societal problems 
that we have allowed to take place in this country.
  Prior to the two major cases outlawing prayer in 1962 and 1963, our 
students enjoyed more stability. Since then, there has been more 
violence, sexual activities in schools, which have had corrosive 
effects on our culture.
  For example, look at this chart showing suicides increased 
dramatically for teenagers between 1960 and today, nearly tripling the 
age bracket of suicide for children in our schools. Similarly, drug use 
has gone up significantly since the 1960s. Alcohol use also went up 
among those between the ages of 12 and 17, as this chart shows.
  Here are examples of societal consequences since the 1960s. Since the 
passage of Roe v. Wade, legalizing abortions, abortions have increased 
dramatically. By the 1990s, abortions, private sources show, have more 
than doubled during that period of time. We are at 1.5 million a year. 
Bill Clinton called for abortion to be safe, legal, and rare. It is 
none of the three.
  We see a dramatic increase in divorces that have taken place in this 
country since 1960.
  This chart goes back to 1940, but from 1960 forward we are at a point 
in the 1990s where one in every two marriages end in divorce in 
America. Is that a healthy culture? We have seen same trends in violent 
crimes taking place. From 1960 to where we are today, we have seen more 
than a doubling, tripling of violent crimes taking place.
  I ask the simple questions of my colleagues: Is there a direct 
correlation? Did the removal of prayer in the classroom or prohibitions 
on other public displays of religious convictions lead to the kind of 
moral decay reflected in the charts? Did the removal of honor and 
recognition of a higher moral authority impact our children? Or is it 
mere coincidence that our culture has declined as the courts 
deliberately and quietly shifted this country away from our motto, ``In 
God we trust.''
  However one may interpret the empirical data and whatever conclusions 
one may draw of the cause and effect, we cannot ignore the key 
principles in the Constitution and under the establishment clause. 
While it may seem like inherent contradiction, Americans believe it 
both appropriate and necessary for government to limit abuses of 
religious liberty while at the same time making the effort to support 
sound religious convictions.
  I am joined by several of my colleagues in the Senate who want to go 
further in making points about the judges who are being appointed. One 
thing is consistent with the judges, and that is they are people who 
have, in many cases, strong convictions, strong religious convictions, 
and they are being tested and tested out because of their faith. Is 
that where we are going with this removal of God from the public 
square? This is a dangerous precedent and dangerous way we are going.
  I yield the floor to my colleague from Kansas, Senator Roberts.
  Mr. ROBERTS. Madam President, I thank my distinguished friend and 
colleague for yielding. This is one of those times where perhaps 
everything has been said but not everyone has said it. I am not sure 
what I can add to this debate, but I will give it a try.
  Our citizens of Kansas have watched the Senate's action, or rather 
inaction, on the President's nominees. I would like to quote from the 
Wichita Eagle, one of our fine newspapers in Kansas which simply 
editorialized:

       The party that does not control the White House is trying 
     to control the ideological makeup of the federal courts, by 
     misusing the Senate's advice-and-consent function to stall 
     votes on the president's judicial nominees.

  The Topeka Capital Journal also observed:

       The federal judiciary is heading to a train wreck.

  I suspect by the time we get to the end of this and these kind of 
delay tactics, people will crawl out of train wrecks faster than we get 
this solved. I hope that is not the case.
  It is not just the local newspapers that are expressing their views 
on these issues. Many constituents have written and called my office. 
They are expressing their frustration on the Senate's treatment of this 
process. This is a time that the process of the Senate, normally not a 
very high profile issue, has become a high profile issue.
  Kansans are pragmatic and understanding people. They understand that 
some Senators oppose the President's nominees on ideological grounds. 
They also understand that those Senators are entitled to that position 
and answer to their own constituents for their actions. However, they 
do not appreciate the abuse of the Senate's procedural tools to allow 
the minority to dominate the majority. They want us to give these 
nominees a simple up-or-down vote. That is the whole issue. They want 
these nominations decided on the merits, not blocked by some procedural 
maneuver.
  That is what this all comes down to. All of the rhetoric and support 
of these delaying tactics would have you believe the four nominees are 
``out of touch,'' or ``out of the mainstream.'' Those opposing the 
nominees would have us believe they have not had a sufficient 
opportunity to question the nominees or have not received enough 
information to form an opinion. The facts are that through hearings 
that have been held, and in one case over 2 years have passed and the 
nomination simply remained blocked.
  Additionally, if my colleagues truly believe they do not have enough 
information despite these hearings and despite the answers that are 
provided by the nominees, the answer is simple.

[[Page 28700]]

They do not have to vote for the nominee. They can simply vote no, if 
we could just have a vote. So despite all of these protestations to the 
contrary, this comes down to ideological obstructionism.
  Now, intuitively the logic that a judicial selection should be based 
or influenced by a nominee's ideology leads one to believe that judges 
should or will rely on their own personal beliefs rather than on the 
law when rendering their decisions. I find this remarkable and 
completely off the mark. I am certain that if each of these nominees 
receive an up-or-down vote, each would be approved by a majority vote 
and they would vote according to the law. They said that over and over 
again.
  My question is, How is justice served when justice is delayed? If you 
deliver solid and qualified judges to our court system, that is more 
important than litmus test politics. We are just simply not doing our 
job.
  Let me talk about trust. This continued delay does not foster the 
public's trust in our government's process to simply get the job done.
  Let me talk about cost. Taxpayers spend $5.1 billion for the Federal 
judiciary every year. The American people are paying for fully staffed 
courts and are getting obstructionism and vacant benches. Reckless 
behavior such as this is irresponsible and a waste of taxpayer dollars.
  Let's talk about delay. Let's really talk about delay. Court delays 
are becoming the norm. We all know that. We read about something 
egregious in the newspaper and wonder why you cannot get a court 
decision or at least some justice out of the situation. All of the 
court circuits facing these judicial emergencies are averaging 4- to 5-
month--4- to 5-month--delays. And these delays are on top of a process 
that, from the original filing in district court to the final decision 
on appeal, takes 24 to 28 months--over 2 years.
  OK, let us talk about results. What does an overtaxed judiciary 
really mean to Americans? It means that cases take longer to resolve, 
lives are disrupted and inconvenienced further, and real people must 
wait indefinitely in limbo as justice in their cases remains 
undetermined.
  In over two centuries of Senate history, why, judicial nominations 
have been both approved or refused. No filibuster was necessary to 
defeat a nomination. The reliance by those who oppose these nominations 
of this procedural tool to handicap the process is simply 
unprecedented. The use of the filibuster essentially grants the 
minority veto power, hence controlling which nominees will even be 
given the chance--just the chance--for an up-or-down vote, much less 
confirmed.
  Now the Constitution explicitly states seven circumstances in which a 
supermajority vote is warranted by one or both Chambers of Congress. 
The advice and consent of Presidential nominations by the Senate is not 
one of these special circumstances. In fact, Alexander Hamilton states 
in Federalist 76 that the Senate's role is to refuse nominations only 
for ``special and strong reasons'' having to do with unfit characters. 
At some point, after the issues and merits of the nominee have been 
debated, we have an obligation to render a decision, whether it is yea 
or nay, and not let the matter hang in the balance unresolved and 
unfinished.
  These competent, well-qualified judicial nominees deserve an up-or-
down vote. The people of Kansas and the United States deserve a full--a 
full--judicial bench.
  I thank my colleague for yielding the time.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. I thank the Chair.
  I now yield to the Senator from Illinois for 7 minutes.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. FITZGERALD. Madam President, I thank both my colleagues from 
Kansas. I appreciate the remarks that were just made by the chairman of 
the Intelligence Committee.
  I would like to go back to some of the statistics that have been 
cited in this debate. I guess I have been very troubled to hear on the 
radio this morning, on call-in radio, the figures being cited over and 
over again that were offered last night on the other side of the aisle.
  We kept hearing that they had only blocked four judges. Well, that is 
simply not true, and I think it is very important that the American 
people know that is not true.
  I have in my hands a chart that was prepared by the nonpartisan 
Congressional Research Service that shows that of the Presidents going 
back to Carter, in 1977, through August 1, 2003, the Senate has blocked 
a higher percentage and a higher number of judges who were nominated by 
President Bush than any other President in the Nation's history--or at 
least going back to 1977. And I am sure nothing was going on prior to 
1977 like what is going on today.
  The fact is, according to this survey, President Bush has nominated a 
total of 264 people to serve on the district and appellate courts in 
this country. As of August 1, 2003, only 144 of them have been 
confirmed. That is only 54 percent of the number of nominations made by 
President Bush.
  Now we need to break that down. Of district court nominees, President 
Bush, as of August 1, has nominated 185 nominees to the district court. 
Only 117 of them have been confirmed. That means the Senate had 
rejected or not acted on 68 of those district court nominees.
  With respect to the appellate courts, as of August 1, the President 
had nominated 79 appellate court judges and the Senate, as of August 1, 
only confirmed 27 of them. That is only 34 percent of the total. So 
that means 52 of President Bush's nominees to the appellate courts have 
been blocked by the Senate.
  My friends on the other side of the aisle have done something very 
clever. They have just arbitrarily decided they are only going to talk 
about judicial nominees who have been filibustered and blocked on the 
floor of the Senate and they are not going to talk about those whose 
nominations have been blocked in other ways, such as in committee. 
Thus, the American people have been given a misleading impression 
overnight. They have been misled into thinking the Senate has only 
blocked four nominees for the appellate courts. Well, it has been far 
more than that.
  As of August 1, it had been 52. I do not know what the figure would 
be right as of today, but I would have to tell you, if you compare it 
to the previous Presidents, the treatment of President Bush's nominees 
has been deplorable.
  Going back to President Carter, he nominated 61 appellate judges; 56 
of them were confirmed. In other words, Carter, in 4 years, only had 
five appellate court nominees who did not make confirmation; 91 percent 
of his nominees were confirmed. President Reagan, who was a Republican 
President, served while there was a Democratic Congress. He had 81 
percent of his appellate nominees confirmed. The first President Bush 
had 77.8 percent of his appellate court nominees confirmed. President 
Clinton had 56 percent of his appellate court nominees confirmed.
  If you get down to this President, George Bush, he only has had, as 
of August 1, 34 percent of his appellate court nominees confirmed. I am 
very concerned about what this means for our country. It could mean 
that a minority in the Senate is usurping for itself the power to 
control the Federal judiciary.
  Under our Constitution, the President is supposed to appoint the 
judges with the advice and consent of the Senate. We have some idea 
what the Constitution meant by that because Alexander Hamilton 
addressed the issue in Federalist Paper No. 76. He said the Senate's 
role is to refuse nominations only for ``special and strong reasons'' 
having to do with ``unfit characters.''
  I do not even think anyone has made the argument that the nominees 
who have been blocked in the Senate in this Congress have been unfit. I 
think the arguments against their nominations have been more 
ideological; simply the other side does not agree with these people, 
suspects they may be conservative.

[[Page 28701]]

  Many of President Bush's nominees have been pro-life. I am concerned 
there may be a litmus test that is being applied on the other side, 
that they are simply not going to allow pro-life judges on our 
appellate courts. That is very troubling because that is upsetting our 
constitutional order that our Founding Fathers have made.
  The key point here is, I do not want the American people to come away 
with the impression that only four of President Bush's nominees have 
been blocked. The number is far higher. It is probably a total of over 
100. Probably about 120 have been blocked. As of August 1, 68 district 
court judges have been blocked and 52 appellate court judges. So this 
whole thing about just four judges having been blocked is really 
nonsense, and we ought to set the record straight.
  The PRESIDING OFFICER. The Senator has used 7 minutes.
  Mr. FITZGERALD. Thank you, Madam President. Having used up my time, I 
will now yield the floor to my distinguished colleague, Senator 
Brownback from Kansas.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Thank you, Madam President. I thank the Senator from 
Illinois.
  Madam President, how much time remains on this side?
  The PRESIDING OFFICER. Five minutes remain on the majority side.
  Mr. BROWNBACK. Thank you very much.
  I thank my colleague from Kansas and my colleague from Illinois for 
the comments they have made in this debate in which we have been 
engaged for some period of time and I think make both cogent and 
important points to put forward.
  I want to double back around and finish on the comments I started on 
about this being a 40-year debate. For some of us who might have been 
up for a while, it may seem like 40 years already since last night.
  But this has been a 40-year debate, and we have engaged and embarked 
on a great debate about which these judges are front and center, and it 
is potentially a collision course, some may say, between those who 
believe in God and that He has a role to play in the cultural and moral 
fabric of this Nation and those who prefer to sanitize our public 
institutions of any reference to God.
  We should at least allow the vast majority of Americans who believe 
in God to honor Him in public, as our Founders did, and not be forced 
to conceal Him from the public square.
  The four nominees currently being filibustered all believe in God, as 
do 90 percent of the American public. Should they be excluded from the 
appellate courts because of their faith? Their deeply held convictions 
just happen to mirror those of George Washington, most of the Founding 
Fathers, as well as some of the greatest Americans in our history--
Abraham Lincoln, Susan B. Anthony, Dwight Eisenhower, and Martin Luther 
King, Jr. Would any of them be able to get on this court today through 
this litmus test? I doubt it.
  If the issue here is this body has not had sufficient opportunity to 
debate the merits of the candidates, then let's go ahead and debate and 
move to a final vote.
  Those who wrote the Constitution, which is the oldest working 
constitution in the world, remain the best guide to its clear meaning. 
America's Founding Fathers, by and large, did not believe government 
must be neutral toward religion. George Washington, in his Farewell 
Address, often quoted, gave the clear view, ``Of all the dispositions 
and habits which lead to political prosperity, religion and morality 
are indispensable supports.''
  The Founders supported the public recognition of religion because 
religion and morality are, in Washington's words, the ``firmest props 
of the duties of men and citizens.'' When Washington addressed the new 
Nation for the first time as President, he led the country in public 
prayer, something we have never failed to do since, and yet removed 40 
years ago from our public classrooms.
  Therefore, I submit to you today that we should not stand idly on 
issues of judicial nominations. The Framers of the Constitution feared 
tyranny from the judiciary more than from the other two branches. They 
placed deliberate limitations on the judiciary in order to ensure the 
integrity of the judicial system. As a result, the Federalist Papers 
reported that under their plan, ``the Judiciary is beyond comparison 
the weakest of the three departments of power. . . . [and] the general 
liberty of the people can never be endangered from that quarter.''
  Would that be an agreed-to statement today? I think not.
  It is our duty to ensure the legislative integrity of our culture. 
Indeed, it is written in the Constitution that to do anything less is 
to walk away from our responsibility to this Nation, a responsibility 
that was recognized and affirmed by our Founding Fathers.
  Madam President, as we conclude on this side of the aisle for this 
30-minute section, I would just note to my colleagues on the other side 
of the aisle that this is going to continue to be an issue. We will get 
these judges through at some point in time, whether it is this session 
or we have to go back to the public and have another vote in the 2004 
election cycle.
  This will be a front and center issue. As the courts and the culture 
are becoming increasingly tied together with the difficulties we have 
had in this society, this will be taken to the public. I do not doubt 
that this will be, if not the top issue, one of the top three issues. 
They are going to be out in the public. I think this is a bad idea 
policy-wise, what is taking place in the blockage of these judges. I 
think it is bad politics.
  But this is going to take place and this fight will continue. If we 
do not get it done now, we will continue to press forward, and it will 
be taken into the election cycle, and we will let the American public 
look and see: Do they think this is the way judges should be handled by 
the Senate? As these calamities of judicial blockage keep mounting up, 
it will become clearer and clearer to the public what is taking place 
here.
  This is a very important fight. It is one about which a lot of people 
care deeply. It is one that a lot of my--when people come up to me in 
Kansas and talk about issues, these are front and center issues they 
talk about. They are concerned about these issues and have been for 
some period of time. And they are wondering: What are you doing? What 
about this activist court? Why are you not getting these judges on 
through?
  This is something that does touch the public. We can do it the way it 
should be done; we can get a clear vote up or down or we can take it 
back out to the public in the next election cycle. One way or the 
other, this is going to occur. And I would suggest that the best way 
for this society, the best way for this Government, the best way for 
this culture is for these to come forward here, be vigorously debated, 
and then voted on up or down. I think the public is now coming to a 
very strong point on this.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. BROWNBACK. Thank you very much. I yield the floor.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nevada.


                       Unanimous Consent Request

  Mr. REID. Madam President, I ask unanimous consent that the Senate 
stand in recess from 4:15 to 5:15 today. This is so that all Senators 
can attend a closed briefing in secure room No. S-407, the briefing to 
be by Ambassador Bremer, the American administrator in Iraq.
  Another American was killed today, along with 25 Italian peacekeepers 
in Iraq. The Senate Intelligence Committee is no longer functioning, so 
it is more important than ever for this body to review the direction of 
the American war in Iraq, especially in that we have appropriated in 
special funding this year some $163 billion. I so move.
  The PRESIDING OFFICER. Is there objection?
  Mr. BROWNBACK. I object.
  The PRESIDING OFFICER. Objection is heard.

[[Page 28702]]


  Mr. REID. Madam President, the Senator from Vermont is going to take 
1 minute of the time of the two Senators from Washington. I would ask 
unanimous consent that following his statement, which would be 1 
minute, the two Senators from Washington divide their time, and the 
first to be recognized is the junior Senator from Washington, followed 
by the senior Senator from Washington.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Vermont.
  Mr. LEAHY. Madam President, I agree, this can be an issue and 
probably should be an issue in the election, but let's make sure it is 
an issue on the facts. There is this discussion we heard on the floor 
this last hour or so of the great vacancies. That is balderdash.
  The fact is, there are more Federal judges sitting right now than at 
any time in history. We have been told that we are blocking 130. There 
are only 40 vacancies, approximately 40 vacancies in the whole country. 
Let's get our numbers right. This number is right. We have confirmed 
168; we have blocked 4. We confirmed 168; we blocked 4. That is the 
fact.
  It is hard on the other side to hear that, after they blocked over 60 
of President Clinton's nominees by one-person filibusters, but it is a 
fact. We confirmed 168; we stopped 4. They stopped 61.
  Thank you.
  The PRESIDING OFFICER. The Senator from Washington.
  Ms. CANTWELL. Madam President, thank you.
  I rise to join my colleagues in what has been for now some many hours 
a very robust debate on our judicial nominees and the process by which 
this body should follow their advice and consent process for the 
President.
  I think it is clear to the other side of the aisle--and it is very 
interesting that the two Senators from Washington are here with the two 
Senators from Kansas. I can imagine that we would rather talk about 
many other issues, particularly high unemployment in our states and how 
to get America moving again, and particularly in the aerospace 
manufacturing area. But the bottom line is, this body does have a role 
on advice and consent. And since the 1940s, the Senate rules have 
allowed cloture votes on nominations, and we have exercised that. So 
that is what this debate has been about.
  My colleagues have continued to point out that these numbers reflect 
what that debate has produced as far as our working together in our 
constitutional role. I do want to say, though, that there is a very 
worthwhile point to this debate, and I would say to my colleagues on 
both sides of the aisle that perhaps if we wanted to even extend this 
debate beyond the 30 hours, we should do so because what is really at 
question here is the nominees the President is putting before us and 
whether our country, at a critical time, is going to stand up and 
continue to protect the privacy rights of individuals who are being 
threatened, those privacy rights that exist in our Constitution and are 
actually being challenged by our own Government.
  I believe that we are at a critical time in our country's history, 
and that is why it is so important for the Senate to do its job. That 
job is to give the American people a judiciary that represents the 
mainstream views of America, that protects their constitutional rights, 
and that does not represent a clear threat to 30 years of settled law 
protecting a woman's right to choose.
  I believe the real issue that we should debate, because it is 
critical to the American people, is not the fact that we have confirmed 
168 Bush judges; the issue is that this Administration has nominated 4 
individuals who Senators believe fail the test. Over 40 Senators 
believe that they will not act to protect our constitutional rights and 
to uphold our Constitution.
  Each of these nominees--Priscilla Owen, Charles Pickering, Miguel 
Estrada, and William Pryor have records that indicate a determination 
to interpret the law not as it is but as they want it to be.
  Over the next decade, Federal judges will be making critical 
decisions about the right to privacy and how both Government and 
business should respect that right to privacy. We are at the tip of the 
iceberg of an information age where businesses may have access to your 
most personal information and exploit that; where the health care 
industry has access to your most personal information; where Government 
has established a process of eavesdropping and tracking U.S. citizens 
without probable cause. Government has even used and developed software 
that can track one's use of Web sites and information on their personal 
computer without their consent or knowledge.
  And of course, a woman's right to privacy in her choices about her 
body, even after 30 years of established, settled law, continues to be 
threatened.
  I voted against these four individuals, and I will continue to oppose 
them. I oppose them because I believe ensuring that our judiciary is 
independent and committed to protecting our constitutional rights is 
increasing in importance and that these four cannot fill that role. It 
is increasing in importance because with one party in control of both 
the Congress and the Executive branch, and an independent and balanced 
judiciary is the only remaining check to ensure that our core 
constitutional protections are upheld.
  America is a great democracy, but it is an even brighter beacon to 
the rest of the world because our citizens trust our judiciary to 
protect their rights!
  Now that as a result of the Patriot Act, Government can obtain a 
warrant to search your home without your knowledge; can obtain a 
subpoena to track your use of the Internet without showing probable 
cause; and can obtain a secret wiretap to eavesdrop, the judiciary must 
serve as a check on that power.
  I know some of my colleagues want to try to address some of these 
issues, and we will have many opportunities in the future to correct 
some of this overstepping by those in our Federal Government. But in a 
September 2003 report, the Justice Department clearly acknowledged that 
new powers granted under the PATRIOT Act were not simply being used to 
fight terrorism and espionage.
  The report ``cites more than a dozen cases that are not directly 
related to terrorism in which Federal authorities have used expanded 
power [under the PATRIOT Act] to investigate individuals, initiate 
wiretaps and other surveillance and seize millions in tainted assets.''
  The Government has already deprived two U.S. citizens of their 
constitutional rights and held them as enemy combatants subject to 
secret trial, and they can basically deprive legal immigrants protected 
by the Constitution from this arrest and detain them without charges.
  Just yesterday, the New York Times reported that even in our 
intelligence reauthorization bill, there is language significantly 
expanding the role of the FBI to get information from car dealers, 
travel agents, post offices, casinos, and others without going before a 
Federal judge.
  I know it is easy to want to believe that these issues are all about 
fighting terrorism and are not hurting people.
  Madam President, I can tell you, I believe strongly in the war on 
terrorism. In my State, we have seen three important cases that have 
been successfully prosecuted. In 2000, agents apprehended Ahmad Ressam, 
an individual who had plans to blow up landmarks on the west coast. 
Last year, the FBI in my region was also successful in tracking down 
individuals who wanted to build a terrorist training camp in Oregon. 
The lead individual in that case, James Ujaama, will be providing 
information that I hope will lead to the extradition of an extremists 
cleric based in London. And a group of men in Portland actually pleaded 
guilty to traveling to Afghanistan to fight against Americans after 
September 11.
  I firmly believe it is possible to fight the war on terrorism and 
prosecute terrorists and still uphold the constitutional rights of 
Americans. But to make sure that balance is right, the Senate must do 
its job to ensure that

[[Page 28703]]

nominees to the federal court will interpret the law, and not use their 
personal views to rewrite it.
  Americans are genuinely concerned about the erosion of their rights. 
Earlier this year in the Senate, we hosted a forum in which two 
individuals from my State, Nadin Hamoui and Mako Nakagawa, both 
testified about their experiences. Both described being awakened in the 
dead of night in their family homes by armed law enforcement who 
pointed guns at their parents, herded sisters and brothers into waiting 
vehicles and took them away for a long detention with no access to due 
process. The eerie part was that their stories occurred sixty years 
apart, in 1941 and 2001.
  In Washington State, the echo of internment of Japanese Americans 
during World War II and the damage that it did is still very real, and 
hearing these two stories makes us aware of just how much our respect 
for liberty in this country can be overcome by fear.
  It has never been more important to have a judiciary that vigorously 
protects our constitutional rights and particularly our rights to 
privacy. As a perfect example, just this past week, the Supreme Court 
agreed to hear arguments on whether prisoners at the United States 
Naval Base at Guantanamo Bay are entitled to access to civilian courts 
to challenge their open-ended detention. An independent judiciary has 
the courage to review Government assertions of power, and that is what 
we are talking about here: whether these nominees would live up to the 
demands of that independent judiciary.
  These are good individuals. They are earnest. They are hard working. 
But there have been fundamental questions raised about their records 
and about whether they have impartially judged their cases.
  Charles Pickering, we all know, has been involved in a case where he 
picked up the phone and intervened with the Department of Justice in an 
attempt to reduce a sentence mandated by Federal guidelines.
  Priscilla Owen has been repeatedly had her opinions chastised by 
members of her own court who have called them ``nothing more than 
inflammatory rhetoric'' and ``an unconscionable act of judicial 
activism.'' The San Antonio Express News actually called the 
nomination--or the renomination, I should say--of these two 
individuals, Owen and Pickering, a ``misguided'' and ``major 
disappointment.''
  Mr. Pryor, again, I am sure a well-meaning individual, sought to 
limit the Violence Against Women Act--and a fellow Republican attorney 
general had this to say about him:

       I have great questions about whether Mr. Pryor has the 
     ability to be nonpartisan. I would say he was probably the 
     most doctrinaire and most partisan of any attorney general I 
     dealt with in 8 years.

  Are these the individuals we want to trust with lifetime appointments 
to protect our constitutional rights and to uphold those rights?
  The PRESIDING OFFICER. The Senator's time has expired.
  Ms. CANTWELL. Madam President, how much time have I used?
  The PRESIDING OFFICER. The Senator has used 11 minutes. There are 
less than 10 minutes remaining.
  Ms. CANTWELL. If my colleague from Washington would allow, I would 
like to continue.
  Mrs. MURRAY. How much more time does the Senator need?
  Ms. CANTWELL. Three minutes.
  Mrs. MURRAY. I yield 1 more minute to my colleague from Washington.
  Ms. CANTWELL. I thank my colleague. Madam President, in voting 
against these individuals, the Senate is doing the job the American 
people expected us to do.
  In order to continue to have this great democracy, we must ensure we 
have vital checks on this administration's power. The American people 
are expecting their judiciary to be independent, to respect precedent, 
and not to prejudge the issues before them. The American people think 
we need a fair and balanced judiciary to counterbalance the executive 
and legislative branch, and we need to give them that.
  These four individuals have demonstrated records of reaching beyond 
the law in order to reach their preferred ideological outcome. The 
Federal judiciary will not rise or fall on the fate of these four 
individuals, but in order to be a great democracy, in order to continue 
shining as the world's brightest beacon for individual rights, we need 
to have an independent judiciary, Without the important check that this 
Senate provides by doing our job in advising and consenting with the 
President on these issues, that will not be possible.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Madam President, how much time do I have?
  The PRESIDING OFFICER. Eight minutes.
  Mrs. MURRAY. Madam President, the majority believes that the Senate 
should spend 30 hours discussing what the New York Times calls a 
manufactured crisis on judges. While I believe our time would be better 
spent helping laid-off workers by extending unemployment benefits, I am 
happy to talk about the confirmation of judges. I am happy to talk 
about how these lifetime appointments affect the rights and freedoms of 
every American, and I am happy to talk about our impressive record of 
confirming 98 percent of the judges this majority has brought to the 
Senate floor.
  I want to be clear that by spending 30 hours talking about four 
judges who already have jobs, we are not helping the 3 million 
Americans who do not have jobs. This marathon is the type of political 
grandstanding that, frankly, makes Americans scratch their heads and 
conclude that politicians just don't get it. We should be spending our 
time on the urgent needs facing our citizens in employment, health 
care, transportation, and completing our work on putting this Federal 
budget together. But the majority has decided that this is the most 
important issue we can discuss for 2 days, and they control the floor.
  I wish to talk about four things: The importance of the Senate in 
confirming judges, the progress we have made in the past 3 years, the 
success we have had in confirming judges in Washington State, and the 
job crisis that the majority doesn't want us to discuss.
  First, I want to put this discussion in context because the judges 
who serve on the Federal bench affect the lives and liberties of every 
American. These are lifetime appointments. This is not just a 
nomination to a commission or to an ambassadorship. This is a lifetime 
appointment for a Federal judge whose rulings over the next 30, 40, 
maybe more years, will have ramifications for every single American.
  As Senators, we are elected to serve our constituents. We are asked 
to confirm judges whose decisions can change U.S. history. They can 
shape the lives of Americans for generations to come. In addition, we 
expect Federal judges to provide the proper checks in our system of 
checks and balances that was outlined in the Constitution. Without it, 
our system does not function properly. It is our job to ensure that 
each nominee has sufficient experience to sit in judgment of our fellow 
citizens; that they will be fair to all of those who come before the 
court; that they will be evenhanded in administering judges; and that 
they will protect the rights and the liberties of all Americans.
  To determine if a nominee meets those standards, we have to explore 
their record, ask them questions, and weigh their responses. That is a 
tremendous responsibility and one that I take very seriously.
  In the Senate, we have made great progress in confirming the judges 
President Bush has nominated. Look at these figures. The Senate has 
confirmed 168 judicial nominees of President Bush to have come before 
the Senate. In 3 years, we have only stopped 4--4 people whose records 
raise the highest questions about their abilities to meet the standards 
of fairness that all Americans expect.
  Let me repeat that: 168 judicial nominees. That is a confirmation 
rate of 97.7 percent. We have confirmed 168 judges.

[[Page 28704]]

That is more confirmations than during President Reagan's entire first 
term. So for this year, we have confirmed 168 judges.
  Today, 95 percent of the Federal judicial seats are filled. That is 
the lowest number of vacancies in 13 years. There are now more Federal 
judges than ever before.
  When it comes to circuit court judges, we have confirmed 29. That is 
more appeals judges than Clinton, the first President Bush, or Reagan 
had by this point in their administrations.
  I have to point out that while the majority is complaining today 
about our 98-percent confirmation rate, it was a different story during 
the Clinton administration. Back then, Republicans used many different 
roadblocks to stop the confirmation of judges nominated by President 
Clinton.
  During Clinton's second term, 175 of his nominees were confirmed and 
55 were blocked from ever getting votes. During those years, the 
majority used the committee process to ensure nominees they disagreed 
with never came to a vote. Fifty-five nominations sent over by 
President Clinton never received consideration. So I think the Senate 
has a pretty impressive record at this time of confirming judges. That 
is clear in a 98-percent confirmation rate, and 95 percent of the 
Federal judicial seats are filled today. It is the lowest number of 
vacancies in 13 years.
  I wish to talk for a minute about the process we use in Washington 
State to confirm judges. We have worked out a system to ensure 
Washington judges are nominated and confirmed even when different 
political parties hold Senate seats or control the White House. For 
many years, I have worked with a Republican Senator and a Democratic 
President to nominate and confirm Federal judges. Today, with a 
Republican President, I am working with my Democratic colleague from 
Washington State on a bipartisan process to recommend judicial 
candidates. We developed a bipartisan commission process to forward 
names to the White House, and it has worked very well. Both sides have 
equal representation on the commission, and the commission interviews 
and vets those candidates.
  It worked for Senator Gorton--a Republican--and I when we were 
forwarding names to President Clinton, and it is working for Senator 
Cantwell and I as we both recommend names to President Bush.
  I am proud that during President Bush's first 3 years, we have 
confirmed two excellent judges through this bipartisan commission 
process. We confirmed Ron Leighton, a distinguished trial lawyer in 
Tacoma who is now a U.S. district court judge for the Western District 
of Washington in Tacoma.
  We have confirmed Lonny Suko as a district court judge for the 
Eastern District of Washington State. He is a distinguished lawyer and 
U.S. magistrate judge who has earned the respect of so many in his work 
on some of eastern Washington's most difficult cases.
  Currently, we are in the process of getting a nomination hearing and 
confirmation of Magistrate Judge Ricardo Martinez for a vacancy on the 
U.S. District Court for the Western District of Washington.
  For over 5 years, he has served as a magistrate judge for the United 
States. Before that, he was a superior court judge for 8 years, and he 
was also a King County prosecutor for 10 years.
  Judge Martinez has the impressive credential of being named the first 
drug court judge in Washington State and worked tirelessly to ensure 
the success of this program which uses treatment services as an 
alternative to incarceration.
  I am looking forward to his hearing and confirmation fairly quickly.
  I am here to tell you that in Washington State, we are making real 
bipartisan progress in confirming judges. It is a process that I 
believe serves the people of Washington State well.
  Mr. ALLARD. Will the Senator yield for a question?
  Mrs. MURRAY. I have very little time left, and I want to finish my 
statement. I thank my colleague.
  The time we are spending discussing our 98-percent confirmation rate 
could be used to address much more pressing issues. The majority is 
spending 30 hours to talk about four people who already have jobs. I 
think we should spend that time talking about the 3 million Americans 
who cannot find jobs.
  The PRESIDING OFFICER (Mr. Ensign). The Senator's time has expired.
  Mrs. MURRAY. Mr. President, I conclude by saying in my home State of 
Washington, 70,000 people have been laid off. They want this Senate to 
deal with unemployment insurance extension, which we need to do before 
we adjourn.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Colorado.
  Mr. ALLARD. I wonder if the Senator from Washington would yield for a 
question and we would divide the time against each of us; time would go 
against her in responding to the question and my asking the question 
would go against the Republicans.
  Mr. REID. At this stage I would object.
  The PRESIDING OFFICER. The objection is heard.
  Mr. REID. If the Senator wants to ask a question, use it on his time. 
We have people who have prepared all-night speeches and have been cut 
too short.
  Mr. ALLARD. That was just a suggestion, but obviously she does not 
want to respond to the question.
  Mr. President, today my colleagues and I are trying to put an end to 
the nomination logjam. All we are asking is for a simple up-or-down 
vote on these highly qualified nominees now. Carolyn Kuhl, Priscilla 
Owen, and Charles Pickering must receive a vote. Today, our Nation is 
facing a judicial crisis. Currently, there are 22 emergency judicial 
vacancies and 12 of these are on the court of appeals. It is simply 
irresponsible for us to ignore this growing crisis.
  Sticking our heads in the sand like an ostrich and ignoring it, as 
some of my colleagues would like us to do, will not diminish the 
seriousness of this crisis and make it go away.
  I have an article from the Washington Post written by George F. Will 
on February 28, 2003, entitled ``Coup Against the Constitution.'' I ask 
unanimous consent that that article be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Feb. 28, 2003]

                     Coup Against the Constitution

                          (By George F. Will)

       The president, preoccupied with regime change elsewhere, 
     will occupy a substantially diminished presidency unless he 
     defeats the current attempt to alter the constitutional 
     regime here. If at least 41 Senate democrats succeed in 
     blocking a vote on the confirmation of Miguel Estrada to the 
     U.S. Court of Appeals for the D.C. Circuit, the Constitution 
     effectively will be amended.
       If Senate rules, exploited by an anti-constitutional 
     minority, are allowed to trump the Constitution's text and 
     two centuries of practice, the Senate's power to consent to 
     judicial nominations will have become a Senate right to 
     require a 60-vote supermajority for confirmations. By thus 
     nullifying the president's power to shape the judiciary, the 
     Democratic Party will wield a presidential power without 
     having won a presidential election.
       Senate Democrats cite Estrada's lack of judicial 
     experience. But 15 of the 18 nominees to the D.C. court since 
     President Carter have lacked such experience, as did 26 
     Clinton circuit judge nominees who were confirmed. And 43 of 
     the 108 Supreme Court justices (most recently Byron White, 
     Thurgood Marshall and Lewis Powell), including eight of the 
     18 chief justices (most recently Earl Warren), had no prior 
     judicial experience.
       Sen. Charles Schumer opposes Estrada because his mind is, 
     Schumer says, a mystery. And because the Justice Department 
     refuses to release papers Estrada wrote during his five years 
     (four of them in the Clinton administration) in the solicitor 
     general's office. The department, emphatically supported by 
     all seven living former solicitors general (four of them 
     Democrats), says that violating the confidentiality of 
     department deliberations would have a deleterious effect on 
     those deliberations. Anyway, the papers Schumer seeks contain 
     not Estrada's personal views but legal arguments supporting 
     the litigation positions of the U.S. government.
       Estrada, whose nomination has been pending for almost two 
     years and who has met privately with any senator who has 
     asked to

[[Page 28705]]

     meet with him, answered more than 100 questions from the 
     Judiciary Committee, and unusually large number. Only two of 
     10 Judiciary Committee democrats exercised their right to 
     submit written questions to Estrada for written answers. 
     Schumer did not.
       Schumer says, ``No judicial nominee that I'm aware of, for 
     such a high court, has ever had so little of a record.'' 
     Actually, he is aware of at least two nominees to a yet 
     higher court--Gov. Warren and Sen. Hugo Black--who had no 
     record comparable to Estrada's 15 briefs and oral arguments 
     (10 of them victorious) in cases he argued before the Supreme 
     Court.
       Schumer says Estrada would not cite ``three supreme Court 
     cases in the past you disagree with.'' Actually, he was asked 
     to cite three ``from the last 40 years,'' a transparent 
     attempt to force him to discuss Roe v. Wade. But because 
     abortion-related cases still come before courts, Estrada 
     could not discuss Roe without violating the American Bar 
     Association's Code of Judicial Conduct, which says 
     prospective judges ``shall not . . . make statements that 
     commit or appear to commit the nominee with respect to cases, 
     controversies or issues that are likely to come before the 
     courts.'' Which is why Justice Ruth Bader Ginsburg, declining 
     to answer certain questions at her confirmation hearing, 
     said, ``It would be wrong for me to say or preview in this 
     legislative chamber how I would cast my vote on questions the 
     Supreme Court may be called upon to decide'' (emphasis 
     added).
       When Boyden Gray was White House counsel for the first 
     President Bush, Sens. Edward Kennedy and Joseph Biden--both 
     now former chairman of the Judiciary Committee, and both 
     still on it--warned him that any nominee would be rejected if 
     the White House asked the nominee questions about specific 
     cases. And a Judiciary Committee questionnaire, which every 
     nominee must complete, sternly asks: ``Has anyone involved in 
     the process of selecting you as a judicial nominee discussed 
     with you any specific case, legal issue, or question in a 
     manner that could reasonably be interpreted as asking or 
     seeking a commitment as to how you would rule on such a case, 
     issue or question?'' (emphasis added).
       Alexander Hamilton wrote in Federalist Paper 76 that the 
     Senate's role is to refuse nominations only for ``special and 
     strong reasons'' having to do with ``unfit characters.'' The 
     American Bar Association unanimously gave Estrada its highest 
     rating, and Estrada's supervisors in the solicitor general's 
     office gave him the highest possible rating in every 
     category, in every rating period.
       Given the cynicism and intellectual poverty of the 
     opposition to Estrada, if the Republican Senate leadership 
     cannot bring his nomination to a vote, Republican ``control'' 
     of the Senate will be risible. And if the president does not 
     wage a fierce, protracted and very public fight for his 
     nominee, he will display insufficient seriousness about the 
     oath he swore to defend the Constitution.

  Mr. ALLARD. Now some of my colleagues have proudly said they have 
acted on 98 percent of the judicial nominations sent to the Senate for 
confirmation. I would just simply like to point out that if we would 
only accept a 98 percent success rate, say, on flight safety, there 
would be 1,740 flights a day that would not land safely. Five hundred 
major organ transplants would be performed incorrectly and more than 4 
billion letters would be mishandled by the U.S. Postal Service this 
year. Ninety-eight percent, when we are talking about district as well 
as circuit court, simply is not good enough.
  On a personal note, I ask my colleagues, what would they want from 
their veterinarian performing a 98 percent success rate on their pet? 
My colleague is a veterinarian from Nevada. I am a veterinarian. That 
would not be acceptable to my colleagues. At that particular rate, I do 
not think we would be in business very long. Some in this body may 
believe 98 percent is good enough, but clearly it is not good enough.
  I point out one example of the new judicial nomination double 
standard in the Senate that resulted in an outstanding nominee, Miguel 
Estrada, not being given a fair up-or-down vote.
  In March of 1995, President Clinton nominated Carlos Lucero to be the 
first Hispanic judge to be on the Tenth Circuit Court of Appeals. 
Carlos Lucero was a Coloradan, the State I represent. After only 3 
months, Mr. Lucero was nominated, confirmed, and was seated on the 
bench of the Tenth Circuit.
  Prior to his confirmation, Mr. Lucero had no judicial experience yet 
enjoyed a well qualified rating from the American Bar Association.
  Miguel Estrada was considered well qualified. He was to be the first 
Hispanic ever to sit on the U.S. Court of Appeals for the DC Court. He 
argued 15 cases before the U.S. Supreme Court, was a law clerk for 
Justice Anthony Kennedy, and graduated magna cum laude from Harvard Law 
School.
  Let us compare Carlos Lucero's nomination to Miguel Estrada's 
nomination. President Bush nominated Miguel Estrada to be the first 
Hispanic judge to be on the District Circuit Court of Appeals in May of 
2001. He received a highly qualified rating from the American Bar 
Association, yet he waited more than a year for a hearing. After 
waiting for more than 2 years for a vote, he finally asked that his 
name be withdrawn.
  The point I am making is, how can we expect well qualified judges to 
be willing to serve on the Federal court if they have to go through a 
2-year process and they have to put their careers on hold at the time?
  Now tell me that this is not a double standard. Tell me that in a 
case where there are two nominees equally qualified, with the same 
rating by the ABA, there was not a double standard being imposed by 
Democrats on Miguel Estrada.
  This double standard has been recognized in my home State of 
Colorado. On a chart beside me, I have two editorials, one from the 
Denver Post, a newspaper that endorsed Al Gore for President, and the 
other from the Rocky Mountain News. The Denver Post said:

       The key point--

  Talking about Miguel Estrada--

     is that there should be a vote. . . . A filibuster should 
     play no part in the process.

  The Rocky Mountain News says:

       The Democrats have no excuse. . . . Keeping others from 
     voting their consciences on this particular matter is simply 
     out of line.

  I also have an editorial from the Chicago Tribune entitled 
``Squandering Miguel Estrada,'' on September 7, 2004. I ask unanimous 
consent that it be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Chicago Tribune, Sep. 7, 2003]

                       Squandering Miguel Estrada

       Presidents tend to nominate to important federal judgeships 
     candidates who share their philosophical views, and those of 
     the voters who elected them. So it comes as no surprise that 
     many of President Bush's judicial nominees have conservative 
     backgrounds. Those nominees are evaluated by the Senate, 
     which is supposed to approve or reject them.
       Last week, though, Democratic senators who are slavishly 
     devoted to a clutch of liberal interest groups succeeded in 
     driving away a superb nominee, Miguel Estrada, a brilliant 
     lawyer and native of Honduras who would have been the first 
     Hispanic jurist on the most important appellate court in the 
     country, the one based in Washington, D.C.
       Faced with a Democratic filibuster that kept the Senate 
     form voting yea or nay on his nomination, Estrada graciously 
     asked the president to withdraw his name. Estrada has a 
     family to raise and a career to manage. He can no longer wait 
     for elemental fairness to suffuse the United States Senate.
       Estrada had received the highest possible rating from the 
     American Bar Association. But he also is a conservative. The 
     knowledge that he someday would make a superb candidate for a 
     Supreme Court vacancy marked him as a nominee the liberal 
     interest groups and their puppets in the Senate had to 
     eliminate by any means necessary. And so, for the first time 
     in the history of the nation, a president's nominee to a 
     federal appellate court has been defeated not by a 
     straightforward vote of senators, but by a filibuster.
       Never mind that 55 senators stood ready to confirm Estrada. 
     Republicans couldn't muster 60 votes to break the Democrats' 
     filibuster. The confirmation vote never occurred.
       Partisans will note that, during Bill Clinton's presidency, 
     GOP senators played games with some of his nominees. That was 
     no less scurrilous than this year's chicanery. As the Tribune 
     argued during Clinton's tenure, the only fair way to treat a 
     controversial choice for a judgeship is ``to debate the 
     nomination fully and then vote to confirm or reject'' the 
     nominee.
       By failing to do that in Estrada's case, Democratic 
     senators have squandered a promising judicial career before 
     it could begin. They also have rewritten the Constitution, 
     which says a simple majority of the Senate is enough to 
     confirm a judicial nominee. If it takes 60 votes to break a 
     filibuster, that is the number presidents now will need 
     whenever the party out of power decides to throw a hissy fit 
     over a nominee.
       With their fundamentally unjust treatment of a good man, 
     Senate Democrats have handed Republican candidates, from the

[[Page 28706]]

     White House down, an excellent issue for voters to consider 
     during the 2004 election cycle.
       As the Tribune reported Friday, the emboldened Democrats 
     are filibustering two more of Bush's nominees and have 
     indicated the will employ the tactic against others as well. 
     All to deny still more nominees the up-or-down votes they 
     deserve. Miguel Estrada was denied that simple justice by the 
     United States Senate.

  Mr. ALLARD. Mr. President, the time has come for the Senate to vote 
on these four highly qualified nominees.
  I now yield to the esteemed Senator from Idaho to make a few 
comments.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAPO. Mr. President, I appreciate the opportunity our majority 
leader has given us to debate the issue of judicial nominations and the 
question of whether it is appropriate under our Constitution to have a 
filibuster of a judicial nomination by the President.
  I believe we face a constitutional crisis. There are a lot of numbers 
that have been bandied back and forth between the various sides in this 
debate. I am going to try to make a little sense out of those in a few 
minutes, but I want to start with the Constitution of the United 
States, which in article II says that the President shall nominate, and 
by and with the advice of the Senate, shall appoint judges.
  This Constitution does not provide a supermajority vote for the 
nomination, for the advice and consent process in the Senate. Our 
Founding Fathers were very capable and very good at pointing out those 
circumstances where they believed more than a majority vote was 
required for this interaction between the Senate and the President 
established in our Constitution.
  In a number of different places in the Constitution, whether it is 
ratification of treaties or impeachment or Presidential veto overrides 
or the other occasions where our Founding Fathers believed the 
Constitution required more than a majority vote and instead a 
supermajority vote, they were very specific about laying that out.
  With regard to judges, they did not lay out a supermajority 
requirement. Instead, it was stated--and until this Congress--that our 
Founding Fathers and the Constitution intended the advise and consent 
process in the Senate to require a majority vote and not to be 
``filibusterable.''
  We have seen a lot of debate on a lot of different numbers and I want 
to try to clarify some of these. One of the very common responses to us 
is: Well, we have stopped only 4 judges by filibuster this Congress and 
yet under the last Presidency, under Bill Clinton, over 60--I have 
heard different numbers, 55, 60, but whatever it is--judges were 
stopped by the Republicans.
  It is critical for people to understand that we are talking about two 
very different things. All judges nominated by any President must go to 
the Judiciary Committee and must make it through the Judiciary 
Committee. In that process, under every President, a number of the 
judges do not make it.
  In fact, we have a chart that shows under President Bush No. 1, 54 of 
his nominations did not make it through the committee or were voted 
down by the Senate.
  Under President Clinton, our number, as we analyze it, is 41. Now I 
have heard the number 55 and the number 60, but somewhere between 41 
and 60 or some other number in that category did not make it through 
the committee.
  Actually, one of these nominees was voted down on the floor. The 
others did not make it through the committee. They do not make it 
through the committee often for a number of reasons. The point is that 
in the committee, there is a majority vote. It is the majority rule, as 
the Constitution requires, for these judges to make it through the 
process. Even if the committee does not act on these nominees, if the 
majority of the Senate wants to bring them forward, there is a 
discharge petition that can bring them forward.
  The point is, it is important to understand the distinction between 
judges who are stopped in the normal course of the majority voting 
process of the Senate as they work through the committee and then on to 
the floor, and what we are debating today.
  Let us go to the next chart. Today we are debating whether we should 
change what has never been done before. This number is the number of 
years in which the Senate, Republicans and Democrats, refused to uphold 
a filibuster against a judge. For the last 214 years, both Republicans 
and Democrats in the Senate have refused to uphold filibusters against 
judges.
  Now, we are going to hear and have heard over the last number of 
hours a lot of debate about that as well. The Republicans have been 
accused of filibustering Democrat judges and Democrats have been 
accused of filibustering Republican judges over the years, and they 
would have everyone believe it is a common practice for the Senate to 
accept the filibustering of judges.
  The reality is that although there have been efforts to try to 
filibuster judges in the past, until this Congress neither party has 
tolerated it because both parties recognized the intent of the 
Constitution that once a President's nomination gets to the floor, the 
President is entitled to a vote. Whether the Republicans or the 
Democrats tried to filibuster a judge, both parties in the past have 
ultimately come together to stop that filibuster from preventing the 
intent of the Constitution from being accomplished.
  Let us get a little bit of history on this. The cloture rule in the 
Senate has been applicable to nominations since 1949. Since that time, 
cloture has been filed on only 35 nominations, meaning all the rest of 
the nominations basically made it through, once they got to the floor 
of the Senate, to a final vote. Of those 35 times that cloture had to 
be filed, 17 of them were judicial nominations, 18 were other executive 
nominations.
  Of those 17 times since 1949, when we have had cloture on judicial 
nominations, cloture has been defeated on the first try in 11 of the 17 
tries. Of all the other cases, cloture was defeated by the second try.
  Now, people need to understand what cloture is. Every time there is a 
cloture vote, it does not necessarily mean there is a filibustering. It 
simply means that at that point, the Senate is not ready to vote. It 
may mean they want to wait a little longer before a vote is taken. But 
when we see a cloture tried again and again and the announcement that 
as many times as it wants to be tried it is going to be stopped, that 
is a filibuster. We are seeing that now on four judges, with a threat 
of it on seven more.
  Let us put up the other two charts. There has been a lot of talk 
about how the Republicans stopped more of President Clinton's judges 
than the Democrats did of President Bush's judges. This number is the 
number of President Clinton's judicial nominations that reached the 
floor that were voted on and confirmed and the number that were 
filibustered. None of President Clinton's nominations was filibustered. 
There were some cloture votes. We can argue among ourselves whether or 
not that was a filibuster, but the point is that none of the efforts in 
the Senate against President Clinton was allowed to proceed to stop his 
judges from getting a vote. They all got a vote.
  Let us look at the next chart. The next chart is the number of 
nominations of Presidents in the last 11 Presidencies where, when the 
candidate got to the floor, they were denied an up-or-down vote. Out of 
2,372 nominations that have come to the floor during the last 11 
Presidents, zero were filibustered. Zero were stopped from having a 
vote once they got to the floor of the Senate.
  In this Congress, we have seen that happen four times, and it is now 
being threatened on seven more judges. A new trend, a new precedent, in 
American history is being set in the Senate and the American people 
need to pay attention to it because regardless of how one passes the 
numbers back and forth, the fact is that the precedent is now being set 
to require that not only does a nominee have to make it past the 
committee but they have to be subjected to the filibuster rule in 
contravention of the clear intent of the U.S. Constitution.
  This is all leading up to a battle over a potential Supreme Court 
nomination.

[[Page 28707]]

It will be very unfortunate for this country if the Senate, in this 
Congress, changes the history of our treatment of this critically 
important provision of our Constitution as we move forward in the 
analysis and handling of our responsibility on the advice and consent 
on judicial nominations.
  Mr. ALLARD. Mr. President, I thank the Senator from Idaho for his 
comments.
  I yield 10 minutes to the Senator from Oklahoma.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. I thank the Senator from Colorado for yielding to me.
  Mr. President, I want to share an experience I had at 5:30 this 
morning. One has lots of experiences at 5:30 in the morning on the 
Senate floor and in observing what went on during the night. There was 
something that occurred to me that I want to share, and I hope I can do 
it in this period of time.
  There are two reasons this has been taking place, that they do not 
want to confirm these judges. One is ideology, philosophy. I hate to 
say it but unless one is pro-abortion and unless they are anti-gun, 
they do not want that person on the bench. But there is another reason 
we have not talked about, and that reason is just a reason of 
obstruction. We have been watching obstruction in all forms, but I want 
to share something and I hope people understand that this directly 
relates to the nominees for the judicial vacancies. I want to get the 
point across that it is happening to other nominees as well.
  I chair the Environment and Public Works Committee. We had a person 
who was a nominee of this President, Gov. Michael Leavitt from Utah, 
one of the most highly regarded individuals in this country and 
certainly one of the most highly qualified ever to be nominated to a 
position of Administrator of the EPA.
  We sat there and recognized how everybody loved this guy and yet they 
dragged it on and obstructed for days and weeks, just to drag it on 
out. So it is happening with many of the nominees.
  Now, Governor Leavitt is a very kind and decent person and I really 
believe the most qualified nominee to be Administrator of the EPA we 
have ever been able to act upon. The way he was treated was just 
absolutely shameful. It took 56 days to finally get the nomination, 
five times longer than those who preceded him as Administrator, even 
though he had overwhelming bipartisan support.
  I do not think anyone has questioned that the motivation of the delay 
was partisan Presidential politics. They set a new standard, new 
precedent, for an EPA Administrator. They really were not talking so 
much about him as they were trying to talk about the environmental 
policies of this President.
  If my colleagues will look at some of the people who supported him, 
we had many people, including my ranking member, Senator Jeffords. He 
said it has nothing to do with qualifications of the Governor. At this 
time, I would say that qualifications really do not seem to be an issue 
on judicial nominations. It has been said over and over again, and 
later if I have time within my timeframe I am going to get into that, 
but this goes on and talks about various Democrats praising Governor 
Leavitt for this nomination and yet they would not confirm him.
  Senator Nelson, who is a former Governor of Nebraska, served with him 
as Governor. He said: I believe nearly everyone, if not everyone, with 
whom Governor Leavitt worked in the NGA--that is the National Governors 
Association--would state that they had a favorable impression of him. I 
wholeheartedly support Mike Leavitt to serve as EPA Administrator.
  We heard the same thing from our old friend Bill Richardson with whom 
many of us served in the House of Representatives. He is currently 
Governor of New Mexico. He praises his virtues. He has worked 
effectively with other Governors regardless of party, and he went on to 
say he is probably the best nominee who has ever been put forth to be 
Administrator of the EPA.
  So he is highly qualified and nobody would deny that, and yet they 
turn this thing into trying to attack the President on his 
environmental record.
  I have to quote from one person, Gregg Easterbrook. I have not quoted 
him on this floor before. He is a liberal Democrat. He is a senior 
editor of the liberal New Republic. He says in an op-ed piece in the 
Los Angeles Times: The Democrats are not as interested in Bush's 
environmental record as they are attacking President Bush personally. 
He says: Most of the charges made against the White House are baloney--
these are his words--and made for the purposes of partisan political 
bashing and fundraising. He also contends that environmental lobbyists 
raise money better in an atmosphere of panic. He goes on to explain the 
real reason this issue was going on. This man was subjected to a lot of 
things, including 100 prehearing questions, and later 400 questions 
prior to the hearing. This has never been done before.
  Then we had an experience that has never happened in the history of 
this Senate. We went back as far as Jennings Randolph in the middle 
sixties. It never happened in the history of this committee. The 
Democrats boycotted the committee. They did not show up. We have 10 
Republicans and Democrats. We have to have a majority there and two 
members of each party, at a minimum. So they boycotted and did not show 
up.
  Time went on and we started looking at how long it took from the time 
of the nomination, to the hearing, to the confirmation. In the case of 
William Riley, it was 13 days; the case of Carol Browner, 10 days; in 
the case of Governor Whitman, it was 13 days. Yet it took 56 days for 
this person to be confirmed. Finally, they did confirm and the vote was 
88 to 8.
  I suggest today if we had the vote on Priscilla Owen, she would be 
sitting in the Fifth Circuit right now; and Miguel Estrada, the DC 
Court; William Pryor, the Eleventh Circuit; and Charles Pickering, the 
Fifth Circuit.
  For a minute I will dwell, if the manager will give me a couple extra 
minutes, on Miguel Estrada. I saw something happening that I thought 
was significant. I will refer to something that happened to me February 
26, 2003, a year ago, when we were talking about the confirmation 
process.
  Mr. ALLARD. I am happy to extend an additional 2 minutes to the 
Senator from Oklahoma.
  Mr. INHOFE. We had a group in Oklahoma at that time that was there 
from San Luis Potosi, a sister city in Mexico. We have a sizable 
Hispanic community in Oklahoma. I was mayor of Tulsa, and I recall how 
excited the people were each year when they saw people striving to 
achieve, Hispanics in this country.
  I was standing before the crowd and said:

       Como acalde de la cuidad de Tulsa, yo quiero decir, ``Bien 
     venidos, bien venidos a la cuidad. Creemos que la cuidad de 
     San Luis Potosi es la cuidad mas hermosa de todas las 
     cuidades del mundo.''
       (Translation)
       As the mayor of the city of Tulsa, I want to say, 
     ``Welcome, welcome to the city. We believe the city of San 
     Luis Potosi is the most beautiful city of all the cities in 
     the world.''

  I saw the looks on their faces, realizing we were participating in 
their culture. They are looking at Miguel Estrada saying, Why won't 
they give him a chance to reach the top? Why is it that he does not get 
a chance for high office, he or any other Hispanic?
  I tried to answer. I believed there might be a way of garnering 
support to make this reality. I said:

       Muchos Hispanos estan escuchando ahora . . . y yo quiero 
     decir.
       Por descracia, hay personas en el senado que no quieren 
     escuchar a ni una palabra de la verdad.
       Yo invito a la communidad hispana para llama a sus 
     senadores para insistir en los derechos de Miguel Estrada y 
     en la confirmacion de jueces de los Estados Unidos.
       (Translation)
       Many Hispanic Americans are listening right now . . . and I 
     want to say:
       Disgracefully, there are people in the Senate that don't 
     want to listen to even one word of the truth.
       I invite the Hispanic community to call their senators to 
     insist on the rights of Miguel Estrada and on the 
     confirmation of the judges of the United States.

  People were calling in but it did not get the message across to the 
people on

[[Page 28708]]

that side of the aisle that there must be some other reason that they 
do not want Miguel Estrada to be confirmed.
  Congress is a powerful institution and it is necessary to have the 
ability to collect and challenge much of what the President does, but 
when it comes to the courts and to interpreting laws and regulations, 
politics needs to get out of the way. Justice delayed is justice 
denied. I believe we are in a position to do some things and turn this 
around and get some of these people confirmed.
  My guess is residents of California, who had their constitution 
gutted by a three-judge panel in the Ninth Circuit, only to have a 
larger panel of the same circuit reinstate their constitutionally 
authorized gubernatorial recall election, think it is pretty important 
who sits on the Ninth Circuit.
  I had an experience this morning debating one of our fine Senators, 
Mr. Lautenberg. I said at that time this is about ideology. I don't 
think anyone--after listening to all the debate that has gone on 
overnight--does not realize if you are not pro-abortion, if you are not 
anti-gun, you will be in opposition, and we will not get confirmation. 
It is wrong. All we want is an up-or-down vote on these fine nominees.
  Mr. ALLARD. Mr. President, I will wrap things up on our side. Before 
I do that, there are a couple of questions I would like to pose to my 
colleagues who are now in the Senate. I understand they are going to 
take some time to speak on their side of the aisle.
  First, I pose a question to Senator Dorgan, who is the Senator from 
North Dakota. Senator Dorgan stated there would be no foot dragging on 
President Bush's nominees.
  The PRESIDING OFFICER. The Senator needs consent to pose questions to 
other Senators.
  Mr. ALLARD. I am speaking under my own time.
  The PRESIDING OFFICER. It still requires consent to pose a question 
to other Senators.
  Mr. ALLARD. I have a question I would like to ask of Senator Dorgan, 
if I might.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALLARD. That is, he quoted that we are moving expeditiously on 
the President's nominees, refusing to return in kind the foot dragging 
delay of so many of President Clinton's nominees.
  I ask him to respond to that question under his own time.
  I also have a question to pose to the Senator from Iowa and give him 
an opportunity to respond on his own time. That question is, What has 
happened to change your view, when he wanted a vote regardless of the 
outcome?
  I quote:

       If you want to vote against them, let them vote against us. 
     That is their prerogative. But at least have a vote.

  This was made September 14, 2000. I ask both Members to respond to 
those statements. I ask them what has changed since those comments were 
made.
  When they get their time, they can respond to those questions.
  Let me wrap this up. I had a press conference this morning at 3:30, 
maybe 4 a.m., with the small business interests of this country. The 
point was made that delay in the judicial process is a problem for 
small business. How the courts function does have an impact on our 
economy. Lawsuits have an impact on our economy and how rapidly the 
courts respond.
  We have a crisis in the circuit courts, the courts of appeal. We need 
to fill the vacancies so cases that go before the circuit courts such 
as civil rights cases dealing with racial discrimination, sex 
discrimination, age discrimination, religious discrimination, and the 
Americans With Disabilities Act can be handled in an expeditious way. 
These are cases impacting small businessmen in this country. We need to 
have our commercial disputes resolved in the circuit courts. There are 
contract disputes, insurance coverage disputes and trademark 
infringement issues in those courts. There are a lot of regulatory 
cases, for example, in the DC Courts, on environment, health, and 
safety standards, labor court enforcement, challenges to the Federal 
rules.
  In the DC Court, the crisis we have on the DC Circuit Court is 
especially important as it applied to the small business community in 
this country. We do have a crisis. We have a crisis in the DC Circuit 
Court, which is 25 percent slower than 2001, another 58,000 days more 
than 2001, a crisis in the Ninth Circuit, the Sixth, and the Fifth 
Circuit.
  The point is we need to get these nominees to the circuit courts 
passed through the Senate. It is unprecedented. Never in the history of 
the Senate have we not moved forward on judicial nominees when we had 
the majority of the Senators supporting that nominee.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.


                   Unanimous Consent Request--S. 224

  Mr. HARKIN. I ask unanimous consent the Senate proceed to legislative 
session and proceed to consider the bill to increase the minimum wage, 
Calender No. 3, S. 224; that the bill be read a third time and passed; 
and the motion to reconsider be laid upon the table.
  Mr. ALLARD. I ask unanimous consent that the Senator modify his 
request so that just prior to proceeding as requested, the three 
cloture votes would be vitiated, and the Senate would then immediately 
proceed to three consecutive votes on the confirmation of the 
nomination with no intervening action or debate.
  The PRESIDING OFFICER. Does the Senator so modify his request?
  Mr. HARKIN. No, I do not modify my request.
  Mr. ALLARD. Then I object to his request.
  The PRESIDING OFFICER. The objection is heard to the original 
request.
  Mr. HARKIN. There again, I think we see what this is all about. We 
want to respond to the real needs of our people in America. We want to 
increase the minimum wage and the Republicans keep objecting to it. 
They will not let us bring it up for a vote. But they want to bring up 
four judges for lifetime appointments for a vote. So we see the 
difference.
  We are trying to work on behalf of the American people to meet the 
real needs of people unemployed and people who need an increase in the 
minimum wage. The Republicans will not bring it up. That is the 
difference here.
  Obviously, what we have, I called it the theater of the absurd 
earlier. There has been a play running for several years at the Kennedy 
Center called ``Shear Madness.'' It has now come to the Senate floor 
and is playing here now, ``Shear Madness.'' You can watch it free here. 
You do not have to pay to go to the Kennedy Center to see it.
  First of all, I thank the police, the court reporters, other Capitol 
employees, who have had to spend long hours here through the night so 
that we can waste time, waste taxpayers' money, engaging in this 
ridiculous charade. I am told that the police out here are putting in 
16-hour shifts, 16-hour shifts just so we can come out here for this 
ridiculous charade.
  I am told our court reporters have to do 20-minute increments rather 
than the 10-minute increments they normally do. I am not a court 
reporter, but I think having that thing strapped around your shoulders 
and working for 20 minutes gets pretty tiring.
  Does anyone on the other side think about these people? They have 
families. They have other things they need to do. How about our police 
working 16-hour shifts out there? Anyone on the other side of the aisle 
ever think about what is happening to them because of this charade we 
are putting on? We think about them.
  I might say to the police and other people putting in all the 
overtime, while we are here with all this charade, do you know what is 
going on in the other part of the Capitol, downtown with the 
administration? They are trying to take away your overtime pay 
protection. Watch the little shell game with this hand on the judges, 
and with the other hand they are trying to take away your overtime pay 
protection. That is what this is all about. Tune in and watch this 
charade.
  But do you know what else is going on in the other part of the 
Capitol? They are trying to take away your Social Security. They are 
trying to do

[[Page 28709]]

away with your Medicare provisions. That is what is going on in another 
part of the Capitol.
  Don't take my word for it. Here is something out of Congress Daily 
this morning: Enlisting the support of health care industry, House 
Republicans accelerated efforts Wednesday to build outside support for 
the emerging Medicare prescription drug bill, and quotes a Republican 
from Virginia who said this new business coalition is absolutely 
critical in whipping Members just before a vote.

       They have been critical all along. It works from the 
     groundwork. It is all about winning elections at home. 
     Everyone understands this is a political process.

  This is on the Medicare prescription drug bill. He said the coalition 
that they are putting together is broader than the drug companies, and 
it includes representatives ranging from construction companies to 
Caterpillar.
  This is the coalition the Republicans are putting together to destroy 
Medicare as we know it. They are putting together a coalition of 
business, drug companies, construction companies, et cetera. Where are 
the seniors? Where are the elderly in their coalition? Not to be heard 
from. And they are going to do away with Medicare as we know it. They 
are going to privatize it.
  Here is another one from November 6, Newhouse News Services, talking 
about Social Security. It quotes a Josh Bolton, Director of Bush's 
Office of Management and Budget: In the long run, Social Security 
cannot meet its commitments. Bolton would switch the system from 
government-guaranteed benefits to private investment accounts that 
would probably, but not positively, generate as good a benefit as 
Social Security now promises but can't deliver.
  Now, the administration is saying that Social Security cannot 
survive. It is a fact that the tax cuts passed by this Congress and 
signed by this President, most of which went to the wealthy in our 
society, if those amounts of money that go out to those tax cuts had 
instead been used for the Social Security system, Social Security would 
be solvent for the next 75 years. But now they are saying we do not 
have enough money for Social Security; we cannot meet our obligations. 
Of course not. They opened the gates through the Treasury and let all 
the money go to the wealthy in our country with that tax program they 
had.
  That is what this is about. Get your mind off of that and look at 
this charade we are putting on today.
  I will respond to my friend from Colorado, and he is my friend. He is 
a great Senator who just quoted me a little while ago, remarks I made 
on the Senate floor a couple years ago about bringing up Bonnie 
Campbell. Here is a list of 63 judges who were blocked at that time, 
Clinton nominees, one of those being Bonnie Campbell from Iowa. I point 
out 63 here and only 4 we have blocked.
  Here is the difference. The Republicans say they were stopped in 
committee. Yes, the Senator from Colorado quoted me accurately. I did 
ask unanimous consent to bring Bonnie Campbell out of committee to the 
floor. They objected. The Republicans objected. Now, Bonnie Campbell 
had a hearing. Nothing was raised about her. Nothing that was bad or 
anything in her background--nothing. She was absolutely qualified to 
serve as a circuit court judge, but Republicans would not even let her 
out of committee.
  Here is what the Republicans say. It is wrong to stop someone in the 
Senate with a filibuster or an extended debate. That is wrong. But it 
is all right if we stop them in committee, which is exactly what they 
did.
  So, yes, I asked unanimous consent to bring it out of committee, 
bring it to the floor. You bet I did. They objected.
  Now, they are trying to say, why don't we do now what they were 
unwilling to do? Why should we change the rules, I ask my friend from 
Colorado? We will play by the same rules you played by. But, no, now 
you on the other side want to change the rules.
  As I said this morning, my favorite line, a refrain from Finian's 
Rainbow that I bring up at times like this. It goes like this: Life is 
like cricket. We play by the rules. But the secret which few people 
know that keep men of class far apart from the fools is to make up the 
rules as you go.
  That is what they are trying to do. Of course, I tried to bring it 
up. They objected. But now they want to change the rules and have a 
different playing field.
  Mr. ALLARD. Will the Senator yield?
  Mr. HARKIN. Or someone mentioned January 5, 1995, I offered an 
amendment on the floor of the Senate that would have set up a procedure 
to close cloture. We would have had a vote, then a couple weeks would 
have to go by, have another vote, a couple weeks go by, and have 
another vote. Finally, you get down to 51 votes.
  I still believe in that, that after a month's period of time, after 
extended debate, there ought to be 51 votes and move legislation.
  Mr. ALLARD. Will the Senator yield?
  Mr. HARKIN. I will in a second.
  Guess what happened. I offered that amendment. Guess how many 
Republicans supported it. Zero. Zero. Not one Republican supported it.
  Now what I hear they want to do is they want to change the rules to 
prevent cloture on judges, lifetime appointments. But on legislation--
on legislation--no. They want to continue to be able to filibuster 
legislation. Well, come on. Give me a break. If you want to stop 
filibusters, stop it for everything, not just for judges.
  Now, my friend from Colorado, I know wants to ask me a question, and 
I do not know how much time I have, but I will be glad to yield for a 
question.
  Mr. ALLARD. I will make it short. The question I have for the Senator 
from Iowa, my good friend--and we have worked together on many issues--
is, Will you now support the Frist-Miller proposal? It is a bipartisan 
proposal, a step in the direction that you proposed several years back.
  Mr. HARKIN. I say to my friend, if they would modify it to look like 
what we did in 1995. My amendment in 1995 covered everything. It 
covered legislation. It covered judges. It covered everything.
  If you put that forward, you have got my vote. But, no, what you want 
to do on that side is only have it pertain to judges, and not to 
legislation.
  No. I am sorry. If you want to end the filibuster, do it for 
everything, not just for what you think is right. Let's do it for 
everything.
  So I say to my friend--and he is my friend; he is a great Senator--I 
know we have a disagreement about this, but I am just saying, what I 
hear from the other side is they want to pick and choose. They want to 
be able to say, if you stop a judge in committee, that is fine, but you 
cannot stop him on the floor. And that is what they did. They stopped 
the judges in committee.
  So when you hear Republicans come out here today or last night or 
however long this charade is going to go on--when they beat their 
breasts and say, oh, my goodness, I have never or I will never vote to 
filibuster a judge on the floor, check the record on that person and 
see what they did when they were held up in committee. Oh, it was all 
right. That was a hold. That was not a filibuster. That was a hold. 
Fancy words, different words--same result.
  So what the rules have been in the past, the game, the rules we have 
played by in the Senate are good enough for today, and if you want to 
change the rules, change them for everything. Do not just pick and 
choose one little thing at a time. That is my point to my friend from 
Colorado.
  I know the Senator from North Dakota wants to speak, and I am going 
to yield to him. But I just again point out that while this charade is 
going on here, the administration is at work trying to cut Social 
Security benefits. They are at work trying to come up with a Medicare 
prescription drug bill that benefits our drug companies and not our 
seniors. They are at work trying to take away overtime pay protection 
for 8 million working Americans. They are at work stopping an increase 
in the minimum wage. They are at work stopping any increase in an 
unemployment insurance extension. That is the game that is being played 
here.
  I yield the floor to my esteemed colleague and friend from North 
Dakota.

[[Page 28710]]

  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Mr. President, I have not had the opportunity to listen 
to all of this debate.
  Mr. HARKIN. An opportunity?
  Mr. DORGAN. I am not sure I would consider it an opportunity, had I 
had the time. I know people watching this, perhaps on C-SPAN, would 
take a look at all this and say: Well, this is a bunch of windbags in 
blue suits. They talk and they talk and they seem to disagree, and when 
they are done talking, they have not said very much.
  There is some truth to the fact that much of what goes on in this 
Chamber is without great merit and without great consequence. There are 
times when we do things--and often when we do things together--that 
have significant impact on the future of this country and on the 
direction of this country. This is not one of those moments, I might 
say.
  This 30 hours is 30 hours that are designed to make a point, a point 
without much validity. And I will explain why that is the case. But it 
is, in my judgment, of very little consequence.
  My dad used to say, never buy something from somebody who is out of 
breath. Do you know something? There is a kind of breathless quality to 
my colleagues. My colleague from Colorado just asked me a question kind 
of breathlessly, and I have watched others sort of out of breath here 
coming to the floor of the Senate talking about how unfair this process 
has been, how we are blocking judges.
  Look, maybe it is time for just a few facts--just a few. You have 
seen them before. This is not a memory test, but it will take very 
little time to commit to memory. Mr. President, 168 judges confirmed--
168 confirmed--and 4 have been blocked. We do not apologize for 
blocking four judges we don't want to be on the Federal bench.
  The Constitution says there are two steps to giving someone a 
lifetime appointment: One, the President shall nominate; and, two, the 
Senate shall approve. It is called advise and consent. The roles are 
equal. This is not a circumstance where the President has certain 
prerogatives that we do not have. The roles are equal. To put someone 
on the Federal bench for an entire lifetime, the President nominates 
and then we give our advice and consent. Mr. President, 168 times this 
Senate has said yes, and on 4 occasions it has said no.
  Why are we here for 30 hours? Because the majority party is 
apoplectic. They are having apoplectic seizures about these four.
  Do you know something? When my son was about 10 years old, he ordered 
from a magazine an ant farm. When he did it, I described it on the 
floor of the Senate one day. I had no idea what an ant farm was, but it 
was two pieces of glass hooked together on the ends, very narrowly, and 
then you put sand in it. They also sent you a little vial with ants. 
And they said in the instructions that you put the ants in the 
refrigerator to slow them down a little bit, and then you take the cap 
off and you throw those things in that little glass container with 
sand. And then it said: Just watch, and you will be entertained by this 
ant farm.
  So we slowed them down. We put these old ants in the refrigerator. 
Then we poured them in this little glass with the sand, and then we 
watched--a day, a week, 2 weeks. It was fascinating. Every morning you 
would wake up, and those old ants had been working. They took the sand 
from this side, and they would move it to this side. The next day you 
would wake up, and they moved the sand back. Do that about 2, 3 weeks 
and you realize there was a lot of activity going on but they were not 
going anyplace. Nothing was happening.
  It was all an empty exercise. And do you know what? At times the 
Senate reminds me of that, and especially in this 30-hour period it 
reminds me of that. We can move things back and forth, we can vent and 
breeze and wheeze, and it does not change the facts.
  The facts about judgeships are these: 168 we have supported, which 
means we have the lowest vacancy rate since the mid-1980s. Why do we 
have the lowest vacancy rate since the mid-1980s? Because we--yes, we--
have approved 168 judges, at a far higher rate than happened under the 
Clinton administration when the Republicans controlled this body. I am 
not and will not be apologetic to anyone under any circumstance for 
this record.
  Now, with respect to these four, do we have a right to decide there 
are four people whom we do not want on the Federal bench? You bet your 
life we do--not only a right, but we have an obligation. If we decide 
this candidate or that candidate is not worthy of a lifetime 
appointment, we, in my judgment, have an obligation, and that 
obligation, under advise and consent, is to weigh in with our opinion.
  Mr. ALLARD. Will the Senator from North Dakota yield?
  Mr. DORGAN. I will not yield, and I will not do so because the 
Senator from Colorado asked a question on his time and said he would 
not allow me to answer on his time, so I will not allow him to ask 
questions on our time.
  I would be very happy, however, by consent, to spend a full hour with 
the Senator from Colorado or any other Senator, for that matter, just 
back and forth with two or three of us asking and answering questions. 
I would enjoy that opportunity.
  But having said all that, let me explain that this 168 to 4 is, in my 
judgment, a lot of shadow boxing. It might be fun for some. I am sure 
it is not fun for those who have to spend their time for the next 30 
hours--the doorkeepers and the members of the police, and others, the 
security, and the folks at the desk, and the folks who do the service 
that is performed here to keep the records of the Senate--they have to 
be here 30 hours. If it makes people feel better doing this, they have 
a right to do it. I will not complain about it. They have a perfect 
right to do this.
  But let me tell you what I have a right to do as well. I have a 
right, at least as one Member of this Senate, to wish--to wish--just 
for a moment that I were in control of this agenda. And I will tell you 
what I would do today if I were in control of this agenda. I would 
bring something to the floor of the Senate that deals with the subject 
of jobs.
  I know what I would want to talk about today. I would want to have 
some legislation on the floor, and I will tell you what it would be 
about. Huffy bicycles.
  Let me tell you about Huffy bicycles. Huffy bicycles have 20 percent 
of the market in this country for bicycles--20 percent. They used to be 
made in America. They were made in Celina, OH, made by 850 good 
workers, 850 union members in a plant in Ohio. They made $11 an hour in 
wages plus benefits. And they made a great bicycle, sold at Wal-Mart, 
Sears, Kmart.
  Do you know what this bicycle had on the front, right underneath the 
handlebar? It had a picture of an American flag on a decal, a decal for 
the Huffy bicycle--an American flag, American made. God bless them.
  But then it became too expensive to make Huffy bicycles in America. 
Mr. President, $11 an hour was too much to pay workers. So do you know 
where these Huffy bicycles are made now? In China. Do you know why? 
Because they get paid 33 cents an hour. And do you know what they did 
when they moved the Huffy bicycles to China? They laid off all those 
workers in Ohio--850 of them--who now work 2 jobs, 3 jobs to make ends 
meet, and some do not work at all.
  What they did, when they went to China and started producing these 
bicycles, was they took off that American flag decal right underneath 
the handlebar and they changed that American flag to a picture of the 
globe--the globe. Well, God bless the globe. But I happen to care a 
great deal about jobs in Ohio--American workers who get up in the 
morning and say goodbye to their family because they are going to a job 
that they love: I make Huffy bicycles. No, I don't make a fortune; I 
make $11 an hour, but I work hard, and I do a good job. And then I am 
told one day my last job will be to replace the decal on the front of 
the bicycle from a flag to a globe before they fire me and move the 
jobs to China.

[[Page 28711]]

  I want to talk about that. If I were running this place, we would be 
talking about legislation to address this question of whether American 
workers ought to be told: You must compete with 33-cent-an-hour labor. 
And if you can't, tough luck; you lose your job.
  We are talking about four jobs this morning that my colleagues on the 
other side of the aisle are upset they were not advanced to the Federal 
bench. I am talking about 850 people in Ohio who used to make Huffy 
bicycles, and proud to do so, who discovered they were too expensive at 
$11 an hour. Huffy wanted to make bicycles for 33 cents an hour.
  I would like to talk about that on the floor of the Senate and have 
policies dealing with international trade on the floor of the Senate. 
And that relates to jobs, not just relating to 850 people, but it 
relates to millions of jobs.
  Three million people had to tell somebody in their family they lost a 
job in the last few years. These are people at the bottom of the 
economic ladder. These are people who know about secondhand, second-
shift, second jobs. They are the ones who lose their jobs. We ought to 
talk about joblessness in this country and the fact that our economy is 
expanding but the job base is not.
  Last month we had good news, and good for us, good economic growth. 
Do you know what happened? We lost manufacturing jobs again last month, 
50,000 of them. I suppose if you wear a suit, it does not matter much, 
and if you serve in the Senate, you will not notice it much. But I 
guarantee you, if you were one of those last month who had a good 
manufacturing job, who had to come home and tell your spouse and your 
family, ``I have just lost my job; no, not because I am a bad worker 
but because I can't compete with 12-year-olds working 12 hours a day 
being paid 12 cents an hour''--and yes, that happens. Yes, that 
happens. And I can show you where and tell you when. So I would talk 
about that. That is what I would have on the agenda.
  While I am at it, while I am halfway irritated about what we are not 
doing, let me also talk, just for a moment, about something I discussed 
yesterday. At 11 o'clock last night in a conference committee in the 
basement of this Capitol, I lost this issue, and I am a little 
irritated about that this morning.
  This is a picture of a young woman, a young Christian woman from this 
country, and her name is Joni Scott. She came to see me 2 days ago. Do 
you know why? Because her Government has levied a $10,000 fine against 
her. Do you know why? Because the Government discovered she went to 
Cuba, and she went to Cuba in order to deliver free Bibles to the Cuban 
people with her church group.
  So this young woman, named Joni Scott, took Bibles with her church 
group, went to Cuba, and distributed free Bibles in the country of 
Cuba. And when she came back to this country, do you know what her 
country said to her? We have got the Department of the Treasury, with 
an organization called OFAC, Office of Foreign Asset Control, and they 
sent her a notice and said: You are fined $10,000. You must pay a 
$10,000 fine. Why? Because you went to Cuba.
  Mr. President, we ought to talk about that today. I had an amendment 
on the conference committee last night. The amendment passed the 
Senate. The amendment passed the House of Representatives. It was 
bipartisan. Republicans and Democrats voted for it in the Senate and 
the House, to say: Let's not enforce this travel ban against Cuba. It 
is not fair to the American people. That is an attempt to slap around 
Fidel Castro, and by doing that, we are injuring American people's 
right to travel.
  Well, we went to conference last night, and this bipartisan 
approach--in both the Senate and the House--was kicked out. Why? 
Because the White House threatened to veto the bill if it was in it. 
This bill still stands. This young lady has a $10,000 fine. I have 
written to the Treasury Department saying: How dare you? How dare you?
  But it is not just her. It is farmers from my State who want to sell 
farm products into Cuba. The Farm Bureau is denied a license to travel 
to Cuba to promote farm exports. It is about using food as a weapon. 
That is what the administration wants to do with Cuba; it is about 
embargoes. This does not make any sense.
  So if I were running this place today--and I am not, unfortunately--I 
would be talking about that. I would be talking about the ability of 
our farmers to sell into that marketplace and, why on Earth will you 
not give a license to a farm group to go to Cuba to promote 
agricultural sales while you penalize a young lady who goes to Cuba to 
hand out free Bibles?
  Is there anybody here who thinks this makes any sense? Have we lost 
all bases of common sense? Or will someone at some point stand up and 
say, let's do the right thing here?
  So instead, we are here 30 hours. It started with Fox News and the 
majority party combining so that at 6 o'clock they could do a live news 
shot. They are excited about it. They want the people to talk in the 
Chamber. It is all in a memorandum: We need to do this. And they are 
very excited. Britt Hume is very excited to have on his show a live 
shot of the Republicans walking into the Chamber. And for 30 hours we 
talk about judges.
  It is fine. They have a perfect right to do that. I do not disparage 
that right at all. I say, however, it certainly is not the topic that 
is on the minds of most of the American people. There is so much 
misinformation about this subject that ricochets around this Chamber.
  We are told by our colleagues: You are filibustering; that has never 
been done. I don't know where they get that. Do they just not do the 
basic research? I do not understand that. Do they just not do basic 
research at all?
  Tell me about Abe Fortas. Many years ago, was there a filibuster? Of 
course there was. Tell me about Richard Paez. Tell me about all the 
cloture votes we have had to cast around here because Republicans 
forced us to have cloture votes.
  Why do you have a cloture vote? Because there is a filibuster, in 
order to break a filibuster. And I could go through, but my colleagues 
already have, name after name after name where there has been a 
filibuster by the Republicans.
  Then let me just indicate, finally, that my colleague from Iowa 
indicated there are many men and women who never even got a hearing. 
That is a filibuster by one person demanding the Judiciary Committee 
refuse to even give a hearing to candidates. Yes, for the Ninth 
Circuit, but for judgeships all around this country.
  So I know we are going to vent out here for, I suppose, another 12--I 
guess 12 hours. And it will amount to nothing. We ought to be talking 
about jobs and a range of things that are very important to the future 
of this country.
  The PRESIDING OFFICER. The Senator's time has expired.
                                 ______
                                 

                                 prayer

  The PRESIDING OFFICER. The hour of 12 o'clock noon having arrived, 
the Senate, having been in continuous session since yesterday, pursuant 
to the order of the Senate of February 29, 1960, will suspend while the 
Chaplain offers a prayer.
  Today's prayer will be offered by our guest Chaplain, RADM Robert F. 
Burt, Chaplain of the U.S. Marine Corps and Deputy Chief of Navy 
Chaplains.
  Mr. REID. Mr. President, I ask that the time be equally charged 
against both sides during the prayer.
  The PRESIDING OFFICER (Mr. Graham of South Carolina.) Without 
objection, it is so ordered.
  The guest Chaplain, RADM Robert Burt, offered the following prayer:
  Let us pray.
  Almighty God, Lord of our universe, creator, sustainer, protector, 
and comforter, source of our hope, bless us with Your divine presence 
and fill us with Your joy.
  Lord, thank You for these servants of our great Nation. Help them 
today to sense the support and prayers that go out on their behalf, not 
just here in this room, but all over our Nation as citizens lift them 
up before You and sincerely pray for them every day. Answer those 
prayers, O God, and fill

[[Page 28712]]

these Senators with Your spirit and power.
  Lord, we lift together this Nation up before You and pray that You 
would continue to pour out Your rich blessing upon us. Bless our 
citizens spiritually, financially, physically, and emotionally. Bless 
our military personnel and their families. Lord, continue to use these 
Senators as instruments and channels of Your blessing.
  May they remember ``never to become weary in doing good, for in 
proper time they will reap the harvest.'' Bless each Senator, bless 
their families, bless the States they represent, and, most of all, 
bless our Nation and its commitment to the pursuit of freedom and 
liberty not only within our own borders, but also to so many nations 
that desperately need our help.
  We ask these things in Your awesome and holy name. Amen.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. Mr. President, I believe the regular order is that we now 
have half an hour on our side.
  The PRESIDING OFFICER. The time until 1 o'clock will be evenly 
divided.
  Mr. GREGG. Mr. President, first, I thank the guest Chaplain for that 
very fine prayer which brings us back to reality in a way that is 
appropriate.
  There has been a tremendous amount of excellent discussion today 
about the issue of the process of approving those four judges who have 
been nominated to the circuit courts of appeals, and the whole issue of 
the filibuster and how filibusters work into the process of the 
Constitution and the management of this Senate. It has been 
appropriate. It has been good. It has been enlightening, I hope, to 
those who have taken the time to listen at whatever hour they happened 
to listen.
  I heard some extraordinary discussions which have been historical and 
legal and factual and informative. The question of whether or not a 
filibuster is appropriate is critical, and the constitutionality of 
using a filibuster relative to the Executive Calendar and the approval 
of judges is a very legitimate question in my mind.
  I think when you look at the Constitution and the language of the 
Founders, they were fairly precise people in how they designed this 
Senate when they decided to be precise. And on the issue of advise and 
consent, they were precise. They said it would take a supermajority to 
approve treaties, but they were silent on the issue of supermajority 
relative to justices, and, therefore, in my opinion, I think it is 
fairly evident that, as far as they were concerned, they expected a 
majority for the purposes of approving justices and, therefore, a 
filibuster is inconsistent with that.
  Really the filibuster, and the issue of the filibuster which has 
received so much appropriate attention today and which is obviously why 
we haven't been able to get to a vote, is systematic of the bigger 
issue, which is why is the opposition evolving relative to these 
justices?
  We have to remember--and I think it is important for people to focus 
on this because there have been a lot of charts and signs up talking 
about the number of judges approved--that we are dealing with the 
circuit court of appeals level of the judiciary. We are not dealing 
with district judges. The vast majority of the judges who are approved 
by this body, who are nominated by any President, are district court 
judges. They are the trial judges. What we are dealing with, however, 
is the people who take a look at what happened in the trial and decided 
whether law has been adequately applied to the trial and who basically 
interpret the Constitution and the laws of the land and have, 
therefore, a huge impact, obviously, on how our society functions.
  Fewer and fewer cases make it to the Supreme Court. More and more 
cases are decided on the issue of the question of their 
constitutionality, the implications of the broader law involved by the 
appeals level of our justice system. Therefore, when we look at the 
circuit court of appeals appointments, we are looking at an 
extraordinarily important position within the structure of our 
governance as a nation, a governance which is based on the issue of the 
protection of law. You can't have a democracy unless you have a 
structure of jurisprudence which is fair, honest, and applied 
consistently with principles developed over years.
  Therefore, to look at all the judges out there and say 168 or 200 or 
5,000 have been approved is irrelevant to the question. The question 
is, what is the circuit court issue; what has happened with the circuit 
court? We know in the circuit court area there have only been 29 
approved, and there are presently 4 pending who are subject to a 
filibuster right now, which means they can't get a majority vote. There 
are going to be two more, it looks like, who are going to be subject to 
that same filibuster, who won't get a majority vote, and that will be 
followed by, it appears, another six subject to a filibuster and, 
therefore, cannot get a majority vote. So we have 12 compared to 29.
  Twenty-nine have been approved. That is a very high percentage of the 
circuit court justices who have been basically blocked from getting an 
up-or-down vote as should apply under our form of structure, our 
Constitution, in my opinion.
  There has been a lot of discussion about that point. But what is the 
real implication? What is this fight over getting to a vote really 
about? It is about who these justices are and what they represent, 
because this is a new radicalization of the issue of judges and their 
appointment to the circuit court.
  The use of the filibuster at this time is symptomatic of that 
radicalization, and it is the radicalization of the nominating process 
which is the real issue at hand and on which the American people should 
be willing to focus.
  It appears--not appears--it has occurred now that a litmus test has 
been put in place for the purposes of approving members to the circuit 
court, a litmus test that really has no relationship to the judicial 
temperament, experience, fairness, or expertise of the nominee who has 
been brought forward. It is a litmus test totally outside the bounds of 
what has traditionally been the way in which we evaluate a justice 
nominated to the circuit court. It is a litmus test based on the 
justice's personal and religious views, not the justice's judicial 
actions.
  This is a huge departure from what has been the traditional method by 
which we have evaluated and confirmed judges in this country.
  First off, the litmus test as an approach is wrong. I was a Governor. 
I appointed judges. I never asked one judge what his or her view was on 
any issue. What I wanted to know about a justice I was going to appoint 
was: One, were they honest beyond a question of a doubt; two, were they 
smart; three, were they fair; and four, have they life experience that 
is going to give them some sensitivity toward the people who would be 
coming before their court.
  What their views were, I believed, was inappropriate to ask, but that 
was my position. Clearly, it is not the position of the minority in 
this body. The minority in this body decided there must be a litmus 
test which every justice appointed to the circuit court has to jump 
over.
  I could possibly accept that if that litmus test was tied to whether 
the justice was honest, whether the justice was fair, whether the 
justice was intelligent, or whether the justice had the life experience 
that was appropriate to go on the court. But that is not the litmus 
test. The litmus test now is whether or not the justice nominated to 
the position has an individual belief, not a judicial view, which is 
inconsistent with the view of one Member--just one Member--of this 
body. It is a staggering event representing a fundamental change in the 
way in which we appoint justices and nominate and confirm and evolve a 
judiciary.
  Under this philosophy, it is very likely that any person who comes to 
this body who subscribes to the Catholic faith and subscribes to it as 
laid down by the leader of the Catholic faith and by the catechisms of 
the Catholic faith, even though they may, as a justice, have made it 
very clear they do not allow that faith to determine their decisions--
and in one case we have a classic example of that, and that is Justice 
Pryor--that justice will not be allowed to be confirmed because his 
personal

[[Page 28713]]

views--not his judicial actions, not his judicial review process--but 
his personal views will not have passed the litmus test simply because 
he happens to maintain a religious belief.
  That is an extraordinarily dangerous precedent to set in this body, 
and it will fundamentally change the character of this Nation over time 
if it is allowed to continue, to say nothing of the prejudice that it 
reflects.
  Since I have been in this body, I have voted for a lot of judges. 
When President Clinton was here, I voted for Justice Breyer to the 
Supreme Court. I voted for Justice Ruth Bader Ginsburg to the Supreme 
Court. These were two Justices I absolutely knew did not subscribe to 
my political philosophies, but they were honest, they were fair, they 
were smart, and they had life experience that was appropriate.
  Had I applied a litmus test coming from the other side of the aisle, 
I could have easily said no, and we could have filibustered those 
judges, but that was not appropriate. That is not the way to proceed.
  Unfortunately, my time is up. I would like to spend more time on this 
issue. Two of my fine colleagues wish to speak. I think this is the 
essence of the issue we are confronting today. The filibuster is 
symptomatic of it. The essence of it is we are radicalizing the manner 
in which we appoint justices, and we are allowing that radicalization 
to be based on personal beliefs rather than judicial action, which is 
fundamentally wrong.
  Mr. President, I now yield 5 minutes to the Senator from Nevada.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. ENSIGN. Mr. President, that was an excellent statement by the 
Senator from New Hampshire. I wish to go further with some of the 
issues about which he was talking.
  Our Constitution specifically spells out only five instances where a 
supermajority is required and moving to consideration, and approval of 
the President's judicial nominees is not on that list. This list 
includes treaties, impeachment, expulsion of a Senator, overriding a 
Presidential veto, and adoption of a constitutional amendment.
  The spirit of our Constitution should mean something. It is in 
defense of our Constitution that we are taking these 30 hours. It has 
been said we are wasting our time. Defending our Constitution is not 
wasting the Senate's time. It is critical to this Senate.
  What the Senator from New Hampshire was just talking about--the 
Supreme Court nominees for whom he voted, even though they were 
different ideologically from him--if this process is allowed to 
continue, it is going to be 12, we know already, appellate nominees who 
are going to be blocked by filibuster--12 out of 41. If this is allowed 
to continue, we know next year it is going to be worse, and when the 
next Supreme Court nominee comes up, if it is Ruth Bader Ginsburg or 
Breyer or Rehnquist, those people would not be approved in the climate 
in the Senate today. Highly qualified people will not be able to make 
it on to the Supreme Court.
  Do my colleagues know what that is going to do to the process? Good 
people are not even going to be part of the process. When the President 
calls them and says: I would like you to consider this, they are going 
to say: Go see somebody else.
  The Judicial Conference is a nonpartisan entity that acts as the 
principal policymaking body for our court system, and it has declared 
12 judicial emergencies on the circuit court of appeals. The President 
is doing his job by sending us the nominees. It is our time to do our 
job.
  The Ninth Circuit, which serves my home State of Nevada, is the 
largest and busiest circuit court of appeals in this Nation and is also 
the most overturned court in the country. In 2001, it took 30 months in 
the Ninth Circuit for a case to go from original filing in the district 
court to the final decision on appeal. That is 5 months longer than the 
average court of appeals.
  In the Ninth Circuit in the 1996-1997 session in the middle of the 
Clinton Presidency, the Supreme Court found it necessary to review 28 
cases in the Ninth Circuit. Of those 28 cases, it overturned 27 of 
them. By the way, this was one-third of the Supreme Court's docket that 
year.
  We know about some of the outrageous cases in the last year or two 
from the Supreme Court. Let me mention a couple of them. We know the 
Ninth Circuit is the one that is trying to overturn the Pledge of 
Allegiance, saying that God should not basically be part of our country 
or part of our Government, or the name ``God.''
  The Senate took up a resolution which then-Senate majority leader Tom 
Daschle brought to the floor, and every Senator voted to condemn what 
the Ninth Circuit had done. This is the circuit to which Carolyn Kuhl 
is nominated. We need to get good people on the Ninth Circuit. It is 
absolutely critical for us to do that.
  I feel passionately that we need to fix the process. We need to fix 
it for when the Democrats are back in power so that good people get an 
up-or-down vote. They shouldn't be blocked simply for ideology from 
getting an up-or-down vote. If a Senator disagrees with them, vote them 
down, but give them an up-or-down vote. A minority of Senators should 
not be able to block the process for judicial nominees as part of the 
advise and consent clause.
  So let's work together. Let's reach across the aisle and say: Let's 
fix the process. Otherwise, as we go into the future, this tit for tat, 
this payback is going to continue to get worse and worse, and it is 
truly a threat to our constitutional Republic.
  I close with this: We appeal to the other side. We are going to try 
to offer a resolution to fix what is going on here, and we encourage 
them to join us so this doesn't just get worse as the years go by.
  I yield the floor.
  The PRESIDING OFFICER. The Senator has used his 5 minutes. The 
Senator from Texas.
  Mr. CORNYN. Mr. President, may I inquire how much time remains on our 
side?
  The PRESIDING OFFICER. Twelve minutes.
  Mr. CORNYN. Mr. President, I yield myself 7 minutes, and I yield the 
senior Senator from Texas the remaining 5 minutes of our time.
  Mr. President, I have been either in the Chamber or watching the 
Chamber from other parts of this building as this debate has gone 
forward since early last evening. I happened to be watching from my 
office just before I came to the floor most recently when the Senator 
from Iowa, Mr. Harkin, made a couple of comments to which I want to 
respond.
  First, I want to say what I agree with. I agree with him that the 
people who work so diligently in this Chamber and elsewhere, in the 
cloakroom, the people who report what we say for the Congressional 
Record, how much I and the rest of us appreciate their faithful and 
dedicated service. Some of us got a few hours sleep last night. I am 
not sure all of them did. I just want to say for all of us how much we 
appreciate their service.
  There is something else he said that I disagree with very strongly, 
and that is where my colleague from Iowa charged the Republicans in 
this Chamber, the bipartisan majority really--it is not just 
Republicans--but charged those of us who believe this debate is 
important with ``sanctimonious hypocrisy'' for our attempts to uphold 
the Constitution for what we believe to be the unconstitutional 
obstruction of President Bush's nominees.
  There is a lot about this debate that I think folks at home watching 
TV or listening on the radio may have a little bit of trouble getting 
their head around, their brains around, because some of it involves 
arcane rules of the Senate and the Constitution. There is one thing 
that folks back home understand, and they understand hypocrisy, 
sanctimonious and otherwise.
  I think it is worth noting, indeed I think it is important to note, 
comments that have been made by those who are now on the other side of 
this debate, what they said a few short years ago on this very self-
same subject.
  My mother used to say that the test of one's character is whether you 
are

[[Page 28714]]

the same person in public as you are in private, and I think using 
something close to that test, we could ask whether the speeches that a 
Senator gave 5, 6, or 7 years ago are consistent with the position they 
publicly take today.
  In that spirit, I would offer this: On March 1, 1994, the Senator 
from Iowa said: I really believe that the filibuster rules are 
unconstitutional.
  That is the same Senator who accused those of us who believe that the 
same thing he professed in 1994, when he called us sanctimoniously 
hypocritical for what we are doing today--he happened to agree with us 
in 1994 but has obviously changed his position today.
  Senator Lieberman of Connecticut on January 4, 1995, said: The 
filibuster rule, there is no constitutional basis for it. It is in its 
way inconsistent with the Constitution. One might almost say it is an 
amendment to the Constitution by rule of the U.S. Senate.
  Then there was the minority leader, at a time in 1995 when he said: 
The Constitution is straightforward about the few instances in which 
more than a majority of the Congress must vote. The Founders concluded 
that putting such immense power into the hands of a minority ran 
squarely against the democratic principle. Democracy means majority 
rule, not minority gridlock.
  Then there are the comments of the distinguished legal counsel, Lloyd 
Cutler, who served as White House Counsel both to President Carter and 
President Clinton, who said: Nothing would more poorly serve our 
constitutional system than for the nominations to have earned the 
approval of the Senate majority but to be thwarted because the majority 
is denied a chance to vote.
  I would like to agree with the comments made by Senator Lieberman, 
Senator Daschle, Senator Harkin, and Mr. Cutler just a few short years 
ago, but obviously their position has changed, or I should say their 
position has changed because majorities have changed. They find 
themselves in a different posture today than they found themselves in 
then, and it is no longer convenient or expedient for them to claim 
that majority should rule.
  I submit they were right then and they are wrong now. I do not know 
of a nicer way to put it. It is hypocrisy to take inconsistent 
positions based on expedience where they should be made on principle.
  What we are fighting about today is a fundamental principle. My 
colleague from Iowa said he wondered what the moral demarcation line 
was between holds and committee inaction on the one hand and 
filibusters on the other hand. I have an answer for him. I think it is 
a great question. The answer is: The line of moral demarcation is the 
Constitution and majority rule. That is where the moral demarcation 
line is, and there have now been four unconstitutional filibusters.
  The PRESIDING OFFICER. The Senator has consumed the time yielded to 
him.
  Mr. CORNYN. I yield the floor to the senior Senator from Texas.
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. I thank the Senator from Texas, my colleague, for 
being here most of the night, as most of us were, and for carrying this 
debate as a distinguished member of the Judiciary Committee who is 
maybe the only Member of the Senate--I am not sure--he is the only 
Member I know who has been a member of a supreme court of his State, 
Texas, and the attorney general of his State. I am very pleased that he 
has been such an active participant in this debate.
  I wish to talk a little bit about the issue of the filibuster as it 
pertains to judges. We have had a lot of debate about what is a 
filibuster and did one occur, previous to this, a filibuster on a 
judicial nominee.
  Well, there is an argument about one, and that is Justice Abe Fortas 
who was promoted to Chief Justice and was turned down by the Senate. 
``Turned down'' might not be the right words, but whether or not there 
was a filibuster is in debate.
  There is no debate that there have been no other filibusters of 
judicial nominees because Members of both parties have tried very hard 
not to filibuster until 2002 because they know it is the nuclear 
option. Once it starts, it is going to promote partisanship in this 
very important constitutional responsibility.
  I want to read a letter from former Senator Robert Griffin, who was a 
Member of the Senate during the Fortas debate. He quotes an Associated 
Press piece which, in discussing the nomination of Justice Abe Fortas 
to replace Chief Justice Earl Warren, said:

       Republicans filibustered the nomination and Johnson backed 
     off.

  Here are his words:

       Whether intended or not, the inference read by many would 
     be: Since the Republicans filibustered to block Justice 
     Fortas from becoming Chief Justice, it must be all right for 
     the Democrats to filibuster to keep President Bush's nominees 
     off the appellate courts. Having been on the scene in 1968, 
     and having participated in that debate, I see a number of 
     very important differences between what happened then and the 
     situation that confronts the Senate today.
       First of all, four days of debate on a nomination for Chief 
     Justice is hardly a filibuster.

  Now, we are talking about people who have been nominated for over 2 
years, who have had numerous cloture votes. That is a big difference. 
He goes on to say:

       While a few Senators, individually, might have contemplated 
     use of a filibuster, there was no Republican party position 
     that it should be employed. Indeed, the Republican leader of 
     the Senate, Everett Dirksen, publicly expressed his support 
     for the Fortas nomination shortly after the President 
     announced his choice. Opposition in 1968 to the Fortas 
     nomination was not partisan. Some Republicans supported 
     Fortas; and some Democrats opposed him.
       When on October 1, 1968, a vote was taken on the first and 
     only cloture motion, the count was: 45 in favor of the motion 
     [for cloture] and 43 against. Of course, those opposed to the 
     nomination were jubilant, not only because the count fell far 
     short of the \2/3\ then required to impose cloture but, after 
     reviewing the leanings of the absentees, we were more 
     confident than ever that we had, or would achieve, majority 
     support for our position [against Justice Fortas]. Of course, 
     it also demonstrated that the White House could not produce 
     the showing of a majority in favor of the nomination. Even if 
     four days of debate were to be characterized as a filibuster, 
     it could not be claimed that our debate was thwarting the 
     will of the majority. Needless to say, that picture stands in 
     stark contrast with the tactics employed these days by Senate 
     Democrats.

  President Johnson the next day withdrew the nomination.
  The difference here is, there was not a partisan filibuster. There 
was not a majority that could be counted, and if anyone knows former 
Senator Lyndon Johnson, who was President of the United States, they 
know he was a vote counter. The Senator, now President Johnson at the 
time, withdrew the nomination because he did not have the majority vote 
for the nomination. So there has not been this kind of partisan 
filibuster. Both parties have refused to allow it to happen for good 
reason, and I would hope it would end today as well.
  The PRESIDING OFFICER. The majority's time has expired.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, this has been interesting, and I think for 
the public who might be watching, they may want to know what they are 
getting for their $100,000 to $150,000 of taxpayer's money that is 
being spent in this filibuster and those staff members who have lost 
any ability to have time for themselves and their families.
  So I thought I might boil this down to its essence. Have filibusters 
been used before on Executive Calendar nominees, including judicial 
nominees to the lower courts, as well as to the Supreme Court? Of 
course they have. No matter how much my friends on the other side say 
no, of course they have. They know that.
  The Congressional Record is open for all to read, and we do not even 
have to go back to ancient history for this. Three years ago, there 
were even two simultaneous Republican filibusters on the Senate floor 
against Richard Paez and Marsha Berzon, two of President Clinton's 
nominees. In fact, here is a list of Republican filibusters of 
nominees. It is a pretty long list.
  I do not think we have to remind our friends on the other side of the 
aisle

[[Page 28715]]

about the dozens more that were blocked not through votes in the open, 
on the Senate floor, but through holds by anonymous Republican 
Senators. In fact, these were filibusters by one or more anonymous 
Republicans. If one or more Republicans objected to one of President 
Clinton's nominees, they never got a vote. They never got on the floor. 
They never got out of committee. One actually did get out, and then by 
a party line vote he was voted down. That was the African-American 
chief justice of the Missouri Supreme Court.
  So what happened in these one-person anonymous filibusters by the 
Republicans? Not 4 people being held up, it was 63 of President 
Clinton's nominees. Sixty-three of President Clinton's nominees were 
blocked by the Republicans by a one-person anonymous filibuster.
  So are filibusters, including judicial nominees, rare? Sure, they 
are. And, incidentally, these are the Clinton circuit court nominees 
blocked by the Republicans during 1995 to the year 2000. As we can see, 
it is a pretty large number: James Beatty, Rich Leonard, Jorge Rangel, 
Robert Raymar, Barry Goode, Alston Johnson, James Duffy, Elena Kagen, 
James Wynn, Kathleen McCree Lewis, Enrique Moreno, James Lyons, Allen 
Snyder, Kent Markus, Robert Cindrich, Stephen Orlofsky, Roger Gregory, 
Christine Arguello, Elizabeth Gibson, Bonnie Campbell, Andre Davis, 
Richard Paez, Marsha Berzon, H. Lee Sarokin, and Rosemary Barkett.
  The Senate's rules are intended to protect against abuses by the 
majority that at any given time controls the Senate. I have been here 
eight times in the majority, eight times in the minority. So the 
majority and minority go back and forth all the time. In this case, the 
Senate's rules protect against abuses of power--we have a system of 
checks and balance--especially by a White House that is so bent on 
controlling all the levels of power. They even want the Senate to 
change their rules, rules that have governed this body for over 200 
years.
  Now, should filibusters be used sparingly? Of course. And they have 
been used sparingly. But unlike the times of the recent Republican 
filibusters where 63 of President Clinton's nominees were stopped, we 
have used this very sparingly against a President who wants to run 
roughshod over other safeguards built into our system of government and 
into the very rules and practices of the Senate and its committees.
  By using it sparingly, all this talk--you know, it is almost ironic 
to see my Republican friends with a straight face say how terrible this 
is and spend $150,000 or so of the taxpayers' money to tell us how 
terrible this is, after they stopped, by using 1-person filibusters, 63 
of President Clinton's nominees.
  Let us put the chart up there, if we might. Here is what we have 
done. We did not stop 63, as they did. We have stopped four. We have 
confirmed 168, and we stopped 4. There is even a T-shirt floating 
around which says: We confirmed 168 of President Bush's nominees and 
what did we get for it? When you look at the back, it says: All I got 
was this lousy T-shirt.
  So this year, with breathtaking arrogance and a certain disdain for 
the past and certainly an unwillingness to be honest about the history 
of the Senate, we have seen a systematic dismantling of the Judiciary 
Committee's own rules. One by one, Republican majorities have changed, 
bent, and even broken the longstanding rules and practices that are 
intended to protect the rights of Senators to defend the rights of 
their States and their constituencies. These are the very same rules 
they used--some would say abused--when there was a Democratic 
President.
  Would filibusters be necessary at all if the President lived up to 
the Constitution's injunction that he seek not only the Senate's 
consent but also its advice in selecting candidates for the independent 
Federal judiciary? Remember, the Federal judiciary is not supposed to 
be an arm of the Republican Party or the Democratic Party. Of course, 
it is supposed to be independent. It is a real question: Is there a 
clear way forward without the need to prevent the confirmation of any 
judicial nominee? The President has the ability to stop all of this. 
None of this impasse would be necessary if the President actually 
followed advice and consent.
  If the President did what other Presidents of both parties have done, 
where they have tried to be a uniter, not a divider, if the President, 
who has declared his disdain for what he calls judicial activism, had 
nominated people who were not judicial activists, if he had tried to 
unite and not divide, none of this would be happening.
  Instead of working with the Senate to name mainstream nominees to our 
courts, he has chosen instead to try to politicize the courts. He and 
his aides have unabashedly declared that they are out to remake the 
federal judiciary in the image of ideological activism. Our courts are 
foundational to our system. Our independent judiciary is the envy of 
the entire world.
  In deference to groups on the far right, he has nominated judicial 
activists who cannot help but raise questions about their impartiality 
and their capability to administer justice for all.
  What we need is an independent judiciary. Time and again, Democratic 
Senators have acted in good faith to fill vacancies that Republicans 
kept open for years when there was a Democratic President. Time and 
again they have blocked, by one or two anonymous Republican holds, 
Democratic nominees of President Clinton's from going forward.
  We have filled those. That is why we are able to get 168 of the 
President's nominees through. We have stopped four. Come on. Is this 
worth spending the taxpayers' money? Perhaps not. Maybe, though, they 
believe it is worth it to send out fundraising letters.
  The public's priorities v. the Republican leadership's priorities: 
During this 30-hour talkathon, the Republican leadership of the Senate 
again is following a script laid out for it by a White House intent on 
bending all other branches of government to its will. This is a White 
House intent on establishing some sort of unitary government and intent 
on removing the checks and balances among our three branches of 
government that are a foundation of the American system. In furtherance 
of this script, in these rare final hours of this year's legislative 
session, the Republican leadership has decided to abandon work on the 
real priorities of the American people. They are obstructing those 
priorities, in favor of repetitive speeches about promoting these four 
controversial nominees to lifetime positions as federal judges--four 
people who already have good, well-paying jobs--is more important than 
the three million Americans who have been struggling to find any jobs 
at all.
  The Republican leadership has already overshot the Senate's 
adjournment date by more than a month. We have already had to enact 
three continuing resolutions to keep the Federal Government operating 
because the appropriations bills that the Congress needs to pass have 
not been enacted. It is now more than five weeks after the fiscal year 
began and we should have completed all 13 appropriations bills, but the 
Republican Congress has enacted a total of only four out of 13.
  The remaining annual appropriations bills include the funds that go 
to improve our schools. The funds that NIH uses to advance our medical 
knowledge in fighting disease and illness. The resources used by EPA to 
enforce our clean air and water laws. They include appropriations for 
our veterans and for law enforcement.
  Yesterday evening as the Republicans gathered to accommodate the 
programming requests of a certain television network, the senior 
Senator from West Virginia was trying to get the Senate to do its work. 
Senator Byrd, as the ranking Democrat on the Appropriations Committee, 
was searching for the Republican leader and urging the Senate to 
complete its work on the appropriations bill that funds services for 
our military veterans. He asked that the Senate continue that work so 
that we could finish Senate consideration of this important bill

[[Page 28716]]

and proposed that we do so in just two hours. The Republican leadership 
objected. He renewed his request when the Republican leader did appear 
on the floor but was, again, rebuffed by Republican objection. Those 
few minutes may turn out to be the most telling of this entire so-
called debate. Republicans chose to sacrifice the work of the Senate, 
the priorities of the American people and the interests of our veterans 
to a partisan political stunt.
  In one of their many press conferences on this diversion, on November 
6, the Republican leader committed to ``complete the appropriations 
process'' before beginning this charade. Even the junior Senator from 
Pennsylvania, agreed with that and said: ``The leader's right. What 
we're about to embark in next week, after the appropriations process 
has run its course, is to enter into a debate. . . .'' Well, when given 
the chance to honor that commitment last night, the Republican caucus 
chose partisan theater over the work of the Senate.
  There is the unfinished business of providing a real prescription 
drug benefit for seniors. There is the Nation's unemployment and lack 
of job opportunities that confound so many American families. With 
millions of Americans having lost their jobs in the last three years, 
the Republican Senate is, instead, insisting on spending these final 
days of this session on a handful of highly controversial judicial 
nominations that divide the Senate and the American people and ignoring 
the needs of the almost 10 million Americans who are out of work, 
including those more than three million Americans who have lost their 
jobs since President Bush took office.
  There are the corporate and Wall Street scandals that concern so many 
of those who have invested and placed their trust and financial 
security at risk in our securities markets. While we are listening to 
Republicans pontificate about a handful of highly controversial 
judicial nominees, some Republican has an anonymous hold on S. 1293, 
the Criminal Spam Act of 2003. This is a bipartisan bill that can do 
something about the worst spam abuses. Earlier this week, the 
Washington Times reported that spam is doing more damage to our economy 
than hackers or viruses. A few weeks ago the entire Senate joined in 
adopting a version of S. 1293 to the Burns-Wyden bill and we joined to 
pass that bill. Now some Republican has turned around and under cover 
of anonymity is holding up the bipartisan bill that can be enacted 
before adjournment this year that can stem the tide against the worst 
abuses and fraudulent conduct that is gumming up our internet economy 
and communications. This is the type of anonymous Republican hold that 
was likewise responsible for holding up more than 60 of President 
Clinton's qualified nominees to the federal judiciary from 1995 through 
2001.
  There is the need for Congress to continue the federal highway 
programs that build and repair our roads and highways and bridges. 
There is the need to perform real oversight of the U.S.A. PATRIOT Act 
and to provide real oversight for the war in Iraq. Just as Republicans 
objected to the Senate Judiciary Committee investigating the factors 
that led to September 11, Republicans are now objecting and preventing 
a full investigation by the Select Intelligence Committee of what led 
the Bush administration to contend that Saddam Hussein had weapons of 
mass destruction and was about to use them against the United States 
and that we had to embark earlier this year on a preemptive war.
  Nor has the Senate taken any action on the misrepresentations made to 
us by Bush administration officials about their efforts to gut Clean 
Air Act enforcement. When they appeared and testified before us, they 
declared that their policies would not affect enforcement of the Clean 
Air Act and ongoing cases. Over the last two weeks we have seen how far 
from the truth that testimony was.
  For the last three years this Administration has run roughshod over 
environmental protection and the Republican Senate has done nothing to 
stem the tide. They have catered to special interests in rolling back 
protections for clean water, clean air, toxic cleanups and public 
health. The Senate should be focusing attention on these attacks upon 
the environment and these rollbacks, but nothing could be farther from 
the agenda of the Republican Senate leadership.
  Forty-two environmental rollbacks by the Bush administration that 
have been announced on Friday is the number the Senate should be 
working on. There have now been more environmental rollbacks than there 
are vacancies throughout the entire federal judiciary. The Bush 
administration's announcement that they are halting enforcement actions 
against industrial polluters under the New Source Review provision of 
the Clean Air Act flatly contradicts the assurances by Justice and EPA 
officials to the Senate last year. The toxic pollutants that will cause 
asthma and heart disease for our children and grandchildren is 
apparently of little interest to the Republican leadership of the 
Senate. That would be worthy of serious inquiry, debate and Senate 
action.
  Last week the House passed by an overwhelming bipartisan margin the 
Advancing Justice through DNA Technology Act of 2003, H.R. 3214. This 
landmark legislation provides law enforcement with the training and 
equipment required to effectively, and accurately, fight crime in the 
21st Century. More specifically, the bill would enact the President's 
DNA Initiative, which authorizes more than $1 billion over the next 
five years to eliminate the backlog crisis in the nation's crime labs, 
and to fund other DNA-related programs. It also includes the Innocence 
Protection Act, a death penalty reform effort I launched three years 
ago with Senators and Congressmen on both sides of the aisle.
  The House vote was a major breakthrough in finding solutions to the 
flaws in our justice system. I understand that Republican Senators are 
now blocking action on the bill in the Senate. This bill is the result 
of extensive, exhaustive negotiations among Democratic and Republican 
leaders in the House and the Senate. It has broad support, both in the 
Congress and across the country and deserves the Senate's immediate 
attention and passage.
  We have shown that the death penalty system is broken, we know that 
the reforms in this bill will help, and we know that every day we delay 
action may be another day on death row for some innocent people. These 
mistakes in our system of justice carry a high personal and social 
price. They undermine the public's confidence in our judicial system, 
they produce unbearable anguish for innocent people and their families 
and for the victims of these crimes, and they compromise public safety 
because for every wrongly convicted person, there is a real criminal 
who may still be roaming the streets. This matter is also being stalled 
by Senate Republican inaction.
  The Senate has yet to take up the Anthrax Victims Fund Fairness Act 
of 2003, S. 1740, which Senator Daschle and I introduced with a number 
of other Senators because we are concerned that the citizens harmed by 
the anthrax letters addressed to Senator Daschle and to me in October 
2001 are the forgotten victims of the aftermath of September 11. They, 
too, should have access to the Victim Compensation Fund. The Senate has 
yet to consider the September 11th Victim Compensation Fund Extension 
Act, S. 1602, which must be passed before we adjourn or hundreds of 
families who suffered on 9/11 will likely be left out in the cold 
without the compensation Congress and the American people intended to 
provide. Nothing will take away the pain and loss of September 11 and 
its aftermath for the victims but we owe them the Senate's attention 
before we adjourn.
  New rules for Republican nominees: Rather than consider those 
important matters, why would the Republican leadership insist on 
rehashing the debate on the handful of judicial nominees on which 
further Senate action is unlikely? When they were considering the 
judicial nominees of a Democratic President in the years 1995 through 
2000, they showed no concern about

[[Page 28717]]

stranding more than 60 of President Clinton's judicial nominations 
without hearings or votes. They did not demand an up or down vote on 
every nominee but were content to use anonymous holds to scuttle scores 
of qualified nominees. Indeed, they stood cavalierly by while vacancies 
rose from 65 in January 1995 to 110 when Democrats assumed Senate 
leadership in the summer of 2001. They presided over the doubling of 
circuit court vacancies from 16 to 33 during that time.
  Indeed, the Republican leader at that time famously came to the 
Senate floor to defiantly declare that the Senate had confirmed too 
many of President Clinton's judicial nominees as far as he was 
concerned. That was when the Senate was considering less than half as 
many judicial nominees and had more than twice as many judicial 
vacancies as there are today. During those days the Republican leader 
said he only had one regret, one apology regarding his obstruction of 
President Clinton's judicial nominees: ``I probably moved too many 
already.'' Four years ago, toward the end of the third year of 
President Clinton's term, a year in which only 34 judges were 
confirmed, the Republican leader left no doubt that Republicans and the 
Republican leadership were unrepentant about their delays and 
obstruction of scores of qualified judicial nominees when he 
proclaimed: ``Getting more federal judges is not what I came here to 
do.'' That Republican leader would not schedule votes on President 
Clinton's judicial nominees when vacancies were much higher and growing 
in the summer of 2000 and, ironically, sought to use appropriations 
bills as an excuse. The Senator from Mississippi said: ``[S]pending 
bills must move first. . . . . Until we get 12 appropriations bills 
done, there is no way any judge, of any kind, or any stripe, will be 
confirmed.'' Of course, now the Republican caucus shows little interest 
in completing the Senate's work on appropriation bills, even though we 
are no longer in the summer but four months later in the year, well 
past the deadline and already into the next fiscal year without having 
even had the Senate initially consider these fundamental legislative 
matters. As I have noted, just last evening the Republican leadership 
rebuffed Democratic efforts to complete action on appropriations for 
our veterans, which could have been done in two hours.
  In those years, the Republican chair of the Senate Judiciary 
Committee repeatedly argued that 67 vacancies in the federal judiciary 
was ``full employment'' as far as he was concerned. He wrote in USA 
Today in September 1997, when there were more than 100 judicial 
vacancies, that there was no judicial vacancy crisis and that the 742 
active judges were sufficient. Over the last three years, Democrats 
have cooperated in confirming 168 judges nominated by this President, 
including 68 this year; we have reduced judicial vacancies on an 
expanded federal judiciary to 40; and we have 837 active judges, the 
most in U.S. history. We have 40 percent fewer vacancies than what 
Republicans used to call ``full employment'' for the federal judiciary 
and almost 100 more active judges than just a few years ago when 
Republicans were content to delay and obstruct President Clinton's 
nominees and argue that there was no problem.
  So why do Republican partisans insist that the Senate now devote its 
time to rehashing the debate on some of this President's most 
controversial nominees to the independent federal judiciary? Is it 
merely coincidence that the Republican leadership has chosen to 
schedule these proceedings for the week of the Federalist Society's 
National Convention in Washington? Perhaps this is to give Republicans 
the opportunity to preen and posture while such an important segment of 
their base activists are in town. Perhaps it is to give the Republican 
leadership another chance to make false arguments about judicial 
nominations. Perhaps it is to give some a platform for baseless and 
McCarthyite accusations against Democratic Senators. Or perhaps it is 
to distract from the real concerns that affect Americans every day. 
Newspapers this week report that this exercise is precipitated because 
of a ``brewing rebellion by conservative activists.'' Reportedly 
partisan diehards ``are accusing the Senate GOP leaders of going too 
easy'' and apparently when Republicans appear on conservative radio 
talk shows ``they are often barraged with questions'' about why the GOP 
is not successfully ramming every judicial nominee through the Senate 
that they control. Apparently this dissatisfaction has even begun to 
affect Republican fundraising and, according to the Washington Post, 
``a recent mailing [by a conservative group] to raise money for 
candidates yielded empty envelopes'' from those who had formerly 
contributed. Let us hope that this is not the real reason for this 
grandstanding. Let us hope that when something begins to affect 
Republican fundraising, it is elevated to the top of the agenda--the 
public, the responsibilities of the Senate be dashed.
  Mr. President, 168 nominees have been confirmed. If the Republican 
leadership has staged this vote in order to try to persuade the 
American people that Democrats are obstructing the President's judicial 
nominees, they are going to have to stray far from the facts, because 
the facts show that the Senate has made dramatic progress on judicial 
vacancies when and where the Administration has been willing to work 
with the Senate. Indeed, last week the Senate confirmed the 168th of 
this President's judicial nominees 100 of them, confirmed by the 
previous Democratic-controlled Senate, in just 17 months. We could 
confirm several more if the Republican leadership would just schedule 
the votes. There are other nominees who were reported unanimously by 
the Judiciary Committee and are just waiting to be confirmed. The 
number of confirmations could easily total 170 or more if the 
Republican leadership were truly interested in filling vacancies. Of 
course, more progress might undercut the partisan message that some are 
trying to peddle. Maybe that is why for weeks at a time the Republican 
leadership in the Senate has repeatedly refused to schedule votes on 
judicial nominees who will be approved, and have chosen is choosing, 
instead, to focus on the handful of the President's most extreme and 
divisive nominees.
  The truth is that in less than three years' time, the number of 
President Bush's judicial nominees the Senate has confirmed has 
exceeded the number of judicial nominees confirmed for President 
Reagan, the ``all time champ'' at getting Federal judges confirmed, in 
all 4 years of his first term in office. A handful of the most extreme 
and controversial nominations have been denied consent by this Senate 
in the proper exercise of its duties under the rules. Only four. One-
hundred-sixty-eight to four. That is in stark contrast to the more than 
60 judicial nominees from President Clinton who were blocked by a 
Republican-led Senate.
  McCarthyite smears: If this show is being staged to give some a 
platform for repulsive smears that Democrats are opposing nominees 
because of their religion, Republicans will have entered a realm of 
demagoguery, repeating false allegations and innuendo often enough to 
hope that some of their mud will stick.
  Before they do that again, I would refer them to what the 
distinguished Senator from Louisiana, Ms. Landrieu, said this morning, 
because if this was not almost ridiculously contrary to the facts, 
there is one part in this whole debate that should be troublesome to 
both Republican and Democratic Senators, and that is the religious 
McCarthyism that has crept into this debate. The distinguished 
predecessor of mine, Ralph Flanders of Vermont, stood up on this floor 
and brought a halt to a member of his own party, Senator Joseph 
McCarthy, because of the smears he was making, the unsubstantiated 
smears he was making on people. Now, some of my friends on the right 
and some of my friends in the Republican Party have been making this 
smear. They are saying if you are opposed to these people, you are 
anti-Catholic or anti-Christian. If it was not so hurtful it would be 
humorous.
  I first heard this when a radio talk show said I was anti-family, 
anti-

[[Page 28718]]

Catholic. On Sunday morning, they asked my press secretary about it. He 
said: The Senator did not hear it because he was at mass with his wife 
of 41 years.
  We should not sink to something that we know is not so. Slanderous 
accusations have already been made by Republican Senators, and ads run 
by a group headed by the President's father's former White House 
counsel and a group whose funding includes money raised by Republican 
Senators and even by the President's family when they falsely claimed 
that judicial nominees were being opposed because of their religion. 
These contentions are despicable and unfounded. Other Republican 
members of the Judiciary Committee and of the Senate have either stood 
mute in the face of these McCarthyite charges, or, worse, have fed the 
flames. Such accusations are harmful to the Senate and to the Nation 
and have no place in this debate or anywhere else.
  Just a few weeks ago, President Bush rightly told the Prime Minister 
of Malaysia that his inflammatory remarks about religion were ``wrong 
and divisive.'' He should say the same to members of his own party. 
Today, Republican Senators have another chance to do what they have not 
yet done and what this Administration has not yet done: Disavow this 
campaign of division waged by those who would misuse religion, race and 
gender by playing wedge politics with it. I hope that the Republican 
leadership of the Senate will finally disavow the contention that any 
Senator is being motivated in any way by religious bigotry or for 
racial or gender-based reasons.
  This week rumor is that the Republican public relations machine will 
be cranking overtime to try to make Democratic Senators appear anti-
woman. Led by Senators Mikulski, Feinstein, Boxer, Murray, Landrieu, 
Lincoln, Cantwell, Clinton, and Stabenow, it is hard to see how 
Democrats can be subjected to such allegations with a straight face, 
but that is what the rumor is.
  The facts are that under Democratic leadership, the Senate confirmed 
100 judicial nominees, including 21 women, nominated by President Bush 
in just 17 months, including four to our Courts of Appeal. During the 
107th Congress, President Bush nominated only 18 women to district 
court seats, out of 98 district court nominees (18 percent), and only 8 
women to circuit courts out of 32 circuit court nominees (25 percent). 
This year Democrats have supported the confirmation of 12 additional 
women nominated to the Federal bench, including three to our Courts of 
Appeal. This President's nominees have included only one woman in each 
five judicial nominees. The 33 women judges confirmed represent 20 
percent of the 168 judges confirmed.
  By contrast, nearly one of every three of President Clinton's judges 
are women. Of course, the Republicans who controlled the Senate and the 
Judiciary Committee during the Clinton Administration also blocked 18 
women nominated to Federal judgeships by President Clinton. Women who 
were blocked from getting Senate action on their judicial nominations 
include Kathleen McCree-Lewis, Elena Kagen, Elizabeth Gibson, Helen 
White, Christine Arguello, and Bonnie Campbell, all of whom were 
nominated to the circuit courts. These six outstanding women lawyers 
were not extreme or ideologues. They were outstandingly qualified women 
lawyers whose nominations were blocked anonymously by Republican 
Senators, without explanation, without a vote, without accountability.
  Records of activism: On important issues to the American people--the 
environment, voting rights, women's rights, gay rights, Federalism, 
privacy rights, equal rights, civil rights and more--too many of this 
President's nominees have records of activism and advocacy. That is 
their right as American citizens, but that does not make them qualified 
to be judges. As a judge it would be their duty to impartially hear and 
weigh the evidence and to impart just and fair decisions to all who 
come before the court. In their hands, we entrust to the judges in our 
independent Federal judiciary the rights that all of us are entitled to 
enjoy through our birthright as Americans.
  The President has said he is against what he calls ``judicial 
activism.'' How ironic, then, that he has chosen several of the most 
committed and opinionated judicial activists ever to be nominated to 
our courts.
  The question posed by his controversial nominations is not whether 
they are skilled and capable advocates. The question is whether--not 
for a 2 year term, or a 6 year term, but for a lifetime--they would be 
fair and impartial judges. Could every person whose rights or whose 
life, liberty or livelihood were at issue before their courts, have 
faith in being fairly heard? The President has chosen to divide the 
American people and the Senate with his highly controversial 
nominations. If Republicans want to clean the slate and start fresh, we 
should do so with nominees who unite the American people, nominees who 
can be supported by a strong bipartisan majority in the Senate.
  We are also hearing the claim by Republicans that the filibuster of a 
judicial nomination in unprecedented. Republicans themselves 
filibustered the nominations of Judge Richard Paez and Marsha Berzon as 
recently as 2000. They previously filibustered the nominations of Judge 
Rosemary Barkett and Judge H. Lee Sarokin. Of course, while in the 
majority, Republicans took full advantage of the secret hold and of 
their control of the agenda to prevent a vote on 63 nominations by not 
scheduling hearings and votes on them. Many of those now claiming that 
Senate filibusters are unprecedented participated in them and voted 
against cloture just a few years ago.
  Indeed, as the Senate's own website notes in an articled entitled 
``Filibuster Derails Supreme Court Appointment,'' the 1968 nomination 
of Abe Fortas to be Chief Justice was filibustered with the help of 
Republicans: ``Although the committee recommended confirmation, floor 
consideration sparked the first filibuster in Senate history on a 
Supreme Court nomination.'' The attempt at cloture on the Fortas 
nomination was rejected by the Senate.
  In addition, Republican Senators turned the filibuster of President 
Clinton's nominees and of legislation into a destructive art form. A 
nomination to be Surgeon General, Dr. Henry Foster, was defeated by a 
Republican filibuster, ambassadorial nominations were filibustered and 
bill and bill was filibustered as Republicans obstructed the work of 
the Senate and the legislative agenda. For Republicans to claim foul 
now, after their use of the filibuster tactic, may earn them the 
political equivalent of an Oscar, Tony or Grammy.
  For 3 years I have asked the President and Senate Republicans to join 
with us to fill the vacancies on the Federal courts with qualified, 
fair, nonideological judges. Democrats have bent over backwards to 
support a record number of nominees. When the White House will work 
with all Senators, we have been able to identify and confirm judges 
quickly and by consensus. When the President has chosen to select 
ideological activists and try to pack the courts, we have opposed a 
handful of his most extreme nominees.
  The Federal courts should not be an arm of the Republican Party, nor 
should they be an arm of the Democratic Party. The Senate should 
continue to honor its constitutional responsibilities to this third 
branch of our Federal government and to the American people whose 
rights are protected by our Federal courts. No President, with or 
without the complicity of any current majority in the Senate, can be 
allowed to relegate the Senate to the role of rubber stamp.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. CLINTON. Mr. President, I thank the Senator from Vermont for his 
exemplary leadership on these issues. During a very difficult time in 
the Senate's history, he has continued to deal with the challenges and 
criticism in his usual humorous, self-deprecating way. It is a real 
example for all Members.
  I, like many of my colleagues, have been following this debate not 
just for

[[Page 28719]]

the last hours but for the last months. It is troubling for the two 
views being presented here to be so diametrically opposed about what 
the history is, what the facts are, what the law is, what the 
Constitution says and demands.
  My friends on the other side of the aisle have chosen this 
opportunity to try to garner public attention for their perspective, 
which is that somehow the Democrats, acting in what we believe is the 
highest sense of duty, our understanding of the Constitution and the 
law, have drawn a line. We have seen this hour after hour now in the 
Senate, in the big chart that says 168. That is how many of the 
President's nominees have already been confirmed. Those men and women 
are sitting on our Federal benches. They are making decisions that 
affect our lives. I voted for virtually all of them. They would not 
have been my choices. I would not have nominated some of these people 
in that 168 number, but they passed the test. They passed the test of 
judicious temperament. They passed the test of being people who 
understood the critical role of what it meant to be a judge in a free 
society like ours.
  So what is this really about? We got some hints from some of our 
colleagues on the other side of the aisle. This is about trying to gain 
political partisan advantage and also increase fundraising. I was 
amused to read a story about how some of their more extreme supporters 
sent back empty envelopes when solicited for funding for the Republican 
Senate campaign committee. Those contributors said: You are not tough 
enough. You need to make a big issue out of it.
  So, in obedience, the Republican leadership decided to do that. That 
is their choice. They can dominate the floor on whatever issue they 
choose. It is a shame they keep the attention on this issue to the 
exclusion of so many other important issues such as the economy, 
education, homeland security, what is happening in Iraq, and should 
happen. But that is their choice. That says a lot about their 
priorities as they respond to the music played by the most extreme of 
their privileged contributors.
  It is somewhat disquieting for those who have a memory longer than 24 
hours, or longer even than 2\1/2\ years, to see the distortions that 
have been presented with great passion and conviction. But, 
nevertheless, beating on the table does not necessarily mean what you 
are saying is true.
  I am concerned, too, about the misleading way that the treatment of 
nominees during the Clinton administration has become a mantra on the 
other side of the aisle. I think 168 to 4 shows the Democrats in the 
Judiciary Committee and here on the Senate floor have shown great 
deference, 98 percent deference to the President's nominees and the 
will of the majority. That is certainly not something that nominees by 
President Clinton or the Democrats on the Judiciary Committee and in 
this body received when the shoe was on the other foot.
  I am a little bewildered by this because time and time again my 
friends on the other side overlook the history of how extremely 
qualified men and women from all walks of life, all races and ethnic 
backgrounds, were treated under the Clinton administration.
  The other side suggests that there were no mistreatments because 
there were so few, if any, filibusters. That is what they claim. Here 
are the pictures of the circuit court nominees blocked by Republicans. 
I know many of these people personally. I have the same feelings about 
them that I know some of my colleagues on the other side have about the 
nominees from their State. I know what they and their families have 
been put through for months, for years. And why was that? Because the 
way they were treated was done essentially in secret.
  I give the other side great credit. They did not come out in the open 
like we are. They did not come out and debate the merits and demerits 
of the nominees from the current administration. What happened is, 
these distinguished men and women never even got a hearing. They never 
got to appear before a committee in most cases. They never got a vote 
out of a committee. The Judiciary Committee, under Republican 
leadership, became a judge buster. You could not get out of the 
committee. You could not get to the Senate floor. So, of course, there 
could not be a filibuster because they never had the opportunity.
  I have a little chart that shows the difference in how nominees were 
treated, that clearly demonstrates we had 63 nominees, 23 circuit court 
nominees, 40 district court nominees. They are represented by apples on 
my chart. We grow a lot of apples in New York so I am partial to 
apples.
  These 63 well-qualified, distinguished lawyers and judges were 
stiffed. They were not even given, in many instances, the decency of a 
committee hearing. They were left hanging out there, twisting in the 
wind, by a Republican majority that decided: We do not want to have to 
stand up and say why we will not confirm these people because if we 
have to talk about it publicly, everyone will see through us and it 
will be demonstrated conclusively that this is not about the 
Constitution or the law. This is about blocking well-qualified nominees 
from a Democratic President from having lifetime tenure on the Federal 
bench.
  So, 63 qualified people were blocked. We have blocked 4 for a variety 
of reasons. We have been publicly willing to go on the record and say, 
for the world to hear, they are lemons. We cannot support these people. 
They do not have the temperament, the quality that should sit on the 
Federal bench.
  I find this sad. That is the word I would use. Neutral, nonpartisan 
experts agree that the Clinton administration judicial nominees were, 
by and large, moderate, accomplished, excellent choices. What are we 
given? We are given four people who, for a variety of reasons, are just 
waving red flags. I understand that. This is not about confirming 
judges. This is about exciting a base. This is about scoring political 
points. This is about raking the money in. I can imagine the phones are 
ringing over at the Republican Senate campaign headquarters. They are 
making so much money today because they have their hard-core base 
sending those dollars in. Keep standing up there, keep fighting. But I 
venture a guess that even a majority of those folks do not know the 
facts. They certainly are not going to get it from what is said on the 
other side of the aisle.
  It is sad, it is kind of heart breaking, actually. We had an 
opportunity during the 8 years of the Clinton administration to 
nominate 63 well-qualified people, none of whom were given the decency 
of fair treatment. It was done under the cloak of secrecy. It was done 
behind closed doors. It was done with anonymous holds. It was done with 
no committee hearing being scheduled. You can go through the individual 
accomplishments of these people, and it is stunning how well qualified 
they were. You can look at the names. I know many of these people. 
Republicans blocked 15 times more judicial nominees of President 
Clinton than have been blocked here. It has been a little difficult for 
many on this side of the aisle to explain to our constituents why we 
did not block more of them. A lot of the people who got through in that 
168 were people many Members would prefer not to be on the bench, but 
we could not stand up in public and say why we would vote against this 
person, so we voted for them. When it comes to the four we blocked, we 
have more than ample reason.
  I regret the majority has chosen to politicize this important 
process. I regret that they have chosen to ignore history and to 
distort the facts. I regret they would decide to spend time on these 
matters instead of the many important issues that confront our Nation 
and our world. We have a lot of big challenges around the world. I am 
personally concerned about what is happening in Iraq, what is happening 
in Afghanistan. I wrote to the Secretary of Defense yesterday because 
of reports about potential threats from al-Qaida to hijack cargo 
aircraft and fly them into nuclear powerplants. We have a lot of very 
difficult issues facing us. But instead, my friends on the other side 
want to rewrite history, want to ignore the well-qualified people they

[[Page 28720]]

blocked through every maneuver, faint, and incredible behind-the-scenes 
stealth they could come up with.
  I will now yield the remaining time on our half hour to my good 
friend and colleague, Senator Schumer, who has been a champion on this 
issue.


                   Unanimous Consent Request--S. 1853

  Mrs. CLINTON. Before I yield, I ask unanimous consent the Senate 
proceed to legislative session, the Finance Committee be discharged 
from further consideration of S. 1853, a bill to extend unemployment 
insurance benefits for dislocated, displaced workers; that the Senate 
proceed to its immediate consideration, the bill be read the third time 
and passed, and motion to reconsider be laid upon the table.
  Mrs. HUTCHISON. Mr. President, reserving the right to object, I ask 
consent that the Senator modify her request so that just prior to 
proceeding as requested, the three cloture votes be vitiated, the 
Senate would then immediately proceed to three consecutive votes on the 
confirmation of the nominations, with no intervening action or debate.
  The PRESIDING OFFICER. Will the Senator from New York modify her 
request?
  Mrs. CLINTON. No, Mr. President.
  Mrs. HUTCHISON. Then I object.
  Mr. REID. Mr. President, before the junior Senator from New York 
speaks, I want to spread on the record the entire Democratic Caucus's 
appreciation for his stalwart service during the last many hours. The 
Senator has been here now for his fifth shift. On behalf of all the 
caucus, I extend my appreciation.


                       Unanimous Consent Request

  Mr. REID. I ask unanimous consent the Senate stand in recess today 
from 4:15 to 5:15 so we can all go upstairs and find out what is 
happening from Ambassador Bremer, our No. 1 person in Iraq on the war 
in Iraq. It seems to me the fact that we talked 23 hours instead of 24 
hours should not have any bearing on the outcome of the proceedings, 
but it would help every Senator, Democratic and Republican, to be able 
to give their full attention to the proceedings in the secret room 
upstairs. I so move.
  Mrs. HUTCHISON. Mr. President, reserving the right to object, I 
certainly understand the sentiments of the distinguished deputy leader. 
We do all want to be able to do that, and we will be able to go in 
shifts. All Members are very interested in what is going on and very 
pleased that there is action by the United States to make sure that we 
do everything possible for the stability of Iraq. But we are in a very 
important debate. We are debating a constitutional issue. I would have 
to object.
  The PRESIDING OFFICER. The objection is heard.
  The Senator from New York.
  Mr. SCHUMER. Mr. President, I thank all of my colleagues for the 
debate. I repeat something I have repeated in the five other times I 
have been here. We have had a lot of talk, a lot of palaver. But this 
one sign, this one chart is more persuasive than everything that has 
been said. No one, except a far-right militant, extreme minority, 
believes that the courts are obstructed when 168 judges are approved 
and four are not approved. Say whatever you will, that fact is 
transcendent. That fact is dominant.
  I thank my colleagues on the other side for giving us the opportunity 
to repeat it over and over.
  Now, we have been engaged in a lot of sophistry, a lot of arguments 
that do not make a difference. The lead argument is that there should 
not be filibusters. Last night, I talked at some length about all the 
filibusters that have gone on before. By the way, if you believe that 
the Constitution prohibits filibusters, you certainly believe it 
prohibits them not only for the judicial branch but the executive 
branch. Of course, that would be interpreting the Constitution because 
there are no words in there that say it. So my colleagues on the other 
side who are so worried about those who expand the law are doing it 
themselves.
  I make another point today. We have heard this morning a little bit 
of a shift in the themes from my colleagues. Majority should rule. Just 
give them a vote. That is all we want, they say. If we want to give 
every nominee a vote, how is it different preventing the vote by 
speaking on the Senate floor or preventing the vote by refusing to 
bring the nominee up in the committee?
  Did Annabelle Rodriguez get a vote? All she wanted was a majority 
vote. No. Did Clarence Sundram or John Bingler or Robert Freedberg or 
Lynette Norton or Legrome Davis or Robert Raymar or Robert Cindrich or 
Stephen Orlofsky get a vote? Nope, these are President Clinton nominees 
who were not brought before the committee.
  What is the rule? That when the President nominates someone, all the 
other side is saying is, majority vote. Here is a list of 63 people who 
did not get that majority vote. If the Constitution is telling us every 
nominee should get a majority vote, why didn't it apply to these 63 as 
well as those 4?
  And one other thing my learned colleague from Texas got up and said, 
hypocrisy is when you did one thing 10 years ago and do a different 
thing now. These were not 10 years ago; these were 5 years ago. I would 
ask but he is not here. Is it hypocrisy for the members of the 
Judiciary Committee on the other side, who never called these people 
for a vote, who deprived them of the principle of a majority vote, not 
to bring them up and now complain they want a majority vote for these 
four? I am not sure either measures up for hypocrisy. That is a strong 
word. But what is good for the goose is certainly good for the gander.
  The whole issue of majority vote----
  The PRESIDING OFFICER. Time controlled by the minority is consumed.
  The Senator from Pennsylvania.
  Mr. SPECTER. While the Senator from New York is on the Senate floor, 
I ask him to respond to a question, and that is, Does he consider this 
Senator a far-right extremist militant?
  Mr. SCHUMER. Is this on the time of the Senator from Pennsylvania?
  Mr. SPECTER. Yes.
  Mr. SCHUMER. Please repeat.
  Mr. SPECTER. It was argued a few moments ago with a chart, 168 to 4 
that only ``a far-right extremist militant'' would say that was an 
insufficient record.
  So my question to the Senator from New York is, Do you consider Arlen 
Specter a far right extremist militant?
  Mr. SCHUMER. I do not, in answering his question. But sometimes he 
has occasional lapses in his very fine judgment. And this is obviously 
one of those.
  Mr. SPECTER. Well, I do not know how the Senator from New York can 
say there is a defect in judgment when I have not asserted anything 
yet. All I asked, Mr. President, was a question as to whether he 
considered Arlen Specter a far right extremist militant. And he said, 
no, but sometimes there are lapses in my judgment.
  I will ask a followup question to the Senator from New York. In the 
absence of any assertion or statement of judgment, where are the lapses 
in my judgment at the moment?
  Mr. SCHUMER. I will say to my colleague, I heard him speak on this 
before, and when it comes to the issue of judicial nominees, where my 
colleague has usually quite good judgment, in recent months he is sort 
of edging way over to the right side, for reasons I am not sure of. But 
his normally sound and moderate judgment, in my judgment, when some of 
these nominees came up, has abandoned him, at least in this moment.
  I say to my colleague, any nominee who believes that Lochner--and my 
colleague is very erudite, so I do not even have to describe to him 
what it is--who says that Lochner was correctly decided does not belong 
on the bench, in anyone's book, and, my guess is, really in his heart 
of hearts, does not belong on the bench in the book of the Senator from 
Pennsylvania. I know he will dispute that, but seeing his record, I 
have admired his record. And a judge who believes that property rights, 
that zoning is taking----
  The PRESIDING OFFICER (Mr. Bunning). The Senator from Pennsylvania 
has the floor.
  Mr. SCHUMER. I was responding to the question.

[[Page 28721]]


  Mr. SPECTER. Mr. President, I do thank you for your intervention. I 
had not wanted to interrupt the Senator from New York by calling for 
regular order, which would be in order when the comments go beyond--far 
beyond the scope of the question. But I thank the Chair for his 
intervention.
  I would ask the Senator from New York another question, and ask him 
to be as restrained in time as he can be because we only have a half an 
hour, for I was concerned the last answer might use up the entire half 
hour.
  When the Senator from New York made the comment that he questions my 
judgment, did he disagree with my judgment when President Clinton 
nominated Berzon to be a Court of Appeals judge for the Ninth Circuit 
and I joined with Democrats to get her confirmed?
  Mr. SCHUMER. As I said--and I will try to be brief; and I know 
neither the Senator from Pennsylvania nor I is known for brevity on the 
floor----
  Mr. SPECTER. Mr. President, that calls for a yes or no answer.
  Mr. SCHUMER. As I said, normally I think the judgment of my colleague 
is a good one. Berzon, in my judgment, the nomination of Judge Berzon, 
she was quite far to the left. But I spoke about this last night. I 
believe, at least, because President Clinton, by and large----
  The PRESIDING OFFICER. The Senator from Pennsylvania is not 
privileged to ask a question of the Senator absent consent. The regular 
order is that the Senator from Pennsylvania has the floor.
  Mr. SCHUMER. I ask unanimous consent that he be allowed to continue 
asking me questions.
  Mr. SMITH. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. SMITH. I would like to speak.
  Mr. SPECTER. Mr. President, the Senator from Oregon will have time to 
speak. We are in a 30-minute sequence. I would follow up the question 
to the Senator from New York: Did he disagree with my judgment on 
agreeing for the confirmation of Judge Paez, along with the Democrats, 
nominated by President Clinton?
  Mr. SCHUMER. Mr. President, there was no--do we have unanimous 
consent? I did not hear.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, I withdraw the question.
  The PRESIDING OFFICER. You withdraw the question.
  Mr. SPECTER. We will proceed with the debate.
  The PRESIDING OFFICER. Thank you.
  Mr. SPECTER. We have quite a number of people here who are already 
prepared to speak, and we will go on in regular order. But I asked the 
Senator from New York those questions because I think his assertion, 
when you hold up the chart with 168 to 4 and then say that only a far 
right extremist militant would question that, is grossly in error. I 
sought to illustrate it by asking the question as to whether Arlen 
Specter fits that bill of a far right extremist militant.
  The reality is that the 168 to 4 does not tell the picture. It is a 
misconstruction. Beyond the 4 who have been rejected by the filibuster 
by the Democrats, there are 5 others who are currently being 
filibustered; there are 14 others pending where the filibuster is 
imminent. President Bush has had only 63 percent of his appellate 
judges confirmed, whereas in similar circumstance for the past three 
Presidencies, there have been 91 percent confirmed.
  So the chart, which has been seen more often than the most activist 
commercials, simply is misleading. These filibusters have gone very 
deeply into the heart of the nomination power of the President. The 
tradition has always been that the President gets substantial latitude 
in selecting judicial nominees. And where you have a challenge in 
ideology, the Democrats have, in this proceeding, gone to a new level 
in filibustering circuit judges. It simply has never been done before.
  Last night, the Senator from Illinois made a comment that all the 
Republicans were doing here was theater. And I spoke shortly 
thereafter, and I agreed with him that this is theater. But it happens 
to be factual theater, and the theater is being utilized for a very 
important purpose; that is, to acquaint the American people with what 
is happening in the Senate on the politicization of judicial nominees.
  I outlined in some detail yesterday, and will summarize it only 
briefly, the business of it being difficult when the party in the White 
House is different from the party in the Senate, which is what happened 
during the last 2 years of President Reagan's administration, and all 
of the administration of President George Herbert Walker Bush, where 
the percentages were very low. Then, in the first 2 years of President 
Clinton's administration, the percentages were high because he had a 
Senate controlled by his own party. And when President Clinton made 
nominations in the last 6 years, the percentages again were low. So the 
fault has been attributable to both parties when one party controlled 
the White House and the other party controlled the Senate.
  But what has happened here more recently has been a new low. It has 
been a new low because for the first time there has been a filibuster 
of a circuit judge, which had never happened in the preceding 216 years 
of the Republic. And what we are doing here in this marathon--aptly 
named; it is not a filibuster, it is a marathon--is to call the 
attention of the American people to what has happened.
  I related the filibuster sequence back in 1987, which is worth 
repeating, because it illustrates the point about how these proceedings 
are effective in telling the American people what is going on.
  In 1987, there was a filibuster by Republicans on campaign finance 
reform. Senator Byrd was the leader of the Democrats. At about 2 a.m.--
one early morning--Senator Dole, the Republican leader, called us all 
back into the cloakroom, a few feet to the rear of where I stand now, 
and said he would request that no Republican Senator go to the floor, 
so as to compel the Democrats to maintain a quorum--51 Senators--
because in the absence of a quorum on the floor, any Senator may 
suggest the absence of a quorum and then there is no further business 
to be transacted.
  Senator Byrd then responded with a motion to arrest absent Senators, 
and the Sergeant at Arms, Henry Giugni, was armed with the warrants of 
arrest. The Sergeant at Arms started to patrol the halls, and the first 
Senator he found was Senator Lowell Weicker. Sergeant at Arms Henry 
Giugni was about 5 feet 6 inches and 150 pounds. Senator Lowell Weicker 
was 6 feet 4 inches and 240 pounds--in fact, still is 6 feet 4 inches 
and 240 pounds. The Sergeant at Arms decided not to arrest Senator 
Weicker, which I think was a wise decision.
  I note the Senator from Connecticut, Mr. Dodd, smiling. He was 
Senator Weicker's colleague at the time from Connecticut and I think 
would confirm the wisdom of not arresting Senator Weicker.
  So then the Sergeant at Arms started to knock on Senate doors. It is 
interesting how, when you tell a story, there is so much more attention 
paid to what is going on. People are snoozing here generally during 
this marathon.
  At any rate, Henry Giugni went to knock on doors, and he knocked on 
Senator Packwood's door, and Senator Packwood foolishly answered the 
door. Then Senator Packwood was carried, feet first, in through that 
door. I was in the Chamber at the time. They carried him feet first.
  This is a true story. You do not get many true stories out of 
Washington, but this is a true story. Even the pages think it is funny. 
It was really funny that night. It attracted a lot of attention. And 
that is what we seek to do here today, is to attract attention, because 
if the American people focus on what is going on with this filibuster, 
of the politicization of the judges, we think we can end it. And we are 
trying to make C-SPAN the channel of choice, to replace Jay Leno in the 
late hours.
  There are many people who are surfing as we speak. It is amazing how 
many people will even watch C-SPAN or get to C-SPAN inadvertently in

[[Page 28722]]

surfing. And I would urge them to continue to listen because what is 
happening here is substantively important, and I think even more 
interesting than the soaps, or at least stay tuned for the next 20 
minutes, until after Senator Smith and Senator Sununu have had an 
opportunity to speak.
  I want to cover one other subject very briefly before yielding to my 
colleagues, and that is the subject of the quality of the nominees who 
have been filibustered. I will cite only one in the interest of time, 
and that is Miguel Estrada.
  This is a young man who was born in Tegucigalpa, Honduras. He came to 
the United States as a teenager. Really, it is the great American 
story. He went to Columbia, where he was Phi Beta Kappa and magna cum 
laude, and that is a considerable achievement. He then went to the 
Harvard Law School where he was magna cum laude and on the Harvard Law 
Review. That is a unique achievement.
  He then was a law clerk to two distinguished Federal judges, one of 
whom was on the Supreme Court of the United States. He then had a 
distinguished career as a practicing lawyer. Then he went to the U.S. 
Attorney's Office in the Southern District of New York. And I can tell 
you from my own experience as an assistant DA, that is a very valuable 
experience. Then he was an Assistant Solicitor General and had really a 
remarkable record.
  He was rejected by the Democrats on a filibuster and ultimately 
withdrew, and it was really because he was potentially a Supreme Court 
nominee. And the reasons given: the reasons were that he was a stealth 
candidate. But any fair analysis of his responses to other nominees' 
would demonstrate that he answered the questions at least up to the 
standard level, and then the Democrats objected to his nomination 
because he refused--the administration refused to turn over memoranda 
he had written as an Assistant Solicitor General. But if those 
memoranda are to be turned over under that circumstance, every lawyer 
who is an Assistant Solicitor General or an assistant DA or in any 
legal position would be chilled by the prospect of having such 
memoranda disclosed at some time in the future when that individual was 
subject to the confirmation process.
  Now, it is my hope that these proceedings will produce something 
useful by way of focusing the attention of the American people.
  I was on a radio program in Fargo, ND, for about 25 minutes earlier 
this morning, and these ideas have been spread across the country. It 
is my hope that the American people will communicate with the Senators 
on both sides of the aisle, both Republicans and Democrats. I think 
when the American people focus on this issue, there will be great 
pressure to change, to take politics out of the selection of Federal 
judges.
  I now yield to my distinguished colleague from Oregon, Senator Smith.
  I ask the Senator, how much time would you like?
  Mr. SMITH. Ten minutes.
  Mr. SPECTER. Done.
  Mr. President, how much time remains?
  The PRESIDING OFFICER. Thirteen minutes 20 seconds.
  The Senator from Oregon.
  Mr. SMITH. Mr. President, for those of you who may still be watching 
this debate, I know the suggestion has been made by our friends on the 
other side that essential work is not being done. This time, I assure 
you, what is being done is a lot of work, and it is being done 
currently in conference committees.
  What we are doing here, I think, is also very important. In terms of 
dialog and debate in our democracy, we have an important issue before 
us. You have seen the sign. It says: 98 percent. All these judges have 
been confirmed. It is important not to get locked into that number 
because what is being missed is whether we are upholding our oath to 
the Constitution only 98 percent of the time or 100 percent of the 
time.
  In my view, my reading of the Constitution, it is that 
supermajorities are provided for in our Constitution in cases of 
Presidential vetoes, expelling a Member, and other areas.
  Mr. President, I listened to my friend from Connecticut last night. 
He made a very good speech. He talked about his boyhood and sitting 
here in the time of his father. I am sure he was listening to great 
civil rights debates, and the filibusters went on and on in terms of 
civil rights.
  But I will tell you, based on my reading of the recent book on Lyndon 
Johnson's life, by Robert Caro, ``Master of the Senate''--central in 
the fight among Democratic southerners and Democratic northerners, 
along with Republican northerners--there was the frustration over the 
issue of the filibuster. Hubert Humphrey and Clinton Anderson of New 
Mexico repeatedly began each session trying to change the rules on 
filibuster because they knew if they could not change them, then 
Senator Russell would make it impossible for them to break the veto and 
deny the African-American community civil rights in this country.
  What is the difference between that fight over a filibuster when it 
comes to a legislative issue such as civil rights versus an executive 
appointment or Executive Calendar issue such as we are dealing with 
today?
  Well, I suggest that what has happened ever since the defeat of 
Robert Bork is each side is upping the ante and we are exalting now 
single-issue politics in our country in a way that I think truly 
disserves our country.
  There is an old maxim in the law that justice delayed is justice 
denied. It is a fact that many justices or judges have been confirmed, 
but the real potential exists not just to delay justice--and thereby 
deny justice--but to dumb down justice in our country. Let me tell you 
why I believe that this could happen.
  Right now, we are seeing the winnowing out of anyone in the law who 
is learned, well written, well spoken, and whose views are well 
revealed to the American people. I remember as a new lawyer listening 
to the debate in the Senate over Robert Bork. I remember as a law 
student, prior to that, particularly enjoying the writings of Laurence 
Tribe and Robert Bork. These two great legal scholars would debate in 
their writings over the word ``liberty'' and the proper role of judges 
in enforcing and providing for liberty.
  You couldn't find two scholars with more polar opposite positions 
than Tribe and Bork. But, I loved their readings. I had the feeling 
when I would read them that I was a part of the contest of ideas. I 
remember the feeling when Robert Bork was defeated that, doggone it, I 
would sure have given them Laurence Tribe if they would have given us 
Robert Bork. Because I knew the writings of our country's legal 
journals would be all the better if the judiciary could attract the 
best and the brightest.
  Now we are saying as the Senate, if you have strongly held views, you 
had better check them at the door. And, if you don't do that, you had 
better not expose them. We are saying to the judicial branch of 
Government--we, the Senate, the legislative branch--we don't want the 
best and the brightest; we want the mediocre, we want the mushy middle; 
we want those who are just going to go along and get along.
  I think we also disserve the marketplace of ideas when both parties 
ratchet up these politics. This is what has happened. The difference 
between the filibuster as it relates to the Legislative Calendar and 
the Executive Calendar is simply that we, the legislative branch, are 
now attacking the judicial branch.
  American justice will be the poorer for this because, you watch, when 
we have a Democratic President and a Democratic majority in the 
Senate--this will happen again--watch the filibusters come up. That is 
unfortunate because we have elections for a reason. This is an ebb and 
flow in American politics that is important.
  Am I suggesting we get rid of filibusters? I am not, but I am 
suggesting we have escalated this too high. I believe we are exacting 
single-issue politics, I believe we are delaying justice, and I believe 
we are dumbing down justice in America.
  The unspoken word here is the single issue of a woman's right to 
reproductive choice. The word is ``abortion.''

[[Page 28723]]

Every one of us has wrestled with that issue. I truly believe and I 
understand why a woman doesn't want the Government part of such a 
decision. I also believe there are times when life is so viable and so 
obvious that the law ought to protect that life.
  As I looked in the mirror and then presented myself to the people of 
the State of Oregon, I had to say: You know, I am pro-life. I am pro-
life with exceptions, but I am pro-life. My State is pro-choice. But, 
they had a right to know my position. I told them. Ultimately, I was 
elected anyway. I promised them I would not have a single-issue litmus 
test on judicial appointments.
  I am here to tell the people of Oregon, I have kept that promise. I 
voted for President Clinton's nominees who were pro-choice because I 
believe we should not let single-issue interest groups rule the day on 
an issue so constitutionally fundamental to the future of justice in 
our country. But that is what is happening here. That is why this time 
is so important, that we spend it debating and hopefully resolve this 
issue.
  Mr. President, I will not take more time. My colleague, Senator 
Sununu, deserves to be heard.
  I pray, I plead, I hope we can get beyond this as it comes to 
executive appointments, the Executive Calendar, because we are 
disserving America with this process that has now ratcheted up to a new 
level that is constitutionally dangerous.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. SUNUNU. Mr. President, I very much appreciate the remarks of my 
colleague from Oregon and in particular the emphasis he placed on what 
the tone and the tenor of our current debate on nominees could mean for 
future nominees, for future qualification of those who might be 
interested in serving on the bench.
  As elected officials, we talk all the time about tenor in politics, 
big media, and advertising campaigns, and all the rest that a modern 
campaign involves, and the way in which the introspection and 
intrusiveness of that process discourage good people from running for 
office.
  Anyone who has ever spent time looking at the political process is 
aware of that concern. It doesn't matter if you are running for the 
Senate or not; you could be running for school board or mayor or 
dogcatcher, for that matter; but people understand that there is a 
level of intrusiveness, an invasion of personal life, that discourages 
good people from running for office.
  There is not much we can do about that as a Senator, as an elected 
official, but there is something we can do about this process, the 
judicial nomination process, the vetting process, the approval process. 
If we allow this current tone and tenor to remain, then, as the Senator 
from Oregon has described, we will not only discourage good people from 
wanting to serve on the Federal judiciary to bring their judgment and 
intellect to bear, to help provide justice to those who deserve and 
need justice, we will even discourage people from engaging in debate, 
from putting their ideas out on the table, from writing, from thinking 
about different ways to look at or evaluate the law.
  I am not a lawyer. I am about as far from the law as one can get. I 
am an engineer by training, and I am proud of that fact. I understand 
the value of creativity, innovation, and debate, and the marketplace of 
ideas. When we have Members of the Senate come to the floor and say: I 
am voting against someone because I don't like the way they decided a 
case, that raises a red flag for me. If there is a specific case and a 
specific issue and you truly believe the way they decided the case 
means they are not capable, they are not fit, they are not qualified, 
that is fine, but let's not suggest for a minute that we will ever or 
should ever seek to find candidates who agree with us on every issue on 
every legal point.
  My constituents back home won't agree with me on every issue anytime. 
I don't think there is a member of my family who agrees with me on 
every issue. And we certainly shouldn't accept that kind of bar for our 
judicial candidates. What we should look for are qualifications of 
experience, intellect, or a sound, consistent case record.
  I think we have moved away from that. When we have nominees who have 
the support and endorsement of every paper in their State, liberal or 
conservative, or we have nominees for the judiciary who have received 
the support of 70 or 75 percent of the people in their State, liberal 
and conservative, or we have nominees who have demonstrated time and 
again, as we do, their commitment to uphold the law as written 
regardless of their own point of view, I think these nominees deserve 
the fairness of an up-or-down vote, and that is ultimately what I think 
is at stake here.
  We can look at the numbers and discuss whether or not there has ever 
been a cloture vote at a particular time or a particular place on a 
particular nominee, and we have had cloture votes before, but what is 
different about the current debate is that cloture votes have never 
been used in a partisan way to prevent a nominee from getting that up-
or-down vote on the floor. It certainly hasn't been used on the past on 
four, five, six, seven, or eight nominees. It is that process that I 
think has Members of this Senate, Democrat and Republican, and the 
public very frustrated.
  Technically, is it within the right of the minority to force these 
cloture votes? Sure. It is not a question of whether it is technically 
within the right of a Member of the Senate or the minority to engage in 
this kind of obstruction. The question is, Is it the right thing to do, 
is it the fair thing to do?
  Ultimately, it is important that we take a stand as to whether or not 
we believe it is right. I certainly do not. And ultimately the public 
will also be asked to decide whether they think this is appropriate 
behavior for their Senators and for their leaders in Washington, DC.
  I yield the floor.
  The PRESIDING OFFICER. The majority time has expired.
  Mr. SPECTER. Mr. President, that is what I was about to inquire. I 
thank the Chair.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Ms. STABENOW. I thank the Chair.
  Mr. President, every debate we have in the Senate comes down to a 
question of values and priorities for all of us, how we spend our time 
personally, how we spend our time in the Senate, where we choose to put 
our efforts.
  I wish to speak today about where I believe we should be putting our 
efforts if we are going to spend 30 hours of time speaking on the floor 
of the Senate.
  First, I remind colleagues again, lest we get lost in all of the 
discussion of what we are talking about, we have, since I have been in 
the Senate, approved 168 judges. We have confirmed 168 judges, and we 
have said no to 4--168 to 4. Almost every one of those 168 I voted for.
  We are talking about four people who currently have jobs who want to 
be promoted to lifetime positions as Federal judges. What I would like 
to spend my time talking about today are the 3 million people who don't 
have jobs. Three million Americans have lost their jobs during this 
same time period, in the last 2\1/2\ years.
  What I want to spend my time speaking about are the 162,000 people 
and more who have lost their jobs in the great State of Michigan, most 
of those in the manufacturing sector.
  I am very proud of the fact that Michigan is first in the Nation in 
the manufacturing of automobiles. About 31 percent of all of the 
automobiles that are made in this country and almost 17 percent of all 
the trucks made in this country are made in the great State of 
Michigan.
  I am proud of the fact that we produce about half the office 
furniture. Three leading office furniture manufacturers in the Nation 
are based in Michigan. I am proud of our tool and die makers. I am 
proud of everyone in our small manufacturing businesses. Most of our 
businesses are very small with under 20 people in auto supply and in 
the tool and die industry. I know they are under severe crisis today.

[[Page 28724]]

  We are under severe crisis in Michigan and in this country as it 
relates to our manufacturing economy. That is worth 30 hours of debate 
on the floor of the Senate. That is worth 30 hours of action on the 
floor of the Senate.
  We cannot afford to lose our ability to make products in this 
country. That is what we do in Michigan. I am proud of the fact that we 
make products, we grow products, and we do it well. Give us a level 
playing field for our businesses and our workers, and we will compete 
and win. That is not happening, and I am deeply concerned about the 
stories after stories I have heard.
  I wish to share a couple stories today. I look at the headlines: 
``2,700 jobs in danger as Electrolux considers closing Greenville 
refrigerator plant.'' This is in the Grand Rapids Press:

       Electrolux Home Products announced today it may eliminate 
     2,700 jobs at Greenville refrigerator plant and shift 
     production to Mexico.

  That is all too common a headline, and it is something that is going 
on in Michigan.

       Such a move would be a huge blow to the city of Greenville 
     and Montcalm County, where Electrolux and its predecessors 
     have long been the largest employers and among the largest 
     taxpayers.

  That is what we should be talking about: What is happening in 
Greenville and Electrolux.
  ``Ford sets a timetable for plant closings. Revitalization plan 
called for cutting 35,000 jobs.''

       Ford Motor Co. will close plants in Ohio and Michigan by 
     year's end and another in New Jersey in the first quarter of 
     next year.

  It goes on:

       Another factory in Ohio will end production in the next 
     four years.

  Not four people who already have jobs, but people who right now are 
working hard every day, 9 to 5 or longer, to earn a paycheck so they 
can have a good-paying job in the United States of America and send 
their kids to college, to afford their health care, to afford their 
house, maybe a cottage up north, which is something we like to do in 
Michigan, maybe a boat, maybe a snowmobile--those things that allow a 
good quality of life in our country. We are in danger of losing that 
when we lose manufacturing jobs.
  ``Straits Steel closing sad news for plant's 180 employees.'' This 
comes from Ludington.
  We read in the Lancing State Journal: ``Jobless rate could rise in 
the winter.'' There is more concern about what happens when we lose 
construction jobs in the wintertime.
  I receive a lot of letters from people writing me and asking for 
help. They would love to see us spending 30 hours on the floor of the 
Senate not only talking but actually doing something to save their jobs 
and to support our manufacturers.
  I would like to read you just one letter from Walker, MI:

       I am writing to you in the hope you will read my letter. 
     What I want to write you about is how much of our industry is 
     disappearing. Factories continue to close or lay off. Often 
     they leave the State and, even worse, they leave the country. 
     A lot of these are American companies, like Lifesavers plant 
     in Zeeland.
       Yes, we need bankers, lawyers, doctors, and computer 
     consultants. I am one. But that is not our strength. Our 
     strength is in our industry, in our farms, in our shops. I 
     live in Grand Rapids, MI, and I see a lot of construction, 
     but it is all retail and restaurants. How can we continue to 
     grow if we are all making only $8 to $10 an hour? Most of the 
     time you can't even make that. Henry Ford knew that he had to 
     pay his employees a living wage so that they could afford to 
     buy his cars.

  There is story after story coming from the State of Michigan, across 
the Midwest, and all across our country. They are asking for our help. 
With over 3 million jobs that have been lost--3 million, not 4--3 
million jobs that have been lost, what is the response of the 
administration? We have had to fight to stop them from taking people's 
overtime pay. Can you imagine, 3 million people lose their jobs and 
what is the response? Take away the other people's overtime pay.
  Then we have to fight to extend unemployment compensation for the 
people who have lost their jobs and are having difficulty finding new 
jobs. Of deep concern to me is what is happening as relates to a lack 
of a level playing field in China and Japan and other Asian countries. 
We know in the Banking Committee--and the esteemed Senator presiding 
today I know has expressed concerns as well as to what is happening to 
the currency manipulation in China and Japan. Effectively, we are 
seeing a tax on American goods and services sold in China and Japan, 
and they get a tax break here or a price break because of what they are 
doing. We need a level playing field.
  We asked the administration to do something; join us; we know it is 
happening, and yet they refuse to step up and join us in the tough 
efforts that need to happen to give our businesses the level playing 
field they need to keep jobs in America.
  We have seen a refusal to address the high health insurance costs. We 
need to create more competition with pharmaceutical drugs. We need to 
be working with our employers to lower health care costs, the No. 1 
pressing issue that has caused layoffs, that has caused people to pay 
more in deductibles and premiums and has caused businesses to struggle 
to survive.
  Let's talk about those issues that create jobs, that relate to our 
ability to have a standard of living that we have been accustomed to 
and deserve in this country. If people are willing to put in a day's 
work, they ought to be able to know there will be a good-paying job 
there so they can care for themselves and their families and they can 
do those things that will allow them to have the best possible life in 
this great country of ours.
  Finally, we have seen a continual block over and over on the issue of 
increasing the minimum wage. An awful lot of folks working for minimum 
wage are women. They are women with children. They are working minimum-
wage jobs, most often without insurance. They are paying for daycare. 
They are wanting to work and yet finding themselves in a situation 
that, no matter how hard they try, working 40, 50, 60 hours, they just 
can't make it because the minimum wage has not kept up.
  So it is very concerning that we have seen a continual effort to 
block a simple $1.50 increase in the minimum wage for 7 million people 
living in the United States of America, who work hard and play by the 
rules and assume that if they do that, they will be able to succeed and 
care for their families. Seven million people need our help today with 
a $1.50 increase in the minimum wage.
  Thirty-seven percent of those folks right now are seeking emergency 
food aid, and they are working. They are working, and yet they cannot 
make it and are having to ask for food assistance. So we over and again 
have asked for the support of our colleagues on the other side of the 
aisle to address those 7 million individuals who work hard every day 
and believe in America and want to be able to be successful.
  So I am very hopeful that we will be able to do that.


                   Unanimous Consent Request--S. 224

  At this time, I ask unanimous consent that the Senate now return to 
legislative session and proceed to the consideration of Calendar No. 3, 
S. 224, the bill to increase the minimum wage; that the bill be read a 
third time and passed, and the motion to reconsider be laid upon the 
table.
  Mr. SMITH. Mr. President, I would ask that the Senator modify her 
request so that just prior to proceeding as requested, the three 
cloture votes would be vitiated, and the Senate would then immediately 
proceed to three consecutive votes on the confirmation of the 
nominations, with no intervening action or debate.
  Ms. STABENOW. Mr. President, I would object.
  The PRESIDING OFFICER. The Senator will not modify her request?
  Ms. STABENOW. No.
  Mr. SMITH. I would object.
  The PRESIDING OFFICER. The objection is heard.
  Ms. STABENOW. Mr. President, I am going to turn in a moment to my 
esteemed colleague from Connecticut who has been in this Chamber time 
and again, not only addressing the issue that brought us here but other 
issues as well. He is someone who has been

[[Page 28725]]

fighting for those good-paying jobs. He is a consensus builder and 
problem solver and somebody who knows how to get things done. I am very 
grateful to be sharing this time with him today because of the 
wonderful leadership he brings to the Senate and the way in which his 
work has touched so many lives of people in Michigan as well as across 
the country.
  In conclusion, I end as I started by saying what we do around here 
always relates to values and priorities. I hope we will choose to focus 
our time and attention on those things that affect the most people in 
our country, those things that are best to move our country forward and 
to keep the economic engine moving forward for all of us, that will at 
the end of the day allow us to say that what we did on the Senate floor 
today gave people an opportunity to work hard and create a better life 
for themselves and their families.
  We are losing the manufacturing sector in this country. We need a 
sense of urgency about that. We need to act to give our businesses and 
employees a level playing field and address those issues that will 
allow them to keep jobs in this country. I hope as we are debating 
about 4 people, we will remember 3 million people who are counting on 
us to act.
  I now yield time to my colleague from Connecticut.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Mr. President, first, I thank my colleague from Michigan 
not only for her work today but her tremendous contribution in the 
relatively short time she has been a Member of this body. We thank her 
immensely for her very balanced and deliberate approach. I thank her 
particularly for raising the issue she has today.
  While the subject matter defined by the majority is the question of 
judicial nominations, I think the point she has raised, that there are 
an awful lot of people all across this country who are--while they may 
be interested from an intellectual standpoint, even some maybe on a 
more passionate level on the question of judicial nominations, there 
are a significant number, the overwhelming majority, I think, of 
people, if asked how they would like to see the Senate of the United 
States allocate its time and resources, the Senator from Michigan has 
identified a subject matter that is of far more compelling interest to 
a larger number of people in this country, the issue of putting people 
back to work; what has happened to the closure of so many small 
manufacturing firms all across the United States that have seen their 
products no longer marketable in this country and elsewhere because of 
the onslaught of foreign products that have come in through misguided 
and failed trading agreements we have reached, particularly with the 
People's Republic of China and elsewhere.
  So I thank her. I suspect there are an awful lot of people across 
this country who appreciated the fact that she took 15 or 20 minutes to 
talk about the 3 million people who over the last 29 months have lost 
their jobs in this country and who are sitting there today wondering 
whether or not they are going to be able to keep that home, whether or 
not they are going to be able to afford their children going on to 
college, whether or not if they get sick they will be able to pay for 
that illness, if they had a job that provided health insurance for 
them.
  So I thank her and I suspect there are an awful lot of people across 
this country who appreciate immensely her determination to see that 
those jobs, not just the jobs of some people who were unable to have a 
vote on the Senate floor to confirm them for a judicial nomination, 
will be the consideration of this institution.
  I must say as well, I appreciate my colleague's kind comments about 
my efforts as a legislator. I try to take some pride in that. I think 
my colleagues on the other side know this. I work very hard to maintain 
my relationships with every Member. Regardless of what battle may ensue 
today, tomorrow is a new day and I always reach across the aisle 
wherever I can because I have never seen an issue in my 24 years here 
that had any value and merit be accomplished without it being 
bipartisan, ever. I defy any Member to mention a single issue of any 
significance that was ever adopted by this body that was not bipartisan 
in nature.
  When we lose our ability to do that, we not only suffer as an 
institution but the people we seek to represent suffer terribly. So it 
is critically important that we make those efforts.
  I have spent a lot of time over this last number of weeks trying to 
get something done on asbestos reform. My colleague from Michigan and 
my colleague from Oregon know of the efforts we made in this regard. It 
is terribly worrying to me that we are about to end this session. We 
have 700,000 lawsuits that have been filed for people who were exposed 
or could get ill from exposure to asbestos. Seventy thousand cases are 
being filed a year. There are major companies that have gone bankrupt 
because of the problems with exposure and the liabilities as a result 
of the asbestos issue. I would have hoped, maybe vainly, that we might 
spend some time on an issue such as that, candidly. I noticed to my 
colleagues the other day that while I voted against cloture on the 
class action reform issue, I immediately took the floor to say I am 
very interested in a class action reform bill and I am prepared to 
support one. There were issues that needed to be worked out.
  I know there are businesses all across this country that would like 
very much to see us address the issue of class action reform. There is 
nothing like 30 hours' worth of debate on class action reform. There 
will be no 30 hours of debate on asbestos issues here, unfortunately.
  So I say with all due respect--and I do respect my colleagues, all of 
them--that it is a reflection to some degree of what your sense of 
priorities is. There are a lot of issues that deserve attention, but I 
would ask any average American to identify for me, when given the 
choices to debate, whether or not we ought to do something about class 
action reform, something about asbestos legislation, something about 
joblessness, something about Medicare reform, prescription drug 
benefits. I have seen nothing even remotely close to 30 hours of debate 
in this Chamber on any of those issues at all--none, absolutely none.
  So while we in the minority cannot set the agenda, the power of the 
majority is the power to be recognized, and the power to be recognized 
means you set the agenda. Even though our ranks are only separated by 
two Members, the division of two Members makes it possible for the 
majority to decide what this Chamber will do, what this institution 
does, on a daily basis, on an hourly basis.
  The majority, in their judgment, have decided that this issue, the 
issue involving four judicial nominations, is far more important than 
anything else on which this Congress, this session, with hours away 
from terminating it, should spend its time and efforts.
  I do not disagree that this is an important issue. I think it is an 
important issue, particularly where we may be asked to vote on changing 
the rules of the Senate to either eliminate or virtually eliminate the 
right to filibuster judicial nominations. That is a profound question, 
and I just regret that it ends up being debated at 2, 3, 4, and 5 
o'clock in the morning and not something that ought to consume a 
serious debate in this Chamber as to the wisdom of such a potential 
move. I am not sure that amendment is going to be offered, or that idea 
will be suggested to us by tomorrow, but I have been told it will. I 
will come to that in a minute.
  I do think it is important that people wonder whether or not this 
body, or politics or Congress, ever gets it. One of the questions we 
all face from time to time when we conduct our town meetings is: Do you 
have any idea, Senator, what it is like to raise a family today, with 
all the pressures we are under? Do any of you in Congress--I do not 
care whether you are Democrats or Republicans--do you have any idea 
what we are going through out here?
  When we conduct 30 hours of debate about four judicial nominations, I 
sometimes think that question has a lot of merit, unfortunately.
  So I wish we were spending some more time on some of these other

[[Page 28726]]

issues. Maybe we will get to them. Hope springs eternal, and I will 
keep trying to work on it. I have been asked to come and spend some 
time to protect our interests on the floor and so I will utilize some 
time, as I did last night, to talk about the issue at hand.
  I am terribly disappointed that we are spending the time of this 
institution on something such as this when we need to be spending our 
time, what little time we have, on so many other questions, that so 
many people in this country want to see us address and try to come up 
with some answer for. They know it is difficult.
  Look, what we love about this institution is also what galls us the 
most about it. The beauty of the Senate is not only the manner in which 
we do things but also the frustrations that are evoked as a result of 
how we do things. Had the Founders of this great Republic sought 
efficiencies, they never ever would have set up this system. The last 
system you would ever set up, if you were trying to get the job done 
expeditiously, is the one we have lived with for 217 years. This is a 
terribly frustrating system. It will drive you to madness watching it 
happen, particularly this institution of the Senate.
  When the Framers were debating the existence of a legislative 
branch--in fact, the idea was pretty much to have a unicameral system I 
think in the early discussions: One house, simple majority rules. I sit 
in the seat of a man by the name of Roger Sherman, from the State of 
Connecticut, who was one of those Framers of the Constitution, the only 
one of the Framers, by the way, to ever have signed all four of the 
cornerstone documents of the United States. He signed the Articles of 
Confederation, the Declaration of Independence, the Constitution of the 
United States, and the Bill of Rights. I am very proud to sit in his 
seat in the Senate, after 217 years.
  In that Constitutional Convention, it was Roger Sherman, my forbearer 
in this job, who suggested, along with Oliver Ellsworth from 
Connecticut as well, the creation of a separate body in the Congress of 
the United States that we have come to know as the Senate.
  The argument was about small States and large States. The fear was, 
for people who came from smaller States, that in the House of 
Representatives, since it would be determined by population, large 
States by population would so dominate the Congress of the United 
States that those who lived in smaller States would be overwhelmed. 
They were about to vote against the Constitution when Sherman and 
Ellsworth came up with the idea of a Senate, where every State, 
regardless of size, would have equal representation--two Senators from 
every State.
  My colleague from New Hampshire and I from Connecticut, small States, 
we have two Senators; my colleague from Michigan, a large State, and 
from California, two Senators. It is a rather beautiful system in a 
way. They went beyond the idea of just small States and large States. 
The seed of the notion that there ought to be a place where the rights 
of a minority get protected was also included in this concept.
  In the House of Representatives, in which I had the privilege of 
serving for 6 years before coming to this body 24 years ago, the 
majority rules. If you are in the minority in the House--I do not know 
if my colleague from New Hampshire ever served in the minority in the 
House, but I certainly did not; I was always in the majority there--
being in the minority in the House is painful because it can roll right 
through you. What the majority wants to do happens. That is it.
  In this body, the idea was to create a place where the minority 
interests, including a minority of one, would have rights that you 
would never get in the House of Representatives. Hence the right of one 
Senator, if they stand up and can stand long enough and do not leave 
the floor, to have the right not to be interrupted, extended debate; 
the right to amend. It has been a wonderful balance. The rights of a 
majority are down the hall. The rights of a minority are here in this 
Chamber. We have tried over the years to see to it that those unique 
rights give us a sense of balance, what one of the Framers called the 
saucer--the Senate--in which the passions would cool, because the 
tyranny of a majority can be overwhelming. So the Senate was a place to 
say let's stop, let's take a look, let's think again about whether or 
not this is the right way to go.
  Now, if we go back and look at the genesis of the thought process 
that was involved in the creation of the Constitution in this Republic, 
a unique event in the history of mankind, certainly they had been 
through an experience where a king had been overbearing. Remember, two-
thirds of the population of this country in 1776 was not terribly 
enthusiastic about a revolution. Only about a third of the population 
thought that was necessary. As the tyranny of a king grew larger and 
people's rights were being deprived, taxations levied without their 
ability to be heard, they decided: We need to move away from that.
  So as this system evolved and a discussion of what it would look 
like, the last thing the Founders wanted to do was create an executive 
without some checks and balances on it, an unlimited tyranny of an 
executive. In fact, as I pointed out last night, there is ample 
evidence, of course, that when it came to judicial nominations, the 
Framers did not want to give the right to nominate to the President. It 
was only an afterthought that said, on judicial nominations, they ought 
to go to the President, and then the Senate would provide its advice 
and consent.
  I carry with me every day a copy of the U.S. Constitution. It was 
given to me by my seatmate Robert C. Byrd many years ago. It is a 
rather worn-out copy of this wonderful document, but I carry it with me 
7 days a week. I read it constantly. As I get older, my appreciation 
for the wisdom of these people grows deeper.
  It is very clear article III of the Constitution lays out judicial 
power, the judicial part of it. It says that people are appointed to 
the courts, supreme and inferior courts, and they will serve for life, 
during good behavior for life. It is unique. It is the only office in 
the country where one gets a lifetime appointment. The President does 
not. Members of Congress do not. A Federal judge gets a lifetime 
appointment. If you are appointed when you are 35 years of age and you 
live to be 85--50 years--unless you do something terribly wrong, you 
are there; you are not going anywhere.
  Of course, in article II, they lay out in section 2: He--speaking of 
the President--shall have the power, by and with the advice and consent 
of the United States Senate, to make treaties, and so forth. It goes 
on. And by and with the advice and consent of the Senate shall appoint 
ambassadors, other public ministers, and so forth, judges of the 
Supreme Court, and all other officers of the United States.
  Does anyone really believe for a single moment that the Framers of 
this unique document intended that the President, the executive branch, 
would appoint and that it was then the duty of this body to just 
rubberstamp that choice? Of course not. In fact, they did not even want 
to give him the power to appoint to begin with because they were uneasy 
about someone having too much power in their own hands.
  I suspect our predecessors probably had in mind what some of the more 
recent predecessors did with postmasterships.
  I remember my father talking about the postmastership appointment. He 
used to say that this was a dreadful idea, to give Senators the right 
to appoint postmasters, because he said inevitably you would have about 
100 applicants for the job. Of course, once they were confirmed, they 
could never get involved in politics again. So he used to say you would 
end up with 99 enemies who did not get the job and 1 ingrate who did 
who could never talk to you again.
  I suspect that may have been true as well about Federal judgeships, 
that our colleagues in the Senate, in the earliest days, probably said: 
Look, we do not want the business of having to nominate these guys 
because inevitably we are going to pick someone and the other guys are 
people who are

[[Page 28727]]

going to be upset with us. So why do we not give that to the President, 
let him appoint them, and then we will decide whether or not they 
deserve to be confirmed.
  The notion somehow that one has a constitutional right to a vote--I 
have read this document; I read it every day--there is nowhere in this 
document one gets a constitutional right to a vote on anything, any 
more than the American people have a right to a constitutional vote on 
the minimum wage or on Medicare reform or any other matter I want to 
bring up. There is no constitutional right to that. There is certainly 
no constitutional right that if one gets nominated to be a judge, they 
have a constitutional right to be voted on. Nowhere does the 
Constitution give someone that, in any area whatsoever.
  The idea somehow that we would only apply a filibuster to legislative 
matters and not judicial nominations, so one can filibuster a sense-of-
the-Senate resolution----
  The PRESIDING OFFICER. The time of the Senator has expired. The 
Senator's half hour is up.
  Mr. DODD. I thank the Chair very much. I apologize to my colleagues 
for going a little bit. I appreciate the indulgence of the Chair.
  The PRESIDING OFFICER. Does the Senator from Alabama seek 
recognition?
  Mr. SESSIONS. Mr. President, the Senator from Alaska is prepared to 
speak.
  The PRESIDING OFFICER. The Senator from Alaska is recognized.
  Ms. MURKOWSKI. Mr. President, I thank the Senator from Alabama for 
this opportunity.
  I join today with my colleagues in the Senate to address the judicial 
confirmation process and really the procedural quagmire in which we 
find this body right now. I take very seriously my obligation under the 
Constitution to provide the advice and consent to the judicial 
nominations of individuals who are nominated by the President to serve 
on the Federal bench. I have heard repeatedly over the hours the term 
``rubberstamp,'' there is a rubberstamp approval. Those on my side of 
the aisle would automatically take the President's nominees. I do not 
take part of my job to mean that my vote is intended to be a 
rubberstamp of approval for the President's nominations to these 
critical judicial positions.
  I am frustrated that after serving in the Senate for almost a year, 
and contrary to what some Members may assert, the Senate has not been 
permitted to vote up or down on the merits, on the qualifications of 
the individuals who are embroiled in this current dispute. Rather, we 
have been prevented, I have been prevented as a Member of the Senate, 
as an individual, from voting for or against a nomination by a 
legislative procedure, legislative procedural rules unique to this 
body.
  We are engaged in the Senate in a historic session for not quite 24 
hours, during which time we have heard about the nomination process, 
the qualifications of certain individuals to be Federal judges, the 
need for jobs, unemployment issues--a variety of compelling, 
interesting significant issues. I bring to this debate this afternoon a 
new issue and explain why legislation I have proposed, along with 
several other colleagues of the Senate, to split the Ninth Circuit 
Court of Appeals, why this is relevant and important to the debate 
today.
  The Senate has debated the qualifications and character of specific 
individuals to serve on the Ninth Circuit. As some would argue, by 
invoking the Senate procedures to filibuster the current judicial 
nominations, those on the other side of the aisle are simply trying to 
ensure the balance or the mainstream ideology on the U.S. court of 
appeals.
  But there is little doubt in my mind they seek to maintain what I 
perceive to be philosophical bias on the Ninth Circuit Court of 
Appeals. For those looking for circuit courts whose actions may raise 
concerns about ideology and balance, I suggest my colleagues take a 
close look at the U.S. Court of Appeals for the Ninth Circuit. In the 
makeup of who is currently serving on the Ninth Circuit, the court 
currently has 9 judges appointed by Republican Presidents and 17 judges 
appointed by Democrat Presidents. I will put the Ninth Circuit record 
into a historical precedent, a recent historical precedent.
  During the United States Supreme Court October 1996 term, the Supreme 
Court found it necessary to review 28 cases decided by the Ninth 
Circuit. These cases from the Ninth Circuit made up approximately one-
third of the Supreme Court docket despite the fact that the Supreme 
Court has jurisdiction over 11 other Federal circuits and over Federal 
questions decided in courts of all 50 states.
  Of those 28 Ninth Circuit cases back in 1996, the Supreme Court 
reversed 27. Some could argue this reversal rate is simply the impact 
of a more conservative Supreme Court disagreeing with the Ninth Circuit 
on close questions. However, most of the reversals were unanimous. In 
fact, six were summary reversals. The Supreme Court did not even ask 
for briefing or oral arguments. The Supreme Court simply reversed the 
Ninth Circuit on the basis of the petition for certiorari. This 
lopsided reversal rate has since continued since that 1996 term.
  As we compare other circuit court reversal rates, it is helpful 
because it puts the Ninth Circuit into a context and helps us review 
the balance.
  In 1997, of those cases decided by the Supreme Court in a full 
opinion, the Supreme Court reversed or vacated four cases from the DC 
Circuit cases and affirmed five. Balance that against the Ninth 
Circuit, where in that same year the Supreme Court affirmed 3 cases 
from the Ninth Circuit and reversed or vacated 14.
  Let's go to 1998. The Supreme Court affirmed one case from the DC 
Circuit, vacated one case, and reversed no DC Circuit case. In 
comparison to the Ninth Circuit, in 1998 the Ninth Circuit was affirmed 
4 times and reversed or vacated 14 times.
  1999, the Supreme Court affirmed three DC district cases and reversed 
or vacated no cases from that court.
  In 1999, the Ninth Circuit in comparison was reversed or vacated 9 
times that year and affirmed only once.
  In 2000, the DC Circuit was reversed once and only had one case from 
that court to go up to the Supreme Court that year. The Ninth Circuit 
was affirmed 4 times, and in the year 2000 reversed or vacated 13 
times.
  Over the last 3 years, one-third of all cases reversed by the Supreme 
Court came from the Ninth Circuit, the circuit that my State is part 
of. That is 3 times the number of reversals for the next nearest 
circuit, and a 33 times higher reversal rate than the Tenth Circuit.
  I suggest these statistics are astounding in their proportion. One of 
the reasons the Ninth Circuit is reversed so often is it has become too 
large and too unwieldy. It is a simple fact. The circuit serves a 
population of more than 54 million people, almost 60 percent more than 
served by the next largest circuit. By the year 2010, the Census Bureau 
estimates that the Ninth Circuit will preside over a population of more 
than 63 million people. According to the Administrative office of the 
United States Courts, the Ninth Circuit alone accounts for more than 60 
percent of all appeals pending for more than a year. The shear 
magnitude of cases brought before the court explains why it takes 
nearly 50 percent longer than the national average, almost 1 year and 4 
months, to get a final disposition of a case in the Ninth Circuit. It 
takes 5 months longer to resolve a case in the Ninth Circuit than the 
national average for a court of appeals, and the delay increased by a 
full month in 2003 compared to the time it took in the year 2001. Talk 
about justice delayed, this is it here in the Ninth Circuit.
  With such a huge caseload, the judges cannot possibly have the 
opportunity to keep up with the decisions within the circuit, let alone 
track decisions made in other circuits. I suggest that now is not the 
time to have vacancies on the bench in the Ninth Circuit.
  One of the individuals who is the subject of these 30 hours, Carolyn 
Kuhl,

[[Page 28728]]

has been waiting for an up-or-down vote to the Ninth Circuit since June 
22, 2001. There are many who believe the U.S. Court of Appeals, the 
Ninth Circuit, is out of touch with the mainstream. This is part of the 
reason that I support splitting the Ninth Circuit and part of the 
reason the Senate must complete the pending nominations.
  We only need to look back to March of this year when the Ninth 
Circuit decided that the Pledge of Allegiance was unconstitutional. 
Talk about a very graphic example of the Ninth Circuit being out of 
touch with mainstream America. The Senate, by a 94-0 vote, went on 
record expressing unanimous opposition to the Ninth Circuit decision in 
Elk Grove Unified School District. The U.S. Supreme Court shortly 
thereafter granted certiorari and briefs to be filed before the end of 
the year.
  Another part of the problem with the Ninth Circuit is it is never 
able to speak with one voice. All other courts have one entity to hear 
full court en banc cases. The Ninth Circuit sits in panels of 11. This 
system injects unnecessary arbitrariness to decisions. In an en banc 
decision, a case is decided 6 to 5. There is no reason to think it 
could actually represent the views of the majority of 24 active members 
of the bench. In fact, there are some commentators who have suggested 
that a majority of the 24 members of the Ninth Circuit may have 
disagreed with the pledge decision. But there was a concern that a 
random pick of 11 members of that circuit to hear the case en banc 
might have resulted in the decision being affirmed.
  The time has come to fill the vacancies in the Ninth Circuit and to 
enact legislation to split the circuit. We have heard again many times 
in the Senate over the course of these hours: Justice delayed is 
justice denied. That is most certainly happening in the Ninth Circuit. 
That is happening to the individuals who are pending before the Senate 
seeking confirmation of their judicial appointments. Filling the 
current vacancies would decrease the time it takes to resolve cases and 
would therefore provide better administration of justice.
  I see the Senator from Ohio is in the Senate, and I know he was to 
have a share of our side's time.
  Mr. SESSIONS. What is the time situation?
  The PRESIDING OFFICER. The majority controls 17 minutes and the 
minority controls 30 minutes allocated.
  Mr. SESSIONS. I yield to the Senator from Ohio for 10 minutes or so.
  Mr. VOINOVICH. How much time remains?
  The PRESIDING OFFICER. There are 16\1/2\ minutes.
  Mr. VOINOVICH. Mr. President, today I rise to talk about this body's 
treatment of President Bush's judicial nominations. This is not the 
first time I have been forced to come to the floor to protest this 
treatment, but I hope it will be the last.
  Over the past few years we have seen highly qualified nominees wait 
sometimes two years before their nomination reaches the floor of the 
Senate, only to see their records and reputations vilified for 
political purposes in the interim or to watch as cloture vote after 
cloture vote fails.
  And where has this filibustering and posturing gotten us?
  I want to underscore that one might question spending 30 hours on the 
issue of the Democrats using the filibuster to frustrate the Senate's 
right to advice and consent on presidential nominees, but we would not 
be here today if my colleagues across the aisle had not created a 
constitutional crisis with their use of the filibuster--and have now 
driven us--in order to protect the Constitution to consider changing 
the cloture rules of the Senate.
  Beyond the constitutional crisis, there is a diminishing of the third 
branch of Government, the Judiciary, at the hands of the legislative 
branch that has serious implications for the people of the United 
States.
  We have 12 judicial emergencies on the circuit courts of appeal. The 
President has done his job, nominating new judges for 11 of the 12 
appellate court vacancies. But the Senate has not done its job in 
confirming these judges.
  And there is a cost associated with these vacancies. The American 
taxpayers spend $5.1 billion for the federal judiciary every year. The 
American people are paying for fully staffed courts--not for political 
games. When courts are vacant and cases take longer than they otherwise 
could, lives are disrupted; businesses can be crippled, and financial 
resources are drained from the productive economy.
  My circuit in particular, the Sixth Circuit, is getting slower and 
slower as the obstruction continues. It has been plagued by political 
game-playing by my friends, the Senators from Michigan, who want to 
control who President Bush appoints to the circuit court vacancies that 
currently happen to exist in Michigan.
  Over the last 2 years, court delays in the already-slow Sixth Circuit 
have increased by nearly 2 months.
  In 2001, it took 28.9 months, that's over 2 years, in the Sixth 
Circuit for a case to go from original filing in district court to 
final decision on appeal.
  By June, 2003, it took 30.8 months. This 2-month increase difference 
may seem small, but there are more than 2,000 cases in the Sixth 
Circuit affected by this growing delay. With 2,000 plus cases being 
delayed nearly 60 days, more than 120,000 extra days have been spent by 
both parties waiting for a decision. What a waste of resources.
  I would like to draw your attention to a nominee who has faced the 
harshest of criticism from this body: Charles Pickering. I preface my 
comments on Judge Pickering, with a brief review of my civil rights 
record. The utility of this will be important in a few minutes.
  I have always been very proud of my record on civil rights. When I 
was Mayor of Cleveland, we created the first Minority Business 
Development Center operated by a city. As a result, minority 
participation in city contracts rose from 1.5 percent to 28 percent in 
the first 2 years.
  As Mayor, we also increased the amount of business the city did with 
minority and female businesses from less than $1 million per year to 
more than $90 million/year by 1989.
  We recruited and promoted more minority firefighters than any other 
administration in the city's history. We increased minority hiring on 
the police force by 63 percent in 5 years.
  We successfully defended our fire and police hiring program in a 
landmark U.S. Supreme Court case that established that prospective 
race-conscious relief for past discrimination is constitutional.
  I also lobbied Congress on behalf of establishing a Martin Luther 
King Day and made sure, as President of the National League of Cities, 
that it was properly celebrated across America. I was one of only 2 
invited to the inauguration of Martin Luther King Holiday in Atlanta.
  As Governor, we established the Governors Challenge Conference, to 
discuss positive human relations. We established the Disadvantaged 
Black Male Commission, which helped achieve a 200 percent funding hike 
for the Commission on African American Males; the Urban Schools 
Initiative, to improve accountability and performance in Ohio's urban 
school districts; and the Cleveland Scholarship Program, recently 
upheld by the U.S. Supreme Court, to give scholarships for low-income 
families and allow them to send their kids to the school of their 
choice.
  These are just a few of the civil rights initiatives I worked on 
before coming to the Senate. And yes, I broke ranks with my colleagues 
on this side of the aisle to support hate crimes legislation, and I 
have been working with one of my colleagues on the other side of the 
aisle on racial profiling legislation.
  I mention all of this now so that people know that I would not 
support a nominee such as Charles Pickering if I thought for one minute 
that he would undo any of the progress we have made in the civil rights 
area, or if I thought he would treat individuals differently because of 
the color of their skin.
  Judge Pickering has been a leader for equal rights, integration, 
inclusion and reconciliation in his community, church, political party, 
and state.
  As a county attorney in the 1960's, he worked with the FBI to 
dismantle, disrupt and prosecute violent members of

[[Page 28729]]

the Ku Klux Klan. In 1967, he testified against the Imperial Wizard of 
the KKK for a fire bombing of a civil rights activist in Mississippi. 
That was not easy in 1967.
  In 1976, he hired the first African-American staffer for the 
Mississippi Republican Party.
  In 1981, he successfully represented a black man falsely accused of 
robbing a 16-year-old white girl.
  In 1985, as President of the Mississippi Baptists he presided over 
the first Convention session addressed by an African-American pastor 
and the first African-American congregation to join and integrate the 
Convention.
  In 1988, he chaired a race relations committee for Jones County, 
Mississippi.
  In 1991, he worked with his son and son-in-law to integrate his 
former fraternity at the University of Mississippi. He helped establish 
and still serves on the Board of the Institute of Racial Reconciliation 
at the University of Mississippi.
  In 2000, he helped establish a group to work with at-risk African-
American youth in Laurel, Mississippi.
  Mr. President, in examining Judge Pickering's fitness for this 
judgeship, it is important to not only look at his record, but also his 
broad base of support from individuals of varying backgrounds and 
political affiliations.
  Judge Pickering has been endorsed by the current president and 17 
past presidents of the Mississippi State Bar. He has been endorsed by 
all major newspapers in Mississippi. He has been endorsed by all 
statewide elected Democrats and the chairman of the Mississippi 
Legislative Black Caucus.
  James Charles Evers, brother of slain civil rights leader Medgar 
Evers has said of Judge Pickering:

       As someone who has spent all my adult life fighting for 
     equal treatment of African-Americans, I can tell you with 
     certainty that Charles Pickering has an admirable record on 
     civil rights issues.

  Rev. Nathan Jordan, Pastor, St. John United Methodist Church and 
former President of the Forrest County NAACP:

       Without hesitation, I can truthfully say that Judge 
     Pickering is an extremely fair judge who serves all our 
     citizens. . . . It seemed to me that he pushed very hard to 
     insure the fair treatment of minorities.

  Ruben V. Anderson, the first African American Supreme Court Justice 
in Mississippi and former associate counsel for the NAACP stated:

       I have known Judge Pickering for at least a quarter of a 
     century. At all times I have found him to be an honorable 
     man. . . . Judge Pickering would be an asset to the Fifth 
     Circuit Court of Appeals and I recommend him without 
     reservation.

  There is no reason--no reason--as one looks at the qualifications of 
hundreds of people that this Senate has already confirmed over the 
years that Charles Pickering should not be sitting on the Fifth Circuit 
Court of Appeals.
  The reason he is not is because my colleagues on the other side of 
the aisle, for all intents and purposes, have modified the Constitution 
by filibustering his nomination and denying this man an up or down vote 
on the floor of the Senate.
  It is an outright violation of the advise and consent provision of 
the Constitution, and all Americans--Democrats and Republicans, 
liberals and conservatives--should demand that it stops now so that the 
judicial branch of Government can go about doing the job envisioned for 
it by the Constitution, and this body can get on with the other 
business of the people.
  This has to end--it has to end--and I prayerfully and respectfully 
ask my colleagues on the other side of the aisle to cease and desist 
their obstructionist tactics for the benefit of our Constitution and 
the people of the United States of America.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, will the Senator yield? He has been 
talking about the Sixth Circuit and this chart they have been placing 
in the Chamber.
  By the way, Mr. President, what is the time on this side?
  The PRESIDING OFFICER. The majority controls an additional 7\1/2\ 
minutes.
  Mr. SESSIONS. They have been saying there are four judges being held 
up. But there are four being held up in the Sixth Circuit.
  This is a resolution just passed I believe yesterday by the Michigan 
State Senate, expressing concern about this. I would just like to read 
from it. I know the Senator from Ohio was concerned about this circuit. 
It is his circuit.
  They say:

       Whereas, The Senate of the United States is perpetuating an 
     injustice and endangering the well-being of many Americans. 
     Its actions are jeopardizing our system of justice in 6 out 
     of the 12 federal judicial circuits that have been declared 
     ``judicial emergencies,'' including the 6th Circuit Court of 
     Appeals which includes the state of Michigan. . . .

  They say:

       Whereas, The Senate of the United States is allowing the 
     continued, intentional obstruction of the judicial 
     nominations of all these nominees put forth by the President 
     of the United States, including four fine Michigan jurists: 
     Judges Henry W. Saad, Susan B. Nielson, David W. McKeague, 
     and Richard A. Griffin, nominated to serve on the United 
     States 6th Circuit Court of Appeals. . . .

  I ask the Senator from Ohio, isn't it true that the chart they have 
been putting up says four judges are being mentioned; it does not 
include these four judges whom they are also obstructing?
  Mr. VOINOVICH. They do not include those four judges who are being 
obstructed.
  Mr. SESSIONS. I will just point out, Mr. President, if the Senator 
will yield the floor----
  Mr. VOINOVICH. I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, I will just conclude by noting this is a 
very strong resolution from the Michigan State Senate. They say:

       Resolved by the Senate--

  That is the Michigan Senate--

       That we memorialize the United States Senate and Michigan's 
     United States Senators to act to end the filibusters of the 
     federal circuit court nominees pending on the Senate floor, 
     to release those being upheld in the Judiciary Committee of 
     the Senate of the United States, and to vote for the 
     bipartisan Frist-Miller Resolution. . . .

  I ask unanimous consent that this resolution be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Senator Cropsey offered the following resolution:

                       Senate Resolution No. 199

       A resolution to memorialize the United States to end the 
     filibusters of the federal circuit court nominees pending on 
     the Senate floor, to release those being held up in the 
     Judiciary Committee of the Senate of the United States, and 
     to support the reforms of the federal judicial confirmation 
     process, all which will be addressed during 30 hours of floor 
     debate this week.
       Whereas the Senate of the United States is perpetuating an 
     injustice and endangering the well-being of many Americans. 
     Its actions are jeopardizing our system of justice in 6 out 
     of the of 12 federal judicial circuits that have been 
     declared ``judicial emergencies,'' including the 6th Circuit 
     Court of Appeals which includes the state of Michigan; and
       Whereas the Senate of the United States is allowing the 
     continued, intentional obstruction of the judicial nomination 
     of all these nominees put forth by the President of the 
     United States, including four fine Michigan jurists: Judge 
     Henry W. Saad, Susan B. Nielson, David W. McKeague, and 
     Richard A. Griffin, nominated to serve on the United States 
     6th Circuit Court of Appeals; and
       Whereas there has never been a filibuster on any Court of 
     Appeals nominee in the history of the Senate. This 
     obstruction continues to harm the lives, careers, and 
     families of eminently qualified judicial nominees and is 
     prolonging the judicial emergencies that have compromised the 
     administration of Justice for many of our fellow citizens in 
     Michigan and around the country; and
       Whereas both of Michigan's Senators continue to block the 
     Judiciary Committee of the United States Senate from holding 
     hearings regarding these nominees. This refusal and the 
     refusal by many of their colleagues to allow the United 
     States Senate to complete its constitutional obligation of 
     advice and consent is denying all of the nation's 
     filibustered nominees an up or down vote on their nomination. 
     All the while, the severe backlog of cases is growing; and
       Whereas the 30 hours of debate on the floor of the Senate 
     of the United States aims to improve our judicial system by 
     attempting to end the filibuster on several nominees, and the 
     blocking of our Michigan 6th Circuit nominees, while 
     instituting necessary reforms in the judicial confirmation 
     process; now, therefore, be it
       Resolved by the Senate, That we memorialize the United 
     States Senate and Michigan's United States Senators to act to 
     end

[[Page 28730]]

     the filibusters of the federal circuit court nominees pending 
     on the Senate floor, to release those being upheld in the 
     Judiciary Committee of the Senate of the United States, and 
     to vote for the bipartisan Frist-Miller Resolution (S. Res. 
     249); and be it further
       Resolved, That copies of this resolution be transmitted to 
     Michigan's United States Senators, The Senate Majority 
     Leaders, the President Pro-Tempore of the United States 
     Senate, and the President of the United States.

  Mr. SESSIONS. Mr. President, there has been a lot said here. I just 
want to share a few thoughts. This matter is, at its core, about the 
rule of law in this country. We have a system that believes judges are 
here to apply the law as written, they are not here to enforce their 
rules, their personal political agenda, do what they think is nice in 
every case.
  Clients have rights. If the rights they have protect them from 
lawsuits, they should be protected. If they are entitled to recover or 
be successful, they ought to be successful. It is up to the judge to 
apply the law fairly and objectively.
  President Bush has his hand on the heart of the problem. He 
understands what is wrong with the judiciary in America. He knows it is 
out of control. He knows we are allowing verdicts to run wild. He knows 
we have a radical secularization of America that is occurring through 
the power of the Federal courts. It is not healthy. We have things such 
as the Pledge of Allegiance being struck down. He knows criminal cases 
are being tossed over at record rates.
  Two judges we confirmed--Berzon and Paez--and I voted to give them an 
up-or-down vote, and I voted against them on the merits--these two 
nominees, in separate cases, struck down California's highly effective 
``three strikes and you are out'' law that has helped drive down the 
crime rates significantly in California. And I say that as a former 
prosecutor of over 15 years. Absolutely, that has had an impact in the 
reduction of the crime rate in California. They struck those down as 
unconstitutional.
  Mr. President, 170 death penalty cases have been overturned, as the 
Senator noted, by this Ninth Circuit, the most liberal circuit in 
America, and they struck down the Pledge of Allegiance. The U.S. 
Supreme Court has reversed the Ninth Circuit--in 1 year--in 27 out of 
28 cases; in another, 14 out of 17 cases. In fact, the New York Times 
several years ago, in a news article, said a majority of the Supreme 
Court considers the Ninth Circuit to be a rogue circuit.
  So what we are trying to do is come back to the mainstream. I am 
shocked that the distinguished Senator from New York, Mr. Schumer--who 
is really the point man on the advocacy of judicial activism in the 
Senate--I would submit this is what he said in this debate earlier, and 
I am just shocked by it. No wonder when I came in, I saw Senator 
Specter having his feelings hurt. Senator Schumer said:

       No one except a far right militant extreme minority 
     believes that the courts are being obstructed when 168 judges 
     are approved and 4 are not.

  So that is not the language of moderation. That is not the language 
of collegiality. They are accusing Members over here of being far right 
extremists because they do not agree with the filibuster tactics that 
are going on here.
  In another comment recently, on the Internet site 365Gay.com:

       New York's other Senator, Democrat Chuck Schumer [was 
     quoted as saying he] launched a broadside at conservatives, 
     accusing the President of ``loading up the judiciary with 
     right-wingers who want to turn the clock back to the 1980s.'' 
     Schumer said America is under attack from ``the hard right, 
     the mean people,'' and said ``They have this sort of little 
     patina of philosophy but underneath it all is meanness, 
     selfishness and narrow-mindedness.''

  That hurts my feelings.
  Mr. President, these nominees who are here who are being held up are 
not extreme. Janice Rogers Brown, an African American, who grew up in 
Alabama under racial discrimination, went to California, got her law 
degree at UCLA, a single mom, got elected to the Supreme Court of 
California, not a conservative State. She got 76 percent of the votes. 
Are these mean-spirited, selfish, narrow-minded people? Not Janice 
Rogers Brown, if you saw her testify, as I did.
  Carolyn Kuhl went to Duke Law School, graduated on the Law Review, 
clerked with Justice Anthony Kennedy on the Ninth Circuit when he was 
on the Ninth Circuit, and has served for a number of years on the 
courts out there and has won bipartisan praise from those courts.
  Mr. President, I ask unanimous consent that I be given an additional 
3 minutes to be deducted from the majority time in the next section.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. SESSIONS. And Priscilla Owen. I guess they claim she is a right-
wing, mean-spirited person. Priscilla Owen graduated at the top of her 
class in law school, made the highest possible score on the Texas bar 
exam. She was one of the most successful legal practitioners in all of 
Texas. They asked her to run for the supreme court. She did. She won 
reelection with 84 percent of the vote and the support of every major 
newspaper in Texas.
  Bill Pryor, the attorney general from Alabama, got 59 percent of the 
vote in his reelection bid.
  These are people out of the mainstream of this country, right-wing 
extremists? No, sir. The values this country holds dear with regard to 
the legal system, that were bequeathed to us from the English 
tradition, need to be cherished and protected and valued. America 
understands this. Mainstream America is very troubled by courts that do 
not adhere to the traditions of how to interpret law in America. They 
do not believe judges are entitled to reinterpret the meaning of words 
and statutes, and in our Constitution to legitimate the perpetuation of 
a political agenda.
  That is what it is all about. President Bush understands that. The 
American people understand that. That is mainstream. The kind of 
allegations we have had here against these fine nominees is not 
mainstream. It is typical of the hard left that comes from the People 
for the American Way, the American Civil Liberties Union, and those 
kinds of groups.
  Mr. President, I feel really strongly about it. I believe the 
majority acted responsibly during the Clinton years. We did not 
maintain a filibuster against Clinton judges, as has been done now for 
the first time in history. That is what is occurring today, a 
filibuster, systematically, of a number of highly qualified judges for 
whom there is no basis to object on the merits.
  I yield the floor and I reserve the remainder of the time.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. KOHL. Mr. President, I have been in the Senate now 15 years, and 
I must say I never experienced what will be 30 hours, when this debate 
ends at around midnight tonight, that I thought were as off point and, 
in many ways, as not relevant to what we are talking about here--which 
is Federal judgeships in our country--as this debate has been.
  In my judgment, that is because our colleagues on the other side of 
the aisle have not wanted to deal with the facts and have wanted to, 
instead, try to create impressions which are not true. Because the fact 
is--and it has been said now on many occasions and many times since 
this debate started last night--the President and the committee have 
sent to the floor 172 nominees since he came into office, and we have 
voted out 168 of them positively, and 4 have been held up.
  So how can anybody claim that in fact there is a conspiracy to deny 
those nominees sent up by the President a vote? Mr. President, 168 have 
been voted on and are now sitting in their Federal judgeships, and 4 
have been held up.
  Furthermore, the vacancy rate at the Federal judgeship level is less 
than 5 percent. In other words, over 95 percent of all the Federal 
judgeships in this country are now presently occupied. When you have a 
vacancy rate of less than 5 percent, how can anybody make the argument 
that there is something sinister going on?

[[Page 28731]]

  Just a minute ago, my colleague from Alaska suggested that in the 
Ninth Circuit, because of the vacancies, apparently, justice delayed is 
justice denied. That phrase has been used time and again to suggest 
that perhaps a third or a half of all of the Federal judgeships in this 
country today are vacant. Again, I repeat, it is less than 5 percent. 
It is at its lowest point since 1985 in terms of vacancies.
  Now, on the Ninth Circuit, which was referred to by my colleague from 
Alaska, there are 25 circuit court judges who are supposed to be 
sitting, and there are but 2 vacancies at the present time. So how can 
we make the argument that justice delayed is justice denied because 
there are ``so many vacancies on the Federal judiciary''? It simply is 
not true.
  So what is the argument about? What are we spending these 30 hours 
on? To suggest that the Democrats are holding up the Federal judiciary 
by some vast conspiracy which, in fact, the numbers do not suggest in 
any way to be true?
  In fact, when President Bush took office, we did have a vacancy rate 
of about 12 percent, and now it is down, as I said, to less than 5 
percent, which is at its lowest point since 1985.
  So to my colleagues on the other side of the aisle, what is the 
point? Why are we spending 30 hours debating an issue which, in fact, 
is not an issue? If we want to debate ideology, that is an entirely 
different story. But that is not what this 30-hour debate is all about. 
It is about the assertion made by the other side that the Democrats are 
preventing our Federal judiciary from doing its job by decimating 
Federal judgeships all over the country.
  As I pointed out here, in the most clear manner, in an arithmetic 
way, the argument in no way has any merit. So I wish we could move on 
and talk about the things that are really important to the American 
people today, on which they are looking to us for leadership: Our 
economy, our deficit, our unemployment rate, our health care crisis, 
our educational crisis, the problems men and women who are leading 
their regular lives every day face and on which they are looking to the 
Federal Government for at least some help and assistance.
  They are not all hot and bothered about the fact that 4.5 percent or 
5 percent of the Federal judgeships in this country are today vacant, 
which is to say that over 95 percent are occupied. They are not 
concerned about that. They are concerned about their real problems and 
what we are doing to try to alleviate them. And here we are, taking 30 
hours and, in my opinion, just wasting it in talking about a problem 
which the other side alleges exists and does not exist.
  Finally, when President Clinton was in office, and the Republicans 
controlled the Senate from 1995 to the year 2000, nominees were also 
denied votes in that era. They were denied votes because they were not 
given hearings by the Republican Judiciary Committee. So they were 
denied their vote in much the same way that some are being denied a 
vote right now. That is the way the process works. There is nothing 
sinister about it, and it certainly does not cripple our country's 
judicial system.
  My colleague from New Jersey is, I believe, waiting to speak.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. LAUTENBERG. I thank my friend from Wisconsin, Mr. President, and 
I was very interested in what he had to say. I thought it was right on 
the mark.
  The fact is, this is a clear example of misplaced priorities, those 
of the Republican leadership and the White House. It is hard to 
understand why there is such outrage on the other side of the aisle 
about these four people being denied a spot on the Federal bench.
  If they are worried--and I heard it requested here: Give these people 
a break. Be fair with them.
  They are worried about these four people being denied their 
opportunity, but there is an expense to putting them on the bench that 
is going to be felt by Americans across this country.
  What about the 3 million people who are denied jobs? What about the 
millions of jobless being denied unemployment benefits? What about the 
White House's attempt to deny millions of workers their overtime pay? 
What about lower income, working Americans being denied an increase in 
the minimum wage? What about the millions of women being denied their 
right to reproductive freedom by nine men surrounding the President 
when he signed the new anti-choice law? They took away a woman's right 
to make a decision, in concert with their doctor, about their health 
because these nine men--the male oligarchy--decided that it was 
appropriate that they take away a woman's rights.
  There was not one woman on the floor to defend that decision. Not one 
woman spoke about it. Not one woman in this picture or even in the 
other picture that was shown in the top newspapers across the country. 
Not one woman, but they are making decisions about women.
  I said the other day on the Senate floor, and I repeat it, I have 
three daughters, and I respect their judgment about how they ought to 
conduct their pregnancies and how they ought to live their lives to 
make sure they are healthy to take care of the nine grandchildren I 
have been blessed with, and not run any risk--my middle daughter is on 
her fourth pregnancy right now--not to run any risk that anything was 
amiss with her health that she couldn't take care of her three 
children.
  What about the administration's attempts to deny our troops their 
imminent danger pay?
  I just came from Walter Reed Hospital with other Senators, and I met 
a couple of people there. One was a young double amputee from Rockland, 
MA. He was in Iraq 3 weeks. He has no hands. Part of one arm is still 
in place. Most of the other arm is missing. It is a tragedy.
  My guess is he was somewhere in his early twenties. He had been a 
member of the National Guard a few months and was called up from 
Rockland, MA.
  By the way, two of our Senators--one former and one present, amputees 
themselves; one with three limbs missing--went to Walter Reed to 
console this young man and encourage his spirit and his belief that 
life can be functional. Senator Cleland, now out of office, and Senator 
Inouye with an arm missing that he lost in southern Italy, went to 
cheer up this young man.
  What about them? We are using time here to talk about these choices 
when they are not choices. They are not qualified by the judgment of 
many. But why carry on this battle? Why this stick in the eye to the 
public at large when there are so many other issues about which to 
talk?
  I had a chance to be on TV this morning with one of our Republican 
colleagues. We talked about what was going on. He said: We are not 
losing any time. My duty was at 5 o'clock in the morning. What time did 
we lose? It occurred to me, what a foolish response. If it is important 
enough to be here at 5 o'clock in the morning, then why isn't it 
important enough for us to be taking care of what we have to in Iraq 
and getting those kids home and making sure we get as many allies as we 
can to pick up this burden we have and share it.
  Why can't we talk about that at 2 o'clock in the morning or 3 o'clock 
in the morning or 4 o'clock in the morning? I don't get it. Why can't 
we talk about 3 million jobs lost and talk about a way to adjust that 
situation--jobs lost.
  What about the administration denying photographers the right to 
honor our fallen heroes coming back in flag-draped coffins? When do we 
say the public doesn't have a right to honor them and remember that 
these people gave their lives on behalf of our country? Why is that not 
permitted? Why is it so obscure? We can't see them. They don't show the 
people what has really happened in the war. Maybe they won't think it 
is such a bad idea that we don't have the kind of partnership we ought 
to have over there fighting the battle.
  On Monday, I went to a funeral in Newark, NJ, of a young man named 
Joel Perez. He was a sergeant. He was

[[Page 28732]]

on the Chinook helicopter, as was the man we visited this morning. 
There are bones broken all over his body, but he is glad to be alive. 
He is very happy to be alive. He knows what happened to the 16 others. 
They lost their lives.
  Since May 1, the President has found time for 36 fundraisers. How 
many families did he visit to console, to tell them he is sorry and 
acknowledge their bravery in serving? No, the debate is on four judge 
nominees. What do the American people think about that?
  Look at the majority leader's own Web site. He said he did a poll. 
The poll said: Should the President's nominees to the Federal bench be 
allowed an up-or-down vote on confirmation as specified in the 
Constitution?
  First error, ``as specified in the Constitution.'' I will talk about 
that in a minute. The poll answers came in: 60 percent said no, the 
President's nominees to the Federal bench ought not be allowed an up-
or-down vote if the opposition doesn't want to give it to them--60 
percent. But they quickly changed this Web site because they didn't 
like the answer they got. So they changed it to a more mealy-mouth kind 
of thing: Should we do it or shouldn't we do it? The Constitution says 
``advise and consent.'' It doesn't say consent and then advise, which 
is what they would like to see us do here. They would like to see us go 
ahead and say: Mr. President, that is what you asked for; that is what 
we are giving you. No, our responsibility in the minority and in the 
majority is to stand up for what we believe and what the people who 
sent us here want us to say, and if they don't want us to say it, then 
they will reject it at the appropriate time.
  This Senate spending 30 hours to talk about four judicious--judicial; 
they are not judicious at all--judicial nominees? Meanwhile, 3 million 
have lost their jobs since this President took office.
  I ask my colleagues to listen closely to this fact. In the private 
sector, two Americans have lost their jobs every minute that George W. 
Bush has been President. Two families without an income; two families 
where there may be some humiliation about an inability to go to work.
  I remember my late father who finally, in the desperate days of the 
Depression, had to take a job with the WPA. He was embarrassed about 
doing it because it looked like welfare. It was a job. The Government 
had created jobs. He was humiliated having to take that job, but he did 
it because he wanted to provide for me, my mother, and my little 
sister. He had to do it.
  What about those 3 million people? What are we doing to help them go 
to work? The latest survey shows there are a total of 8.8 million 
Americans currently unemployed; 3 million have lost their jobs since 
this administration took office; and the reality is this administration 
doesn't have a jobs plan. Not surprising. It has a bad record on jobs.
  Let's look at this chart of the last 80 years. It shows jobs gained 
or lost during administrations, in the millions. We have two 
administrations identified in red. By the way, those in green were 
Harding, Coolidge, Roosevelt, Truman--a variety. None of them, except 
President Herbert Hoover and George W. Bush, have lost jobs during 
their administrations. It is a sad commentary.
  The chart shows actual jobs gained or lost in the millions, and here 
we see there are 3 million lost.
  The two blobs on this chart are the administrations of Herbert Hoover 
and the current administration. When we look at this chart, there are 
only two administrations in the last 80 years that have resulted in a 
net job loss: this administration and Herbert Hoover's administration. 
I don't remember thinking about it during Hoover's time, but I was 
there at the time. I knew it was a disaster in my house.
  I would think the Bush administration doesn't enjoy sharing this kind 
of company, but the inaction of this administration on this issue makes 
me wonder if they understand the damage they are causing to the economy 
and families across the country. But we are taking 30 hours of time. 
The 30 hours don't belong to us. They belong to the people of the 
country. It belongs to our constituents.
  Taking 30 hours of the time of the Senate not to pass a jobs creation 
bill, not to pass incentives for companies to continue manufacturing in 
the United States, not to extend the unemployment benefits for people 
victimized by this economy--none of that. We are here to discuss a 
couple of extremist judicial nominees the President wants to force down 
our throats.
  President George W. Bush presented himself in the beginning days of 
his campaign and in the early days of his administration as being a 
uniter, not a divider, except that is far from the truth. I have never 
seen a more ideologically partisan White House, and I served with 
Ronald Reagan when he was President. I served with George Bush, Sr., 
when he was President. I served with President Bill Clinton. I have 
never seen a more ideologically partisan White House. This 
administration and my colleagues across the aisle are driven 
ideologically to the point that I think there is kind of an impaired 
vision to the simple, clear, and irrefutable facts.
  The Senator from Wisconsin said it. As of today, the Senate has 
confirmed 168 judicial nominees recommended by President Bush and 
blocked 4 in 3 years. President George W. Bush has gained more 
confirmations than President Reagan did in his first full term. Mr. 
President, 168 confirmed judicial nominees is particularly impressive 
because 100 nominees were confirmed when Democrats still controlled the 
Senate in the last Congress. We did our share, and we will continue to 
do our share, but we will not let the judicial system and the citizens 
of this country be taken advantage of, not if we can help it.
  This is a 98-percent rate of confirmation for President Bush's 
judicial nominees. That is an impressive rate. As I said before, the 
Constitution says that the Senate must advise and consent, not consent 
and then advise, which is what we would like to see happen here. It is 
the Senate's job to put a check on the President's appointments. If it 
were not, then the Founding Fathers would not have written the consent 
requirement into the Constitution.
  I think it is instructive to look back at the treatment of President 
Clinton's judges by the Senate. During the Clinton administration, 248 
Clinton judicial nominees were confirmed, and 63 were blocked from 
getting votes. That is 20 percent of all President Clinton's nominees, 
and now there are complaints from the other side because President Bush 
is not getting just 2 percent of his choices.
  During the Clinton administration, Republicans placed secret holds on 
judicial and executive nominees preventing many fine Americans from 
even having a hearing in the Senate Judiciary Committee.
  The Senator from Wisconsin is on the Judiciary Committee. He knows 
and everybody in this room knows that you don't have to have a 
talkathon to kill nominees. All you have to do is just not bring it 
before the committee, or if they go before the committee, not bring 
them before the Senate. That is the control of the majority.
  We did it differently when we were in charge. We processed most of 
the administration's recommendations.
  In total, 63 Clinton judicial nominees and more than 2,200 Clinton 
executive nominees were defeated by delay or no votes. These numbers 
are unchallengeable. We see it here: Clinton nominees from 1995 to 
2000, number confirmed, 248; nominees blocked, 63, 20 percent of the 
total. Of the Bush nominees, we processed 168; nominees blocked, 4; 
total, 2 percent. That is what is happening. And now to have this 
circus taking place with the crocodile tears about how we treated these 
nominees, and not one word about how we are treating the public. No, 
no.
  Mr. SESSIONS. Will the Senator yield for a question?
  Mr. LAUTENBERG. No, I would like to finish, Mr. President. I am 
sorry. At such time as the floor shifts hands, I will be happy to 
answer any questions.
  The fact is, Democrats have used the filibuster only to block 
nominees with records of extremism. Americans deserve an independent 
judiciary with fair judges who will enforce their rights and uphold the 
law. Republicans

[[Page 28733]]

want Democrats to blindly confirm result-oriented, agenda-driven judges 
whose rules of judicial interpretation change to meet their ideological 
agenda.
  It is pretty obvious, I guess, to the American people, we are not 
consenting. That is the choice and the right that the Founding Fathers 
gave us as Senators. I am not about to give up that right.
  I ask the Chair, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator from New Jersey has 4\1/2\ minutes 
remaining.
  Mr. REID. Will the Senator yield for a question?
  Mr. LAUTENBERG. I will.
  Mr. REID. Through the Chair to the distinguished Senator from New 
Jersey, I ask my friend, we have spent--how many hours it has been 
since last night at 6 o'clock--talking about four people. I am sure the 
State of New Jersey, like the State of Nevada, and all 48 other States, 
has people who are unemployed. New Jersey is a very heavily populated 
State. Does the Senator from New Jersey think the people in New Jersey 
would care about our dealing with, for example, unemployment insurance 
where during the last 3 years we have lost 3 million jobs, or does the 
Senator think they would like to talk about some way to get jobs for 
the more than 9 million people who are unemployed in this country?
  Would the people in New Jersey rather we be doing that or what we are 
doing now?
  Mr. LAUTENBERG. I say to my friend from Nevada, I hear two principal 
concerns from the people in New Jersey: One, jobs; having to get to 
work because not only is it the deprivation of funds and the shortage 
of being able to afford, many times, the necessities, but it is the 
humiliation of not being able to provide for your family. That is what 
they talk about.
  Do you know what else they talk about in New Jersey? They talk about 
health care. They talk about prescription drugs. People in the senior 
community--and I happen to fit, thankfully, in that community--are 
concerned about the prescription drugs they can't get to sustain 
themselves.
  We saw things in the paper today--I read these with great interest--
about the successful effects of a drug that is called Lipitor. I am not 
advertising any medication, but look in the paper and you will see that 
it has reduced the possibility of heart attack. People want those 
drugs. We have got to live this long because, A, we were lucky and, B, 
maybe because we had the right doctors and the right prescription drugs 
to keep us going. So that is what they think about.
  I have yet to have a call, that I am aware of, that said: Senator, 
for crying out loud, pass those four judges and, by the way, I am 
jobless, in case you should think about it; or: Pass those four judges 
and do not worry about the environment because we can stand some more 
toxic waste in our skies or on our ground. No, do not worry about those 
things. Senator, you just take care of getting those four people the 
job that the President and the Republican Party want them to have.
  To answer the question the Senator from Nevada asked--and I am 
reminded about this constantly--3\1/2\ million people, since January 
2001, have lost their jobs in manufacturing. It also breaks the 
economic structure that we desperately need. We need manufacturing jobs 
because those are decent-paying jobs. One does not have to have a 
college education there, or a master's degree, or anything like that 
for most of those jobs. It is for the people who want to go to work who 
have not had the advantage of getting the extended education.
  That is what they want us to talk about. They want us to talk about 
what is happening: Where are these jobs going that are leaving our 
shores? What should we do about it?
  Well, we do not have time for that debate. I have to remember to tell 
them that when they call up. Sorry, we cannot discuss jobs or 
prescription drugs, or your kid's schooling. We do not have time for 
it. We are busy, very busy, and we are under the gun, and that is to 
get our appropriations bills done and things of that nature. We have to 
get it done so that we can end this session and we can get back to our 
communities and talk to our people and do what we have to, to stay in 
touch. No, we do not have time for that.
  The PRESIDING OFFICER (Mr. Crapo). The time of the minority has 
expired.
  Mr. LAUTENBERG. Mr. President, I reluctantly yield.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, may I inquire how much time now is allotted 
to the majority side?
  The PRESIDING OFFICER. The majority has 27\1/2\ minutes.
  Mr. CRAIG. Mr. President, I recognize the Senator from Wisconsin is 
still in the Chamber. Let me say, in all fairness, I was listening from 
my office to the Senator when he asked how justice delayed is justice 
denied when the vacancy rate is so low. He also wondered why we are 
spending time on judges. I think his own words answer the question.
  Senator Kohl declared that the judicial confirmation process should 
not be about politics. In a quote in the Congressional Record of 1997, 
Senator Kohl said: We need these judges both to prosecute and sentence 
violent criminals and to prevent more backlogs in the civil cases.
  I think he also stated it was in our system where judges got blocked 
and that there was nothing sinister about it.
  Let me read a couple more of the Senator's quotes because we have 
been accused of hypocrisy on this floor and I do not think any of us 
ought to be accused of that. Different circumstances and different 
times oftentimes produce less than consistent quotes. My guess is that 
this Senator has been a bit guilty of that on occasion, too.
  In the Congressional Record of May of 1997, it says that Senator Kohl 
urged votes on nominees who had been approved by the Judiciary 
Committee. Let's breathe life back into the confirmation process, let's 
vote on these nominees who have already been approved by the Judiciary 
Committee, and let's see a timetable for future hearings on pending 
judges. Let's fulfill our constitutional responsibilities. Justice 
denied demands that that be at a minimum--and so forth and so on. I 
could read other quotes. My guess is that if we searched the Record, I 
would find quotes by myself.
  I come to this debate in probably a slightly different way than some. 
I am a freshman on the Judiciary Committee. I have spent plenty of time 
over the last year watching the inner workings of the Senate judicial 
nomination process. With all due respect to our colleagues on the other 
side of the aisle, there is an emerging trend in the process that is 
very disturbing to this freshman Senator on the Judiciary Committee.
  I refer to an effort by a select few to legitimize probes into the 
nominee's personal and political ideology, in addition to the nominee's 
judicial philosophy. That is, they would have us ask what the nominee 
thinks about such items as abortion, the death penalty, affirmative 
action, even though the future job of the nominee has nothing to do 
with what he or she thinks about these issues and everything to do with 
how the nominee would apply and enforce constitutional, statutorial, 
and common law in the cases involving those issues.
  Now, that ought to be very clear and it ought to be a clear 
difference between how one approaches a judicial nominee and how we are 
now approaching judicial nominees. Those who have mounted this crusade 
have tried to divert attention from serious constitutional problems 
this process poses. They have held straw hearings and brought in 
heavyweight legal scholars to say, of course, a nominee's political 
ideology should be considered in the nomination process in an effort to 
pass off. Everybody knows that sort of attitude. But the academic gloss 
quickly wears off when there is no substance underneath, and they find 
out this is not a probative debate on judicial philosophy, this is 
really raw politics of the first instance.

[[Page 28734]]

  In a 2001 Senate judicial committee hearing, the leading proponent of 
the personal ideology probe said this: For whatever reason, possibly 
Senators' fear of being labeled partisan, legitimate concerns of 
ideological beliefs seem to be driven underground. It is not that we do 
not consider ideology, we just do not talk about it.
  Now you talk about it openly. If you do not have the right ideology, 
you cannot make it to a vote on the Senate floor. You may be the 
brightest legal scholar in the country, with an absolutely gold-plated 
record, but if you do not walk the fine line of political attitude, 
political philosophy, you do not cut it.
  That Senator may truly not know that political ideology is not 
traditionally the subject of an extensive probe. However, I would 
submit that the rest of us do know the reason.
  Law students--I have never been one--in their first year of law 
school know the reason. They cannot tell you that when they are called 
into the class, but a professor makes it very clear that it does not 
matter what they think about the legal issue at hand but only what the 
law is on the issue and how they should apply the law. That is what a 
freshman law student finds out.
  From the very beginning, it is not the politics of the issue, it is 
the law: What does the law say, and how do you apply the law?
  We are in the Chamber today not about law. We are in the Chamber 
today because of politics, because these judges who have been 
responsibly nominated by a President, brought before the Judiciary 
Committee, with the highest possible credentials in almost every 
instance, gold-plated records in the judicial process, cannot now come 
to the floor for a vote, not even a simple up-or-down vote.
  Why? Because the other side has now established a litmus test of 
political philosophy, and if they do not meet it, they do not cut it. 
That is the bottom line.
  Our Democratic colleagues even know the reason. Let me tell my 
colleagues what Senator Pat Leahy has said. I am quoting him. I would 
not take him out of context. Nobody should take any Senator out of 
context. Here is what he said: We need to get away from a rhetorical 
and litmus test and focus on rebuilding a constructive relationship 
between Congress and the courts. We need balance and moderation that 
respects the democratic will and the weight of precedence. We do not 
need our Federal courts further packed with ideological purity. We do 
not need nominees put on hold for years while we screen them for their 
Republican associations.
  I guess the only thing I can say about that quote is: that was then, 
this is now.
  Senator Tom Harkin said: I thought that if the President nominated 
them, they had a fair hearing, and they were reported out, my own 
decision was whether or not they were qualified, not whether they were 
ideologically opposed to me or to how I feel about what they believe. 
Again, that was then, this is now.
  So then Senator Harry Reid said: I do not think we should have a 
litmus test on members of the subcabinet, the Cabinet, or the judges. 
But then again, that was Harry Reid then, not Senator Reid now.
  Although I myself have never studied the law, I know the reason, too. 
I am going to try to be as honest as I always am on the floor and as 
direct as I can be. When the nomination of Ruth Bader Ginsburg came up 
for the U.S. Supreme Court in 1993, I was confronted with a nominee 
whose past revealed that she had a vastly different political ideology 
than my own. My constituents from Idaho, in fact, made it clear how 
different she was in what she had done from the mainstream of my 
State's thinking. However, Justice Ginsburg was a judge of great 
ability, character, intellect, and temperance. Her record was replete 
with this evidence, and though at one time she had been a vocal 
advocate of particular political issues, she had a sharp understanding 
of the limit, of the character of the judiciary and the role she would 
play as a judge, a neutral arbiter, not an advocate.
  Well, I voted for Ruth Bader Ginsburg, not because she had the same 
ideology--my guess is she was here and I am there, and I think the 
record probably clearly demonstrates that, but I was convinced she was 
a bright legal mind who would, in fact, not be an advocate but a 
neutral arbiter.
  That is not the kind of judgment nor is that the kind of test that is 
being applied to the nominees who are before us now. It is raw 
politics, folks--nothing more, nothing less. It is a fine litmus test 
of the attitude on the part of the Democrats, and if it does not match 
the litmus test, they do not get the vote.
  Now and then, of course, we probably ought to make a few examples 
here to prove that you have that kind of power, or that you can exert 
that kind of power, even in fact when the advice and consent clause of 
the Constitution, in my opinion, and I think the opinion of a lot of 
constitutional scholars--of which I am not one--is that we advise and 
we dispose, or consent, and that you do that not by suggesting to the 
President that he can only send up those who meet the narrowest of a 
litmus test but those who meet the broadest and the most easily 
substantiable character, quality, training, expertise, and talent. That 
is what we want.
  Our Founders also understood the reason judicial nominees should not 
be subjected to personal ideologies. For instance, in Federalist Paper 
78, Alexander Hamilton underscored how important an independent 
judiciary was to the separation of powers:

       The courts must declare the sense of the law; and if they 
     should be disposed to exercise will instead of judgment, the 
     consequence would equally be the substitution of their 
     pleasure to that of the legislative body.

  To guard against such legislative encroachments, Hamilton emphasized 
the need for qualified judges; that is, individuals who possess virtue, 
honor, requisite integrity, competent knowledge of the law, be of fit 
character, and those who have the ability to conduct the job with 
utility and dignity. Character and competence is what Hamilton talked 
of and was, therefore, the foundation of the judicial selection 
process. Consideration of an individual's independent political will 
would undermine it.
  Yet today, we have slipped into that morass of politics. We are not 
holding up individuals looking at them for the character of the 
individual and the quality of the legal mind and how they have 
demonstrated the use of that talent in their lifetime and through their 
professional ways.
  Those are the issues that are debated on the floor, and that is the 
substance of this debate. For the first time, this freshman on the 
Judiciary Committee is witnessing something unique, and that uniqueness 
is quite simple. We are now applying politics instead of the judgment 
of character to the judges the President is sending forth for us to 
consider.
  May I ask how much time remains on our side?
  The PRESIDING OFFICER. Thirteen minutes, 50 seconds.
  Mr. CRAIG. I yield such time to the Senator from Wyoming as he may 
consume.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. THOMAS. I will not take much time. I have been listening, of 
course, as we all have, to the debate, some of it from the chair this 
morning. Nearly everything has been said, I suppose. Not all of us have 
said it, and so it is important that we all do.
  I am no expert in the judicial system. I am not on the committee. But 
I have been here and I have observed what has gone on throughout this 
whole last year. We keep talking about the fact that we ought to be 
talking about unemployment, we ought to be talking about a number of 
things, and I agree with that. We should have been doing that over the 
last year, but we spent a lot of time on this very issue right here on 
the floor when we could have been talking about energy; we could have 
been talking about health care; we could have been talking about all of 
those things.
  So I kind of hate to hear that this 30 hours is holding things up 
when we

[[Page 28735]]

spent much more than that with the other side simply holding up moving 
things along.
  I am convinced there needs to be a system in the Senate we can depend 
on and work with, that we can bring it to a vote and decide yes or no. 
There has to be that system. That is what this is all about. There 
seems to be a lot of talk, of course, about the individual candidates 
we are talking about here who have not been able to be dealt with. But 
the real fact is it is the system that is in question. That is what it 
is really all about, and I think we need to deal with that issue.
  There has been obstruction, frankly. There has been obstruction on 
almost all of our issues. It has been called slow-walking. Some 
evidence of that from last year is that we did not even get a budget. 
Remember that? We did not even get appropriations through the whole 
year.
  That same obstructionism has been going on this year. It is all 
political. It is too bad, really, because we have so much we can do and 
so much we really ought to do. We have a constitutional duty, of 
course, to provide the advice and consent of these nominations. It is 
pretty simple. The Constitution specifically requires a supermajority 
for overriding a veto, for impeachment, for ratification of treaties. 
Advice and consent is not in that category and has not been in that 
category.
  As I said, I will not take long. Some of the past comments from the 
other side of the aisle I think have been interesting as time goes by. 
Let me quote from Senator Edward Kennedy from the Congressional Record 
in 1999, in September: Delays can be described as an abolition of the 
Senate's constitutional responsibility to work with the President and 
ensure the integrity of the Federal courts.
  Another quote: The delay has been especially unfair to nominees who 
are women and minorities, selected for that sort of business.
  Another from the Senator from California: I am very glad we are 
moving forward on judges today.
  We have all heard, as we were growing up, that justice delayed is 
justice denied. We have vacancies in many of our courts that have gone 
on for a year or 2 years, in many cases getting to a crisis level. I am 
pleased we will be voting. I think whether the delays are on the 
Republican or Democrat side, let the names come up and let us have a 
vote. Let us debate and have a vote. The Senator from California and I 
agree with that point of view.
  I yield the floor.
  Mr. CRAIG. Mr. President, I thank the Senator from Wyoming for his 
comments as we debate this issue. How much time remains on our side?
  The PRESIDING OFFICER. There are 9 minutes 40 seconds.
  Mr. CRAIG. I yield to the Senator from Utah 8 minutes.
  Mr. BENNETT. Mr. President, we have compared numbers around here, 
particularly the number of 168 to 4 over and over again. I make it 
clear that these two numbers are not in the same ballpark; that is, 
this is not 168 who have been approved and 4 who have been disapproved. 
There has been no vote disapproving the 4. Rather, it is 168 who have 
received a vote in the tradition and the precedent set and maintained 
for 214 years.
  The Constitution was ratified in 1789, and from that time forward 
there has never been an instance where a judge reported out of the 
Judiciary Committee, or whatever committees preceded the Judiciary 
Committee in the existence of the Senate, never been a time when a 
judge whose name has come to the floor has been denied a vote until 
this year. If you take apples and apples, if you take the number of 
those reported to the floor and voted on until this year, the number 
was 2,372-0 for 214 years. Whether it was under control of the 
Democrats or the Republicans, this body never denied a reported nominee 
a vote. Some of those who got votes got defeated, but no one who was 
reported was denied a vote until this year.
  We talk about the law. We talk about the Constitution. One of the 
parts of the law as I understand it becomes established is the question 
of precedent, 214 years of precedent, 2,372 cases of precedent upset in 
this Congress by the Democratic leadership.
  A lot of people have called a lot of people names during this debate. 
I don't want to do that. I was urged to do that just before I came over 
here by some who said: Why don't you say the kind of things about them 
they are saying about you or their nominees? Mix it up.
  I don't want to do that because I don't think that is useful. What I 
would like to urge on the Senate on this occasion is that we go back to 
a proposal that was made some years ago by the Democrats, specifically, 
Senator Lieberman and Senator Harkin, a proposal endorsed by Senator 
Daschle, that said let us eliminate the filibuster for nominees, start 
out with a 60-vote cloture motion, followed up with a second cloture 
motion at a lower level, follow it up with another cloture motion at 
another level, and so on. The Republicans did not endorse that. I am, 
today, rising to endorse that. I am today rising to say, we thought 
that rule change was not necessary because we thought the precedent 
would hold. But the precedent has now been broken. The precedent did 
not hold.
  The time has come to recognize the wisdom of Senator Lieberman and 
Senator Harkin and Senator Daschle and others to change the rules. The 
vote we will have tomorrow on what is now called the Frist-Miller 
proposal is a vote to endorse the wisdom and farsightedness of Senator 
Lieberman, Senator Harkin, and Senator Daschle in previous Congresses. 
And the practical effect of passing Frist-Miller will be to establish 
in the Senate rules a 214-year-old precedent that has been broken in 
this Congress for the first time. The effect would be to establish in 
the Senate rules a precedent that has held up 2,372 times, and has only 
fallen in this Congress. It will be a vote to make a bipartisan 
solution to a problem that has spawned far too much acrimony, far too 
much controversy. It will be a permanent solution to this matter.
  It will not solve the question of Miguel Estrada who was tired of 
having his reputation trashed and decided to withdraw and thus deprive 
the United States of the opportunity to have the services of a man who 
excelled academically, who excelled professionally, who, though he was 
appointed to the Solicitor General's office by the first President 
Bush, was maintained in that office for several years by President 
Clinton because they thought he was that good.
  Today he has been attacked on this floor as a lemon, someone who 
deserved to be rejected. We have fallen to that level of discourse, and 
we should avoid that level of discourse. Let us adopt a bipartisan 
solution which Republicans previously blocked. This Republican is 
prepared to repent. This Republican is prepared to say, OK, I recognize 
the wisdom of Senator Lieberman's proposal. I am willing to endorse it. 
Now it is before us once again. Let us not kill it just because it 
bears the name Frist-Miller instead of the names Lieberman-Harkin as it 
originally had.
  Give Members an opportunity to put the bitterness, the wild and 
sometimes excessive statements behind us and move forward in the future 
as we have done in the past for 214 years to see to it that any nominee 
who makes it through the committee process and gets reported to the 
floor gets voted on, whether he or she is a Republican or a Democrat, 
Hispanic or an African American, a Roman Catholic or a Jew or whatever 
the situation. If he or she survives the committee process and comes to 
the Senate floor, he or she deserves a vote in the same tradition that 
we have followed for 214 years.
  I yield the floor.
  Mr. CRAIG. How much time remains on this side?
  The PRESIDING OFFICER. There are 2 minutes 15 seconds.
  Mr. CRAIG. Mr. President, let me be brief and close. I see the 
Senator from Washington and the Senator from Wisconsin ready to speak. 
As the Senator from Washington engages this afternoon, I would like to 
quote some of her comments so they are fresh in her mind.
  Senator Murray raised the issue of the action on female and minority

[[Page 28736]]

nominees was denying justice and holding the system hostage. On 
September 14, 2000, she said at a press conference: Our justice system 
is being held hostage and American communities are paying the price.
  Senator Murray went on to say at a press conference on September 14: 
This delay is especially troubling when we look at what happens to 
women and minorities. It is time to dismantle the glass ceiling and let 
qualified jurists take their place on the bench. We are here to send a 
message. Confirm the judicial nominees pending before the Senate and 
let these qualified men and women fill the vacancies of the courtrooms 
across America.
  That is a quote from the Senator who is about to address this 
afternoon the issue of the filibuster of the qualified judges who are 
before the Senate. I hope her statements of less than 3 years ago would 
be fresh again in her mind as she resumes the debate this afternoon.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, this morning on the Senate floor I spoke 
at length about the importance of the Senate's role in confirming 
judges for lifetime appointments and talked of the success in the 
Senate confirming 98 percent of the judges sent to the floor. We have, 
I remind our colleagues, confirmed 168 judges on the Senate floor. That 
is pretty impressive. But all the Senate action that is important to 
occur before the end of the year is now being held up over four judges.
  I also talked this morning about the success we had in Washington 
State using a bipartisan commission to select and confirm qualified 
judges. This morning I noted that we should be spending our time on 
much more pressing issues like helping the many unemployed workers who 
are about to run out of unemployment benefits.
  We are wasting 2 days of the Senate's very limited time left in this 
session on four judges. We certainly have more important things to do. 
We were supposed to pass 13 appropriations bills by October 1. We did 
not. Today, more than half the bills that fund the Federal Government 
are incomplete, waiting for congressional action. We have a lot of work 
to do that affects millions of families. But instead, we are wasting 30 
hours of the Senate, precious hours of time talking about four judges.
  What we are not doing is we are not helping laid-off workers in these 
30 hours. We are not improving health care. We are not fixing roads 
across this country. We are not improving the economy. We are not 
helping our troops. And we are certainly not improving veterans care. 
We are not doing anything for the millions of Americans who need help 
today because the other side is tying the Senate in knots so nothing 
can get done.
  What we are doing right now reminds me a little bit of the behavior 
back in 1995 when the other side did not get exactly what they wanted 
on the budget, so they shut down Government. Boy, we really heard from 
people across the country when the Government was shut down. Federal 
services were shut down, people could not get their Social Security 
check, agencies were shut down. The needs of every American were set 
aside at that time so Republicans could complain about a budget with 
which they disagreed.
  The same thing happened here today. The needs of every American are 
being set aside so Republicans can complain about four judges they want 
confirmed. Forget the laid-off workers, forget health care, forget 
education. The other side wants to make a point, and they are shutting 
down the Senate and the needs of the American people so they can make 
that point.
  Each passing hour on this floor feels more and more like the 
Government shutdown of 1995. We cannot work on critical needs because 
the other side is holding things up. After 30 hours of hearing about 
this, the American people will get it. They will see that we are not 
working on the things that really do matter to them. I am sure many 
Americans are scratching their heads, wondering what is going on in the 
Senate. The answer is, we are not working on jobs. We are not working 
on education. We are not working on health care because the majority is 
upset we have confirmed only 98 percent of President Bush's judicial 
nominees.
  As I mentioned this morning, there are much more important things we 
need to be doing. We do need to extend unemployment benefits for laid-
off workers. I tried to bring up the bill to help laid-off workers get 
unemployment benefits, but when I bring it up the majority says it is 
not the right time to discuss helping laid-off workers.
  I invite the majority to explain to laid-off workers in my State who 
are going to exhaust their benefits on December 31 why we are talking 
about judges instead of helping those laid-off workers? These hours 
that we are wasting on this manufactured crisis could be much better 
spent on the real crisis facing so many Americans.
  Two weeks ago I introduced legislation to extend unemployment 
benefits to workers who will run out of benefits on December 31, right 
after Christmas. For millions of Americans who cannot find jobs, the 
clock is ticking and every day counts. Unless this Congress acts, those 
families are going to start the new year without a job and without any 
help paying for the basics like housing and food and medicine.
  Two weeks ago I introduced the amendment in the Senate. If the 
majority wants to vote against helping laid-off workers, that is their 
choice, but we are going to force them to take a vote because working 
families should not be punished any more than they already have been in 
this tough economy.
  Congress cannot leave town for the year--and many people are talking 
about ending next week--we cannot end next week without extending the 
benefits on which these many families rely. We have extended benefits 
in past recessions and we need to do it in this recession because the 
clock is ticking.
  In my home State of Washington, we have the third highest 
unemployment rate in the Nation. It is 7.6 percent. Since President 
Bush took office, we have lost more than 70,000 jobs in Washington 
State. Those laid-off workers want jobs. They are eager to work. In 
King County alone, 10,000 people are on a waiting list for job 
training. They want to provide for their families, but they are about 
to get cut off unless the Congress does the right thing and extends 
unemployment benefits. If Congress does not extend those benefits, 
another 124,000 in my home State, Washington State, will exhaust their 
benefits by December 31. These families are draining their savings 
accounts just to hang on. Many of them have run out of options. But 
they still have to pay their mortgage. They still have to pay their 
medical bills. They still have to pay college tuition. That is why they 
need these unemployment insurance benefits.
  The bill I introduced will do three things. First, it will help 
families as they try to get back on their feet. These benefits simply 
will help them buy groceries, pay the mortgage, keep their kids in 
college. It will give them a little bit of cushion as they try to find 
work.
  Second, extending benefits will help stimulate the economy in every 
State and every Member wants their economy to be better in their State 
because when we send the unemployment insurance, people then have the 
money they need to buy things for every day. That will be a shot in the 
arm for the hard-hit States, for our hardware stores, for grocery 
stores, and all of our businesses like that. It means these people will 
have the money they need to keep those businesses going as well.
  Finally, extending benefits will help stimulate our Nation's economy. 
Every dollar invested in these benefits generates another $1.73 for our 
economy.
  Laid-off workers deserve a vote on this bill. They deserve a debate 
on this bill. They deserve time in the Senate on this bill. They need 
our help. We should be using 30 hours of time to talk about the 
unemployed workers, the difficulties facing them, and how we in this 
Congress are going to get them back on their feet. That is what we 
should be spending 30 hours on.
  It seems to me at a time when we are spending $1 billion a week in 
Iraq, the

[[Page 28737]]

very least we can do is give unemployed Americans a few hundred dollars 
a week. Congress cannot leave town without providing a life line to 
laid-off workers. The clock is ticking, time is running out, and we 
should be helping laid-off workers instead of squandering our limited 
time on the judges issues.
  To understand how serious this is, I will read some letters from the 
people I represent.
  How much time remains on my side?
  The PRESIDING OFFICER. The Senator has 21\1/2\ minutes.
  Mrs. MURRAY. I ask the Presiding Officer to notify me when I have 
used 6 minutes.
  The PRESIDING OFFICER. You will be notified.
  Mrs. MURRAY. Let me read a letter from Laura Perry in Battle Ground, 
WA, a small community in southwest Washington. Laura wrote:

       I really need to know what is being done not only in the 
     State of Washington, but in Congress to acknowledge workers 
     who have lost their jobs.
       Millions of us are going to lose our homes!
       Throughout my life, I have done all the right things to 
     stay current with the job market.
       In spite of this fact and having a college degree, I lost 
     my job after 9/11 when my company closed the northwest branch 
     office due to the economic downturn.
       Now, a year and one-half later, I find that I do not fit in 
     all the niches for acquiring employment retraining because I 
     am not on welfare, I haven't been employed by Boeing, I am 
     not a dislocated homemaker, and I am not a veteran.
       Please let me know what is being done to help the 
     unemployed in this country when the unemployment insurance 
     runs out.
       For the first time in my life, I am also without medical 
     benefits.

  I think Laura Perry deserves 30 hours of time on the Senate floor.
  Let me read a letter from Marshall Dunlap of Kent, WA, a suburb out 
of Seattle. He writes to me:

       Please support the upcoming bill to extend unemployment 
     benefits to those who have lost our jobs.
       It doesn't help the economy when millions of us are about 
     to become homeless.
       I would prefer a job but until the economy recovers I am 
     finding this impossible.
       I am a high tech worker and have no other skills.
       I am 53 years old and have very few options.
       For every job I apply for there are hundreds of other 
     applicants.
       Once the economy comes back, I'm sure I'll be able to 
     support myself but without help until that happens I will 
     lose my house.
       I know I am not alone so imagine the problem multiplied by 
     millions.
       There are over 97,000 people unemployed in the Puget Sound 
     are alone. Please help.
  That is from Mr. Marshall Dunlap, in Kent, WA.
  I think Marshall would prefer we were spending 30 hours talking about 
how we are going to help him get back into the workforce and able to 
provide for his family.
  Here is a letter from Ronnie Harper of Kingston, WA:

       Thank you very much for working to extend UI benefits in 
     the state of Washington.
       I moved here 6 years ago to enter the technology market, 
     which I did immediately upon my arrival.
       Unfortunately, things turned sour at Hasbro last year 
     because people stopped buying toys, and I was laid off after 
     5.5 years of exemplary service.
       I have been working extremely hard over the past year to 
     find another job; a job that is in the IT industry with a 
     competitive compensation package.
       My efforts have been practically fruitless, with most 
     employers even refusing to discuss their reasons for not 
     considering me for their open positions, and many filling 
     posted positions internally.
       At this point, I am on my last week of unemployment 
     insurance, and I have mouths to feed. I hope very much that 
     this bill is successful, please keep us posted!

  That is from Ronnie Harper in Kingston, WA.
  Unfortunately, I need to add that since he wrote this letter to me, 
Mr. Harper has now exhausted his benefits. That is why I think this 
Senate needs to act and why we should be spending 30 hours of debate 
time talking about how we are going to help Mr. Harper.
  Mr. President, how much time do I have left?
  The PRESIDING OFFICER. Seventeen minutes 40 seconds.
  Mrs. MURRAY. Mr. President, let me add one final letter before I turn 
it over to my colleague from South Dakota who has been waiting in the 
Chamber.
  This is a letter from Bill Gilbertson of Sequim, WA. He says to me:

       Dear Senator Murray: Thank you for your support of S.1708, 
     Emergency Unemployment Compensation Act.
       Your comments to the Senate, describing the real life 
     problems of being unemployed will hopefully encourage passage 
     of this important matter.
       Please pass on my comments to your colleagues who don't 
     know what its like to be jobless.
       Life without a job is a demeaning experience; it affects 
     all aspects of your life.
       You have to be very careful with the little money you have, 
     only necessities can be considered.
       Fear, low self image, feeling of lack, and despair of the 
     future are some of the challenges you face when hit by 
     unemployment.
       I have been unemployed now for over a year, it's been 
     tough, but I won't give up till I get a job.
       Extension of S. 1708 would really help me thru this.

  That is Bill Gilbertson of Sequim, WA.
  We are talking about real people facing real problems. I think it is 
essential that this Senate deal with this issue now.


                   Unanimous Consent Request--S. 1853

  Because of that, I ask unanimous consent, Mr. President, that the 
Senate proceed to legislative session and the Finance Committee be 
discharged from further consideration of S. 1853, a bill to extend 
unemployment insurance benefits for displaced workers; that the Senate 
proceed to its immediate consideration, the bill be read a third time 
and passed, and the motion to reconsider be laid on the table.
  The PRESIDING OFFICER. Is there objection?
  Mr. CRAIG. Mr. President, reserving the right to object, I appreciate 
the concern of the Senator from Washington. The Senate is in session. 
The Senate is working. It is November 13. The timeline she has outlined 
is December 31.
  Mrs. MURRAY. Is there an objection?
  Mr. CRAIG. I therefore object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. MURRAY. I am deeply disturbed to hear that. The Senate is going 
to be out of session shortly. Everyone wants to finish by Thanksgiving. 
I am sure the letters I have read from a few of the people in my State 
reflect a lot of people's concerns that these people are going to be 
facing Thanksgiving without knowing how they are going to be paying for 
their mortgage, their food, and their basic necessities.
  The PRESIDING OFFICER. The Senator has used 6 minutes.
  Mrs. MURRAY. Mr. President, I yield to my colleague from South Dakota 
who has been waiting.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. JOHNSON. Mr. President, I rise today to express not just my 
profound disappointment but, very frankly, my contempt for the 
outrageous political ploy the Senate Republican leadership is foisting 
upon this Senate and upon the American people.
  This is a monumental waste of time, every Member knows that, at a 
time when we have so much work to be done, to be wasting 30 hours--now, 
I understand, perhaps more than that--on a false, fabricated issue.
  On top of that, all of this, I am being told, is costing the 
taxpayers at least $100,000--taxpayer money for this political ploy to 
be brought to the floor. And as the media has said from all around the 
Nation, there is no judicial crisis in America at the Federal level. 
This is a fabricated crisis which, frankly, is a polite way of saying 
that what is being brought to the floor is a fake. It is phony. It is 
fabricated. At stake is not a principle; at stake is--let's face it--
money.
  What is at stake is the far radical right of the Republican coalition 
with their vision of an America with no Social Security and no 
Medicare, no Federal role in the schools, what have you, a radical 
vision that very few Americans share. They have let it be known to the 
Republican leadership of the Senate here that they are going to not be 
as generous with their political contributions if they do not see more 
noise and more combat on behalf of a tiny

[[Page 28738]]

percentage of judges nominated by the President.
  This, what we have here today, and last night, and on into the night 
tonight, is an incredibly cynical political ploy not worthy of the 
Senate, certainly not worthy of the American people, Republican or 
Democrat.
  The American people deserve better. They deserve better of this 
institution than what the Republican leadership has foisted on this 
country; and then, to add insult to injury, putting it on the credit 
card of the American people.
  So far, this President has had 168 Federal judges--virtually all 
conservative, Republican judges--approved by this Senate, and I have 
voted for most of them. So the question is not whether the Senate will 
approve conservative Republican judges--we have over and over and over 
again; 168--but the Constitution requires the Senate to provide advice 
and consent to this President or any President on these appointments, 
which are of a lifetime nature. This is not some Cabinet appointee who 
will come and go with whoever is President. These people will sit on 
the Federal bench for as long as they live, if they so choose. Much 
longer than virtually anyone in this Chamber will live, these nominees 
will still be there.
  If the expectation--which apparently is the logic of the opposition 
here today--is that anything short of 100 percent approval of these 
judges is out of compliance with the obligation of the Senate, then 
what does that say about our Republican friends' notion of what advice 
and consent is all about?
  Now, President Bush, obviously, with 168 successes to 4, could have 
100 percent success if he would send us mainstream, conservative 
Republican judges, which he mostly has done. But obviously he has taken 
the political tactic of rounding up a handful of judges who are 
absolutely beyond the pale and sending them here knowing they would be 
lightning rods, knowing they would energize the radical, political 
right in this country, and it would gin up political contributions. 
That is what this is all about.
  Now, when President Clinton was President, he was told: Do not send 
any liberals to be nominated for the bench. They will not even get 
hearings, much less votes on the Senate floor. And that turned out to 
be true.
  The Senate, because of our parliamentary rules, allows the minority 
party to exercise a 60-vote criterion on issues that are controversial. 
It is one of the reasons the Senate has long been the institution of 
moderation, relatively speaking, in the Congress, because while in the 
other body the majority of one allows them to jam almost anything 
through that body, on the Senate side we have an ability to enforce a 
certain level of bipartisanship because nobody can get anything done 
that is controversial without 60 votes. I would suggest that this is 
one of the geniuses of the Senate, that this is not the House of 
Representatives, that there is a certain level of consensus that is 
required to get things done in the Senate, and I believe that is what 
the American people want to see.
  Now, we respect the right of this President to nominate like-minded 
people to the bench. He has. And they have been approved--168 of them. 
But where those people, those nominees, fall outside of the broad 
consensual understanding of the Senate, and cannot get 60 votes, those 
nominees ought to be rejected.
  They will be easily filled by other no doubt conservative 
Republicans, but at least people who have the respect of the bar 
associations, of the Senators of their States, and who fall clearly 
within the mainstream of contemporary legal and political thinking.
  Mr. President, 98 percent of the administration's judicial nominees 
have been confirmed--98 percent. That is a good success ratio in almost 
any human endeavor, contrary to what you hear from the other side.
  Mr. President, 95 percent of Federal judicial seats are now filled. 
We currently have the lowest judicial vacancy rate in 13 years. If 
anything, this Senate ought to be patted on the back for its 
acceleration of judicial nominees the Judiciary Committee has 
considered and the floor has approved.
  Last year, the Senate, led by my colleague from South Dakota, Senator 
Daschle, confirmed the largest number of judicial nominees in a single 
year since 1994--a remarkable track record. So to stand this on its 
head and suggest there is some sort of an obstruction, some sort of 
interference with the process, it goes beyond outrage, it defies 
comprehension.
  Sometimes we hear: But what about the appellate judges? Well, the 
Senate has confirmed 29 of President Bush's circuit court of appeals 
nominees to date. More Bush circuit court nominees--get this, and this 
is the highest Federal court until you get to the Supreme Court--than 
Clinton, Reagan, or George Herbert Walker Bush had by this point in any 
of their administrations.
  We also hear that this process requiring 60 votes, this process 
requiring bipartisanship on judicial nominees for their lifetime 
appointments, is some unprecedented sort of thing. Well, that is far 
from the truth.
  Our Republican friends required 60 votes on 6 Democratic judicial 
nominees on the floor and filibustered 63 nominees in committee. So 
there is nothing unprecedented that is going on here. What is happening 
is there is an enforced bipartisan, an enforced moderation that I think 
is good for the country, and certainly good for the Federal bench, at a 
time when this country is narrowly divided, at a time when we are 
approving people who will serve on that bench for a lifetime.
  What is sad is that while these hours are being devoted to a 
fabricated fake crisis that has to do with political fundraising, we 
are not getting on with the issues of jobs, of education, of health 
care, and prescription drugs. We have an Energy and Medicare bill in 
conference, but they are both on life support as we speak.
  The budget, which was supposed to have been done by October 1, the 
first day of the Federal fiscal year, has not been done. It is not even 
close to having been done. And yesterday Senator Byrd, our colleague 
from West Virginia, noted that this week, the week of Veterans Day, the 
Republican leadership insisted we shut down the debate on the Veterans 
Administration legislation appropriations bill in order to consume this 
time on this issue. The American people deserve better than that.
  I have to wonder if the other side that concocted this cockamamie 
scheme has any shame at all, to have done this to the American people, 
and to have done this to this institution. We ought to be talking about 
the jobless economy that continues to drag on. The economy would now 
have to create 326,000 jobs every month to keep the Bush administration 
from having the worst job creation record of any administration since 
the Great Depression.
  As of October 2, 2 million people have been unemployed for over 6 
months, more than triple the number at the beginning of the Bush 
administration. That remains the highest level in 10 years. Almost 5 
million people work part time because of the weak economy. This is an 
increase of 44 percent since January of just 2001--the highest level in 
almost 10 years.
  Talk about crisis. Talk about the need for attention. What about an 
increase of 44 percent in part-time workers and record high 
unemployment? Mr. President, 24,000 manufacturing jobs were lost last 
month alone. Imagine that, 24,000 manufacturing jobs just last month 
lost. And in too many cases, those jobs are not coming back.
  Talk about crisis. That is what this body ought to be talking about. 
According to job placement firms, planned layoffs of U.S. companies 
shot up to 172,000 jobs in October from 75,000 in September. Announced 
layoffs are at their highest level since October 2002, when 176,000 
jobs were cut.
  Recent studies suggest that jobs lost since 2001 are now gone for 
good. A study by the Federal Reserve Bank of New York has concluded 
that the vast majority of job losses since the beginning of the 2001 
recession were the result of permanent changes in our economy and are 
not coming back.

[[Page 28739]]

  The labor market is not going to regain strength until positions are 
created in new economic sectors. The surge in discouraged workers masks 
the true impact of the economic downturn.
  Currently, 1.6 million people are marginally attached to the labor 
force; about 462,000--almost a half million of these workers--have 
stopped looking for work altogether because they do not believe there 
is any work available.
  African Americans and Hispanics bear the brunt of the economic 
downturn. During a month with a net gain in jobs, the unemployment rate 
among African Americans jumped to 11.5 percent in October, about twice 
the national average. The unemployment rate among Hispanics, 7.2 
percent, is far higher than the national average.
  This anemic job creation of the last month provides about 25,000 
fewer jobs than are required to even keep up to the new entrants into 
the labor market. We actually lost ground this last month, meaning 
young people leaving high school and college cannot find work in too 
many cases. In addition, average hourly wages increased by 1 penny last 
month.
  So when we talk about urgency, when we talk about a crisis, we need 
to get past the right-wing politics and get back to political 
moderation, which is what this 60-vote requirement requires of this 
body, and we ought to get back to the real issues the American public 
want the United States to be considering.
  The PRESIDING OFFICER. The time of the minority has expired.
  Mr. JOHNSON. I yield the floor.
  The Senator from Mississippi.
  Mr. LOTT. Parliamentary inquiry, Mr. President: I believe there will 
now be another hour, 30 minutes to the Republican side of the aisle, 
followed by 30 minutes to the Democratic side of the aisle.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. LOTT. Under that agreement, I am glad to yield such time as he 
may consume to the distinguished senior Senator from my great State of 
Mississippi, Mr. Cochran.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. COCHRAN. I thank the Chair. Mr. President, I appreciate my 
colleague yielding me time.
  Back in 1787, with a great deal of disenchantment around the country 
with the Articles of Confederation, a new Constitution was written to 
bring all the States of the Union into a workable bond. One of the 
fundamental principles reflected in that Constitution, as explained in 
the Federalist Papers, was majority rule. It was a difficult concept 
because the States were not all the same size, and the Senate would 
have two Members from each State.
  There were situations that could develop when a minority of Senators, 
or Senators reflecting a minority of the population, could actually 
cause a decision to be made in behalf of all of the people of the 
country. So there are controversies surrounding that principle. But it 
was a fundamental maxim that is reflected in the Federalist Papers.
  One other complicated factor is Gov. George Clinton of New York was 
strongly opposed to ratification of the Constitution. The Framers 
thought if he prevailed, then it might kill the effort to ratify the 
Constitution and get the country moving forward to fulfill the hopes 
and aspirations of the Framers.
  Alexander Hamilton was also from New York, and he took the lead in 
crafting some essays that were published in newspapers in New York to 
convince the general public and, through them, the legislators who 
would vote on ratification that the Constitution was a good idea for 
the country. He was joined, of course, by James Madison and John Jay. 
They all collaborated, contributed to the essays published under the 
pseudonym Publius, and they were persuasive.
  That majoritarian principle has been carried down through the years 
in our country, in our Government, in our Federal system. Now only in 
exceptional circumstances is more than a majority needed on any 
particular issue. As a matter of fact, the Constitution itself States 
that supermajority voting requirements exist only in certain specific 
circumstances. Confirmation of judges and other high-ranking officials 
in the administration are not among those instances where a 
supermajority is required by the Constitution.
  The Framers were committed to the majority-rule principle, and the 
rules of the Senate carry forward that principle. But this year, the 
Standing Rules of the Senate are being used in an unprecedented way to 
impose a supermajority requirement of 60 votes to obtain confirmation 
by the Senate of Presidential appointments.
  Article II of the Constitution creates a unique relationship between 
the President and the United States Senate in the selection of people 
to serve in the Government. It provides that the President ``by and 
with the Advice and Consent of the Senate, shall appoint'' and then it 
lists those that come under this section.
  Section 2 of article II actually contains the exact language. It is 
instructive to be reminded what the Constitution itself says:

       He shall have Power,--

  The President--

     by and with the Advice and Consent of the Senate, to make 
     Treaties, provided two-thirds of the Senators present concur; 
     and he shall nominate, and by and with the Advice and Consent 
     of the Senate, shall appoint Ambassadors, other public 
     Ministers and Consuls, Judges of the supreme Court, and all 
     other Officers of the United States, whose Appointments are 
     not herein otherwise provided for, and which shall be 
     established by law; but the Congress may by Law vest the 
     Appointment of such inferior Officers, as they think proper, 
     in the President alone, in the Courts of Law, or in the Heads 
     of Departments.

  It is very clear, in my mind, that this majority principle is 
supposed to apply and obtain in the votes for confirmation as described 
in section 2 of article II of the Constitution.
  The filibustering of nominations is a new development. Prior to this 
year, the number of cloture votes taken on any executive nominee was 
three, and on any judicial nominee, it was two.
  The cloture rule was adopted by the Senate in 1917. This was the 
first time Senators were guided by a procedure for bringing a debate to 
a close on any measure, motion, or other matter pending before the 
Senate.
  Over the next 51 years, no judicial nomination was filibustered, and 
not one cloture vote was required to end debate on a judicial nominee.
  The minority has begun a process that only history will be able to 
judge, but I fear--I genuinely fear--that nominations in the future by 
any President will be denied confirmation unless they can muster 60 
votes to win approval by the Senate. That is not what the Constitution 
requires. That is not what the rules of the Senate require. A 60-vote 
requirement for the confirmation of Federal judges is not consistent 
with the history and the practices of the Senate. It must be rejected.
  If we are unable to prohibit this practice by a change in the Senate 
rules, we will find it harder than ever before to attract talented and 
well-qualified candidates to serve in the Federal judiciary.
  The PRESIDING OFFICER (Mr. Smith). The Senator from Mississippi.
  Mr. LOTT. Mr. President, I thank my distinguished colleague from 
Mississippi for his comments. He has shown, once again, he is a student 
of the Constitution and of the law. I hope our colleagues found his 
speech to be informative, and I keep hoping and praying that there will 
be a change of heart and mind in how we deal with this issue.
  Mr. President, the debate that has been taking place for nearly 24 
hours is the culmination of 9 months of obstructionism by a minority of 
Senators who have subverted the Constitution's advice and consent 
provisions and undermined the very fundamental tenets of democracy.
  It is an elementary principle of democratic government that the 
majority determines the outcome of political questions. Certainly the 
minority has a right to state it's case and have input into the issues. 
But at the end of

[[Page 28740]]

the day, when the final decision is at hand, a majority decides the 
outcome.
  Yet in the 108th Congress we have seen an unprecedented attack on 
this core principle of democracy. Instead of majority rule as our 
governing principle, we have the rule of the minority. Four nominees to 
the Courts of Appeal are supported by a clear majority of Senators. Yet 
a minority of Senators refuses to allow the Senate to vote on these 
nominations.
  The Founding Fathers well recognized the dangers inherent in granting 
a minority a veto over the will of the majority. James Madison, in 
Federalist 58 pointed out that the Constitutional Convention explicitly 
rejected the idea that Congress be required to adopt a supermajority 
quorum to transact business. He warned that the ``fundamental principle 
of free government would be reversed,'' if we allowed a minority to 
overrule the majority.
  Why is majority rule the ``fundamental principle of free 
government?'' Simply stated, Mr. President, if the will of the majority 
is not the prevailing principle, then it is legitimate for one person, 
whether a king, or autocrat, to determine the fate of political 
society. Our Founding Fathers rejected that idea and all of American 
society has rejected that concept since 1776.
  Unfortunately, what we have witnessed over the past 9 months in 
connection with the nominations of Miguel Estrada, Priscilla Owen, 
William Pryor, and Charles Pickering is a hijacking of the Senate's 
constitutional responsibility to advise and consent on the President's 
nomination and to accept the idea of majority rule.
  A minority of Senators have literally rewritten the Constitution to 
engraft a supermajority rule into the confirmation process, a 
requirement that completely contradicts the intent, spirit and language 
of the Constitution.
  The Founding Fathers believed there were a few extraordinary 
instances where supermajorities are necessary and they spelled them out 
in the Constitution: Ratification of a Treaty; override of a 
presidential veto; conviction in a case of impeachment; passage of a 
constitution amendment; and expulsion of a Member.
  Amendments to the Constitution have added two other supermajority 
requirements--one, a post-Civil War disqualification rule for serving 
in Congress; and another regarding a determination of whether a 
President is disabled.
  But now a minority in the Senate has effectively rewritten the 
Constitution to demand a supermajority vote on some Presidential 
nominations. That completely contravenes the Constitution.
  When the members of the Constitutional Convention considered the 
appointment power, they first debated placing the appointment power in 
the Senate. However, that idea was rejected because the members of the 
Convention believed the Senate was ``too numerous and too little//
personally responsible, to ensure a good choice,'' according to 
Madison.
  The convention also considered giving the President the sole 
authority of appointment. In an effort at compromise, Madison suggested 
that the power of appointment be given to the President with the Senate 
able to veto the choice only if two-thirds of Senators opposed the 
nomination. Ultimately, the Convention allowed for a simple majority 
vote on the President's nominations.
  The Founders were so confident that the power of judicial appointment 
is primarily an executive function that they wrote into the 
Constitution a provision that allowed Congress to pass a law giving the 
President exclusive authority to appoint all judges below the Supreme 
Court. In addition, the President was granted the power to make 
temporary appointments when the Senate is in recess.
  You can search the historical record and not find a single shred of 
evidence to suggest that the Framers of the Constitution ever 
envisioned a scenario where a minority of the Senate could cause the 
rejection of a Presidential nominee. But that is exactly the situation 
we face today.
  On 7 different occasions, as many as 55 of 100 Senators voted in 
favor of ending debate on the nomination of Miguel Estrada. But the 
minority obstructing his nomination refused to allow an up or down vote 
and ultimately Mr. Estrada withdrew his nomination.
  Fifty three Senators voted to end debate on the nomination of 
Priscilla Owen. But the minority refused to allow an up or down vote.
  Fifty three Senators voted to end debate on the nomination of William 
Pryor. Again, the minority refused to allow an up or down vote.
  And just 2 weeks ago, a majority of 54 Senators voted to end debate 
on the nomination of Charles Pickering. And once again, the minority 
prevented us from bringing this vote to a conclusion.
  This undemocratic obstructionism threatens to destroy the integrity 
of this institution.
  I have heard it said by some who are blocking the President's 
nominations, that there is nothing wrong with the confirmation process. 
They say we've confirmed 168 of the President's nominees; why is there 
a problem just because we block four nominees? 168-4 is a pretty good 
record, they say.
  I would like to bring to the Senate's attention another statistic: 
The number of President Clinton's judges that were blocked by Senate 
filibusters. 0. No a single Clinton nominee who was brought to the 
floor was blocked by a filibuster.
  Cloture petitions were filed on 5 of President Clinton's nominees. 
But every single one of those nominees was given a straight up or down 
vote. Every one of them. So if we are comparing records, here is the 
record that matters: Four of President Bush's nominations blocked by 
filibuster and none of President Clinton's nominees blocked by 
filibuster.
  This is not baseball or basketball; this is the responsibility of the 
Senate to live up to its Constitutional responsibilities. And what a 
minority of Senators have done is to create a double standard for 
judicial nominations. They say for some judges, we accept the 
constitutional mandate of a majority vote. But for other nominees, we 
have created an extra-constitutional higher standard.
  For nominees Miguel Estrada, Priscilla Owen, William Pryor, and 
Charles Pickering, a constitutional majority is not good enough. You 
have to garner a supermajority.
  That's a standard that is not fair, yet that is precisely what a 
group of Senators in the minority have demanded. And as a result, they 
are failing to fulfill their constitutional responsibility to provide 
advice and consent.
  For those who say there is nothing wrong with the confirmation 
process, I say look at this chart.
  Up until 1968 there was never a filibuster of a judicial nominee. In 
some instances, cloture was filed twice and even when cloture was not 
invoked, every single nominee whose name had not been withdrawn was 
given an up or down vote.
  We have had an unprecedented 7 cloture votes on Miguel Estrada and 3 
on Priscilla Owen. In both cases, a majority of the Senate voted in 
support of the nominees. But a minority of Senators refuse to give 
these nominees straight up or down votes as required by the 
Constitution.
  I believe that establishing a rule that if a nominee cannot garner a 
supermajority of 60, the nominee will not be entitled to a vote is a 
very dangerous precedent that will haunt this chamber for decades to 
come.
  We have never in 214 years established such a rule. Even in the case 
of the most controversial nominees in recent memory--Robert Bork and 
Clarence Thomas--the Senate carried out its constitutional 
responsibility by giving each of them an up or down vote.
  In June, I chaired a Rules Committee hearing on judicial nominations 
where one of the witnesses claimed that in the 19th Century, there were 
several instances where a minority of Senators prevented the Senate 
from considering judicial nominees. I would like to take a few moments 
to clarify the record on this issue.
  In December, 1828, lame duck President John Quincy Adams nominated 
John Crittenden to the Supreme Court.

[[Page 28741]]

In February 1829, a month before Andrew Jackson was to be sworn is as 
President, the Senate voted 23-17 to postpone the nomination until 
Jackson came into office. Clearly, in this instance a minority was not 
blocking the will of the majority.
  In June, 1844, President John Tyler nominated Ruben Walworth and 
Edward King to fill Supreme Court vacancies. The Senate, by votes of 
27-20 and 29-18, voted to postpone the nominations. After Tyler was 
defeated in the 1844 election, he resubmitted the Walworth and King 
nominations. The Senate refused to vote on the nominations submitted by 
the lame duck.
  John Meredith Read was also nominated by lame duck President Tyler. A 
month before Tyler's successor was to be sworn into office, the Senate 
voted to adjourn rather than consider the Read nomination. Obviously, 
the will of the majority was not thwarted by the minority when the 
Senate voted to adjourn.
  In the summer of 1852, President Millard Fillmore nominated Edward 
Bradford to the Supreme Court. The nomination was made just before the 
Senate was already planning to adjourn. It adjourned before considering 
Bradford's nomination. When the Senate reconvened, Franklin Pierce had 
won the 1852 Presidential election. And Fillmore did not renominate 
Bradford. Instead, in early 1853, lame duck Fillmore nominated George 
Badger to the Supreme Court. The Senate voted 26-25 to postpone 
consideration of Badger's nomination. Fillmore then nominated William 
Micou, but the Senate refused to act on the lame duck nomination. There 
is no evidence that a majority supported Micou.
  Finally, Mr. President, in January 1881, the lame duck President, 
Rutherford B. Hayes, nominated Stanley Matthews to fill a vacancy on 
the Supreme Court. The nomination never was reported from the Judiciary 
Committee. When President Garfield took office in March, he renominated 
Matthews. After 2 months of debate, Matthews was confirmed by a vote of 
24-23.
  I have taken the Senate's time to provide details of these 19th 
century nominations to make the point that there is no evidence that 
any of the controversial justices nominated in those years was blocked 
by a minority of Senators.
  In every instance, a majority voted to delay or defer consideration. 
And in most of these instances, they involved nominations made after a 
sitting President was defeated for re-election. They have absolutely no 
relationship to the situation that has confronted President Bush 
throughout this year.
  As my colleagues are well aware, historically, the Senate has 
demonstrated a great reluctance to tamper with the Rules that govern 
this body, especially the rules that govern debate. However, when a 
minority of Senators have repeatedly abused the filibuster, the Senate 
has acted to change its rules.
  After a minority of Senators blocked efforts to have an up or down 
vote on a proposal to arm merchant ships during World War I, the Senate 
adopted its first cloture rule. The cloture rule was larger changed in 
5 separate occasions, most recently in 1986.
  The last attempt to change the cloture rule occurred in 1995 when 
Senators Harkin and Lieberman proposed a cloture rule nearly identical 
to the majority leader's proposal, but broader in scope because it 
applied to legislation as well as nominations. On a motion to table, 
that effort failed by a vote of 76-15.
  I voted against that proposal because I agreed with Senator Byrd that 
the biggest abuse of the filibuster had occurred in connection with 
Motions to Proceed and that the Rules of the Senate, in particular 
Paragraph 2 of rule VIII, provided an adequate remedy to address this 
problem.
  However, it has become apparent that there is no remedy in the 
current Senate rules to address the obstructive practices of a minority 
of Senators to block Presidential nominations. And that is why I 
cosponsored the majority leader's resolution, S. Res. 138. This 
resolution was reported favorably from the Committee on Rules on June 
26, of this year.
  The majority leader's resolution that will return the advice and 
consent responsibility to what the founding fathers intended. Our 
resolution would give the opponents of a nomination more than a fair 
opportunity to express their reasons for opposing a nominee. But it 
would not allow a minority of members to avoid their constitutional 
responsibility to have a final yes or no vote on a nomination.
  Under our approach, cloture on a nomination could not be filed until 
the Senate has considered the nomination for at least 12 hours. On the 
first cloture vote, 60 votes would be necessary to invoke cloture. On a 
second vote, cloture could be invoked by 57 votes. If a third vote was 
necessary, 54 votes could bring cloture. And if a fourth cloture vote 
was necessary, then, and only then, a majority of Senators voting and 
present would be all that is needed to invoke cloture.
  What our proposal does is give the opponents of a nomination 12 hours 
to first express their opposition. And then they will have as many as 8 
days to speak against a nomination. And then, if cloture is invoked on 
the fourth cloture vote, the opponents will still have 30 hours in 
which to speak.
  In other words, Senators would have as many as 234 hours to speak for 
or against any Presidential nomination. I think that is more than 
enough time for the Senate to fully consider a President's nominations.
  The Republican cosponsors of this resolution are making a very simple 
statement--no matter whether the occupant of the White House is a 
Republican or a Democrat, we believe that a nominee reported from 
committee is entitled to a confirmation vote on the Senate floor.
  We believe it is unconscionable and constitutionally infirm for a 
minority of Senators to have the capacity to prevent the Senate from 
carrying out it's advice and consent functions.
  Filibusters by a minority of members to prevent a vote on a 
nomination should have no place in the Senate. Whether a cabinet 
choice, a district court judge or a Supreme Court Justice, Presidential 
nominees are entitled to a vote. That is what the founding fathers 
anticipated and that is what our resolution would achieve.
  I would prefer that we could break this impasse without changing 
Senate Rules. But if this action stands, if a minority of Senators can 
obstruct the will of the majority and prevent the President's nominees 
from having a vote, the Rules of the Senate must be changed.
  I wish to talk about how I feel personally touched and involved in 
what we are dealing with here.
  In my 15 years in the Senate in a variety of positions as a new 
Member, as a member of the leadership, both as secretary of the 
conference and as whip and leader, I have experienced a lot of what has 
gone on with confirmations personally and firsthand. I have been 
involved in a lot of them.
  I must say, without it being aimed at just one party or the other, 
this process has been on a slippery slope down that whole time. I 
believe it goes back to the nomination of Judge Bork before I actually 
got to the Senate. The pattern continued with John Tower who was 
nominated to be Secretary of Defense in my first year in the Senate, 
and it continued to slide down with the nomination of Justice Clarence 
Thomas. And throughout the Clinton years, we had difficulty in this 
area.
  I just wonder how much further downward can it go. I think we have 
reached the bottom. We are trying now to abuse the rules of the Senate, 
to ignore the Constitution, and set in place a new precedent to block 
good, qualified men, women, and minorities to the Federal judiciary. We 
have to stop it. We should stop it here and begin to go back up into a 
more positive approach in how we deal with Presidential nominees.
  I was involved with President Clinton's first Cabinet. I was selected 
by then-minority leader Bob Dole to work through the nominations and 
see if there were problems. As a matter of fact, I want the record to 
show that we confirmed every one of his nominees by the day he was 
inaugurated. It was not easy. Some nominees had some problems. We got 
the job done. He was the

[[Page 28742]]

President. These were his Cabinet selectees. They deserved to be 
confirmed.
  During my years as majority leader, we had a lot of discussions back 
and forth over how the process worked, how judicial nominees were 
treated when they got to committee, and when they got to the floor. I 
remember a lot of those debates. I remember the Senator from Maryland 
was involved in those debates in March and in December of 1997. I 
didn't always like the process. I wasn't always proud of how we treated 
these nominees. But I will tell you this: On my watch, not one Clinton 
nominee was filibustered. Zero. None.
  If you want to use the numbers game--this is not baseball or 
basketball, but that is an important statistic--during the Clinton 
years, from 1993 to 2001, no judge was defeated by a filibuster. By the 
way, it was attempted a few times. I had to file cloture several times, 
but usually we were able to set it aside and, in every instance, we 
confirmed the nominee.
  On one occasion, I remember late in the afternoon--actually the 
Senate voted not to invoke cloture, not to cut off the filibuster on a 
judge--I took this spot in the Senate and said we cannot let that 
stand. Senator Orrin Hatch, chairman of the Judiciary Committee, said 
the same thing. And before the night was over, we backed away from that 
position. Zero in the Clinton years; 4 already in the Bush years.
  It has been just this year that this new abuse of procedure has 
started--the American people understand that. The American people 
understand there is something innately unfair about dragging out an up-
or-down vote on these men, women, and minorities. So four already, and 
at least two more are threatened.
  I don't know where it is going to end, but I do think that it is 
important the people understand this is not insignificant. This is very 
important. We are about to set this precedent, something the Senate did 
not do before this year. We did not do it in the 214-year history of 
this country, and now we are about to set this new precedent.
  What do my colleagues on the other side of the aisle think is going 
to happen if the tables are reversed? What if there should be in some 
far off, distant future time a Democratic President and a Republican 
majority? Do they think if this precedent has been set that the tables 
won't be turned and there won't be filibusters of liberal judges on the 
other side? I will be opposed to that if I am here, as I have been in 
the past.
  That is another number we ought to look at: 214 years, and no judges 
were defeated by a filibuster. I feel very personal about this point. I 
have gone back, in addition to looking at the number of years, and 
looked at occasions when there were attempted filibusters, when 
Presidents late in their terms made nominations and there were 
subsequent votes. I want to show you the list of what has happened over 
the years where there have been attempted filibusters.
  This shows what happened in 1968, 1971, through the eighties and 
nineties. We can see there were some attempted filibusters, and cloture 
motions to cut off this extended debate were filed. But in every case 
but one, they were all confirmed. Justice Fortas, in 1969, had his 
nomination withdrawn by President Johnson when it was revealed that he 
did have some serious ethical problems.
  Over all these years, even though there were filibusters and cloture 
motions, they were all confirmed. There are a couple of nominations on 
this chart about which I feel very strongly.
  There was an attempt to hold up in a variety of ways two nominees to 
the Ninth Circuit Court of Appeals--Richard Paez and Marsha Berzon. 
Their filibusters were offered. I had great concerns about these 
judges, but I voted against the filibusters. I voted to invoke cloture, 
and they went to a straight up-or-down vote. I voted against them, but 
they were confirmed.
  I was under intense pressure to not let that happen, but I refused to 
let that precedent be set on my watch because I didn't think it was 
fair at all.
  I also feel personally and, I admit, emotionally involved because of 
the very unfair treatment that Judge Charles Pickering of Mississippi 
received over the last 2\1/2\ years. This is a good man, a good judge. 
He has had his reputation besmirched. This is a man who was confirmed 
unanimously by the Senate 13 years ago. Now he is being filibustered by 
the Senate. It is so unfair.
  I hear a lot of talk about the human aspects of unemployment. What 
about the human aspects that these men, women, and minorities have had 
to go through? Their career is in limbo. They don't know whether they 
should stay with their law firm, stay on a State supreme court; are 
they going to be confirmed; how do they explain, how do they answer 
questions from the press? They have a very personal problem, too.
  In the limited time we have, I don't want to just complain about what 
is going on here, I want to talk about the solution, how we get out of 
this situation, how we get off this limb onto which we have worked 
ourselves. We know this is wrong. Both sides of the aisle know this is 
wrong, and there has to be some concern about what the long-term impact 
will be. It has contributed to the overall atmosphere we are now 
dealing with in the Senate.
  Here is what we can do. First of all, we can bring up the nominations 
of these good people. Justice Owen from Texas is a brilliant, 
impressive woman on the Texas Supreme Court. She is being filibustered. 
Why? Is she not qualified? Does she not have the proper education? Does 
she not have impressive credentials in her experience? Is she not 
sitting on the highest court in Texas? What is the problem?
  The answer is that she is a conservative woman, that is all, a 
mainstream conservative woman. They try to let on there is something 
wrong with her philosophy and how she has ruled. I looked at a lot of 
these rulings. This is an eminently qualified woman. Yet she is being 
blocked by a filibuster. How do we get out of this situation? First of 
all, we try to give our colleagues on the other side of the aisle an 
opportunity to stop doing this filibustering. We bring up nominations 
of the judges. Apparently, they are not going to stop. At the end of 
this week, we will probably have three men and three women, including 
minorities, all blocked by filibusters--Hispanic, African American, 
women, men, it doesn't make any difference. I don't understand what is 
happening here.
  What do we do next? We have a debate like we are doing now. Some 
people say: Why are you doing this? The Federal judiciary has a huge 
influence in what happens in this country. So these lifetime 
appointments are very important. We are trying to put the American 
people on notice as to how dangerous this is and what is going on, and 
it is getting some additional coverage. People are now calling in and 
saying: I didn't know that was going on. Why are you doing this?
  Give us an opportunity to highlight the unfairness and the precedent 
we are setting and allow the people to weigh in a little bit. That is 
step 2.
  Step 3: As chairman of the Rules Committee, I worked with the 
majority leader, Bill Frist, and Senator Zell Miller of Georgia, and we 
came up with a process that could stop these filibusters. It is an 
elongated process, but one to which surely nobody could object.
  After 12 hours of debate, we would have a cloture vote. It would 
require 60 votes. Then after a period of time, there would be a second 
vote. Fifty-seven votes would be required. A third vote would then 
occur with 54 votes required, and finally, only on the fourth cloture 
vote, would we get down to 51. We would have the 12 hours initially. 
Then we would have 30 hours after the fourth cloture vote to speak. All 
total, it could take as long as 234 hours. It is not a perfect process, 
but at least it is a process.
  A similar proposal was made a few years ago by two current Senators 
on the Democratic side of the aisle. We should perhaps have a vote on 
that proposal.
  Last but not least, at some point I feel very strongly we are going 
to have to make it clear through some process--and I won't go through 
it now--

[[Page 28743]]

that says judges will be confirmed with 51 votes--only 51 votes. That 
is what the Founding Fathers intended. Senator Cochran made the 
historical point, and so have I. That is what it should be.
  We can go back and vote on these nominees. They might not be 
confirmed, but I think the American people understand the fairness of 
voting them up or voting them down. Justice for judges. Do whatever the 
Senate's will is, but don't use a procedural technique requiring 60 
votes to defeat these good men, women, and minorities.
  This is an important issue. It is worth taking time to debate. I am 
very pleased we are debating this issue. I see Senator Sarbanes on the 
floor of the Senate. He has been on the House Judiciary Committee. I 
was on the Judiciary Committee with him way back in the seventies. He 
is a lawyer. He has looked at these issues. I know he has been involved 
in them. We have had some discussion back and forth over the years.
  In March 1997, he rose on the floor of the Senate and spoke in 
support of the nomination of Merrick Garland to be on the district 
court. He said:

       It is not whether you let the President have his nominees 
     confirmed. You will not even let them be considered by the 
     Senate for an up-or-down vote. That is the problem today. In 
     other words, the other side--

  The Republicans--

     will not let the process work so these nominees can come 
     before the Senate for judgment. Some may come before the 
     Senate for judgment and be rejected. That is OK. But at least 
     let the process work so the nominees have an opportunity and 
     the judiciary has an opportunity to have these vacant 
     positions filled so the court system does not break down 
     because of the failure to confirm new judges. . . .

  These judges along the way were being slow-walked or they had 
problems or they got to the floor and we had other legislation we 
wanted to consider. We did not always get them up, but here is an 
important point: During that time I was the majority leader, we 
confirmed Merrick Garland. It happened. He got confirmed. He is on the 
bench today.
  Senator Sarbanes was right, give them an up-or-down vote, and that is 
what we are calling for today.
  I see Senator Graham of South Carolina is in the Chamber and prepared 
to speak. I may want to have a final statement later on today, but 
before I yield to Senator Graham, let me wrap it up this way: I plead 
with my colleagues in the Senate. This is not a good thing for us. It 
is not good for the institution. It is not good for our country. It is 
not good for our relationships. It is not good in terms of getting our 
work done and making sure we have a judiciary that is occupied by good 
men and women.
  We should stop rejecting these judges just on the basis of their 
philosophy. I voted for Justice Ruth Bader Ginsburg. I knew I would not 
agree with her decisions. I did not agree with her philosophically 
across the board, but by education, demeanor, qualifications, and 
experience, she should have been confirmed. I voted for her. I ask no 
less of my colleagues on the Democratic side of the aisle.
  Let's stop this, and then let's get back to making sure we pass 
energy legislation, pass aviation legislation, get a prescription drug 
plan for our elderly people. This discussion is not delaying that. Work 
is being done on it right now. We can get this process corrected and 
then we can pass these substantive bills.
  I yield the remainder of my time to the Senator from South Carolina.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM of South Carolina. I thank the Senator from Mississippi 
for yielding.
  How much time remains?
  The PRESIDING OFFICER. Eight minutes.
  Mr. GRAHAM of South Carolina. I think it would be appropriate now to 
compliment Senator Lott. During his time as majority leader, he ran 
into a very dicey situation with judges. There was a lot of emotion on 
both sides. He was able to manage the system so that the people would 
get the vote the Constitution requires.
  After having witnessed this debate for the last day or so, I can 
understand how hard that must have been. It must have taken a lot of 
effort, a lot of courage. He had to tell people no who did not want to 
hear no. The country is better off by Senator Lott allowing these 
people to have a vote up or down. If we do not fix this situation 
before the Senate, and it becomes part of the institutional way of 
doing business, then the consequences to the public are very dire.
  The first thing that is going to happen, in my opinion, is we are 
going to get good men and women who are watching this, maybe one day 
aspiring to be judges, to say: Why in the world would I put myself 
through this? You are called all kinds of bad names. They take 
everything you have written or said or thought about saying, and they 
cut and paste it and try to create mental images of who you are that 
are totally contradictory to your life's work, are contradictory to 
what the ABA says about you as a professional, are contradictory to 
what your friends and the people who have practiced with you say about 
you. So it is not a very pleasant thing.
  The Senator from New York, Mrs. Clinton, with whom I have very much 
enjoyed working on other matters, had a chart talking about 168 to 4. 
The 168 were apples; the 4 were lemons. Now we are down to calling 
people lemons. These are real people and they have one thing in common. 
It is not four that are going to be filibustered, it is well over a 
dozen before it is over with. The one thing these four have in common 
right now--and that is not including Justice Brown and Judge Kuhl, who 
will be filibustered; they cannot get a vote either--is that they are 
the first in the history of the country.
  We could literally put everybody in a phone booth who has been voted 
out of the Judiciary Committee by a majority vote but has never 
received a vote on the Senate floor. This 168 to 4 is a joke. The four 
people in question are the only ones in the history of the country to 
come out of the Judiciary Committee and never get to be voted upon. 
That is very dangerous because if that is the way we react to people 
who come out of the Judiciary Committee, if we start letting 40, 41 
Senators dictate the advise and consent role, then we have really taken 
a turn for the worst because the Constitution says the Senate will 
advise and consent to the Presidential nominations.
  Who does the advising and consenting? A majority of us or a minority 
of us? For 200-plus years, we have done it one way. But on the watch of 
Senator Daschle, with whom I have also enjoyed working, we have taken a 
very big turn for the worst.
  We are in political and constitutional quicksand. The harder we try 
to get out of it, the deeper we go. If my colleagues do not believe it 
will be answered in kind down the road if there is ever a Democratic 
President, as Senator Lott talked about, then I think we are all naive.
  What I hate the most is I have been in the Senate for a year, and the 
abuses of the past I am sure are real. I have never put a hold on any 
judge for any reason. I am worried about the future. I think my job as 
a new Member of the Senate is to talk about the consequences of this 
action for the future.
  I do not want to serve in the Senate in its darkest days. Right now, 
we are writing every day we speak one of the darkest chapters in the 
history of the Senate. Good people are being put through the wringer 
unnecessarily. If my colleagues do not think they are good people and 
they really think they are lemons, the Constitution gives my colleagues 
a way to object to them, and that is vote.
  My colleagues can be on record forever saying, this is a lemon, this 
person should never be able to be on the bench; but they do not have 
the right to take the Constitution and turn it upside down for their 
own political gain and their own political desires. That, my colleagues 
do not have the right to do.
  Money was mentioned. They were talking about the phones ringing over 
at the Republican Senatorial Committee because our base is excited we 
are fighting back and this is a fundraising opportunity. Well, people 
are

[[Page 28744]]

raising money off this event and it pretty much stinks, on both sides, 
but that is the moment in which we find ourselves.
  Let me read an e-mail that was sent out on November 3 by Senator 
Corzine, the chairman of the Democratic Senatorial Campaign Committee. 
His job is to fire up his donors to give money so the Democratic Party 
can recapture the Senate. There was a great deal of lambasting the 
Republican Party about writing fundraising letters about this event, 
and that we are doing this to fire up our base, and that we are doing 
this to raise money.
  Let me read what Senator Corzine told his Democratic contributors:

       Senate Democrats have launched an unprecedented effort. . . 
     .

  We are well into the 30 hours and we cannot get an agreement as to 
whether or not this is unprecedented. I can assure my colleagues that 
he is not lying in the e-mail, that this is not false advertising. If 
it is false advertising, people ought to get their money back.
  It is unprecedented, and the word ``unprecedented'' is underlined for 
a reason. No one has ever done this before. He was not lying when he 
put it in an e-mail to open up people's wallets. Unprecedented by doing 
what?

       By mounting filibusters against the Bush administration's 
     most radical nominees.

  Let's break that statement down. It is unprecedented, but my 
colleagues on the other side will not admit it is. Filibustering, 
exactly what my colleagues on the other side are doing, against the 
Bush administration's radical nominees because of their ideology. That 
is something that is very dangerous, too.
  One of the nominees was asked the question why he and his wife chose 
not to take their two daughters to Disney World during Gay Pride Day. 
Nobody should be asked about that. They are trying to ask that question 
to have a mental construction that this person somehow is not going to 
be fair to people based on sexual orientation.
  The Mississippi situation is the worst of them all, in my opinion, of 
trying to change an image of who somebody really is. In 1967, Judge 
Pickering, who has been a Federal judge for a dozen years, well 
qualified by the ABA, well respected in the State of Mississippi, was a 
young prosecutor--an elected position--who chose to testify against the 
Imperial Wizard of the Ku Klux Klan in Mississippi, not the fast track 
to get ahead in 1967. It was radical in the right way.
  In 1967, they integrated public schools in Mississippi, as they did 
in South Carolina. I was in the sixth grade. I could remember going 
back to school and seeing five Black kids come to my class for the 
first time in my life. As an adult, a 48-year-old man, I now realize 
how their parents must have felt, to send their kids into a very 
uncertain, unchanging situation, but they sent their kids to public 
schools to make it better. I respect those parents because a lot of 
people quit, on both sides.
  In 1967, Judge Pickering chose to send his children to public schools 
when White flight was the phenomenon of that county. We will see a 
photograph of a lot of Black kids with very few White kids in 1967 
Mississippi public schools, and those White kids are Judge Pickering's 
kids. That was the right thing to do.
  These people are not lemons, but if my colleagues do not like them, 
vote against them. My colleagues do not have the right to change the 
Constitution for the political moment.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Minnesota.
  Mr. DAYTON. May I inquire, does this side have 30 minutes?
  The PRESIDING OFFICER. There are now 30 minutes for the Democratic 
side.
  Mr. DAYTON. May the time be equally divided between the Senator from 
Maryland and myself?
  The PRESIDING OFFICER. It may if the Senator wishes.
  Mr. DAYTON. I thank the Chair.
  Mr. President, it is now 4:30. At 4:15, the Central Intelligence 
Agency began a classified briefing of all Senators on a just completed 
report on the worsening conditions in Iraq, a report that, according to 
the news accounts that were published yesterday and today about it, was 
reportedly leaked by a very high level Bush administration official so 
that it could not be hidden from the American people and from us in 
Congress.
  When I became aware of this--and we were only informed of this 
briefing this morning--I asked Senator Daschle and Senator Reid to see 
if we could suspend our talking and talking and talking about all of 
this for 1 hour to go listen to what is happening to the 130,000 
courageous Americans whose lives are on the line in Iraq and to learn 
what we might be able to do, or must do, to support and aid them.
  Senator Daschle and Senator Reid inquired, could our colleagues 
across the aisle either give up 1 of the 30 hours that we are talking 
and talking about the jobs of four Americans and devote that time to 
protecting the lives and protecting the safety of 130,000 Americans and 
to preserving their heroic success that they achieved last spring in 
Iraq, which was for some of them their heroic sacrifice on our behalf, 
and which the CIA assessment reportedly has concluded is now in real 
jeopardy. Or even if that was not satisfactory, could that hour be 
added on to the scheduled conclusion for this blame-athon, keep the 30 
hours as planned even though it is clear to this Senator, having 
participated between 12 and 1 this morning and listened to others 
throughout the early hours and now up until this time, that 30 hours 
for this topic is excessive and that our speeches are becoming 
increasingly repetitive, but just pause for 1 hour so that all of the 
Senators could attend that briefing on behalf of their constituents who 
are over in that precarious situation.
  The answer was no. I thought that when this blame-athon began, it 
showed fellow caucus members on the other side of the aisle with 
mistaken priorities, but this has convinced me that it is much more 
serious than that. Winston Churchill once described a fanatic as 
somebody who cannot change his mind and will not change the subject. 
This fixation today fits that description.
  We had a Senate Armed Services Committee hearing scheduled this 
morning, the committee on which I serve, with the Acting Secretary of 
the Army and other high-level Army officials testifying. We just 
received a briefing from them, reports of the timetables they have for 
deployments in and out of Iraq. We have seen reports of other news 
sources that within a few months the intention is to increase 
significantly in Iraq the number of reservists and National Guard men 
and women, which has a lot more importance to a lot more people who 
live in my State of Minnesota, whose loved ones are either over there 
now or are training to go over there soon or will be called up to go 
over later, than any judicial appointment. That hearing was cancelled.
  The House of Representatives is taking this whole week off. They are 
waiting for us to catch up on passed appropriations bills for a fiscal 
year that started on October 1. Yesterday, we suspended action on the 
VA-HUD appropriations measure, set it aside for this period of time to 
talk and talk on the same well-beaten, thoroughly debated, and 
genuinely disagreed-upon difference of our respective opinions, which 
is somehow so important to some of us that everything and everyone else 
must simply wait.
  The House Members are being paid by the American taxpayers to not 
even be in town this week because they are waiting for us to catch up. 
We are spending our time and American taxpayers' dollars to say the 
same things over and over and over and over again.


                       Unanimous Consent Request

  I ask unanimous consent that the Secretary of the Senate be 
instructed to deduct the pay of all Senators for 15 hours, which is 
half the time that we are engaged in this excessive pursuit, and that 
should be our time, and for indulging in our priorities and playing to 
our audiences and doing whatever else this is supposed to be about but 
it is not serving the interests of the people of America any longer and 
I believe we should face up to that and recognize that.

[[Page 28745]]

  The PRESIDING OFFICER. Is there objection?
  Mr. LOTT. I object.
  The PRESIDING OFFICER. The objection is heard.
  Mr. DAYTON. I would point out we are not going to vote until 
tomorrow. We are going to vote tomorrow on a couple of these matters, 
on a couple of these nominees. According to our own Senate rules and 
procedures, we are not able to vote until then. Contrary to what some 
people watching this show might deduce from comments that have been 
made in the last few minutes, and before me and in the hours preceding, 
we actually do follow our rules and procedures in this body. We have 
216 years' established rules and procedures, and if any 1 of the 100 
Senators who doubts that those rules and procedures are being properly 
followed or disagrees with the action, we have a remedy for that. We 
have a referee, we have a head umpire and impartial ruler on our rules, 
who is the Senate Parliamentarian. He or she, as the case may be, at 
the moment can be asked by any one of us to rule on any action, any 
tactic, any maneuver being employed by any Member of the Senate or any 
group of the Senate.
  Yet for all the accusations for the last number of hours that we are 
violating somehow the rules, the procedures, the traditions, the 
Constitution, the intent of the Founding Fathers and just about 
everything else anybody has conjured up to justify their own point of 
view, we could ask. No one has asked. I am told that as of yesterday no 
one had asked the Parliamentarian, and I believe the reason is likely 
that the colleagues on the other side know that the answer would be 
clearly and unequivocally that we are following the practices and the 
traditions long established over 216 years by which this body conducts 
its matters, its business on behalf of the people of the United States 
of America.
  We can have legitimate differences of opinion about whether that is a 
good set of rules, one that serves us and serves us in one situation or 
does not serve us, but they are there. I have learned this in my 3 
years here, to my own proper humility, that there is a real collective 
wisdom that has been established with almost 1,900 men and women 
serving over the course of those 216 years and that while I may still 
not agree with some of the particulars, there is a way in which this 
country has been better served in the eyes of many people more learned 
than I about government and legislative procedure, has been better 
served by this body than any other legislative body in the history of 
the world anywhere on this planet.
  Two generations ago, Gladstone called the Senate of the United States 
``that remarkable body, the most remarkable of all the inventions of 
modern politics.''
  James Madison, one of the authors of the document which we swear to 
uphold when we take this oath of office, the Constitution of the United 
States, said at the time:

       In order to judge of the form to be given to this 
     institution [the Senate], it will be proper to take a view of 
     the ends to be served by it. These were,--first, to protect 
     the people against their rulers, secondly to protect the 
     people against the transient impressions into which they 
     themselves might be led.

  I appreciated the words of the distinguished Senator from Mississippi 
just now because he was kind and gracious enough, and correct enough, 
to disagree with the application of these rules and procedures. But not 
as some have done, casting aspersions on following the rules and 
procedures, but beyond that, following our responsibilities and 
proscriptions under the Constitution of the United States, which I 
consider to be about the most serious accusation that any Member could 
direct toward anyone else.
  As I said earlier, we have taken an oath of office to uphold the 
Constitution of the United States. That is the most solemn oath I have 
ever taken in my life. I expect every other Member of this body who has 
taken that oath is as sincerely and dedicated to that oath as I. To 
different people it may mean different things. But I never imagined 
questioning any Member's commitment. If there were reason to doubt or 
question, the proper way to direct that is through courts of this 
country, because it is a constitutional matter of the gravest import.
  I urge everyone who has engaged in this constitutional practice these 
many hours to weigh those words far more carefully than some are doing. 
As I am on the Senate Rules Committee, I appreciate the approach the 
chairman of that committee suggested or implied in looking at these 
matters and, through a proper forum, if it be the desire, to consider 
them in a learned way, to bring in constitutional scholars who can give 
us a variety of opinions, impartial, nonpartial opinions about the 
Constitution and case law.
  Then we can have an opportunity to consider whether what is 
established as a long-standing tradition and practice, whereby 41 
Members of this body can prevent the other 59 from proceeding on 
something that would be passed by majority vote. I could argue the 
merits or demerits of that position over a particular matter, but I 
certainly would not question any Member's proper use of that just 
because I did not happen to like its application.
  There were 69 of those measures taken in the last two years when we 
were in the majority; 69 times Senator Daschle had to move to proceed 
and file cloture when he was majority leader to consider bills and 
amendments, to go to final passage of legislation that affected health 
care for senior citizens, veterans benefits, environmental protection, 
matters that had far more consequence to many more Americans than any 
single judicial appointment to a Federal court.
  I respect and appreciate the chairman of the Rules Committee and his 
thought on that matter. I welcome the chance to participate in that. I 
believe that is the responsible forum to review these matters and, if 
deemed necessary or desired on the part of those to consider it, to 
recognize we have the right and responsibility.
  We have been elected independently by the men and women of our own 
States to do this job as each of us sees best, and I am willing to give 
anyone the benefit of the doubt who is doing so. That is our 
responsibility. That is our right.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. SARBANES. Would the Chair state the parliamentary situation, 
please.
  The PRESIDING OFFICER. The Senator from Maryland has 15\1/2\ minutes 
remaining on the Democratic side.
  Mr. SARBANES. I will address the various issues concerning the long-
term unemployed in this country. Before that, I will make a couple of 
comments about the judges.
  Sixty-three of President Clinton's nominees were blocked from 
consideration. Four of President Bush's nominees have been blocked. 
Twenty percent of the Clinton nominees in the period of 1995 to 2000, 
the period when the other side controlled the Senate, the committees 
and the floor, were blocked and not given any opportunity to move 
forward. Many of those blocked were extraordinarily able people. Only 
four of President Bush's nominees have been blocked. Many of us feel 
very strongly that they represent extreme points of view outside of the 
legal mainstream in this country.
  In a sense, the period over the last 6 years of the last century when 
an incredible number of the President's nominees were blocked is the 
genesis of the situation that people are talking about. Of course, the 
other side was able to do it in committee. They did not have to do it 
on the floor, they did it in the committee since they had a majority in 
the committee and they simply brought the curtain down at that point.
  Yesterday, the New York Times ran an editorial entitled ``Chatter in 
the Cave of the Winds.'' I ask unanimous consent the full text of that 
editorial be printed in the Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit No. 1)
  Mr. SARBANES. I will quote part of it and then I will elaborate on 
this issue.


[[Page 28746]]

       Senate majority Republicans might take a moment--or even a 
     vote--to extend reassurance to the nation's millions of 
     unemployed tonight during the 30-hour ersatz ``filibuster'' 
     they plan to protest the Democrats' blocking of President 
     Bush's more extremist judicial appointees. The filibusters 
     will talk through the night, performing from a political 
     script in a time-wasting tableau designed to produce campaign 
     fodder for next year. But out there in real life, federal 
     emergency unemployment benefits are scheduled to expire on 
     Dec. 31 with no sign of notice from the Republicans in 
     Congress. A year ago, they blithely quit the Capitol and let 
     the unemployed stew through the holidays before retroactively 
     approving a benefit extension that was far too modest.

  I recall that very well because I was involved in the effort last 
year to try to extend these unemployment insurance benefits and the 
Congress left. It went home. The unemployment benefits ran out. People 
found themselves in absolutely dire circumstances. When the Congress 
finally returned, they extended the benefits retroactively. But 
meanwhile, people had passed through an extraordinarily difficult time 
for themselves and their family.
  Nearly 9 million workers are unemployed today. There are another 4.8 
million, just under 5 million Americans, who want full-time jobs but 
can only find part-time work. Some people choose to work part-time. 
These are people who want to work full time but cannot find full-time 
jobs so they have part-time jobs. That is almost 14 million Americans, 
those that are unemployed and those that are underemployed. In addition 
to that we have about 1.5 million Americans who were in the labor force 
but dropped out because they are so discouraged about the prospects of 
finding work.
  This is the worst jobless recovery since the Great Depression. During 
this administration we have lost 2.9 million private-sector jobs, as 
measured by employees on private nonfarm payrolls. This chart shows 
where we were in January of 2001 and this is where we are in October of 
2003. That is a loss of just under 3 million jobs.
  Even the Secretary of the Treasury is not predicting that all of 
those jobs, will be recovered by the end of this term. He has made a 
prediction which a lot of people think cannot be achieved, but even the 
administration is not predicting that they are going to recover all of 
the lost jobs.
  Now, if they do not recover these lost jobs, and I see no way that 
they can possibly do that, this will be the first presidential 
administration since Herbert Hoover under which the economy has lost 
private-sector jobs.
  This chart shows presidents and private-sector jobs gained or lost 
during an administration, in millions. We start with President Harding 
and then we go to President Coolidge. The green on the chart shows 
there was job gain during those administrations. Then we plunge down 
with President Hoover and we come back for job gains, all positive, net 
job gains during these administrations, President Roosevelt, President 
Truman, President Eisenhower, President Kennedy, President Johnson, 
President Nixon, President Ford, President Carter, President Reagan, 
President Bush the first, President Clinton; and, now, the current 
President Bush, with a negative, net job loss.
  In the past, it has been a long-standing bipartisan policy to extend 
unemployment insurance during periods of labor market weakness. 
Unemployment insurance benefits were actually extended four times 
during the Reagan administration and three times during the first Bush 
Administration. The month we are in is the 31st month since the 
recession began. At this point during the 1990s recession, every worker 
was eligible for a minimum of 20 weeks of additional benefit. The basic 
benefit is 26 weeks. We then seek to extend it if the labor market is 
not improving, so people can support their families. Actually, the 
benefit they get is less than 50 percent of what they were earning and 
in order to draw an unemployment insurance benefit you must have built 
up an employment record. So by definition, you were working and you had 
a job, you lost your job, and only then do you get the unemployment 
insurance benefit. The benefit is designed to help carry you and your 
family through difficult circumstances.
  Now we have 13 weeks of extended benefits but that pales in 
comparison with what was done in previous times. It certainly is 
inadequate in the face of a labor market in which we are not recovering 
jobs. What are these people to do who lose their jobs, they start 
drawing unemployment benefits, the benefits run out, they have been 
looking for work, they cannot find work, and then they no longer 
receive benefits. How do they support their family at a minimum level? 
They cannot do it.
  As the New York Times said in this article:

       After the tax-cutting binges President Bush and Congress 
     engineered for the affluent, failure to renew the nation's 
     helping hand to the jobless would present a scandalous 
     holiday scenario worthy of Dickens. More than talk, action is 
     required.

  They are absolutely right. Mr. President, 1.4 million American 
workers have exhausted their benefits and are unable to find work. They 
are out in the cold with no support. We now have over 2 million long-
term unemployed. That is people who have been out of work for 26 weeks 
or more.
  When President Bush came into office in January of 2001, the number 
of long-term unemployed, people unemployed for more than 26 weeks, was 
660,000. The number of long-term unemployed in October of 2003, is just 
over two million. The number of long-term unemployed has tripled in the 
course of this administration. It now constitutes 23 percent of the 
entire unemployed population.
  The last time such a large percentage of the unemployed were the 
long-term employed--in other words, people out of work for more than 26 
weeks--was 20 years ago. This is the worst performance in 20 years, in 
two decades. Obviously, we need to extend these unemployment benefits 
and repeated efforts to do so have been blocked. The leadership is 
talking about leaving at the end of next week until next year. Of 
course, what that means is millions more will run out of their benefits 
and be unable to sustain their families.
  There is money in the unemployment insurance trust fund for this 
purpose. That money is paid in, in good times, in order to address the 
situation in bad times. But that money is not being used. It was 
specifically set aside for this purpose. The extension of unemployment 
insurance benefits is a policy we have followed in the past. It has 
support from both sides.
  These benefits are for people without jobs. I am hearing lamentations 
about four people who did not get their Federal judgeships. They have 
other jobs. These people have no jobs.
  We made repeated efforts to bring the legislation up. I will make 
such an effort right now, once again. There is legislation pending to 
address this issue in the Finance Committee. It would help these 
workers. It would help our economy. It would ensure that we did not go 
through the travail and the turmoil which occurred at the end of last 
year, as well. It would provide an additional 13 weeks of benefits to 
those who have already exhausted their benefits.

                [From the New York Times, Nov. 12, 2003]

                    Chatter in the Cave of the Winds

       Senate majority Republicans might take a moment--or even a 
     vote--to extend reassurance to the nation's millions of 
     unemployed tonight during the 30-hour ersatz ``filibuster'' 
     they plan to protest the Democrats' blocking of President 
     Bush's more extremist judicial appointees. The filibusterers 
     will talk through the night, performing from a political 
     script in a time-wasting tableau designed to produce campaign 
     fodder for next year. But out there in real life, federal 
     emergency unemployment benefits are scheduled to expire on 
     Dec. 31, with no sign of notice from the Republicans in 
     Congress. A year ago, they blithely quit the Capitol and let 
     the unemployed stew through the holidays before retroactively 
     approving a benefit extension that was far too modest.
       This filibuster has no practical purpose. In the older 
     days, a single lawmaker had to talk nonstop to block a hated 
     bill; nowadays, the leadership merely counts heads to see if 
     enough senators want to block a bill and then it is silently 
     hung up. So if the retro-orators just want to make rhetorical 
     points today and run short of topics, we beg them to ponder 
     their jobless constituents instead of resorting to 
     boilerplate sound bites and creaky filibuster stunts (in sad 
     memory there was Alfonse D'Amato's singing an ``Old 
     McDonald'' parody).

[[Page 28747]]

       Serious help is needed for the 2.4 million more recent 
     jobless facing the end of their state benefits, not to 
     mention the 2.1 million long-term unemployed who have slipped 
     off the job-hunting scope. The promising uptick in the deep 
     hiring slump--126,000 new jobs in October--is less than half 
     the rate needed to even begin to dent the backup of 
     joblessness. To deal realistically with the problem, Congress 
     needs to double--to 26 weeks from 13 weeks--the federal 
     emergency benefits that are available when state benefits run 
     out. This would be similar to the help offered during the 
     recession of a decade ago when long-term joblessness, 
     especially in manufacturing, was hardly the problem it is 
     now.
       After the tax-cutting binges President Bush and Congress 
     engineered for the affluent, failure to renew the nation's 
     helping hand to the jobless would present a scandalous 
     holiday scenario worthy of Dickens. More than talk, action is 
     required.


                   Unanimous Consent Request--S. 1853

  Mr. SARBANES. Therefore, Mr. President, I ask unanimous consent that 
the Senate proceed to legislative session, that the Finance Committee 
be discharged from further consideration of S. 1853, a bill to extend 
unemployment insurance benefits for displaced workers; that the Senate 
proceed to its immediate consideration; that the bill be read the third 
time and passed and the motion to reconsider be laid upon the table.
  Mr. LOTT. Reserving the right to object, I ask consent that the 
Senator modify his request so that just prior to proceeding the 
requested 3 cloture votes be vitiated and the Senate immediately 
proceed to three consecutive votes on the confirmation of the 
nominations, with no intervening action or debate.
  Mr. SARBANES. Mr. President I made a unanimous consent request, which 
is pending.
  The PRESIDING OFFICER. Is there objection?
  Mr. LOTT. Does the Senator object to the modification?
  Mr. SARBANES. The Senator does not modify the unanimous consent 
request.
  The PRESIDING OFFICER (Mr. Cornyn). Objection to the request is made.
  Is there objection to the request as made?
  Mr. LOTT. In view of that, I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator's time has expired.
  The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, I do not have a New York Times to quote, 
but I think I am a lot more fortunate because I have two New Mexico 
papers, important papers in my State, to quote. I do not have to use 
them to change the subject. I will quote from a couple of our New 
Mexico papers on the issue of the nominations, the nominating process, 
and what has happened to that process in the last couple of years.
  Let me first quote from our largest newspaper, the Albuquerque 
Journal. It says in its headline: ``End Filibuster, Put Court Nominee 
to Vote.'' And then it says:

       What the Colt revolver was on the dusty streets of the Old 
     West, the filibuster is on the floor of the U.S. Senate: The 
     great equalizer gives 41 senators the ability to bring the 
     chamber's business to a halt.
       The tactic should be unholstered only on issues of high 
     principle or grave importance. Considering the issues 
     currently confronting Washington, the judicial nomination--

  In this paper it is referring to Miguel Estrada when it says:

       The judicial nomination of Miguel Estrada does not rise 
     above partisan wrangling. To block a vote on his appointment 
     to the U.S. Court of Appeals for the District of Columbia 
     Circuit is an abuse of the filibuster.

  I ask unanimous consent that this editorial from that distinguished 
newspaper be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

           [From the Albuquerque Journal (NM), Feb. 23, 2003

               End Filibuster, Put Court Nominee to Vote

       What the Colt revolver was on the dusty streets of the Old 
     West, the filibuster is on the floor of the U.S. Senate: The 
     great equalizer gives 41 senators the ability to bring the 
     chamber's business to a halt.
       The tactic should be unholstered only on issues of high 
     principle or grave importance. Considering their issues 
     currently confronting Washington, the judicial nomination of 
     Miguel Estrada does not rise above partisan wrangling. To 
     block a vote on his appointment to the U.S. Court of Appeals 
     for the District of Columbia Circuit is an abuse of the 
     filibuster.
       Democrats say the filibuster is justified because too 
     little is known about Estrada and he has not been forthcoming 
     about his judicial philosophy.
       New Mexico Sen. Jeff Bingaman said Friday he has not made 
     up his mind about backing continuation of the delay tactic, 
     and echoed the Democratic indictment of the Honduran 
     immigrant as a stealth conservative.
       ``Obviously, you become suspicious of a person's point of 
     view if he won't answer questions,'' Bingaman said.
       Let's get on past mere suspicions of Democrats and declare 
     guilt by association. Estrada is the choice of President 
     Bush. His views doubtlessly come closer to mirroring Bush's 
     than those of left-learning Democrats or those of Clinton's 
     judicial nominees.
       Femisinst Majority president Eleanor Smeal, for one, 
     doesn't need any more information about Estrada to know that 
     in blocking him, ``the Democratic leadership is giving voice 
     to its massive base of labor, civil right, women's rights, 
     disability rights, environmental, gay and lesbian rights 
     groups.''
       Oh, then this is about constituent politics.
       There's another constituent-oriented facet: Miguel Estrada 
     is a successful immigrant, current front-runner to become the 
     first Hispanic Supreme Court justice and an obvious role 
     model in short, a poster boy for Republican recruitment of 
     minorities away from the one, true political faith.
       This isn't about suspicions; Estrada is the Democrats' 
     worst nightmare from a partisan perspective.
       From a personal perspective, Democrats who have worked with 
     him in the Clinton administration have high praise. Seth 
     Waxman, Clinton's solicitor general, called Estrada a ``model 
     of professionalism.'' Former Vice President Al Gore's top 
     legal adviser, Ron Klain, said Estrada is ``genuinely 
     compassionate. Miguel is a person of outstanding character 
     (and) tremendous intellect.''
       During Judiciary Committee hearings in September, Estrada 
     said: ``Although we all have views on a number of subjects 
     from A to Z, the first duty of a judge is to a put all that 
     aside.''
       That's good advice for a judge, and it's good advice for 
     senators sitting in judgment of a nominee. Put aside pure 
     partisan considerations; weigh Estrada's qualifications, 
     character and intellect; end the filibuster and put this 
     nomination to a vote.

  Mr. DOMENICI. This editorial continues:

       Feminist Majority President Eleanor Smeal, for one, doesn't 
     need any more information about Estrada to know that in 
     blocking him, ``the Democratic leadership is giving voice to 
     its massive base of labor, civil rights, women's rights, 
     disability rights, environmental, gay and lesbian rights 
     groups.''
       Oh, then this is about constituent politics.

  Then there was another editorial in a New Mexico paper, the paper is 
a rather liberal newspaper, the Santa Fe New Mexican. The Santa Fe New 
Mexican editorial is entitled: ``Estrada Tosses Towel; Pyrrhic Win For 
Dems.''

       So Senate Democrats got what they wanted--or avoided what 
     they didn't want: Miguel Estrada has asked President Bush to 
     withdraw his nomination to the U.S. Court of Appeals. . . .
       The 41-year-old Honduran immigrant, who led his law class 
     at Harvard, was a vastly better choice for the judiciary than 
     any number of Democrats who slid onto the federal bench 
     during the early Clinton presidency.
       Now, with a GOP president and a bare Republican majority in 
     the Senate, the Dems still are able to stymie the appointment 
     of conservative judges reflecting the apparent wishes of the 
     American electorate: There are too few Republican senators--
     or principled Democrat ones--to apply cloture to threatened 
     filibusters over the confirmation of Estrada and other 
     qualified appointees.

  And it goes on to talk about various Senators and how they conducted 
themselves on this nomination. I ask unanimous consent that the 
editorial from the Santa Fe New Mexican be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Santa Fe New Mexican, Sept. 5, 2003]

               Estrada Tosses Towel; Pyrrhic Win for Dems

       So Senate Democrats got what they wanted--or avoided what 
     they didn't want: Miguel Estrada has asked President Bush to 
     withdraw his nomination to the U.S. Court of Appeals, for the 
     District of Columbia Circuit.
       The 41-year-old Honduran immigrant, who led his law class 
     at Harvard, was a vastly better choice for the judiciary than 
     any number of Democrats who slid onto the federal bench 
     during the early Clinton presidency.

[[Page 28748]]

       Now, with a GOP president and a bare Republican majority in 
     the Senate, the Dems still are able to stymie the appointment 
     of conservative judges reflecting the apparent wishes of the 
     American electorate: There are too few Republican Senators--
     or principled Democratic ones--to apply cloture to threatened 
     filibusters over confirmation of Estrada and other qualified 
     appointees.
       Estrada was appointed to the appellate court in the spring 
     of 2001. He's been in a kind of limbo ever since. Yesterday, 
     he threw in the towel, saying it's time to devote full 
     attention to his law practice and his young family.
       We can almost hear the echo of hurrahs from Capitol Hill, 
     where only four Democrats sided with 51 Republican colleagues 
     who quite properly saw him as an excellent appointment. New 
     Mexico's Jeff Bingaman wasn't one of the four. The Senator 
     has offered excuses about a lack of information on Estrada, 
     who has been in a figurative fishbowl since long before his 
     nomination--but Bingaman knows darn well this is party 
     politics at its lowest. Republicans have pulled similar 
     stunts on Democratic nominees during years past. This is 
     payback time--or repayback time; playing schoolyard games 
     with our nation's system of justice.
       For the Dems, this could prove to be a Pyrrhic victory: The 
     day will come when a Democratic president's nominees might 
     face treatment as shoddy as Estrada got. We can only hope the 
     Republican Senators of that day will prove more gracious than 
     their GOP predecessors--and today's Democrats.

  Mr. DOMENICI. Mr. President, I just want to move, for a moment, to 
compare how certain other judges have been treated in terms of how long 
they had to wait while the Senate did nothing because we were in a 
filibuster mode in the Senate. I want to take two or three of our 
nominees and just go through with those who are listening the various 
qualifications and the like for various nominees. I will start with 
Miguel Estrada, and I will take three other nominees and talk about 
them versus Miguel Estrada.
  Nominee:
  Douglas H. Ginsburg: nominated by President Ronald Reagan; college, 
Cornell University; law school, University of Chicago Law School; 
circuit court clerkship, Carl McGowan of the D.C. Circuit Court of 
Appeals; Supreme Court clerkship, Thurgood Marshall; Federal Government 
service, Deputy Assistant AG.
  A. Raymond Randolph: nominated by President George Bush; college, 
Drexel University; law school, Pennsylvania Law School; circuit court 
clerkship, Henry J. Friendly, Second Circuit Court of Appeals, Federal 
Government service, Assistant to the Solicitor General.
  Merrick B. Garland: nominated by President Bill Clinton; college, 
Harvard, summa cum laude; law school, Harvard Law School; circuit court 
clerkship, Henry J. Friendly, Second Circuit Court of appeals; Supreme 
Court clerkship, William J. Brennan, Jr.; Federal Government service, 
Special Assistant to the AG.
  Now, for each of these: it took 15 days for one of them, 66 days for 
one of them, and 71 days for the third.
  Then we come to Miguel Estrada: nominated President George W. Bush; 
college, Columbia, magna cum laude; law school, Harvard Law School, 
magna cum laude; circuit court clerkship, Amalya Kearse, Second Circuit 
Court of Appeals; Supreme Court clerkship, Anthony Kennedy; Federal 
Government service, Assistant U.S. Attorney and Assistant Solicitor 
General. Mr. President, he waited 848 days.
  Obviously, Mr. President, there is no validity to the conversations 
coming from the other side that they have not taken qualified 
appointees and decided that they would apply this rule of 60 instead of 
51.
  Out there in America, when people look at the Senate they say when 
you have 51 votes, that is the way you win. With 51 votes you win; with 
49 you lose--but not when it comes to judges they do not like, just 
plain do not like--not that they are not qualified, they just do not 
want them.
  For some reason they have decided they are not going to let that 
person on, and no longer is the majoritarian rule the rule of the day. 
It is a supermajority. Then the time begins to run.
  Miguel Estrada had to wait more than 800 days before he gave up. I 
have just gone through the names of three. I am not going to say the 
others were not qualified; they were. But certainly Miguel Estrada is 
as qualified as any of them are, if you look at just the paper 
background and the previous service and achievements prior to them 
coming to the floor and languishing or getting confirmed.
  For none of those three are better nominees than Miguel Estrada, and 
everybody looking at his record and seeing what he has done and what he 
has not done knows that.
  Now I would like to close with a last editorial, an editorial also 
from New Mexico. This one is from the Albuquerque Journal. This 
editorial speaks about the current situation when so many candidates 
and other Democrats in high positions are coming to our State, the 
State of New Mexico, to talk to the Hispanic people where we have large 
numbers, and to talk politics to them.
  I am quoting from a September 11, 2003, editorial from the 
Albuquerque Journal. It says:

       Democratic presidential hopefuls mouthed and sometimes 
     mangled Spanish words in Albuquerque last week, searching for 
     Hispanic votes.
       Earlier that day, a Hispanic judicial nominee who wanted a 
     simple up-or-down vote on the Senate floor withdrew after two 
     years of Democratic mangling of the confirmation process.
       Democrats could not argue that Miguel Estrada was 
     unqualified to serve on the appeals court for the District of 
     Columbia, a stepping stone to the U.S. Supreme Court.
  Playing catch-up after emigrating from Honduras at 17 with little 
English, Estrada graduated from Columbia with honors, earned a Harvard 
law degree and clerked for Supreme Court Justice Anthony Kennedy.
  Estrada's credentials were good enough for the Clinton 
administration, where he worked for five years in the U.S. Solicitor 
General's Office.
  Though he has no paper trail of decisions as a judge, his reputation 
as one of the nation's finest appellate lawyers led to a unanimous 
American Bar Association rating of ``well qualified'' for the Supreme 
Court.
  But ``well qualified,'' in terms of legal intellect, is not 
qualification enough in the U.S. Senate. There's blame enough to spread 
around both sides of the aisle. . . .
  But Democrats have escalated the partisan warfare to the filibuster 
level. Estrada would have been confirmed by a simple majority, but 
Democrats raised the bar for this Hispanic from the wrong side of the 
political tracks. Estrada had to have a super majority of a Senate 
where Democrats toed the party line against him.
  Though accustomed to adversity, Estrada finally withdrew after two 
years of this absurdity. His experience should not be in vain.
  Democrats who take Hispanic support for granted but can't bring 
themselves to vote for a qualified Hispanic should learn a new word 
from the lips of voters: !Basta!--Enough of this purely partisan 
jockeying on judicial nominations.
  I think, while many came to the floor and quoted the New York Times 
and other major newspapers, I think my two New Mexico papers have hit 
it on the head, the last one right where it belongs during a political 
campaign--come and mingle and mangle our language and our last names, 
and then when one is nominated, make them have the supermajority, all 
the time asking for their vote--paraphrasing the last editorial that I 
just read from the Albuquerque Journal.
  I think what has happened to these nominees--in particular, the four 
we are speaking of, led by Miguel Estrada, and the three women--it is 
clear they have been politicized. They are qualified. If they would 
have had a chance under other Presidents at other times with their kind 
of qualifications, they would be serving on a higher bench in the 
United States without question.
  They have just found themselves at a point in time when the 
filibuster rule is applied with such assurance that there is no harm to 
come to those politically or otherwise who use the instrument of 
filibuster against the extremely qualified.
  That is exactly what has happened here. I am pleased to speak for 
just a few moments. I compliment all of those who have taken much time 
over

[[Page 28749]]

the last day and a half to speak to the issue, specifically as to these 
people, and generally as to how this process used this way is ruining 
the political process and making good candidates--let's make it 
superior candidates--subject to the whim of the 60-vote rule.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. TALENT. How much time do we have remaining on our side?
  The PRESIDING OFFICER. There are 15 minutes 20 seconds.
  Mr. TALENT. I am going to be brief, Mr. President. I had an 
opportunity to speak last night and I want to have a chance to hear my 
friend from Ohio and I want to give him a full opportunity to speak.
  We are here--I am here again; others have been here more often than 
I--because we are trying to put a stop to filibusters that are 
unprecedented in their nature. For the first time in the history of 
this institution, court of appeals nominees of the President of the 
United States have been filibustered to death on the floor of this 
Senate by a determined minority.
  It is a usurpation of the Constitution. It is hurting the courts, and 
it is unfair to these nominees who are not only qualified, who not only 
should be confirmed, but who would, just a few years ago, have flown 
through this body because of their extraordinary qualifications.
  I just want to address a couple points. One that has been made very 
often by some Senators who have been participating in these filibusters 
is that, in fact, they are really not doing anything that unprecedented 
or that bad because they have approved, they have allowed all but four 
of the nominees to go through. Well, that is just not the right way of 
looking at it.
  They set out to hunt, if you will, the big game, the court of appeals 
judges. So it is true, they have not been taking any shots at the 
rabbits, at the squirrels, at the district court judges. Those they 
have let through. But they have taken down or they are threatening to 
take down, through the filibuster, a quarter of President Bush's 
nominees to the court of appeals.
  This graph shows it. None of the previous four Presidents, or any of 
the Presidents, had ever lost a court of appeals nominee by a 
filibuster of the minority on the floor of the Senate.
  President Bush has had 29 court of appeals nominees confirmed. Twelve 
of them have either been filibustered or they are going to be 
filibustered tomorrow or there are threats to filibuster them.
  He sent 46 down in total. Twelve have been filibustered or threatened 
to be filibustered, which is a quarter of his nominees. That is not a 
passing percentage in anybody's book, and it is unprecedented to have 
even one filibustered.
  Second, Senators have said: Well, look, the filibuster has been used 
in the past, and that is because motions for cloture have been offered 
and passed sometimes in the past. There have been small groups of 
Senators who have tried to filibuster nominees in the past, and the 
rest of the Senate has said: No, we do not do that. We may not like the 
nominee, but we do not filibuster them. In every case, the leaders of 
both parties have supported motions for cloture, and cloture has been 
invoked.
  They are using instances when the filibuster has been stopped by the 
Senate in the name of the Constitution, and in the name of the 
traditions of the Senate to support their efforts where the filibuster 
has succeeded. They are turning the past on its head to support a 
present and a future which is completely inconsistent with the 
Constitution and the traditions of the Senate. It is wrong, and it is 
wrong to people involved.
  I wish I had time today. Perhaps I will have time later to go through 
the qualifications of these nominees. On top of everything else, they 
just deserve this. Many of these people have overcome tremendous 
obstacles, personal obstacles in their youth, to achieve tremendous 
success in the field of law. They would be great judges. We need those 
judges on the courts.
  Finally, Mr. President, and before I yield to my friend from Ohio, I 
just want to say that repeatedly it has been suggested by that group of 
Senators who have been filibustering that: Well, we ought to go on to 
other business. In fact, they are upset that the process of the Senate 
is being obstructed.
  Well, I would sure like to go on to other business, too. You can 
filibuster or not filibuster. There is no question under the rules of 
the Senate, Members have the raw power to do this. What you cannot do 
is filibuster and then complain about obstruction. You cannot do that. 
That is called having your cake and eating it, too. The minute that 
Members of this Senate decide they want to go on to other business, we 
can go on to other business. Just allow us a time agreement to vote. 
Allow us to vote on these people. Five minutes after you do that, we 
are off to other business of the Senate, which all of us want to go on 
to.
  In the meantime, please, if you are going to filibuster these 
nominees, at least do not complain about obstruction of the processes 
of the Senate.
  With that, Mr. President, I yield the floor to my friend from Ohio.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, the nominees who President Bush have 
nominated are outstanding attorneys, people who would make fine judges 
and, frankly, the sooner we have an up-or-down vote on these nominees 
the better.
  The nomination of these judges affects the citizens living in their 
judicial circuits and the nominees themselves. So this is not just a 
theoretical debate, this is a real world debate with real consequences.
  Let me turn to one of those nominees, and that is Judge Charles 
Pickering. I want to talk about the merits because that is what we 
should be talking about, what we should be debating on the Senate 
floor, the merits of all these nominees. If we had an up-or-down vote, 
I say to the Members of the Senate, that is what we would be able to 
do. That is what this whole discussion for these 30 hours is about: our 
request to be able to vote on the merits.
  Let me talk about the merits and what we would be able to talk about 
if we had that opportunity.
  Judge Pickering, a man who graduated from the University of 
Mississippi with honors. This is a man who graduated from law school 
the first in his class; a man who has had a distinguished career as a 
lawyer; a prosecuting attorney; a judge who was confirmed unanimously 
by the Senate to a district court position 13 years ago.
  What about the ABA? We always hear about the ABA. We don't think that 
should be the be-all and end-all, but the ABA should be a part of what 
we look to. Here is a letter ABA sent to me and other members of the 
Judiciary Committee:

       Senator DeWine, We are transmitting to you for your 
     consideration, this committee's evaluation pertaining to the 
     nomination of the Honorable Charles Pickering, Sr., as judge 
     of the United States Court of Appeals for the Fifth Circuit. 
     I am pleased to report, as a result of our investigation, a 
     substantial majority of the committee is of the opinion that 
     the Honorable Charles W. Pickering, Sr., is well qualified 
     for appointment as judge to the United States Court of 
     Appeals for the Fifth Circuit.

  That is what they had to say about him.
  People who know Judge Pickering best in his home State of Mississippi 
also agree that he should be on the bench. People who have known him 
for years have written to this Congress and have talked with us and 
have said this man is qualified. This is a man of great character; he 
should be on the bench.
  There have been attacks about Judge Pickering. Let me talk about 
these for a moment. Again, this is the type of discussion we should be 
having on the Senate floor. We shouldn't have to be down here making 
the argument that all we want is an up-or-down vote. This substantive 
argument is what we really should be able to have.
  Let me talk about some of the attacks on Judge Pickering. At the time 
of our hearing on Judge Pickering, he had decided roughly 4,500 cases 
as a district court judge. Out of those 4,500 cases, he has been 
appealed 328 times and ultimately he was reversed or had

[[Page 28750]]

the case remanded for additional work or some clarification in 26 
cases.
  Without getting too much into the numbers, I can tell you he has a 
good reversal rate--about 8 percent. That is better than the national 
average, and it is even better than the average in the Fifth Circuit.
  Some of Judge Pickering's critics would argue the problem is not the 
number of cases on which he has been reversed. They say the problem is 
what you find in those reversals. Let's take a moment and look at that.
  I looked at the 26 cases where he was reversed or where the case was 
sent back for further clarification. The statement was made in one of 
Judge Pickering's hearings several times that his cases boiled down to 
civil rights, voting rights, employment, and that is what was 
troubling. I think we need to look at each of these areas, and I will 
try to do that in the brief time I have.
  There are a few ways to categorize a case and what type of case it is 
remains, certainly, in the eyes of the beholder, but I have looked at 
the reversals and the areas mentioned during the hearings, and this is 
how I break them down.
  On my count, 2 of the 26 cases involve employee rights, 1 case 
involved voting rights, and 4 were civil rights cases. I believe as we 
look at these cases, there is no merit to the charges in regard to 
Judge Pickering.
  Let's look first at the accusation of voting rights. Judge Pickering 
was reversed on one voting rights case, and that was Watkins v. 
Fordice. Judge Pickering was part of the three-judge panel that decided 
that case. Here is the key. We should be very clear about this. The 
voting rights issues in this case had already been resolved. The issue 
that went up for appeal was, guess what--Listen to this: attorneys 
fees. That is what the issue was. That is what went up on appeal.
  So to categorize that as a voting rights case, that the judge was 
appealed on a voting rights case and overturned on a voting rights case 
is simply not fair. It is not fair by any good judgment.
  When the case went up on appeal, the court of appeals said: We need 
more information. And they sent it back to Judge Pickering's three-
judge panel. Judge Pickering and the other two judges gave them more 
information. It went back up, the court of appeals looked at it, and 
said: It's OK, you were right. We are not going to reverse you. And 
that ended it. That is the voting rights case about which everyone is 
talking.
  I should also note for the record there were three other voting 
rights cases that Judge Pickering decided. Not one of these cases--not 
a single one--was reversed. In fact, nobody ever appealed the cases, 
which again tells us something. When a voting rights case is not 
appealed or when a major case is not appealed, it certainly tells us 
something.
  So we end up on the voting rights issue with only one case where he 
was appealed, in that particular case it was about attorney's fees and, 
in the end, Judge Pickering was held to be correct anyway, and three 
other cases were not appealed at all.
  Let me talk briefly about Judge Pickering and the civil rights cases. 
Every one of the civil rights cases--of the 26 cases we are talking 
about--every single one of them involved claims made by prisoners. I 
point that out not to say prisoners rights cases are unimportant; they 
certainly are important. We all know they are important. They can 
involve basic rights. But these are not the type of cases that we would 
normally associate, or at least the public would normally associate, as 
civil rights cases. Lawyers know them as civil rights cases, but I 
believe the general public would not think of them as typical civil 
rights cases. They were often procedural requests, sometimes requests 
for very specific relief.
  For example, in one case, the whole issue was whether or not a 
prisoner had a right to use a certain type of typewriter. This prisoner 
wanted to use a memory typewriter instead of a regular typewriter, and 
that is what the substance of the case was about.
  There were procedural issues there, and the court of appeals took a 
look at them. They were reversed, and we certainly understand that.
  Again, I am not minimizing that, but I think we just need to put this 
whole case in its proper perspective.
  Let me also note for the record that Judge Pickering was reversed, as 
we have said, in a total of 11 of the so-called prisoner cases out of 
an estimated 1,100 prisoner cases with which he dealt.
  Let's now talk about Judge Pickering's employment cases. I will be 
very brief because I see my time is almost up. We need to look at both 
the employment cases, the Marshall case, and the Fairley case. In the 
Marshall case, Judge Pickering upheld an arbitrator's decision 
reinstating an employee who had been fired from her job. In the other 
case, the judge found on behalf of the worker suing his employer's 
disability plan for damages. In both cases, Judge Pickering ruled in 
favor of the employee.
  The court said he was wrong about how he did it, wrong in the 
decision, and the court overturned him. But no one should use the 
employment case where he was overturned--these two cases--as in any way 
indicating that he is not sensitive to employees. He did, after all, in 
these two cases, rule in favor of the employees.
   Judge Pickering is well-qualified. There is no doubt about it. His 
overall record as a judge is excellent. The specific cases cited as a 
concern do not show anything at all except that he is a human being who 
sometimes made some mistakes. I submit that virtually every district 
court judge that we look at and look at as carefully as we have looked 
at Judge Pickering, we would find similar reversals.
   When we look at these specific cases, I believe there is no 
indication that Judge Pickering is hostile to civil rights, to voting 
rights, to employment rights, or any other type of rights. I believe 
there is no evidence at all that Judge Pickering substitutes his 
personal opinions for the law. In fact, the evidence shows that he 
clearly does follow the law.
   Judge Pickering has testified under oath to the Judiciary Committee 
twice that he will follow the law and abide by the law, and Mr. 
President, his record shows that he will.
   This is just an example of the debate that I think we ought to be 
having. If our colleagues across the aisle would allow us to have an up 
or down vote on these nominees, we could talk about the qualifications 
and criticisms of these nominees. We could talk about allegations and 
they could be supported or dispelled. There are many, allegations 
against these nominees that would be dispelled--just like the ones I've 
just discussed about Judge Pickering.
   I encourage our colleagues to let us have the debate on the merits 
of the nominees. Then Senators can hear all the facts--both sides of 
the debate. And then they can make up their minds and vote--yes or no, 
just vote.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, as I understand under the agreed 
procedure, the Senator from Hawaii and myself will have a half hour; is 
that correct?
  The PRESIDING OFFICER. That is correct.
  Mr. KENNEDY. I yield myself 15 minutes.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. KENNEDY. Mr. President, I have listened with interest over the 
last 24 hours to those who have taken exception to the action that has 
not taken place in the Senate with regard to judges. I listened very 
carefully. Many of our colleagues have been extremely eloquent in their 
presentations.
  As we are reaching the 24-hour point, it is important to understand 
exactly what our responsibility is in the Senate with regard to the 
appointment power, what our Founding Fathers expect of the Senate, and 
whether we are measuring up to the test which they established at the 
Constitutional Convention.
  I draw the attention of our colleagues once more to the raw 
statistic,

[[Page 28751]]

which I think effectively rebuts so many of the allegations and the 
presentation that has been made, where we have actually confirmed 168 
of the nominees, and only 4 have not been affirmatively approved. That 
is 98 percent. We ought to think about what has been said on the other 
side about the abuse of those who have expressed opposition to these 
nominees, whether there has been an abuse of the system itself, when we 
find out they have gotten 98 percent of their way over this Congress. 
My good friend from Vermont has gone through the statistics in great 
detail.
  I listened a little earlier to one of my colleagues on that side of 
the aisle say there never has been an instance where a circuit court 
judge was filibustered by the other side. I am a member of the 
Judiciary Committee, and I would be glad to sit down with my colleague 
and go over the 23 well-qualified nominees who never emerged from the 
Judiciary Committee to be considered on the floor of the Senate.
  Nonetheless there are those who are listening tonight who may say, 
``My goodness, we have these nominees and they are not being 
considered. Isn't this a one-way street, where now Democrats, perhaps a 
few Republicans, are not permitting the vote on particular nominees?''
  I can remember very well the other side using the same rules to their 
own advantage with regard to judicial nominees, and history 
demonstrates that, as has been pointed out by our colleagues.
  Rather than dwelling on that, I think it is instructive once more to 
think about what our Founding Fathers expected of this body with regard 
to the appointment process. When we look at that, we will see that they 
expected us to exercise our own good, independent judgment. There are 
those on the other side who say, if the President sends someone up to 
the Senate, you better find a good reason not to vote for him or 
otherwise the President is entitled to that individual. That is not the 
case. That has been repeated time and time again.
  To the contrary, if you look at the debates in the Constitutional 
Convention, our Founding Fathers weighed their debates and discussions 
believing that we in the Senate should have the heavy hand in terms of 
the final judgment with regard to nominees. I will take a few moments 
to review that because it is instructive.
  The Constitutional Convention met in Philadelphia from late May until 
mid-September of 1787. On May 29, 1787, the Convention began its work 
on the Constitution, and when the Virginia Plan was introduced by 
Governor Randolph, it provided that a National Judiciary be established 
to be chosen by the National Legislature.
  Under this plan, the President had no role--no role--in the selection 
of Federal judges. When this provision came before the Convention on 
June 5, several Members were concerned that having the Congress as a 
whole select judges was too unwieldy.
  James Wilson of Pennsylvania suggested an alternative: that the 
President be given the sole power to appoint judges. The idea had no 
support. John Rutledge of South Carolina said he ``was by no means 
disposed to grant too great a power to a single person.'' James Madison 
agreed that the legislature was too large a body, and stated that he 
was ``rather inclined to give the appointment power to the Senatorial 
branch.'' This is the debate of our Founding Fathers, a group 
sufficiently stable and independent, as James Madison pointed out, to 
provide ``deliberate judgments'' on judges.
  A week later, Madison offered a formal motion to give the Senate--the 
U.S. Senate--the sole power to appoint judges, and this motion was 
adopted without a single objection.
  On June 19, the Convention formally adopted a working draft of the 
Constitution, and it gave the Senate the exclusive power to appoint 
judges. This was the thinking of our Founding Fathers.
  We learn in that debate on the floor of the Senate, the Founding 
Fathers intended the Senate of the United States to be a principal 
partner, obviously, in the consideration of these judges.
  On July 18, the Convention reaffirmed its decision to grant the 
Senate the exclusive power. Wilson again proposed ``that judges be 
appointed by the executive,'' and again his motion was defeated. The 
issue was considered again on July 21 and in the Convention for the 
fourth time and again agreed to the exclusive Senate appointment of 
judges. In a debate on the provision, George Mason of Virginia called 
the idea of executive appointment of Federal judges a ``dangerous 
precedent.''
  Not until the final days of the Convention was a compromise 
suggested. On September 4, 2 weeks before the Convention work was 
completed, the committee proposed that the President should have a role 
in selecting judges. It stated: ``The President shall nominate and, by 
and with the Advice and Consent of the Senate, shall appoint judges of 
the Supreme Court.''
  The debate made clear, Mr. President, however, that while the 
President had the power to nominate the judges, the Senate still had a 
central role. Gouverneur Morris of Pennsylvania actually described the 
provision of giving the Senate the power ``to appoint judges nominated 
to them by the President.''
  It's clear that the Constitutional Convention, which had repeatedly 
rejected the proposal to let the President alone select the judges, did 
not intend the Senate to be a rubberstamp for the President. And it is 
equally clear that, especially when the Senate is controlled by the 
President's own party, the Founders did not intend the Senate to roll 
over and play dead whenever the President tells them to.
  We have approved 168. And only 4 have been rejected. That is a pretty 
good record for this President.
  On the contrary, it is clear what the Founders would say to us today. 
They would say, ``We gave you this power to use it whenever you think 
the President proposes judges who will not be beneficial to the Nation. 
We did not tell you what rules to use to exercise that power. We gave 
you the right to set your own rules.''
  And they did. And the Founders did not say, and did not mean that 
``the President can appoint whomever he wants to the Federal courts, as 
long as he gets a bare Senate majority to consent.'' If we did adopt a 
rule that allowed the President to do so, the Founding Fathers would 
look down on us and say, ``Shame!''
  ``You are the Senate. If we wanted the President alone to be able to 
pick the judges, we would not have given you the power that we did in 
the Constitutional Convention. For 214 years, you have used that power 
wisely, and under the power we gave you, you have the authority to set 
your own rules.'' That is what the Founding Fathers said.
  As Senators, we have the obligation to say no to the President when 
we think he is wrong. We should not abdicate the powers the Founding 
Fathers gave us. If we are true to our oath of office as Members of the 
Senate, we cannot abdicate the powers the Founders gave us.
  We should not erase the rules which give us the ability to be the 
Senate and protect the independence of the Federal courts.
  We exercise different judgments on Presidential nominees. The 
independence of the Senate and the courts is the essence of our 
Constitutional system of checks and balances that has served us so well 
throughout our history.
  The Senate has never hesitated to exercise its advice and consent 
power. During the first 100 years after ratification of the 
Constitution, 21 of 81 Supreme Court nominations one out of four were 
rejected, withdrawn or not acted on. During these confirmation debates, 
ideology often mattered. John Rutledge, nominated by George Washington, 
failed to win Senate confirmation as Chief Justice in 1795. Alexander 
Hamilton and other Federalists strongly opposed him because of his 
position on the controversial Jay Treaty with Great Britain. A nominees 
of President James Polk was rejected because of his anti-immigration 
position. A nominee of President Herbert Hoover was rejected because of 
his anti-labor view.
  When a President makes the request for a member of the Cabinet, it is 
time

[[Page 28752]]

limited to the 4 years that President is going to be there. The 
President has the heavy presumption that he is entitled to his own 
advisers, and that is why the overwhelming majority of nominees by the 
Presidents for their Cabinet are approved. We have some for the 
regulatory agencies that may be a little bit longer, or go past a 
particular administration, and perhaps we apply a somewhat tighter and 
more stringent test, but we are talking about lifetime tenure on 
important courts of this land.
  The DC Circuit Court has really been called another supreme court 
because they have the appellate jurisdiction on so many of the 
regulatory agencies. These appeals that come before that DC Circuit 
involve the rights of working men and women. They make the decision in 
terms of whether the workplace is going to be safe for all of those who 
go in and work in their plants and factories. They are going to 
interpret whether the various legislation dealing with the environment 
is adequately enforced, along with a whole range of different issues 
that affect the health and safety and well-being of the people of this 
country.
  Our friends on the other side say, ``If the President nominates 
someone, why are you not rubberstamping it?'' That is not what our 
Founding Fathers said or agreed to or instructed us to do. They said we 
should make our own independent judgment and decision, and the fair 
judgment and decision, I believe, is whether these individuals who are 
nominated demonstrate a core commitment to the fundamental teachings of 
the Constitution of the United States. That is what this Senator looks 
for with a nominee.
  When they will not answer the questions--but the administration knows 
what those answers are--or they have demonstrated over a lifetime by 
statements and deeds that they will not abide by the fundamental 
teachings of the Constitution, why in the world should we take a 
chance, in representing the people we do, to think they deserve a 
promotion to serve in these high courts? It should not be that way. The 
Founding Fathers never expected us to be that way, and we will not have 
it that way.
  Recently, we had a very distinguished historian who wrote a 
magnificent book. It is called ``Master of the Senate'' by Robert Caro. 
In that book, he did an enormous amount of reading and studying of the 
views of our Founding Fathers and also of the early years of the Senate 
in order to put his historical figure, President Johnson, then-Majority 
Leader Johnson, into some perspective. I will just mention these lines 
which I think are very insightful about the Founding Fathers and what 
they believed this institution was really all about:
  ``The writings of the framers of the Constitution make clear that 
Senators, whether acting alone or in concert with like-minded 
colleagues, are entitled to use whatever means the Senate rules provide 
to vigorously contest a President's assertion of authority with which 
they strongly disagree.
  One could say, in fact, that under the fundamental concept of the 
Senate as envisioned by the Founding Fathers, it is not merely the 
right, but the duty of the Senators to do that, no matter how popular 
the President or how strongly the public opinion polls of the moment 
support the President's stand on the issues involved.''
  Then he continues:
  `` . . . in creating the new nation, its Founding Fathers, the 
Framers of the Constitution, gave its legislature . . . not only its 
own powers, specified and sweeping . . . but also powers designed to 
make the Congress independent of the President to restrain and act as a 
check on his authority, (including) power to approve his appointments, 
even the appointments made within his own administration . . . ''
  And the most potent of these restraining powers the Framers gave to 
the Senate is:
  `` . . . the power to approve Presidential appointments was given to 
the Senate alone; a President could nominate and appoint ambassadors, 
Supreme Court Justices, and other officers of the United States, but 
only `with the Advice and Consent of the Senate.'''
  `` . . . the Founders, in their wisdom, also gave the Senate the 
power to establish for itself the rules governing exercise of its 
powers. Unlike the unwieldy House, which had to adopt rules that 
inhibited debate, the Senate became the true deliberative body that the 
framers had envisioned by maintaining the ability of its members to 
debate as long as necessary to reach a just result. For more than a 
century, the Senate required unanimous agreement to close off debate. 
The adoption of Rule XXII in 1917 allowed a two-thirds cloture vote on 
`measures,' but nominations were not brought under the rule until 
1949.''
  In short, two centuries of history rebut any suggestion that either 
the language or the intent of the Constitution prohibits or counsels 
against the use of extended debate to resist Presidential authority. To 
the contrary, the nations's Founders depended on the Senate's Members 
to stand up to a popular and powerful President. In the case of 
judicial appointments, the Founders specifically mandated the Senate to 
play an active role, providing both advice and consent to the 
President. That shared authority was basic to the balance of powers 
among the branches.
  Surrendering such authority is not something which should be done 
just because of a Senator's point of view on the particular issues of 
the moment--because much more than the particular issue is involved.
  Republican Senators are wrong when they say, ``The President is 
entitled to have his own people on the courts.'' We know that history 
tells us the opposite. The Senate usually chooses to give the President 
broad leeway in appointing members of his cabinet and filling other 
positions in the Executive Branch. He is politically responsible for 
these appointees. They generally serve at his pleasure, and their 
appointments end at the end of his term in office. But appointments to 
the federal courts are lifetime appointments. Federal judges are able 
to fulfill their own constitutional responsibility because they are 
independent of both Congress and the White House.
  The Founding Fathers wanted the checks and balances, the independent 
government agencies: The Presidential and the executive, the Congress 
with the House and the Senate, and an independent judiciary. It does 
not belong to the President. It does not belong to the Congress. It 
belongs to the American people, and both the President and the Senate 
have an important responsibility to make sure it remains independent.
  I yield the remaining time to the Senator from Hawaii.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. AKAKA. Mr. President, I have spent the past 23 hours listening to 
the debate which was billed as a debate on judicial nominations and has 
turned into a semantics fest over who is responsible for the delayed 
enactment of legislation important to both sides of the aisle. One 
thing is clear to me, this is not getting us any closer to enacting the 
legislation we have identified as important.
  We are devoting 30 hours to debate the fact that the Senate has 
passed only 98 percent of President Bush's nominees, not 100 percent. I 
take my responsibilities as a United States Senator very seriously. My 
understanding is that I am to provide the President with my advice and 
consent regarding the individuals he nominates for a lifetime position 
to the Federal judiciary. It troubles me that we are spending 30 hours 
to discuss the fact that we have not acted on 2 percent of the 
President's nominees to the Federal judiciary.
  We are talking about 4 individuals, 4 individuals who have jobs, 
while 3 million people have lost jobs since President Bush took office. 
We should be talking about jobs. We should be debating and voting on 
legislation to increase the minimum wage. We should be finishing our 
appropriations bills. We should be talking about ways to strengthen our 
manufacturing base. We should be discussing extended unemployment 
benefits for the long-term unemployed, the 3 million Americans

[[Page 28753]]

who have lost their jobs during the Bush presidency.
  If we want to start talking about legislation that is important to us 
as individual Senators, we could be talking about Federal recognition 
for Hawaii's indigenous peoples, Native Hawaiians, an issue of extreme 
importance to my constituents in Hawaii. We could be talking about 
ending mutual fund abuses for investors or promoting financial literacy 
for our students. We could be talking about how to fund the promises we 
extended when we passed the No Child Left Behind Act which has been 
severely underfunded since its enactment.
  Instead, we have spent 23 hours talking about 4 judicial nominations, 
4 nominations out of 172, which have not been approved by this body. We 
have spent the past day blaming each other for the lack of progress on 
the issues that we have identified as priorities. It is sad that we 
have come to this point. During my tenure in the Senate, we have been 
able to work in a bipartisan manner to achieve our goals.
  I take particular offense, to the claims that have been made about 
Democratic Senators being anti-woman, anti-Catholic, anti-Hispanic, and 
anti-African-American, merely because we refuse to approve 4 of the 
President's judicial nominees. Since when do we cast aspersions simply 
because we are unable to get our own way? As a former principal and 
teacher, this is not behavior that I would condone in the classroom, 
much less on the floor of the Senate.
  My colleagues from the other side of the aisle argue that this is the 
first time a filibuster has been used for a judicial nominee. 
Republicans have openly filibustered 6 judicial nominees on the floor 
of the Senate, 5 of which were circuit court nominees.
  There seems to be a theme that my colleagues on the other side of the 
aisle have not engaged in efforts to block a judicial nomination. I 
want to share with my colleagues a situation I encountered during the 
104th and 105th Congress. An individual from Hawaii was nominated to 
serve on the U.S. District Court, District of Hawaii. This was a 
nominee strongly supported by both Senators from Hawaii. This nominee 
had a hearing before the Senate Judiciary Committee and was reported 
favorably. However, this is where the process stopped for a period of 
two-and-a-half years.
  A colleague from another state placed a hold on this nominee for over 
30 months before allowing us to confirm this nomination. In effect, a 
Senator from a State thousands of miles from Hawaii blocked a district 
court nominee that the senior Senator from Hawaii and I supported. This 
colleague is now the attorney general of the United States, and happens 
to be a good friend of mine. I found this situation to be so unusual, 
that a colleague from another state would place a hold on a district 
court nominee from my State when both Hawaii Senators strongly 
supported the nomination. I also find it highly ironic that the person 
who placed that hold is now in a position of great importance in this 
administration. I raise this issue to dispute the notion that this is 
the first time a nomination has been blocked, after the Senate 
Judiciary Committee favorably reported the nomination to the Senate for 
consideration.
  I could also speak about the nomination of Justice James Duffy to the 
United States Court of Appeals for the Ninth Circuit. A fine nominee, 
described by his peers as the ``best of the best,'' he had strong 
support from Senator Inouye and me to fill Hawaii's slot on the Ninth 
Circuit. Yet, Justice Duffy never received a hearing in the Senate. 
Seven hundred and ninety-one days without a hearing. Justice Duffy is 
one of the well-qualified and talented men and women nominated during 
the Clinton administration, individuals with bipartisan and home-State 
support, whose nominations were never acted on by the Senate. In back 
of me are pictures of those, and Mr. Duffy's picture is on the chart.
  The last person I will mention is Richard Clifton, who is now serving 
on the U.S. Court of Appeals for the 9th Circuit. Richard Clifton was 
nominated after President Bush withdrew Justice Duffy's nomination. 
Richard Clifton served as the Hawaii State Republican party counsel. 
While I don't necessarily agree with all of his views, I supported his 
nomination, and he was confirmed within a year of his nomination.
  Ninety-five percent of Federal judicial seats are now filled, 
creating the lowest vacancy rate in 13 years. So let's get back to the 
things we should be talking about--jobs, education, Medicare, minimum 
wage, unemployment insurance, and helping the poor.
  We are squandering valuable time that the Senate could and should be 
using to address matters of great importance to thousands of Americans. 
I am honored to cosponsor legislation offered by the senior Senator 
from Massachusetts, Mr. Kennedy, to raise the minimum wage. He has 
spoken with tremendous passion of the urgent need for an increase in 
the minimum wage.
  I remind my colleagues that since establishing the minimum wage 
requirement in 1938, we have had only 19 increases in the minimum wage, 
the latest occurring in September 1997. The minimum wage would need to 
reach $8.38 an hour to equal the purchasing power of the statutory 
minimum wage in 1968. A full-time worker paid the minimum wage earns 
about $4,000 below the poverty line for a family of three. This is not 
right.
  We should not only be raising the minimum wage so that employees 
working full time are not struggling to stay above the poverty line. We 
should also extend the Temporary Extended Unemployment Compensation 
program. This program, which was enacted on March 9, 2002, provided up 
to 13 weeks of federally-funded benefits for unemployed workers in all 
states who exhausted their regular unemployment compensation benefits. 
In addition, up to an additional 13 weeks for certain high unemployment 
states that have an insured unemployed rate of 4 percent or higher. The 
program has been extended several times, with the latest extension 
enacted into law on May 28, 2003. While this program will be phased-out 
through March 31, 2004, the program actually ends on December 31, 2003. 
Although employment has risen, the national unemployment rate has 
remained unchanged at 6 percent. In October 2003, the Department of 
Labor has indicated that 2 million unemployed persons were looking for 
work for 27 weeks or longer. This is greater than the 13 weeks of 
regular unemployment and greater than the additional extended 
unemployment benefits. We should be doing more not just for our men and 
women who are fighting our war on terrorism, but for those who are 
fighting the war on poverty.
  My time is almost up, so I will end here. In a Senate where the 
divide between the majority and minority is held by a mere vote, and 
that division reflects the viewpoint of the American body politic at-
large, it is imperative that we work together to resolve so many of the 
issues that are important to our constituents. When it comes to 
judicial nominations, the confirmation rate of 98 percent clearly shows 
that we, in the minority, are doing what we can to work with the 
majority in upholding our constitutional obligation to provide advice 
and consent to the President on judicial nominations. I can only hope 
we achieve a 98 percent rate in enacting the laws addressing funding 
for education, healthcare reform, Medicare reform, increasing the 
minimum wage, extending unemployment insurance, and providing Americans 
with the financial tools to be successful.
  The PRESIDING OFFICER (Ms. Murkowski). The Senator from 
Massachusetts.
  Mr. KENNEDY. How much time do we have remaining?
  The PRESIDING OFFICER. The minority has 1 minute remaining.
  Mr. KENNEDY. I thank my colleague and friend. He mentioned the 
increase in the minimum wage. It has been 7 years since we have 
increased the minimum wage. In that time, we have also increased the 
pay for Members of the Senate five times, but we are denied the 
opportunity to increase the minimum wage for working families in this 
country. I think it would not take us

[[Page 28754]]

very long. If the Senator would agree with me, it would take us about 
half an hour before we are prepared to go ahead and vote on a minimum 
wage, and here we have just used 30 hours or are going to be using 30 
hours of discussion that is not related to that or to education, 
overtime, unemployment compensation, jobs, or education funding.
  I thank the Senator for an excellent presentation. I believe our time 
is just about up.
  The PRESIDING OFFICER. The Senator's time has expired.
  Who yields time for the majority?
  The Senator from Georgia.
  Mr. CHAMBLISS. Madam President, I say to my colleagues that if they 
will give us an up-or-down vote on all of these nominees, as they have 
done in every other instance and as the Senate has done for every other 
President of the United States, there is a lot of work we need to do 
and we look forward to moving on to that. What we have been doing over 
the past 24 hours almost now, what we are going to do for the next 
several hours, is some of the most important business this Senate can 
ever take up, and that is the confirmation of our judicial nominees.
  I am pleased to yield such time as he may consume to the Senator from 
Missouri, Mr. Talent.
  Mr. TALENT. Madam President, I thank my friend for yielding. It has 
been a pleasure, in a sense, to be here. I will not take very much 
time.
  I have enjoyed hearing the remarks of my friends, the Senator from 
Hawaii and the senior Senator from Massachusetts. I have the pleasure 
of serving with them on the Armed Services Committee. They have often 
been eloquent on the floor of the Senate.
  My friend from Massachusetts has been eloquent on the subject of 
judicial nominations before. I am going to quote something he said 
about 5 years ago. I do it with respect and for a reason. He said on 
January 28, 1998:

       Nominees deserve a vote. If our Republican colleagues don't 
     like them, vote against them. But don't just sit on them--
     that is obstruction of justice. Free and full debate over 
     judicial nominations is healthy. The Constitution is clear 
     that only individuals acceptable to both the President and 
     the Senate should be confirmed. The President and the Senate 
     do not always agree. But we should resolve these 
     disagreements by voting on these nominees--yes or no.

  We should resolve these disagreements by voting on these nominees--
yes or no. I have quoted this for a reason. The divisiveness over 
nominations, holding them up in one way or another, is not new to this 
Senate. This tactic of abusing the filibuster rule for a minority to 
stop court of appeals judges from even getting a vote, that is new; 
that is unprecedented. They have been blocking now or threatening to 
block a quarter of President Bush's court of appeals nominees. That is 
unprecedented, and the Senators doing it are responsible for doing it. 
They have to stand up for that. But the divisiveness and some elements 
of obstruction are not new.
  We have an opportunity with this debate, and we are all exhausting 
ourselves talking, trying to come up with a real bipartisan resolution. 
I hope we can end the debate by stepping back and coming up with a set 
of rules that will be fair to whoever is the President and whichever 
party controls the White House. If we could do that, then we could 
clear these nominees for a vote.
  We are coming to the end of President Bush's term. We don't know who 
is going to be President a year from now. But we know that President 
deserves a better procedure than we have given this President. Now is 
the opportunity to do that, and then we can get on to the other 
business of the Senate.
  I encourage both sides to do that, and I thank my friend from Georgia 
for yielding.
  Mr. CHAMBLISS. I thank my friend for his very insightful comments, as 
always.
  I yield such time as she may consume to the Senator from North 
Carolina, Mrs. Dole.
  Mrs. DOLE. Madam President, when the Constitution was drafted so many 
years ago, it outlined a process by which the President of the United 
States would nominate judges with the ``advice and consent'' of the 
U.S. Senate. The filibuster expands the Senate's advice and consent 
role in nominations well beyond what the Constitution envisioned.
  And for too long, politics has prevented the Senate from doing its 
constitutional duty.
  The judicial process is obviously gridlocked. Qualified candidates 
have been nominated only to find that they are unable to get proper 
consideration on the Senate floor. In the meantime, burgeoning court 
dockets, delayed trials and overworked judges have become the norm for 
far too many of our courts, especially in North Carolina.
  This simply isn't right. Every President, Republican or Democrat, 
deserves to have his nominees voted on. Every Senator has a 
responsibility to exercise his or her constitutional duty to vote on 
the President's nominees, and every nominee deserves a hearing, a 
committee vote, and an up-or-down vote on the Senate floor. Americans 
deserve courts that are staffed with qualified judges, and the process 
should be absolutely free of politics.
  I was sworn in as a U.S. Senator to represent 8 million North 
Carolinians. In doing so, I took an oath to fulfill the duties of this 
office, including one of a Senator's most important responsibilities--
voting on judicial nominees submitted by the President. Unfortunately, 
politics has undermined this process. Americans have the right to know 
where their Senators stand, and no one, no one should be able to hide 
behind parliamentary loopholes to avoid accountability to his or her 
constituents. The Constitution calls on all 100 Senators to give their 
advice and consent--not one Senator with a blue slip, not a group of 
Senators on the Judiciary Committee, but all 100 Senators.
  President Bush has said that each judicial nominee deserves a vote 
within 180 days of his or her nomination. Unfortunately, that is not 
the case for several of our excellent North Carolina nominees. Right 
now, we have three candidates whose nominations have been languishing 
in the Senate.
  Terry Boyle was first nominated to the 4th Circuit Court of Appeals 
in 1991--and then again in May 2001--this means he has been denied the 
courtesy of a vote in the Senate for more than a decade. Let me make 
that clear--More than a decade. The 4th Circuit hears federal appeals 
from North Carolina, South Carolina, Virginia, West Virginia, and 
Maryland. North Carolina is the largest State in the 4th Circuit, and 
historically the number of judges roughly corresponds with population. 
By this measure, we should have four to five judges on the court. We 
have only one. This seat has been vacant so long it has been declared a 
judicial emergency, so it is imperative that we act now.
  And Terry Boyle is extremely well qualified for the job. He is Chief 
Judge for the U.S. District Court in the Eastern District of North 
Carolina, having served on that court for 17 years. He was designated 
to sit with the court of appeals 12 times, and he has authored over 20 
appellate opinions. Everett Thompson, an Elizabeth City lawyer and a 
Democrat, said this of Terry Boyle: ``I think he is really one of the 
best trial judges I've every appeared before. He's a student of the 
law, he works hard, he's bright, he's fair. And I never saw him be 
political about anything at all.''
  And then there is Jim Dever, former Editor-in-Chief of the Duke 
University Law Journal, nominated to serve on the U.S. District Court 
for Eastern North Carolina. How long should a nominee have to wait for 
a hearing? Three weeks? Six week? Six months? This distinguished 
attorney has waited 18 months just to get a hearing. The seat has been 
vacant for almost 6 years--currently, the longest district court 
vacancy in the country. And the Eastern District is an area where his 
skills and expertise are desperately needed--this vacancy has been a 
judicial emergency since 1999--and, until the recent confirmation of 
Louise Flanagan, there were only two full-time judges there. The 
caseload got so heavy last year that U.S. District Judge Malcolm Howard 
had to continue seven civil cases because of the

[[Page 28755]]

pressing criminal docket, which takes precedent by law. In an order 
announcing his decision, Judge Howard wrote, ``For more than two years, 
this four-judge authorized court has functioned with two active judges. 
The result over time is that the caseload, civil and criminal, has 
become almost insurmountable.'' Mr. President, there hasn't been one 
single objection raised about Jim Dever's qualifications. He has broad 
bipartisan support. Robinson Everett, a Duke Law professor and former 
chief judge of the Court of Appeals for the Armed Forces, describes Jim 
Dever as having ``all the requisite qualities''--``he will be a superb 
jurist.''
  And, Bob Conrad is a well-respected U.S. Attorney nominated in April 
to be U.S. District Judge for the Western District of North Carolina. 
He is sorely needed. This is a district that had one of the highest 
caseloads in the country for the sixth year in a row. Bob Conrad is 
held in high esteem by his colleagues--Republicans and Democrats. He is 
known for his prosecution of a cigarette smuggling ring funding the 
terrorist group Hezbollah. In 1999, he was appointed by then-Attorney 
General Janet Reno--Janet Reno, as the point man for a Justice 
Department Task Force looking into illegal fundraising on the campaign 
trail. Roy Cooper, the Democrat Attorney General for North Carolina, 
said of him, ``Bob is a straight shooter. We are from different 
political parties, but I believe he is a student of the law and his 
decisions are not affected by partisan politics.''
  All three North Carolina nominees come with superb credentials, yet 
none has ever been considered by the Senate Judiciary Committee or, of 
course, the full Senate. This is a fairness issue. It isn't fair to 
these nominees and certainly isn't fair to our judicial system, which 
must not be subjected to political maneuverings.
  If a Senator believes a nominee is not qualified, then have the 
confidence to convince fellow Senators to vote against him. But at 
least take a vote. I trust my colleagues will vote based on a nominee's 
qualifications, like integrity, fairness, intelligence, work ethic, 
adherence to the rule of law and judicial temperament. We owe it to 
their constituents to take a stand on each and every judge. And that 
simply isn't happening in the U.S. Senate.
  There are a variety of ways that nominees have been held up in the 
Senate over many years. But we have reached an unparalleled level with 
the filibuster of judges. Instead of continuing a trend of retaliation, 
we have the ability to stop this downward spiral in its tracks. If we 
don't, the loser will be justice, the hundreds of thousands of crime 
victims in the United States and the judges who are overworked and 
unable to meet the demands on their courtrooms. And common sense tells 
us that many of America's highest courtrooms don't have judges to run 
them, and as a result, the legal system simply can't function. Yes, 
justice delayed is justice denied.
  Mr. CHAMBLISS. I thank the Senator from North Carolina for her very 
insightful comments, as always, about what has been happening in North 
Carolina with respect to the delay of judicial appointments once again.
  Now I yield such time as he may consume to the Senator from Indiana, 
one of the most respected men in the Senate, Mr. Lugar.
  Mr. LUGAR. Madam President, I thank the distinguished Senator from 
Georgia. I thank him for his leadership throughout this debate and his 
extraordinary contribution to our understanding. I likewise appreciate 
very much the testimony of the distinguished Senator from North 
Carolina with specific references to remarkable nominees, and the 
distinguished Senator from Missouri, who preceded the Senator from 
North Carolina, with his insightful comments.
  I would like to take a slightly different approach in my speech. I 
believe this debate is about the thought that we ought to have a vote 
up or down on each nominee. That is very important to the Senate, to 
our country, for fairness to the nominees and to the strength of the 
judiciary.
  It has been my privilege to serve almost 27 years, 15 of these years 
with a Republican President. The custom I knew as a young Senator and 
now in whatever age I am at is that you have a responsibility: If you 
are going to make recommendations to the President of the United 
States, do so with care.
  In the first 25 years of my career, I appointed a nominating 
committee in Indiana made up principally of very distinguished 
attorneys and judicial figures for whom I had respect and from all over 
my State. I knew these people commanded respect, and they were very 
helpful in identifying, each time a judicial vacancy occurred, several 
nominees.
  Without fail, I presented all of these nominees to the President, and 
his staff sifted through them and in each case came up with one of the 
nominees, frequently the one recommended first by the panel I had 
suggested. And thank goodness, each one of these nominees had an up-or-
down vote, usually a very fine consideration by the Judiciary 
Committee. I did not ever take that for granted, but I saw coming along 
the horizon a very different story in the current workings of the 
Judiciary Committee.
  I have great respect for that committee and its members and for those 
who have served as chair and ranking member of the committee. I think 
there is a crisis in that committee which is very important for us to 
be thinking about. I believe that privately a good number of members in 
the committee on both sides of the aisle deeply regret what has been 
occurring in the committee.
  Nevertheless, once again, on May 15, 2002, I was confronted with the 
news that Judge William Lee and Judge James Moody would both be 
retiring. I appreciated that those vacancies, two of them, were going 
to come in to the particular milieu about which we are now talking.
  So on this occasion, I took the responsibility personally to write to 
the press throughout our State that we had a very substantial 
opportunity ahead of us. I outlined all the qualifications I could see 
of a Federal judge and, with great cooperation of the press, invited 
every well-qualified person to apply. The applications the candidates 
filled out consumed tens of pages, including substantial writings and 
often the statements they had made in their professional work.
  Over the course of 4 months, ultimately 15 serious candidates 
emerged. I personally read all of their statements carefully. Those 15 
candidates included 6 State judges, 4 U.S. magistrate judges, 2 
attorneys in private practice, 1 Federal prosecutor, 1 Indiana 
prosecutor, and a legal professor. Their ages ranged from 35 to 61 and 
they represented 11 counties across our State.
  After taking a hard look at all of these applications, I interviewed, 
over the course of an hour or 2, 5 of the nominees I thought were the 
most promising. In those interviews, I was interested principally in 
their professional skills, but likewise I had read the opinions of 
these nominees. I did not ask them questions on social issues in 
America today, on political issues, on foreign policy issues. I did ask 
them about their work, the characterization of how they would fulfill 
their responsibilities.
  Following all of that, I submitted three names to the White House, 
and two of those persons were in fact nominated. They were Philip 
Simon, an assistant U.S. attorney and chief of the criminal division in 
Hammond, IN, and Theresa Springmann, a U.S. magistrate judge from 
Hammond, IN, this being the northern half of that State, that 
particular district that was involved.
  In fact, I have nominated a third, whom I shall not indicate in this 
address. But President Bush, in fact, did send those two nominees I 
have cited, Mr. Simon and Ms. Springmann, to the Senate.
  Philip Simon, I had found and the Senate Judiciary Committee 
discovered, had a remarkable record as a U.S. attorney. He was chief of 
the criminal division and responsible for all criminal prosecution in 
the Northern District of Indiana. He supervised and participated in 
prosecutions involving

[[Page 28756]]

large-scale drug distribution rings, illegal firearms trafficking, 
white-collar fraud cases, environmental crime, and mob-related 
racketeering cases. He was in charge of a public corruption task force 
in Lake County, IN, which was very vigorous. He has been the recipient 
of a number of awards and commendations. The mutual insurance companies 
of Indiana presented an award to Judge Simon for his work to combat 
insurance fraud. He was given the Directors Award by former Attorney 
General Janet Reno, the highest award given to a U.S. attorney by the 
Justice Department in the last administration.
  Judge Springmann was the first woman to be made partner at Sprangler, 
Jennings & Doherty, the largest law firm in northwest Indiana. She 
followed this up by becoming the first woman judicial official in the 
Northern District of Indiana, presided over 30 civil jury trials, 10 
civil and criminal bench trials, and conducted 300 settlement 
conferences for the district court. She received a number of 
commendations and the highest rating from the Lake County Bar 
Association.
  At this point, I decided to write to Senator Hatch and Senator Leahy, 
chairman and ranking member of the committee. Beyond that, I went to 
both of them for personal conversation about these nominees, to explain 
the procedure and my own criteria, at least, in making these 
suggestions to the President.
  In fact, on March 12 of this year, Judge Springman and Judge Simon 
were given hearings; but prior to that time, I approached Senator Evan 
Bayh of Indiana, and I gave to Senator Bayh the total records of these 
nominees, so that he might see exactly the same applications I had 
examined, the same opinions. I asked him for his support of these 
nominees, and in fact he gave that. He appeared with me before the 
Judiciary Committee on behalf of these two nominees.
  Perhaps we had an unusual situation in Indiana, but I point out that 
I was pleased the Judiciary Committee acted promptly on the nominees 
and the Senate did likewise. Thus, what could have been a gaping hole 
in the Northern District of Indiana judiciary lineup, in fact, was 
promptly filled, even after the departure of these two distinguished 
judges. Now, that will not work for every situation, and there may be 
occasions, as a matter of fact, when the President of the United States 
has nominees in mind, as he takes a look at a particular State, that 
the Senator from that State may not have in mind. I can conceive that 
my three nominees might have led to the President or his people saying: 
Go back and try again and see if there are not other persons among 
these distinguished people you have nominated who more fit the idea of 
what I believe ought to be on the bench in America today. I recognize 
that.
  But it was very important to my constituents in Indiana that we have 
the service of these judges--continuity in that regard. It was very 
important that they knew the criteria, the character, the whole 
process, that it was totally transparent and played out over several 
months with an enormous amount of publicity.
  Sadly enough, the Northern District of Indiana has an extraordinary 
number of political corruption trials going, with problems of gang-
related crime from Chicago and the Illinois border, and sometimes from 
Michigan and through that area, which brings a total Federal emphasis 
quite apart from the local situations that might have been involved. 
These were controversial areas of turmoil, not the placid situations 
that more characterize my State.
  This is why the selection of people in this particular business--
where there was enormous fraud, abuse, and corruption--was especially 
important and the civic trust in these judges is especially important. 
They have been serving for several months with distinction, as I 
anticipated they would. There was in fact a recognition at the time 
they were sworn in by the total community, in a very large celebration, 
celebrating the judiciary and the rule of law in that part of our 
State.
  I recite all of this and have asked Senators to indulge in what 
amounts to maybe a parochial recitation about Indiana simply to say I 
believe that somehow in the workings of the Judiciary Committee and the 
relation of that committee with the White House and with us, there 
really has to be a working out of a better feel. What I suspect is 
occurring here is that, unfortunately, there may be individual members 
of the committee who have decided a way to carve out a different 
function for themselves or maybe suggest a different function for the 
Senate.
  We are all judges of the Constitution and what is proper and so 
forth. There are some who say, after all, a Presidential nominee for a 
Cabinet position is going to be bound by the term of the President. But 
these are lifetime officials, and we recognize that. But as the 
distinguished Senators who preceded me have pointed out, new Presidents 
come and go. The fact is that Republicans and Democrats are somehow 
going to have to work together year after year in an ongoing body for 
the continuity of our country.
  What is occurring now doesn't work. Without arguing the wisdom or 
justice of someone holding up a nomination through a filibuster, I 
submit that this is not in the best interest of the Senate or our 
judiciary. The public doesn't like it. There may be partisan persons or 
people with special interests in America who do like it. Whose entire 
being resonates with a particular cause and they attempt to prevail 
upon people to stop somebody at all costs before they do harm. I 
understand that. We all have to deal with that.
  What we are talking about today is, I hope, the continuity for the 
very broad number of Americans who want to have confidence in justice 
and confidence in us, even in a closely divided Senate, maybe in a 
closely divided country, and to be able to work in their interests. 
That is why this debate is so important--to elevate this idea not only 
of comity but of justice, doing the right thing to a much higher level, 
as opposed to the tactical advantage of filibuster, of a misuse, in my 
judgment, of a separation of power situation to cause harm.
  Madam President, I appreciate the opportunity to participate in this 
debate with my distinguished colleagues.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Madam President, I thank the Senator from Indiana. As 
always, he has provided great insight into the way in which judicial 
nominees are best handled. He does it in a way in which all of us 
function. It does work. Particular instances we have had on the floor 
under consideration have also gone through a similar process, where the 
President has picked nominees he knows are great jurists and great men 
and women.
  Unfortunately, we are having to go through the exercise that we are 
having to go through to hopefully seek the cloture and to vote to 
ensure that these men and women get an up-or-down vote.
  I want to talk quickly, in the remaining time we have, about two of 
the nominees.
  I had the opportunity to visit this afternoon with the Honorable 
Janice Rogers Brown, who is a justice on the Supreme Court of 
California, whom the President has nominated for a position on the DC 
Court of Appeals. Justice Brown has a very distinguished 26-year legal 
career, all but 2 of which she served in public service. She has a 
great Horacio Alger story to tell. She was born in a tiny community 
called Greenville, AL, outside Montgomery. She grew up in the rural 
South just, as I did and Senator Alexander did, at a time that was very 
difficult. She made the best of the conditions under which she grew up 
and she survived in a situation which a lot of people didn't survive.
  I was so impressed not only with her legal background and her 
educational background but just with Janice Rogers Brown as a person. 
She is just a great lady. For her to go through what she is going 
through now, for one simple reason--that reason being nothing to do 
with any particular decision she has rendered in the Supreme Court of

[[Page 28757]]

California. The only reason she is going through what she is going 
through now is that she gave a speech to about 50 people in which she 
challenged the young people in that audience and, as a result of that, 
she is now being filibustered or is in the process of coming to be 
filibustered by the Democrats.
  I urge my colleagues to consider very thoughtfully voting positively 
on the cloture motions we are going to have tomorrow.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Ms. MIKULSKI. Madam President, here I am in the Chamber again exactly 
24 hours 30 minutes from when I was gaveled down from trying to 
complete the VA-HUD bill. I was on the floor 24 hours 30 minutes ago, 
standing up for veterans, trying to protect the environment, and 
working very closely and enthusiastically on a bipartisan basis with 
the chairman of the subcommittee on appropriations for veterans, 
housing, the environment, and other independent agencies.
  We were only 2 hours and about five or six amendments from being 
gaveled to come to cloture on the bill. As I was gaveled down, I was 
just heartsick that we could not take 2 more hours to finish the bill. 
Instead, this went on for 30 hours, and I am puzzled what has been 
accomplished by it.
  I know what wasn't accomplished by it. We did not finish the 
appropriations bill yesterday. Because we didn't finish the 
appropriations bill yesterday, we essentially said to millions of 
American veterans that we are going to put you on hold. We said to 
those thousands of faith-based organizations that build housing for the 
elderly--oh, no, we have to worry about a filibuster for judges; oh, 
no, we cannot move the bill. For those people who are trying to bring 
criminal prosecutions on polluters in the environment, we said we 
cannot really fund that, even though you don't have the right computers 
and enough staff. We have to talk about four judges. Millions of 
veterans, housing to be built for the elderly, the environment to be 
protected, getting our astronauts back to space safely, investing in 
science and technology at the National Science Foundation--that is the 
stuff of the VA-HUD subcommittee. That is why I am so passionate about 
it. It is one of the greatest subcommittees in Appropriations because 
it meets compelling human needs and yet gets America ready for the 
future.
  But oh, no, we could not finish it yesterday, we could not take 2 
hours--oh, no, we had to talk about four judges and a process.
  I am very disappointed in that, and I have to express my gratitude 
for the way Senator Byrd pushed for completion of the bill. I also 
express my gratitude to Senator Ted Stevens, who obviously worked out 
something where tomorrow we can come back and attempt to finish the VA-
HUD bill. But this could have been done in the spirit of comity. We had 
momentum yesterday. It is the way the Senate ought to work. We had a 
bipartisan bill. We were forging bipartisan compromises, because when 
it comes to standing up for veterans, we cannot be the Republicans and 
Democrats, we have to be the red, white, and blue party.
  Today, I was at Walter Reed talking to Marylanders who will forever 
bear the permanent wounds of war. We were in wards with young men who 
have put themselves on the line. They didn't lose their lives, but they 
have lost a limb. You see their families. You say hi to a young lady 
who is a wife or to a mother of one of those wonderful soldiers getting 
great treatment at Walter Reed. You have a 22-year-old wife and a 42-
year-old mother trying to be there with her husband and her child, the 
man they love, so he can get well and get back on his feet.
  They are doing a fabulous job at Walter Reed. We are going to do all 
we can to support them. Those men and women look so young, so fragile. 
They are so brave and they cannot wait to get back on their feet. Some 
want to get back to their unit. They are going to come back to the VA. 
We cannot abandon these soldiers, sailors, and marines who are coming 
back from Iraq either bearing permanent wounds of war or the permanent 
impressions of war on them. We have to have a VA. This is why we need 
to move our legislation forward promptly, expeditiously, on a 
bipartisan basis.
  I know, working with the distinguished Senator from Missouri, the 
chairman, we can do this. But oh, no, we could not do it last night. We 
had to put it aside. I didn't tell the guys at Walter Reed that we 
didn't fund veterans health care last night. It would have broken my 
heart to tell them we are going back to the Senate to argue about a 
filibuster, to argue about four people of questionable qualifications 
to sit on the Federal bench.
  I didn't say that to them, but I say this to you. We have to get 
serious about the agenda for the United States of America. We need the 
right priorities. Do we need a good judiciary? You bet we do. That is 
why we passed 168 judges already. With these four, with the 
qualifications that are so thin and troubling and these other issues, I 
don't think so.
  I want to talk about the priorities. Fortunately, again, because of 
the vigor of Senator Byrd and the cooperation of Senator Stevens, we 
are going to be in the Chamber tomorrow. We do have priorities. I spoke 
about veterans health care. You also know we have really significant 
issues in housing. Our communities need help. We are ready to move 
funds such as the community development block grant. This is money that 
goes into local communities, whether it is a big city such as New York 
or the small communities of Alaska, providing help to build childcare 
centers, rehabilitation of dilapidated properties. CDBG, last year, 
created over 100,000 jobs. When we asked for 2 hours, we were standing 
up for that. When we look at housing for the elderly, most of it is 
built and operated by faith-based organizations, such as the Associated 
Jewish Charities, Associated Catholic Charities, the Lutherans. It is 
wonderful because they take small amounts of Federal dollars and 
leverage them with philanthropy. They not only run programs, they run 
them with great compassion.
  These are the things we should be spending hours on the floor 
advocating. That is why we also worked to have funds to protect the 
environment. I wanted to talk about the Chesapeake Bay. Last night, I 
didn't talk about how we needed to protect the bay because we were 
short of time. People wanted to stand up on how they want to protect 
something about these four judges in the filibuster.
  How about the National Science Foundation? That needed attention last 
night, too. This is the one that invests in groups such as 
biotechnology and infotech and nanotech. Nanotechnology is a whole new 
field of inventing subatomic particles. I said to the Senator from 
North Carolina yesterday when she was presiding, our earrings, Madam 
President, this will contain all the books in the Library of Congress 
20 years from now. That is what nanotechnology means. Taking one pill--
you can take everything from your heart rate to your blood sugar, and 
also make new metal that is 10 times lighter than steel and 10 times 
stronger.
  I just lost thousands of steel jobs--thousands--and they are losing 
their pensions and their health care. Maybe with nanotechnology, we 
will have a new kind of metal mill and we can bring manufacturing back 
to our country. Instead, we are sending our jobs on a fast track to 
Mexico and a slow boat to China while we are slowing the Senate down in 
this 30-hour process and squandering time and not focusing on national 
priorities.
  I don't want to diminish what we are doing on judges. The judiciary 
is a separate and independent branch of Government. This is why we need 
to have the best of the best.
  Our courts are charged with safeguarding the very principles America 
stands for: justice, equality, individual liberty. That courthouse door 
must always be open, and when someone walks through that door they have 
to find an independent judiciary. I want to be sure when somebody walks 
through that courthouse door they not only get a fair trial and a fair 
hearing, but they know that person providing it is the best of the 
best.

[[Page 28758]]

  The Senate does have an important and coequal role in the 
confirmation of judges. There is an advise-and-consent clause. It 
doesn't say sit around and rubberstamp. There is nothing in the 
Constitution that talks about 180 deadlines. It says give advice and 
consent.
  We gave advice, but we do not give our consent on four individuals. 
When I look at judges, I have three categories: judicial competence, 
integrity, and commitment to the core constitutional principles.
  My senior colleague and I have just supported three Republican judges 
from Maryland. We did it with enthusiasm. One was Judge Titus, whom the 
Senate confirmed just a few days ago. He is a brilliant man, very 
esteemed, involved in the Maryland bar. He could go on the Fourth 
Circuit Court of Appeals.
  Another we backed in committee and on the floor was Judge William 
Quaries, an African-American jurist who I predict will go far. A 
scholar with a touch of the people. He has a unique touch.
  We also backed someone unique, a man who chaired the Republican Party 
in Maryland. He actually ran against a Democratic attorney general and 
Senator Sarbanes and I signed the blue slips with a flourish and 
appeared before the committee. Why would we do that? Because Judge 
Robert Bennet is a fantastic person and an excellent judge. He was 
fabulous as the U.S. Attorney. He brings legal ability, writings, et 
cetera. Look, we said, let bygones be bygones, he would make a great 
judge, and we are not going to stand on the party. This is the way 
Sarbanes and Mikulski have operated.
  But guess what. Now we get to the court of appeals. What a process 
this has been. First they sent us a gentleman who wasn't even a member 
of the Maryland bar. He lived in Maryland, but we don't think ZIP Codes 
are the only qualification. We think you have to be a member of the 
Maryland bar and participate in the Maryland legal community. So we 
rejected him.
  The next person they sent was on the staff of Judge Gonzalas. We felt 
that was a little--it was an excellent job for him, but a little thin 
for the court of appeals.
  Guess what. Now we have been sent a Virginian. You might say, Is 
there anything wrong with being from Virginia? No, as long as it is the 
Virginia seat. It is by tradition that there are geographic seats on 
the court of appeals and we want ours. My colleague Senator Sarbanes 
and I are going to fight that on the basis of geography. There are many 
other things about Mr. Allen that are troubling about his background, 
but right now our battle will be because this should be a Maryland 
seat.
  I have voted for Republican judges and I voted for Republican judges 
on the court of appeals in Maryland. There is Judge Niemeyer, an 
excellent judge. I supported him for the district court and now on the 
court of appeals.
  When Judge Dianna Motts went to the court of appeals I didn't even 
know what party she was. I didn't know. You know what, I didn't care.
  Here we are, arguing over a process. We are squandering our time, 
while pressing national needs are here. I would say, let's move on. 
Let's get back to the business America wants us to focus on. We can't 
have food fights and so on in the Senate. I have worked with so many of 
my colleagues on a bipartisan basis that I would like to get the 
momentum back for that type of action.
  Tomorrow when I get another chance at VA-HUD, I look forward once 
again to returning to work in the Senate that tries to move bipartisan 
legislation. When it comes particularly to national security and the 
people who defend America, we put party aside and we are the red, 
white, and blue party. Maybe we need to start acting like that in the 
Senate on every issue.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, as I understand the allocation of time, 
we have the remaining time, am I correct?
  The PRESIDING OFFICER. Yes, 15\1/2\ minutes.
  Mr. KENNEDY. We have 15\1/2\ minutes.
  As my friend and colleague from Maryland pointed out, we have been 
listening to our friends on the other side of the aisle for at least 
half of the past 24 hours. After we have listened to that, we still 
come back to the fact that 98 percent of their judges have been 
approved and 4 have not, and the Constitutional Convention never 
expected us to be a rubberstamp. We are faced on the other side by the 
prospect, at least, of changing the rules of the game even though those 
on the other side have used the system and refused to permit 
consideration of a number of judges. They did that in the Judiciary 
Committee of which I have been a member for many years.
  It is interesting to me as we have gone over that ground so many 
times, our friends on the other side would be so interested and 
concerned about four individuals who have lost their jobs when we are 
facing so many other Americans out there who have lost their jobs and 
are really suffering.
  We were talking about numbers. I mentioned the recent figures of the 
Department of Agriculture that say tonight there are 13 million 
children who are going hungry. That is Department of Agriculture 
statistics. Have we heard over the period of the last 24 hours ideas or 
suggestions or recommendations about how we are going to deal with the 
problems of hunger in children? That is happening tonight, 13 million.
  The other side is talking about four judges--four individuals who 
make more than $100,000 a year. What about the 13 million hungry 
children? Have we talked about that?
  How much have we talked about the 9 million Americans who are 
unemployed? There are 1.4 million who have already lost their 
unemployment compensation, with all the implications of that. They 
can't buy health insurance, they can't put food on the table, they 
can't pay the mortgage, they can't buy a birthday present for their 
children, they can't celebrate any kind of holiday for any of the 
members of their family. They are hard-put and hard-pressed. Have we 
talked about that for those individuals?
  How about the millions of Americans who do not have health insurance 
tonight? How about the millions of Americans who do not have health 
insurance tonight, the hundreds who lost their health insurance today, 
and all of their concerns for their families? How are they going to be 
able to deal with medical bills? Have we talked about that?
  The escalation of the cost of health care--have we talked about that 
and what that means to families? Have we talked about families who have 
gone into bankruptcy because they can't pay their medical bills? That 
affects 2 million Americans every year. We talk about four judges; we 
don't talk about 2 million Americans who go bankrupt every year because 
of health care costs. We don't talk about that.
  We haven't talked a great deal about the 80,000 workers who have 
contributed to the unemployment compensation fund, and starting the end 
of next month--and we are in the final moments and hours of this 
session--80,000 a week are going to lose their unemployment. This is at 
a time when the unemployment fund has $20 billion in surplus.
  We are in the final hours, as the Senator from Maryland has pointed 
out. Have we talked about what is going to happen to them? Don't you 
think they are concerned about whether the Senate is going to take any 
action in the final hours? Do we demonstrate any anxiety about what is 
going to happen to their families? I haven't heard a great deal about 
it from our friends on the other side. I haven't heard a great deal 
about it.
  We haven't heard a word from the other side about doing anything 
about increasing the minimum wage. It has been 7 years since we have 
increased the minimum wage; 7 years have gone by, and we can't get a 
vote on it in the Senate. The other side brings up a bill like the 
State Department reauthorization and I offer the minimum wage as an 
amendment and the majority Republicans pull the bill to deny us the

[[Page 28759]]

opportunity to vote on it. I mean, if we are going to get indignant 
about the rules of the Senate, come on. Come on. Let's vote on an 
increase in the minimum wage. All of those on the other side who said, 
``Let the majority have a chance, let's have a vote on an issue, let's 
have a vote on this, let's have a vote on that,'' we say, ``Let's have 
a vote on the increase in the minimum wage.'' Oh, no, we can't do that. 
We can't have a vote on the increase in the minimum wage. We couldn't 
even get a vote now on the question of extending unemployment 
compensation. Oh, no, we can't do that. No, no, we are not going to be 
able to do that. We can't get a vote on hate crimes. No, no, we can't. 
We have to study that some more.
  I mean, come on. Twenty-four hours and you are going to continue for 
another 6 hours pontificating about the injustice that is being 
perpetrated when you have all this taking place across this country? 
The anxiety and tremendous frustration and the sense of hopelessness 
that takes place across this country, and you refuse to let us have a 
vote on the increase in the minimum wage?
  This is the chart on the minimum wage. This is what is happening to 
the minimum wage in the United States of America.
  This blue line indicates the purchasing power. It was almost $8.50 
back in 1968. It is now down to, without the increase, $4.95 in 
purchasing power this year, without any increase. It will be just about 
the lowest it has ever been.
  Who are the minimum wage recipients? Here we go. Here is another 
chart that shows the minimum wage no longer lifts a family out of 
poverty--from 1972 through 1982, there were 2 years when it was just at 
the poverty line. We said people who want to work and can work will 
work 40 hours a week, they will be able to get out of poverty. Look 
what has happened in the 1980s, 1990s. We were able to get a little 
blip in early 1992 and again in 1998. It was basically the same 
legislation. Now, since 1998 to 2003, we are unable to get a vote to 
increase it $1.50 over 2 years.
  Can you imagine the amount of money we have seen returned to American 
taxpayers, $2 trillion over the past 2 years, and we can't get an 
increase in the minimum wage for working men and women? And the other 
side is trying to be indignant about the fact four individuals who are 
making over $100,000 are being put upon and we are going to have to 
listen to them for 6 more hours?
  What is the increase in the minimum wage? It is the equivalent of 
$3,000. It might not seem like a lot to people, but it is 7 months of 
rent, 11 months of groceries, 14.5 months of utilities, full tuition 
for a community college degree. That is what that represents. That is 
real money for working families who are at the bottom end of the 
economic ladder.
  Our Republican friends refuse to give us at least the opportunity to 
vote. Understand, vote. We heard that word used a great deal on the 
floor of the Senate. Let's get a vote on this issue.
  Let me review as well about jobs. We talked about four jobs. What we 
are facing here is 3 million Americans who have lost their jobs. Let's 
think, besides the statistics, exactly what it means in terms of 
financial hardships of the unemployed. Look at this. Half the 
unemployed adults have had to postpone medical treatment--that is 57 
percent--or cut back on spending for food. I have just given the 
figures and the statistics of the Department of Agriculture that have 
13 million children hungry tonight. Thirteen million children are 
hungry tonight.
  One out of 4, 26 percent, has had to move to other housing. Imagine 
that. We have 3 million people who have lost their jobs and 1 out of 4 
had to move out--move in with friends or relatives. There is a problem 
that deserves debate, discussion, and ideas and solutions and 
resolution and determination and accountability here. There are 38 
percent who have lost their telephone service, 22 percent are worried 
about losing their phones, more than a third, 36 percent, have trouble 
paying the gas or electric bill--things that are absolutely assumed 
around here.
  People are really hurting. We are not talking about 4 people, we are 
talking about hundreds of thousands of people, and we have occupied the 
time of the Senate to talk about 4 judges who are not qualified, I 
don't believe, to serve on the Supreme Court. We are not expected to be 
rubberstamps. Our Founding Fathers never intended that.
  I want to mention one other item that is now in the conference. It 
would be pretty worthwhile if we had engaged our friends on the other 
side to tell us what is happening in the conference on the issue of 
overtime pay. When people work overtime, something that for some 60 
years has been in our law, it ensures people who work longer than 40 
hours a week are going to be fairly treated. We have the proposal by 
the administration to deny that to 8 million Americans. It was defeated 
here on the floor of the Senate, defeated in the House of 
Representatives, and now it is in a conference.
  Why don't we hear from the other side what has happened to that 
conference? Why don't we hear where they are on the issues of overtime? 
That makes an enormous difference to people. It makes a big difference 
in their lives. It is not 4 people and their livelihood, it is hundreds 
of thousands, tens of thousands, millions of people whose lives are 
going to be affected.
  Right off the top of the list are firefighters, policemen, nurses. 
Does that ring a bell to anyone around here? They are the backbone of 
Homeland security. We are cutting back on their income.
  We have had a bipartisan determination on that issue here. Do we hear 
anyone on the other side, when they are talking about 4 jobs, talk 
about all these numbers of Americans who are losing out?
  Madam President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 2\1/2\ minutes remaining.
  Mr. KENNEDY. I would have liked to have gone on. Maybe we will have 
time later.


                   Unanimous Consent Request--S. 224

  In the meantime, I ask unanimous consent the Senate return to 
legislative session, proceed to the consideration of Calendar No. 3, S. 
224, the bill to increase the minimum wage, that the bill be read a 
third time and passed, and the motion to reconsider be laid on the 
table.
  The PRESIDING OFFICER. Is there objection?
  Mr. CORNYN. Madam President, I ask unanimous consent that the Senator 
modify his request so that just prior to proceeding as requested, the 
three cloture votes would be vitiated and the Senate would then 
immediately proceed to three consecutive votes on the confirmation of 
the nominations, with no intervening action or debate.
  The PRESIDING OFFICER. Is the Senator from Massachusetts willing to 
modify his request?
  Mr. KENNEDY. Madam President, I withdraw my consent request because 
it is quite clear there is objection by the Republicans to the 
consideration of an increase in the minimum wage.


                   Unanimous Consent Request--S. 1853

  I ask unanimous consent the Senate proceed to legislative session, 
the Finance Committee be discharged from further consideration of S. 
1853, a bill to extend unemployment insurance benefits for displaced 
workers, that the Senate proceed to its immediate consideration, the 
bill be read a third time, passed, and the motion to reconsider be laid 
on the table.
  Mr. CORNYN. I ask consent the Senator modify his request so just 
prior to proceeding as requested, the three cloture votes would be 
vitiated and the Senate would then immediately proceed to three 
consecutive votes on the confirmation of the nominations, with no 
intervening actions or debate.
  The PRESIDING OFFICER. Does the Senator from Massachusetts modify his 
request with those conditions?
  Mr. KENNEDY. I withdraw my request and let the Record indicate the 
Republicans have objected to the extension of the minimum wage and have 
objected to the extension of unemployment compensation for hard-working 
Americans who have paid into that fund.

[[Page 28760]]


  Mr. CORNYN. Madam President, once again, we are proceeding with the 
Democrats' filibuster of the circuit court nominees.
  Mr. KENNEDY. Do I have the floor?
  Mr. LEAHY. Regular order, Madam President.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Who yields time?
  Mr. SHELBY. I yield myself as much time as I require.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SHELBY. Madam President, I rise tonight to speak on behalf of the 
President's right to select qualified judges of his choosing and the 
Senate's duty to provide advice and consent on these judicial nominees 
by means of an up-or-down vote on their confirmation.
  The quagmire in which we currently find ourselves I believe threatens 
the constitutionally-vested discretion of this and all future 
Presidents in appointing those judges they see fit. Second, it 
threatens the independence and effectiveness of the federal judiciary, 
and third, it threatens the future function and effectiveness of the 
United States Senate as the deliberative and distinguished institution 
it is today.
  Article 2, Section 2, Clause 2 of the United States Constitution 
vests the President alone with the power of appointing Federal judges 
``with the Advice and Consent of the Senate.'' Nowhere does the 
Constitution grant the Senate any power over selecting judicial 
appointments.
  A review of over 200 years of the Senate's history and practice makes 
it clear that the Senate's role in Presidential nominations is either 
to confirm or deny their appointment by means of an up-or-down vote on 
the floor--nothing more and nothing less.
  The unprecedented obstruction we are now experiencing is simply 
unjustifiable, I believe.
  Why not allow the President to do his job of selecting judicial 
nominees and let us do our job in confirming or denying them? 
Principles of fairness call for it and the Constitution requires it.
  Those of my colleagues who are currently blocking confirmation of the 
President's circuit court nominees have admitted to doing so on 
ideological grounds. They feel that these nominees are outside of their 
definition of ``mainstream''--whatever that may mean. When Senators 
impose a subjective litmus test on judicial nominees, they are really 
just seeking out candidates that agree with them ideologically. This 
introduces a political element into the constitutional framework of 
judicial appointments that isn't there--and with good reason.
  The Constitution grants Federal judges lifetime tenure and salary 
protection precisely in order to insulate them from political 
influences.
  The Senate's standard for confirming a judge should simply be a 
nominee's honesty, competence, temperament, and appreciation for the 
proper constitutional role of an Article III judge.
  Any test beyond this substitutes the judgment of individual Senators 
over that of the President and unduly politicizes a position that is 
intended to exist outside the realm of politics. What is more, as my 
colleagues in the minority continue to use their ideological litmus 
test to justify blocking the President's circuit court nominees--four 
so far, with more promised--these unfilled vacancies impose a heavy 
burden on our judiciary.

  The ability of these appellate courts to manage their caseloads and 
to effectively interpret and apply the law is dependent on a full 
complement of judges available to consider and rule on pending cases.
  We all know the saying ``justice delayed is justice denied,'' and we 
simply can not allow our own political agendas to undermine the fair 
application of the rule of law.
  I would encourage all Senators to take a step back from the current 
debate and envision the future of this Senate if the obstruction of 
these judicial nominees continues. Do we really want to operate in an 
environment where judicial confirmations require 60 votes? That is the 
direction in which we are rapidly headed.
  I can understand that some of my colleagues don't agree with our 
current President's politics. That is politics. I can understand that 
this President's judicial nominees may not be to some of their 
ideological liking. That is politics. However, this does not justify 
denying a judicial nominee a simple up-or-down vote.
  I feel quite certain that my colleagues on the other side of the 
aisle would not be nearly as accepting of these obstructionist tactics 
if they proverbial shoe were on the other foot.
  I am not asking any of my colleagues to vote in favor of confirming a 
nominee that they oppose. I leave that determination to their 
discretion. I am simply asking them to allow the Senate to complete its 
constitutionally-appointed duty in providing the President with advice 
and consent on all of his judicial nominees.
  Now, I would like to take just a few moments to discuss two of the 
President's filibustered circuit court nominees in which I take a 
particular interest: Alabama Attorney General Bill Pryor and California 
Supreme Court Justice Janice Rogers Brown.
  Bill Pryor is the President's nominee for the United States Court of 
Appeals for the Eleventh Circuit. I have known Bill for many years and 
have the highest regard for his intellect and integrity. Whether as a 
prosecutor, a defense attorney, or the Attorney General of the State of 
Alabama, he understands and respects the constitutional role of the 
judiciary and specifically, the role of the federal courts in our legal 
system.
  I am confident that Bill would serve honorably and apply the law with 
impartiality and fairness, if he were confirmed for the Eleventh 
Circuit. Unfortunately, Attorney General Pryor's nomination has been 
filibustered for most of this year.
  Janice Rogers Brown is the President's nominee for the United States 
Court of Appeals for the D.C. Circuit, which is widely regarded as the 
court second in importance only to the United States Supreme Court.
  I am proud to say that Justice Brown is a native of my own State of 
Alabama, having been born in Greenville and raised in Luverne before 
moving to California.
  The progression of her career to serve on California's highest 
court--the first African American woman ever to do so--is a remarkable 
story of success through hard work and dedication that serves an 
example for us all.
  Justice Brown has enjoyed a distinguished career on the California 
Supreme Court, most recently receiving 76 percent of the vote the last 
time she came before California voters.
  Justice Brown possesses the highest character and ideal temperament 
for this important judgeship. Unfortunately, her nomination is subject 
to filibuster and thus the D.C. Circuit is denied her services.
  It is the role of the Senate to provide the President with advice and 
consent on his judicial nominations. We can only fulfill this duty by 
allowing each of these nominees an up-or-down vote by the full Senate.
  The proper function and balance of the executive, judicial and 
legislative branches depends upon it.
  It is my hope that we can end this impasse tonight and vote on each 
of these nominees. Let the majority vote. Let the majority count. If we 
get the majority vote, they will be confirmed, but they should not be 
obstructed. They should not be filibustered.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Chambliss). The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I yield myself such time as I might 
consume.
  Mr. WARNER. Mr. President, parliamentary inquiry: Can the 
distinguished Senator from Iowa--we were told to come here at certain 
times, and if he were to take as much as he wishes, that would preclude 
any other Senator speaking in the time period.
  Mr. GRASSLEY. I yield to the Senator whatever time he needs.
  Mr. WARNER. I withdraw my parliamentary inquiry.
  Mr. GRASSLEY. I yield the Senator whatever time he wants.
  Mr. WARNER. I will sit down. The Senator may go ahead.

[[Page 28761]]

  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I rise today to discuss the Democrats' 
filibuster of President Bush's judicial nominees. The Senate Democrats 
still think it is Halloween and are trying to spook us into believing 
that President Bush has nominated a bunch of extremist individuals that 
cannot be good judges. The Democrats are claiming that these nominees 
are ``outside of the mainstream''. The truth is that these individuals 
will not implement a liberal agenda on the bench. The truth is that 
these individuals will follow the law, rather than bend to the will of 
the political left. But these inside the Beltway, left wing groups have 
gotten the Democrats to do their bidding. They have hijacked the 
judicial confirmation process in an unprecedented filibuster of 
judicial nominees, and they are denying these good men and women an up 
or down vote. Federal judicial seats will remain unfilled, and 
litigants seeking justice from those courts can expect further delays.
  The reality is that the Constitution of the United States gives the 
President the power to appoint individuals to seats on the Federal 
judiciary. The Constitution gives the Senate the responsibility to 
advise the President in this process. And the Constitution requires the 
Senate, by a simple majority vote, to give its consent to the 
President's choices for Federal judgeships, or to withhold that 
consent. But through an unjust abuse of the filibuster, a minority of 
Senators is preventing the majority of the Senate from taking an up or 
down vote on President Bush's judicial nominee. That is not right.
  I have always been of the position that judicial nominees should be 
carefully scrutinized by the Judiciary Committee because they are life-
time appointments. It is my opinion that judicial nominees should have 
intellect, experience, character and integrity. They should also have 
the right judgment and temperament for the job. But most importantly, 
they should understand their role on the bench, which is to interpret 
the law and to follow the law, not to make the law and legislate from 
the bench. That is the most important credential in my book. And I take 
that job of looking at judicial nominees very seriously.
  However, once the Senate Judiciary Committee has had the opportunity 
to review these candidates and to approve them, these individuals 
should get an up or down vote by the full Senate. This is the right 
process. This is a fair process. During my tenure with the United 
States Senate, I haven't always agreed with a sitting President's 
choices for the Federal bench. I have voted against a number of 
judicial nominees because I didn't believe they were qualified to be a 
judge, or because I didn't believe that a seat needed to be filled. But 
I have never filibustered a judicial nominee.
  But that is just what is happening right now. We are seeing the 
unprecedented use of the filibuster rule to stop judicial nominees from 
being confirmed. An exceptional group of men and women are being used 
for political gain by this minority group of Senators. The nominees 
that the Senate is considering right now, Janice Rogers Brown, Carolyn 
Kuhl, and Priscilla Owen, as well as Bill Pryor and Charles Pickering, 
two nominees that have been filibustered, they all are distinguished 
individuals that deserve an up or down vote. They all deserve to be 
confirmed.
  Let me say a few words about the men and woman that are being 
filibustered. These men and women are being characterized as outside of 
the mainstream, extremist people. They are being characterized as ``bad 
judges'' that have to be stopped. Nothing is further than the truth. 
The reality is that some left-wing interest groups are skewering these 
nominees' reputations with baseless allegations because they don't have 
a liberal ideology. And the Senate Democrats are more than happy to do 
the bidding of these racial outside groups. And our nation will suffer 
dearly for it.
  Priscilla Owen is currently a judge on the Texas Supreme Court. She 
was unanimously rated well qualified by the ABA and enjoys a steller 
reputation in her home state. She's been repeatedly reelected to the 
Texas Supreme Court by wide margins and has served that court 
admirably. Judge Owen enjoys the support of her two home state Senators 
and has been endorsed over and over again by elected officials, fellow 
jurists, and attorneys alike.
  Janice Rogers Brown, the daughter of a share cropper who attended 
segregated schools, put herself through California State University and 
eventually law school at UCLA. She did all this while raising two 
children as a single mother. She served her state in a variety of legal 
roles, including Deputy Attorney General and then later as a legal 
affairs secretary to the Governor. Judge Brown has served on the 
California Supreme Court since 1996.
  Carolyn Kuhl has been a judge on the Los Angeles County Superior 
Court since 1995. She served in a variety of positions in the Justice 
Department, and then was a partner at a prominent Los Angeles law firm. 
Judge Kurl received a well qualified rating by the ABA, and enjoys 
bipartisan support.
  Three other highly respectable nominees have already been 
filibustered. Bill Pryor has earned the reputation as one of the most 
experienced states attorneys general in the country. He graduated from 
law school magna cum laude, and clerked for Fifth Circuit Judge Wisdom. 
We have seen that he enforces the law regardless of his personal 
convictions. General Pryor also has overwhelming support from across 
the political spectrum.
  Judge Charles Pickering has been a lawyer and county prosecutor, and 
has served as a distinguished federal district court judge for the past 
11 years. He received the ABA's highest rating, ``well qualified.'' He 
stood up against the Ku Klux Klan, and has been a leader for equal 
rights, integration and inclusion in his community. The people that 
know Judge Pickering best support him without hesitation.
  Finally we have Miguel Estrada, who was nominated to the D.C. Circuit 
Court of Appeals. He become so frustrated with the process that he 
withdrew his nomination after waiting over 2 years for an up of down 
vote. Yet he is the true American inspiration story. Born in Honduras, 
he came to America as a young boy and through determination and hard 
work, elevated to the top echelons of the law profession. He was an 
Assistant Solicitor General of the United States in the Clinton 
Administration, and was a partner in a prominent law firm. Mr. Estrada 
received the highest rating from the American Bar Association, and is 
well respected by colleagues and friends alike.
  It is a real shame that this fine man felt he had to withdraw his 
nomination from consideration because of the guerilla smear tactics of 
the far left and because of the guerilla smear tactics of the far left 
and because of the Democrats' unprecedented filibuster tactic. And it 
is a real shame that these other fine men and women, and their 
families, have to go through this same miserable saga. As I think about 
these nominees with their stellar reputations, outstanding intellects, 
and their compelling life stories, it saddens me to know that the 
Democrats have been so ready and willing to stomp all over their good 
names and to deny the American people quality jurists--all this in the 
name of carrying the sword for special left wing interest groups.
  I have served in this body for many years. And I have seen the 
filibuster used to leverage a better bargaining position on legislative 
matters. But it hasn't been used to block a judicial nominee, and 
especially not where that nominee enjoys majority support by the 
Senate. This is the first time in history that the filibuster has been 
used to prevent a judicial confirmation, even though my colleagues on 
the other aisle say that isn't the case. It is wrong and probably 
unconstitional. It is an abuse of the process. The Senate is supposed 
to provide advice and consent. The Democrats are denying the rest of 
the Senate our responsibility under the Constitution to give our 
consent--or even to withhold our consent. It is a terrible disgrace and 
ought not to continue.

[[Page 28762]]

  The Democrats are leading us down a path that is just going to make 
matters worse. The judicial confirmation process is already in an 
unhealthy state of repair--we don't need to destroy it altogether. The 
Democrats need to stop playing politics with the judiciary. They need 
to stop spooking people about the qualifications and ability of these 
nominees to be good federal judges. They need to stop spooking away 
qualified nominees like Miguel Estrada. We need to stop this unjust 
filibuster and give these worthy nominees what they deserve--an up or 
down vote.
  I yield the floor. I yield whatever time the Senator from Virginia 
needs.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I thank my good friend, my colleague from 
Iowa.
  Mr. President, what is the parliamentary situation, and what time 
remains under the control of my distinguished colleague from Iowa who 
is managing this set of debates at this time?
  The PRESIDING OFFICER. The majority controls 10 minutes, the minority 
has 30 minutes.
  Mr. WARNER. So we have 10 minutes remaining.
  The PRESIDING OFFICER. That is correct.
  Mr. WARNER. I thank the Chair.
  Mr. President, I commend my good friend from Iowa for a very 
statesmanlike coverage of the responsibilities of the Judiciary 
Committee on which he has served these many years.
  I turn to the following. If we look back in history in the summer of 
1787, 55 individuals gathered in Philadelphia to write our 
Constitution. It was a very hot summer, and it was a long and arduous 
debate, many drafts back and forth, but careful consideration was 
given. Finally, in mid September, it was over. It was a monumental 
achievement. But the Framers did not know at that time what a great 
achievement they had made, one that would enable the United States, 
today, these 200-plus years later, to become the oldest continuously 
surviving Republic form of government on Earth today.
  Almost every other government in existence at the time of the 
Constitutional Convention has fallen into the dustbin of history. So we 
must ask ourselves, why? It is very clear to this humble Senator that 
it was due, in part, to the wisdom of the Framers to have three coequal 
branches of the Government. I view this debate as one to determine the 
survivability of the coequal stature of the three branches.
  I am not going to argue about all the things that have taken place 
back and forth, but just go to this magnificent document--the 
Constitution. The Presiding Officer has placed a copy of it on every 
desk in the Senate chamber, and many of us daily carry it in our 
pocket. The Constitution very clearly states that a simple majority 
vote is the regular order of business, with the exception of a few 
instances specifically enumerated in the Constitution that require 
super-majority votes. Had the Framers decided that we should require 60 
votes for the confirmation process of the Senate, they would have 
explicitly written in such a requirement.
  It is quite interesting to note that:
  Two-thirds of the Senate must vote to ratify a treaty; two-thirds of 
the Senate must vote to convict on an article of impeachment; two-
thirds of a House of Congress must vote to expel a Member of that body; 
two-thirds of each House of Congress must vote to override a 
President's veto; and two-thirds of each House must vote to propose an 
amendment to the Constitution. With regard to the advice and consent, 
clearly enunciated in the Constitution, and given to only one body of 
Congress, the Senate, there is no mention of a higher than simple 
majority vote. It is there to protect, again, the checks and balances. 
It is there to protect against an executive branch nominee which, in 
the fair judgment of the Senate, does not meet the high standards to 
become a member of the judicial branch.
  The case here is very simple: Are we going to abide by what the 
Framers laid out, what has kept this great Nation together these 200-
plus years? Or are we going to devise and contrive in our own words 
some system by which to prevent a simple vote up and down on a judicial 
nominee?
  The Constitution does not include that super-majority. If the bar is 
to remain at 60 votes, as my colleagues on the other side have so 
vehemently argued in favor of, I say then the Senate would have far 
more power on questions of judicial nominees than was intended by the 
Framers. The checks and balances concept of our Constitution would be 
changed. And how would that affect our Republic?
  Well, when the Constitutional Convention was over in September 1787, 
Benjamin Franklin emerged and was greeted by a crowd, some were 
reporters. He was questioned, ``what have the Framers wrought?'' He 
replied, ``a Republic, if you can keep it.''
  And that is what we are doing here in this historic debate. We are 
determining the rules by which we keep that Republic.
  Throughout this historic debate, this Chamber has resonated with the 
use of the word ``filibuster.'' I ask: Can any Senator point to use of 
that word in any of the rules of the U.S. Senate? In every desk, every 
Senator has their book on the rules of the Senate and procedures of the 
Senate. You can't find the word ``filibuster'' in that book because it 
is not there. But, should I be wrong, parliamentary inquiry to the 
Presiding Officer, can the Parliamentarian find the word ``filibuster'' 
in the rules of the Senate or any definition in the rules of the 
Senate?
  The PRESIDING OFFICER. The word ``filibuster'' is not contained in 
the standing rules of the Senate.
  Mr. WARNER. I thank the Presiding Officer. It is not in the rules. 
Where do you go to look for it? Webster's Dictionary. This dictionary 
has been in my office these 25 years since I have been privileged to 
serve in this body. And I use it often. I say to my colleagues, this is 
an interesting bit of history. The dictionary defines ``filibuster'' 
as, ``An irregular military adventure especially one in quest of 
plunder, a free-booter, applied to buccaneers infesting the Spanish 
American coast, later an organizer or member of a hostile expedition to 
some country or countries with which his own is at peace in 
contravention of international law.''
  Go all the way down to the last definition, and you will find a 
reference that is most appropriate to this debate. I read:

       A member of a legislative or deliberative body who, in 
     opposition to the proposed action of the majority, obstructs 
     or prevents action by the extreme use of dilatory tactics 
     such as speaking merely to consume time and so forth.

  It is about the fifth definitional use of this word.
  I say, most respectfully, that it is a word that is a slang word. It 
probably has been used to cover many types of procedures that both 
sides have followed under the rules for many years.
  I went back and did some research in this wonderful book. It is 
entitled ``Senate Cloture Rule, Limitation of Debate in the Congress of 
the United States, Legislative History of Paragraph 2 of Rule XXII of 
the Standing Rules of the United States Senate.''
  I do not find in this excellent treatise, put out in 1985 by the 
Library of Congress, printed by the direction of the Rules Committee 
and Administration of the United States Senate, any instance in which 
the situation we are faced with today with these nominees is covered. 
They do refer to the use of the word ``filibuster,'' but loosely.
  Ultimately, with all of the confusion surrounding the word 
``filibuster,'' I think you have to come down to what it was the 
Framers intended, what is in this book--the Constitution, which has 
held this Nation together these 200-plus years, this great Republic of 
our's.
  I say to my colleagues, as Ben Franklin said, we have a Republic, and 
this debate is determining the ground rules by which we can or cannot 
keep it.
  Clearly, the President has the authority to nominate. Clearly, this 
body has the authority of advice and consent. But remember, it is to be 
in a balance of powers between the executive and the legislature. I say 
if we are to

[[Page 28763]]

set a precedent here that it requires 60 votes to act upon a nominee, 
three nominees--
  The PRESIDING OFFICER. The time of the majority has expired.
  Mr. WARNER. I ask unanimous consent for 1 additional minute.
  Mr. LEAHY. Then I ask for 1 additional minute on our side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. If we were to set a precedent that nominees reported out 
of the Judiciary Committee were subjected to a 60 vote requirement, 
this precedent would disrupt the carefully crafted system of checks and 
balances embedded in our Constitution by giving the Senate far more 
power in the judicial selection process than the Executive Branch, the 
President. These nominees deserve a simple up-or-down vote as provided 
in the Constitution by the absence of any reference to a supermajority 
or a 60 vote requirement.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. CARPER. Mr. President, I am honored to follow the Senator from 
Virginia. I want to return to the Constitutional Convention that he 
spoke of from 216 years ago. Among the last issues resolved at the 
Constitutional Convention was the question of whose job it is to select 
the members of this third branch of Government that was to be created.
  We have an executive branch, the legislative branch with the House 
and Senate, and a judicial branch. At that time in this country there 
was a great concern on the part of those framing the Constitution and 
trying to craft a framework of our Government. Foremost among the 
concerns they had was the concern that somehow we would unintentionally 
invest too much power, too much authority in one person. Having dealt 
with the King of England and not wanting to have to deal with another 
figure of authority with the kind of powers of a monarch, there was a 
great debate over what would the powers be for this new President and 
how would we constrain those powers.
  Among the last issues resolved at the Constitutional Convention was 
the question of who selects the judges, who selects the members of that 
third branch of the judiciary. There were plenty at the Convention who 
thought that in order to make sure we didn't end up with another 
monarch in this country, a king, the power of selecting the judiciary 
should lie with the legislative branch. There were those who thought 
the Senate or the House or some combination thereof should select who 
the judges would be. There was another school of thought that said, no, 
maybe we should give the President, our Chief Executive, the power to 
select who our judges would be. As we all know, the compromise that was 
struck was one that says the President may nominate with the advice and 
the consent of the Senate.
  Yesterday, as our youngest son came home from school, he shared with 
his mom and me some good news. He shared with us that while he won't 
get his report card for another week or so, he had learned the results 
of his scores, his grade in English language arts. He is in the eighth 
grade. He came home and he said: I got a 94 for English language arts 
in this grading period, dad. I get an A. I get an A.
  We were delighted. He has a tough teacher. He has worked real hard, 
and he earned a 94. He is going to get an A. We hope he does as well in 
his other courses.
  On the scorekeeping for how this President is doing with respect to 
getting his nominees confirmed, I think of the 172 we voted on so far; 
168 have been confirmed, 4 have not. That is 98 percent. In my book, in 
my son's book, that is an A. That ain't bad.
  Before I came here to serve in the Senate with my colleagues, I was a 
Governor. I know some people get tired of hearing me talk about that. 
But it was a great privilege to be Governor of my State. In our State, 
Governors nominate people to serve on the bench. The Senate can 
confirm. Whether it was a judge, supreme court, magistrate court, any 
commission, I would like to have had every single nominee confirmed. I 
suspect that most other Governors who similarly make nominations for 
appointments in their States would like to have all their nominations 
confirmed as well. Not all of my nominations were confirmed.
  There is a give and take with the Senate in my State, just as there 
is a give and take with the Senate in this city for our National 
Government. I don't often quote Mick Jagger and Keith Richards, but 
there was an old song from my youth they used to sing: ``You can't 
always get what you want, but if you try sometime, you get what you 
need.''
  We need from this President good nominees. I expect they are going to 
be Republicans. I expect they are going to be conservative. My guess is 
that of the 98 percent who have been confirmed, they were all 
Republicans. For the most part they were all conservative. I don't 
think it is realistic of this President to expect that we are going to 
confirm 100 percent of his nominees.
  It sure wasn't the expectation of his predecessor, Bill Clinton. He 
got a majority of his nominees confirmed but not 100 percent, not 95 
percent, not 90 percent, not 85 percent, but about 80 percent were 
actually nominated, had hearings, and their names actually ended up on 
the floor for a confirmation vote. That is a B-minus. Compared to the 
A-plus that this President is getting with respect to confirmations, I 
am not sure I understand fully the great dissent and the great 
disappointment and the great frustration our friends on the other side 
have shared.
  Here is my frustration. I didn't come here to be about partisan 
politics. I didn't come here to be about gridlock. I didn't come here 
to pursue that agenda. I came here as one who wants to work with people 
on the other side of the aisle. I want to get things done.
  I have voted with this President more than 75 percent of the time. I 
am told that only 7 Democrats have voted with this President more than 
I have in the last 2 years. I have tried to provide leadership on 
issues that both of my colleagues are concerned with, Senator Leahy and 
Senator Hatch: class action, asbestos reform, bankruptcy, welfare, a 
comprehensive energy policy.
  Meanwhile, while we are standing here tonight debating on whether or 
not 98 percent is good enough, we don't have an energy policy. Over 
half the energy we get that we use in America comes from foreign 
sources, a lot of it controlled by people who don't like us. We don't 
have an energy policy. We should be debating an energy policy and 
adopting it.
  Standing here tonight we have a legal system that has lost its sense 
of balance, whether the issue is class action litigation that is being 
heard in small, remote courthouses around the country or whether the 
issue is asbestos and folks sick and dying getting the help they need. 
Meanwhile, the people who will never be sick will get money from those 
who need it. We should be debating those issues here tonight.
  We have too much sulfur dioxide or nitrogen oxide and mercury in our 
air, putting out too much carbon dioxide, causing global warming. We 
should be addressing those issues.
  We had a trade deficit last year that exceeded $400 billion. It is 
getting worse. We have a budget deficit that this year will approach 
$500 billion in 1 year alone. We are paying today on our national debt, 
just today, $800 million--plus just in interest on the debt. We ought 
to be debating how we rein in those budget deficits and trade deficits, 
not deciding is 98 percent enough or is 97 percent high enough in terms 
of success in nominations.
  As former Governor and someone who was once privileged to chair the 
National Governors Association, we looked at the States as laboratories 
of democracy. We looked at the States to provide best practices, 
whether it was moving people off welfare, helping to make sure people 
coming out of prison didn't recidivate and go back to prison, what 
could we do to raise student achievement.
  I want to talk about one model that works real well with respect to 
judicial nominations, and one I know the most about is my State of 
Delaware. Since 1897, the constitution of my State has called for 
balance with respect to our

[[Page 28764]]

judiciary. We have year after year a legal climate and a judiciary that 
is acknowledged by some of the foremost attorneys who practice in this 
country as the best--the best legal climate, the fairest of any State 
in America. We are proud of our judiciary.
  In the 8 years I was Governor, I nominated as many Republicans to the 
bench as I did Democrats. Mike Castle, my predecessor, now a 
Congressman, when he was Governor, he nominated as many Democrats to 
the bench as he did Republicans.
  In our State, there has to be a symmetry. Essentially, for every 
Democrat you nominate, the next one has to be a Republican. We have 
done that for over 100 years and have ended up with a terrific 
judiciary, widely respected at home, across the country, and even 
beyond our borders. There is a saying, ``If it ain't broke, don't fix 
it.'' That is not what we ought to say. We should say if it is not 
perfect, make it better.
  The way we nominate judges in our National Capital for our Federal 
Government is broken and it needs to be fixed. Whether George Bush is 
President or Bill Clinton is President, we waste more and more time on 
judicial nominations. We are bogged down in that. We still haven't 
passed our spending plan for the new fiscal year, which started a month 
and a half ago. We are still wrestling with our appropriations bills. 
This system is broken.
  My friends, the solution may be in Delaware, it may be in Vermont, or 
it may be how they nominate judges in Georgia or in Iowa. There is a 
better way to do it than what we are doing here. We have to find it and 
we have to come to some kind of closure around a better plan. When we 
do, instead of facing the prospect of leaving here without action on 
class action legislation, action on asbestos, or action on an energy 
bill, or without action on transportation policy, or early childhood 
programs, maybe we can do our jobs and even pass appropriations bills 
on time instead of the kind of mindless--oftentimes mindless debate we 
devote to judicial nominations.
  That having been said, I yield to the former chairman of the 
Judiciary Committee, the ranking Democrat, Senator Leahy, with my 
thanks.
  Mr. LEAHY. Mr. President, I thank the Senator from Delaware for what 
he said. He has a distinguished record in the other body, as Governor 
and now here. We listened to him in this Chamber. I wish they would 
listen to him on the other end of Pennsylvania Avenue because the 
person who makes the nominations is the President. I have been here 
with six Presidents. I have never known a time when a President is less 
willing to engage the Senate in advise and consent. President Ford did, 
President Carter did, President Reagan did, former President Bush did, 
and President Clinton did. I hope this White House would begin to do 
that also.
  Interestingly enough, today I was given a petition signed by 310,000 
Americans from all over the country. This petition supports a 
filibuster of extreme judicial nominees of the President. In fact, in 
the last 72 hours, 172,000 Americans signed these petitions. I went 
through them, thanks to the ability to search electronically, and 
picked out some from my State of Vermont.
  In Moretown, VT, someone wrote:

       It is a disgrace how this administration is attempting to 
     pack our Federal courts with right-wing extremist judges that 
     seek to undermine the hard-fought pillars of legal precedent 
     that reflect the values of a vast majority of Americans. I 
     wholeheartedly support the efforts of the Senate Judiciary 
     Committee Democrats to oppose this blatant abuse of the 
     majority power. . . . The Senate GOP leadership should be 
     ashamed of wasting precious legislative time to engage in 
     what amounts to a publicity stunt. . . ..
       Shame on them. They don't deserve the seats that the people 
     have entrusted in them.

  Moretown, VT, is a little town a few miles away from where I live. It 
is straight down the valley; you can look straight down the valley from 
the front lawn of my home. We used to go to mass there on Sunday. It is 
where one of my grandmothers was born. So I was pleased to see that.
  I received this petition from West Townshend, VT:

       Thank you very much for all your hard work and valuable 
     work. We appreciate it.

  West Townshend is a very small town in Vermont. People are very 
independent there.
  This one is from South Burlington, VT:

       I support any measure to prevent Bush's extreme judicial 
     appointments. Keep up the good work.

  This is from Barre, VT:

       Please be strong and stand against the Republicans. 
     Ashcroft has already taken away too many of our civil 
     liberties; we cannot have judges doing the same.
       Barre, VT, is considered the granite center of the world, 
     with the largest granite quarries in the world. My 
     grandfather, Patrick J. Leahy, was a stonecutter in Barre, 
     VT. My father was born in Barre, VT. The people of Barre, VT, 
     are as strong and independent as the beautiful granite in 
     their quarry.

  I have one from South Ryegate, VT:

       You must protect the cherished rights of women to control 
     their own bodies. Do not approve judges whose records show 
     that they do not believe in women's rights.

  South Ryegate, VT, is a beautiful little town on the eastern side of 
Vermont. I know it well. When my maternal grandparents immigrated to 
this country from Italy, not speaking a word of English, they came to 
South Ryegate, VT, where my Italian grandfather was also a stonecutter. 
My mother, a first-generation American, was born there, her first 
language was Italian, but she learned English at school. I remember my 
grandfather, so proud of the judicial and constitutional system of this 
country, and so proud of taking the oath of citizenship. My father, in 
Barre, VT, was so proud of the separation of powers in this country--
the legislative branch, an independent branch of Government, equal to 
the other two; the executive branch, independent and equal to the other 
two; and the judicial branch, independent and equal to the other two.
  I remember him sitting in the gallery when I was first sworn in as a 
Senator, knowing I was part of that triumvirate of powers in this 
country, which is why our democracy has lasted this long. But 
throughout it all, it was so important that one branch was outside of 
politics, that one was independent of either of the political parties, 
and that is the judiciary. It should not be a Democratic judiciary or a 
Republican judiciary.
  The battle we are having now is because this White House does not 
want it to be an independent judiciary. They want it to be the most 
extreme possible. They want it to be an arm of the Republican Party.
  One hundred sixty-eight to four. We have confirmed 168 of President 
Bush's nominees. We stopped four of the most extreme. Lordy, the 
crocodile tears that have been shed here, at great cost to the American 
taxpayers, over the last 24 hours--the crocodile tears that have been 
shed for that.
  I do not remember one single Republican standing on the floor and 
saying how terrible it was when the Republicans blocked 63 of President 
Clinton's nominees, but, oh, my, it is like Niagara Falls, the 
crocodile tears, when we blocked four of theirs.
  I received another one from Burlington, VT:

       The courts need to represent all Americans. Keep extremists 
     out. Thank you for fighting for representation of all 
     Americans by blocking the extremist judge nominees. Shame on 
     President Bush.

  I mention Burlington because I was married there 41 years ago. I 
still vote there. My children were raised there. I know the people in 
Burlington, VT. They are independent, good people--people who care for 
an independent, not a political, judiciary.
  Little Hardwick, VT, stands at that junction between Montpelier and 
St. Johns and Barre. They say:

       Stay awake. Stay vigilant. Protect civil rights, a woman's 
     right to choose, public education and worker's rights. We 
     stand with you.

  Hardwick, VT, let me tell you, I stand with you, and I will stay 
awake and be vigilant. The people on this side of the aisle will stay 
vigilant and we will protect an independent judiciary. We will not 
allow the judiciary to be an arm of any political party.
  The President said that he wanted to be a uniter and not a divider. 
Oh, how

[[Page 28765]]

much I wish he were. If there was ever a time that this country needs a 
uniter, not a divider, it is right now. But, instead, in deference to 
groups on the far right, the President has nominated judicial activists 
about whom one cannot help but raise questions regarding their ability 
to act impartially, with justice for all. We need an independent 
judiciary.
  We are fortunate in Vermont because we have the most independent 
Federal judges you can imagine--people with total integrity, who will 
treat whoever comes into their court with impartiality regardless of 
whether they are Republican or Democrat or independent. That is what 
all courts should do.
  Time and time again, Democratic Senators have acted in good faith to 
fill vacancies Republicans kept vacant by blocking a Democratic 
President's judicial nominees. After Republicans blocked 63 of 
President Clinton's nominees, when a Republican President came in, they 
said: Look at all these vacancies. My God, we have to move as fast as 
we can to fill them. This is terrible. This is a crisis in the 
judiciary. How could this possibly have happened? How could this 
possibly have happened; there are 63 vacancies here. My Lord, the sky 
is falling down.
  Where did those vacancies come from? They came from one person, one 
Republican, holding an anonymous filibuster. If one Republican said, I 
don't want this judge of President Clinton's, the nominee went no 
further. Notwithstanding that, some of them had the highest 
qualifications this country has seen. Notwithstanding that, some of 
them were the most brilliant judges. Notwithstanding that, they were 
Hispanics, women, African Americans, people of faith, and people of 
great conscience. They were not allowed to go forward because one 
member of the Republican Party said he or she did not want them to go 
forward. But notwithstanding that the Republicans created all those 
vacancies, notwithstanding that, the Democrats said, we will help you 
fill them.
  Notwithstanding the arrogance and the one-person filibusters on the 
other side, the Democrats started filling those vacancies with 
President Bush's nominees. We have filled 168 vacancies. We stopped 
four of the most extreme nominees. And now, lordy, lordy, lordy, the 
Niagara Falls of tears comes from the other side--crocodile tears, 
hypocritical tears, from those who said not a word, not a word when 
they blocked 63. Not a word. Not a word. They blocked 63. Not a word. 
We stopped four of the most extreme, and you would think the world was 
coming to an end.
  What Democrats have done is that we have stood up for our principles 
and for the independence of the Senate in its constitutional role in 
the judicial confirmation process. The Republican leadership has 
decided to spend, I am told, upwards of a quarter of a million dollars 
of the taxpayers' money to have this debate. I apologize for that. I am 
not the one who wanted to do this. I apologize to all the staff--the 
police officers, who should be home with their families, the 
doorkeepers, those who keep the journal of these proceedings--who are 
some of the finest men and women I have worked with in nearly 30 years 
here.
  But that quarter of a million dollars the Republican leadership is 
spending on this charade of crocodile tears could almost be worth it if 
one thing comes out of it. If the President would realize that this 
whole process begins with him, not with the Senate. The President has 
an absolute right to nominate anybody he wants. The Senate has an 
absolute right to advise and consent, to determine whether nominees are 
confirmed, especially to lifetime jobs.
  I ask him once again, work with the Senate. Every President through 
history has sought the Senate's advice and consent. In those instances 
when they did not, they did not get their way. There was another 
President named George, the greatest President in this Nation's 
history, George Washington. He was the most popular man in America in 
the time he lived and probably the most popular person America has ever 
had. He was a man who brought us together as a country, who set the 
precedent to make this a great democracy. But George Washington 
nominated judges the Senate felt he should not have. The Senate 
exercised its constitutional authority, and not all of George 
Washington's judicial or executive branch nominees were confirmed. 
President Washington knew he had to come back and seek the Senate's 
advice and consent before his nominees would go through.
  A great hero of mine, not just because I am a Democrat but because I 
remember what he meant to people like my parents, who owned a small 
business in Montpelier, VT, was Franklin Delano Roosevelt, also one of 
the greatest Presidents to ever serve this country. He kept this 
country together, kept the world together at the time of naziism and 
fascism, and the Japanese attack on Pearl Harbor. He brought us out of 
a recession, and he did this even though he was physically crippled. He 
worked so hard for this country, it finally killed him. But even 
Franklin Delano Roosevelt, when he tried to pack the court and change 
the independence of our Federal judiciary, a Democratic-controlled 
Senate said he could not do that. In fact, not only did Franklin Delano 
Roosevelt not get every one of his judges confirmed, but his court 
packing plan was filibustered.
  No matter how partisan anybody is here, I don't think anybody is 
going to suggest the problems began here. The Senate said no to 
Washington. The Senate said no to Franklin Roosevelt. The Senate can 
say no to George Bush. Tradition is there. The Constitution is there. 
Our rights are there.
  Basically, we have taken all this time spending a quarter of a 
million dollars of the taxpayers' money to talk about this because we 
don't want to vote on minimum wage, or workman's compensation, child 
programs, or the appropriations bills that, by law, we are required to 
have voted on by September 30. We still haven't. We don't want to vote 
on veterans benefits even though the administration seems hellbent on 
cutting veterans benefits.
  We don't want to do any of those things. We will spend a quarter of a 
million tax dollars on the Republican's charade. I say the same thing 
today that the Senate said to George Washington and said to Franklin 
Roosevelt: We are going to ask for advice and consent. The Senate is 
going to stand up for its rights. I yield the floor.
  The PRESIDING OFFICER. Does the Senator yield back his time? He has 
56 seconds.
  Mr. LEAHY. Mr. President, let me say this. Again, I have been here 
with six Presidents, Republican and Democrat. Presidents have always 
sought advice and consent. They have not always liked what they have 
heard. Five of the six Presidents have been willing to work with us on 
judicial nominations: Presidents Ford, Carter, Reagan, former President 
Bush, and President Clinton. I urge the current President to follow 
their example. Things will go far more smoothly. I do yield the 
remainder of my time.
  The PRESIDING OFFICER. All time has expired. Who yields time? The 
Senator from Alabama.
  Mr. SESSIONS. Mr. President, I appreciate the remarks of the 
distinguished ranking member of the Judiciary Committee. He has been 
around the Senate and the confirmation process for a long time.
  He said he wanted to apologize for people staying here and having to 
work tonight. It is unfortunate that we are here. We are here because 
we have a filibuster organized and sustained by the Democratic 
leadership against six nominees. We have more in the pipeline to be 
blocked, so it is not just four. I want to ask, would the Senator want 
to apologize for his remarks that he made in 1998 when he, Senator 
Leahy, in the Congressional Record, said:

       I cannot recall a judicial nomination being successfully 
     filibustered. I do recall earlier this year the Republican 
     chairman of the Judiciary Committee and I noted how improper 
     it would be to filibuster a nomination.

  That was when President Clinton was in office and Chairman Hatch, a 
Republican, was chairman of the Judiciary Committee. Chairman Hatch 
said on the floor of the Senate and in committee and in private 
Republican conferences that a filibuster was not good.

[[Page 28766]]

Senator Leahy and the Democratic leadership all said filibusters were 
not good. We did not have those filibusters.
  So it is amazing to me, now that within a year or two after making 
statements such as that, and taking that position, we now have those 
very same people leading a filibuster. I would say apologies need to 
come from the other side.
  Let me mention a few basics about confirmations under President 
Clinton: 377 nominees were confirmed, 1 was voted down on this floor in 
an up-or-down vote, not blocked by a filibuster, and no filibusters 
were had against those nominations. That is what happened.
  There were 41 left pending and unconfirmed. Many of those were 
nominated late, after the August recess. Some of them had FBI 
background problems, including drug use or other unresolved issues. So 
there were 41 left pending and unconfirmed; 18 nominees were withdrawn 
by President Clinton before the final term. So I guess that is how they 
get 59, 60 nominees who they say got blocked. But that is what 
happened.
  When former President Bush was President and he left office and the 
Democrats controlled the Senate, they left 54 of his nominations 
hanging. So under Senator Hatch's leadership and under Trent Lott's 
leadership, only 41 were left unconfirmed when President Clinton left 
office.
  They say you blocked them with holds. Holds were put on nominations, 
just as they are today. Senator Levin has a hold against four circuit 
judges for the Sixth Circuit. They say they are only holding up four; 
this is not truth; with the nominees being blocked by Senator Levin 
they are holding at least eight. In fact, there are 13 circuit judges 
who are being held up and blocked by the Democrats right now. It just 
so happens we are only in full-blown filibuster of five, one having 
withdrawn, making six.
  I will say one more thing. My colleagues on the other side of the 
aisle just blithely and consistently and repeatedly say these nominees 
are extreme, extreme, extreme. ``Most extreme,'' I believe is the 
phrase I have heard: Most extreme possible; extreme judicial nominees. 
As if saying this can make it so.
  When we talk about judges, each judge is a human being. Each judge is 
entitled to a fair and decent consideration on the floor of this Senate 
and in committee. If they are not extreme, they ought not be called 
extreme. That is wrong for us to do that.
  I know these attack groups, People for the American Way, the Alliance 
for Justice, the National Abortion Rights League and that crowd are the 
extremists.
  They accuse and call our nominees extreme. That is for sure. These 
groups are not accountable. The problem is when these extreme notions 
are picked up by Senators. This should not happen. Senators are the 
ones who are elected. Senators are the ones who have taken the oath. 
Senators in this body have a responsibility not to call a nominee such 
as Priscilla Owen extreme. She got 84 percent of the vote in Texas and 
was given a unanimously well-qualified rating by the ABA to be a 
judge--she is not extreme.
  Judge Janice Rogers Brown from California, who got 76 percent of the 
vote in the State of California, not a conservative State, for justice 
of the supreme court in that State, is not extreme. And neither is 
Carolyn Kuhl, who rated the highest rating possible by the American Bar 
Association, who has received incredible bipartisan support from the 
hundred or so judges in her area where she practices as a State judge. 
She was editor of the Duke Law Review and clerked for Justice Anthony 
Kennedy and is a brilliant nominee of the highest order. These are 
outstanding nominees. They are not extreme.
  The extremists are the groups and the people calling them extreme. 
These nominees teach Sunday school. They serve on the Altar Guild. They 
are involved in civic groups in their communities. They have held 
important positions in their States. They are the kind of people we 
ought to have on the bench. It is wrong for them to be accused of being 
out of the mainstream.
  President Bush knows what the people want in Federal judges. He has 
nominated that kind of Federal judge. The people will support him on 
that, and it is very disturbing to hear them called extremists when 
they are mainstream and effective judges and nominees.
  I now recognize the Senator from Colorado. I believe he is prepared 
to make some remarks.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. CAMPBELL. Mr. President, this evening I am pleased to join my 
fellow Senators--including my good friend from Utah--Judiciary 
Committee Chairman Hatch--for this ``Justice for Judges'' Marathon. I 
doubt if anyone will change their minds, but the debate is one we need 
to air.
  First of all, I would like to thank Senator Hatch for the excellent 
work he has been doing--just as he consistently does day after day and 
hearing after hearing--as the Chairman of the Judiciary Committee.
  I also thank Chairman Hatch for his support for another bill I am 
sponsoring this year, the Law Enforcement Officer's Safety Act of 2003. 
Every one of our Nation's leading law enforcement organizations--
including the Fraternal Order of Police--consider this bill to be one 
of their top legislative priorities. I am especially pleased that this 
bill now enjoys the strong bipartisan support of 66 cosponsors--
including 41 Republicans and 25 Democrats. I also want to point out 
that Senators Leahy and Hatch are lead original cosponsors of this 
important legislation, and thank them for their support. Unfortunately, 
this bill is a perfect example of how the intent of the U.S. Senate can 
be subverted by the few opposed to a bill.
  I also want to point out that even though this bill enjoys bipartisan 
support, and easily enough to get it passed by the Senate in an up-or-
down vote--or even to invoke cloture--it is still being held hostage by 
a few Senators who have dug in their heels and refuse to let it pass.
  It is not fair nor just in a body where fairness and justice is 
paramount that a minority of a few can hold up the will of 67 Senators.
  I want to let my fellow Senators know that I will be pushing for the 
passage of the Law Enforcement Officers Safety Act early next year.
  The challenges we are now facing in the form of the unprecedented 
filibustering of Circuit Court judicial nominees is in no way the 
result of Senator Hatch's ability as a Chairman or as one of the 
Senate's great gentlemen.
  Unfortunately, we are now facing a situation in which judicial 
nominees that clearly have the bipartisan support they need to be 
confirmed by the Senate in an up-or-down vote simply cannot get the 
vote they deserve.
  Repeated refusals to allow Circuit Court nominee Miguel Estrada the 
straight up-or-down vote he deserved unfortunately led to him 
withdrawing his nomination.
  As a Coloradan, I am not alone in my assessment that an injustice was 
done, and not just to Miguel Estrada, but to our finely balanced system 
of Constitutional government as handed down by our Founding Fathers.
  We all know the history of Miguel Estrada. He is a great American 
success story. He is a man of impeccable credentials dedicated to 
upholding the law. Unfortunately, he has committed the high crime of 
being a conservative. He does not deserve the insult of being called a 
``lemon'' as one Senator has done today. Whether to vote against 
nominees is each Senator's decision, but they do not deserve insults. 
On September 10, 2002, the Pueblo Chieftain editorial stated:

       One would think that Democrats in the Senate, who claim to 
     hold diversity in such high esteem, would be amendable to Mr. 
     Estrada's nomination. But he committed the political sin of 
     being conservative.

  The Pueblo Chieftain went on to say:

       For the first time in the Nation's history, Senate 
     Democrats filibustered the nomination. By doing so they 
     turned the Senate's historic practice of advice and consent 
     into a litmus test for liberal interest groups. The Democrats 
     also have launched filibusters to stall the nominations of a 
     half-dozen other candidates.


[[Page 28767]]


  The editorial continues:

       Mr. Estrada asked President Bush to withdraw his 
     nomination, which had languished in the Senate for nearly two 
     years. Mr. Bush did so, with regret.
       Mr. Estrada should have been confirmed. He was just as 
     qualified as a dozen other judicial nominees who were 
     eventually confirmed.
       But Democrats have resorted to the filibuster to stop those 
     judicial candidates feared to be opposed to abortion. But 
     when asked about the Roe v. Wade abortion ruling during 
     confirmation hearings, Mr. Estrada said, ``It's the law. I 
     will follow it.''
       In the long run, Democrats may have hurt themselves and 
     their outreach to Hispanic moderates and independents by 
     denying all Hispanics a historic moment--the first and 
     highest-ranking Hispanic on the Federal bench who also had 
     strong backing from a wide range of Hispanic groups.

  Mr. President, let me speak about a towering figure in Colorado 
history. Byron White, a football star and then a conservative U.S. 
Supreme Court Justice who retired in 1993 after 31 years on the Federal 
bench. After having lived a long and fruitful life, Justice White 
passed away on April 15, 2002. I met Justice White. His many 
achievements made most but not all Coloradans proud.
  Justice White was appointed to the Nation's highest court by 
President John F. Kennedy in 1962. I knew Justice White--he had a 
handshake that would make you wince, even in his 80's.
  Byron White combined physical prowess--as a nationally acclaimed 
football star in the 1930's who went on to become a Rhodes scholar and, 
eventually, a leading jurist.
  In 1937, Byron ``Whizzer'' White was an All-American football player 
with the University of Colorado Buffaloes. He led the nation in both 
scoring and rushing yards while leading an unbeaten team. He never 
liked his nickname ``Whizzer''. But sports writers did so he was stuck 
with it.
  He also was an outstanding football player in the earliest days of 
professional football, playing running back for both the Pittsburgh 
Steelers and the Detroit Lions.
  He used his professional football signing bonus to pay his way 
through Yale Law School. He graduated first in his class.
  During World War II he served as an intelligence officer with the 
U.S. Navy. It was Byron White who wrote the official report on the 
sinking of John F. Kennedy's patrol boat, the PT-109.
  White ``had excelled in everything he had attempted'' President 
Kennedy said admiringly when he appointed his long-time friend and the 
Deputy Attorney General as our Nation's 98th Supreme Court Justice in 
history.
  However, despite the outstanding strengths and qualifications, as 
articulated by President Kennedy, Justice White had some views that 
most likely would have led to filibuster by today's Senate. In fact, if 
it had been a Republican President who nominated Byron White in 1965 
instead of a Democrat, he probably would not have been confirmed even 
then.
  For instance, he dissented from the historic 1973 ruling that 
declared that women have a constitutional right to an abortion.
  In 1986, he stirred a storm of controversy by writing the Supreme 
Court's opinion that constitutional protections of privacy do not 
extend to homosexual conduct.
  Justice White consistently opposed restrictions on law enforcement 
officers, which led him to dissent from the famous 1966 Miranda ruling 
that police officers inform a criminal suspect being arrested of their 
rights.
  Justice White also dissented from rulings that outlawed voluntary 
prayer for children in public schools.
  By the late 1980's, Justice White had joined conservatives in 
opposing ``affirmative action'' programs on the grounds that they 
amounted to reverse discrimination.
  The point is that he was appointed by President John F. Kennedy--but 
even so--under today's atmosphere, including political correctness and 
in-your-face special interests--with litmus test approaches to public 
policy--Justice White would have almost certainly been relentlessly 
filibustered and would probably not be confirmed.
  I am not sure that I would have voted for his confirmation had I been 
here, because I disagree with some of his decisions, but I would have 
been given the chance.
  The way that today's Senate is treating judicial nominees stands in 
even starker contrast when it is pointed out that Justice White was 
confirmed by the Senate by a voice-vote, and without objection. Not one 
Senator objected--``D'' or ``R.'' That was on April 11, 1962.
  A lot has changed since then. Some for the better and some not. One 
thing that has certainly not gotten better is the way judicial nominees 
are being treated. Questioning has given way to badgering. Civility has 
given way to discovery. Playing ``Got Ya'' is a poor substitute for an 
impartial hearing.
  The question is not whether the President's nominees should or 
shouldn't be confirmed. That is a smokescreen. The question is should 
we, as duly elected Senators be accorded our constitutional 
responsibilities of advise and consent by voting on each nominee. The 
minority is denying me the right to an up-or-down vote through their 
filibusters--and thereby are denying the people of Colorado the right 
to be represented through my vote. I have heard time and again from our 
colleagues on the other side of the aisle that 168 nominees have been 
confirmed and only four have not. What are they talking about? I 
haven't been given the chance to even vote on those four. Not a 
question of numbers. It is a question of fairness.
  We need to do what we can do to reverse and correct the emerging 
practice of filibustering judicial nominees.
  There is no question in my mind that many deserving and well-
qualified people will refuse the call of public service after watching 
the kangaroo court they might now face in getting confirmed. It doesn't 
make any difference who is in the majority. No nominee should have to 
be verbally flailed in the confirmation process.
  Mr. President, it is not too late to turn back, reverse course, and 
give all judicial nominees the up-or-down votes they deserve.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. I thank the Senator from Colorado for his remarks. It 
is true, we need to treat these nominees with civility. That is the 
least we can do in this body.
  I believe we have one more Senator to speak, the Senator from 
Wyoming, and we have about 14 minutes.
  Mr. ENZI. Mr. President, first, I wish to concentrate a little bit on 
some of the comments I heard during the 3\1/2\ hours I chaired last 
night.
  A lot has been made of this number, 168 to 4. But you cannot compare 
district court judges with circuit court nominations. Instead, you 
should look at the situation for what it is, an attempt to obstruct the 
confirmation of circuit court judges.
  Since January 2003, President Bush has nominated a total of 29 
circuit court judges. Of those judges, only 12, or 41 percent, have 
been confirmed. Of the remaining 17, my colleagues across the aisle 
have obstructed or threatened to obstruct 11 qualified and talented 
judges. In other words, almost 50 percent of the circuit judges ready 
to come to the floor for confirmation have been held up by the 
Democratic side for political purposes.
  Last night I heard this 98-percent factor, and I heard it said that 
if my child came home with a test and he got 98 percent, I should 
congratulate him and work hard to get the other 2 percent.
  I will tell you what ought to happen if your kid comes home with only 
50 percent, and that is what we are talking about when we are talking 
about circuit court judges, we are talking about failure of the system, 
a total breakdown of the system.
  You have to look at the concentration that there is on the circuit 
court. That is because those circuit court folks could become Supreme 
Court Justices. And Lordy, we don't want to pass any who might make it 
to that.
  Every day the Senate is in session we begin with a prayer and the 
Pledge of Allegiance. I know my colleagues on both sides of the aisle 
are firmly committed to this country, and that as we

[[Page 28768]]

say the words of the pledge, like me, they mean every word of it and 
they honestly pledge their alliance to the flag and to this Nation. But 
I have to wonder if they haven't forgotten the meaning of all of the 
words in the pledge, especially when I hear them put forward the 
argument that we do not need to vote on all the judicial nominees 
because we have already voted on most of them.
  The last six words in the Pledge of Allegiance, ``with liberty and 
justice for all,'' mean we do not preserve justice or liberty for just 
a few people or for most of the people and leave a few or even an 
individual behind. It means we have justice for all, for everyone. That 
is 100 percent. We pledge that and we don't make exceptions because we 
have a high percentage of success.
  In fact, this is one of the situations that the courts were created 
to protect: the rights of the individual. I think it is a little ironic 
that there are those in the Senate who would be willing to withhold 
justice and rights from some, in this case four highly qualified 
individuals, and the cases they could be hearing, if they were 
confirmed.
  That is justice being denied as well. That is justice only for a few, 
or maybe most, but not all--just because the individuals don't have the 
same political philosophy as those across the aisle.
  While it may be true--the percentage of judges we have voted on--when 
you are the one who is left out and are not allowed justice, that is 
100 percent of your life--the one who is being affected, and 100 
percent of justice that is being denied as an individual.
  I think this is wrong. I sincerely hope we move off this 
obstructionism and have an up-or-down vote on the highly qualified 
individuals with talent, experience, and integrity, and who could be 
considered as the ideal we want in all judges.
  I think everybody knows about the qualifications.
  The comments made last night are what we are seeing here for the 
first time--a change in the way we do judges. The problem with it is it 
probably will continue and at some point there will be a reversal of 
roles. We will spiral down and down until we are not approving judges. 
It won't be 2 percent counting all of the district judges and not doing 
the true statistics on just the circuit court judges. It will not be 
approving a majority of them.
  I have to tell you, I have been through that spiral once before. When 
I first got here, there was a judge nominated. She would only sentence 
a person to 90 days in jail who had raped a minor because she didn't 
like the rehabilitation system of the prisons in her State. I was 
appalled by it. In our State, there are a lot of people who would think 
that maybe he should have been shot. He raped a minor.
  I put a hold on that person so we could have a debate instead of a 
unanimous consent. I eventually got the debate.
  I had an unrelated piece of property that some people had been paying 
taxes on for 70 years which they had bought from the BLM but the title 
had never changed. It took an act of Congress to change the title. 
Because I put that hold on, it took me 3 years to get that piece of 
property transferred to the people. Do you know what those people said? 
They appreciated what I had done on that judge.
  But I have to tell you that unless an up-or-down vote happens on that 
judge, that is the way it is supposed to be.
  It was exactly 200 years ago, in 1803, that the Supreme Court and our 
Nation's judicial system went through its first and most dramatic 
change since it was established by the Judiciary Act of 1789. This 
change occurred when then Chief Justice John Marshall issued his 
decision in the landmark case, Marbury vs. Madison. In that decision 
Marshall established the responsibility of the Federal court to review 
the constitutionality of congressional actions. His action brought the 
courts out of almost obscurity, seen as the weakest and most timid of 
the three branches of government, and gave it a prominence and power 
that is not equaled by any other court system in the history of the 
world.
  Before Justice Marshall was appointed to the court in 1801 the court 
seemed to lack direction. There was no clear idea of purpose or vision 
about whether or not the court could consider itself to be an important 
entity. The very first Supreme Court Session was held in New York City 
in 1790. It was almost postponed when only three of the original six 
justices arrived for the court's opening session. The court had to wait 
and put off doing business until a fourth justice arrived and they had 
enough judges to constitute a quorum.
  Justice Marshall himself did not initially consider the court to be a 
prominent institution. At the time of his appointment to the court, he 
was also serving as Secretary of State for President John Adams and he 
had turned down an earlier appointment to the court in order to run for 
a seat in the U.S. House of Representatives. After President Adams 
finally talked him into serving as Chief Justice of the court, Justice 
Marshall served as both Chief Justice and Secretary of State for 2 
months because he felt it wasn't worth giving up the position of 
Secretary of State to serve on the Supreme Court.
  Over the next 34 years Justice Marshall reinvented the court and 
provided the leadership it needed to assume the prominent role it plays 
in our court system today.
  One has to wonder what Justice Marshall would think about what is 
going on in the Senate today. Would he agree with my colleagues across 
the aisle that it is all right to put partisan politics and partisan 
bickering ahead of the rights of judicial nominees if those impacted 
are just a small fraction of society. Would he agree with them that 
justice denied for a few was acceptable? Or would he hold true to the 
basic tenets of the Constitution that all men are created equal and 
that everyone has the right to their day in court?
  A lot has been made about the numbers 168 to 4. You really can't 
compare district court judges with circuit court nominations. Instead 
we should look at this situation for what it really is, an attempt to 
obstruct the confirmation of circuit court judges. Since January 2003 
President Bush has nominated a total of 29 circuit court judges. Of 
those judges only 12 or 41 percent have been confirmed. Of the 
remaining 17, my colleagues across the aisle have obstructed or 
threatened to obstruct 11 qualified and talented judges, or in other 
words, almost 50 percent of the circuit court judges ready to come to 
the floor for confirmation have been held up by the Democrats for 
political purposes.
  Every day that the Senate is in session we begin with a word of 
prayer and with the Pledge of Allegiance. I know that my colleagues, on 
both sides of the aisle, are firmly committed to this country and that, 
as they say the words of the Pledge, like me, they mean every word of 
it and that they honestly pledge their allegiance to the flag and to 
this Nation. But I have to wonder if they haven't forgotten the meaning 
of all the words in the pledge, especially when I hear them put forward 
the argument that we do not need to vote on all of our judicial 
nominees because we have already voted on some or most of them. The 
last six words in the Pledge of Allegiance, ``with liberty and justice 
for all,'' mean that we do not preserve justice or liberty for a few 
people, or for most of the people, and leave a few, or even an 
individual, behind. It means we have justice for all, for everyone, 100 
percent and that we don't make exceptions because we have a high 
percentage of success.
  In fact, this is one of the situations that the courts were created 
to protect, the rights of the individual. I think it is a little ironic 
that there are those here in the Senate that would be willing to 
withhold justice and rights from some, in this case four highly 
qualified individuals, and would not extend justice to all, just 
because those individuals don't have the same political philosophy.
  While it may be true that the percentages of judges that have been 
voted on is high, when you are the one that is left out and are not 
allowed justice, that is 100 percent of your life that is being 
affected and 100 percent of justice that is being denied you as an 
individual.

[[Page 28769]]

  I think this is wrong, and I sincerely hope we move off this 
obstructionism and have an up or down vote on these highly qualified 
individuals, whose talents, experience and integrity can easily be 
considered the ideal for what we want in judges.
  We often talk about the ideal in our debates in the Senate. We hold 
up a picture of what things should look like and how things should be 
done in the hopes that someday, we can move our Nation forward to the 
point where the ideal is, more often than not, reality. One of those 
ideals that has been presented is a world where our judges and our 
courts are more representative of America. Our courts have often been 
accused of being elitist. The Bush Administration has been working hard 
to change that image by making sure our judges are more diverse. By 
nominating people like Miguel Estrada, Carolyn Kuhl, Janice Rogers 
Brown, Priscilla Owen, William Pryor, and Charles Pickering, President 
Bush has set an example of the ideal by selecting people from different 
backgrounds, with different styles, who share the same passion and 
enthusiasm for the law.
  The list of judges that is before the Senate represents a group of 
candidates who are well educated, fully talented, and well qualified 
for the posts for which they have been nominated. Unfortunately, for 
some, this list also represents the unfairness of the system--a system 
which, in theory, guarantees each nominee a vote--but--in practice, can 
be used to deny a nominee a vote.
  So here we are, well down the road, holding a list of candidates that 
still haven't received a vote. In spite of all their qualifications and 
the personal integrity they have shown throughout the process, these 
judges have been forced to wait as the Senate decides whether or not we 
can simply hold an up or down vote on them. Why? It's pretty clear to 
just about everyone. Because these are good nominees and in a fair and 
just world, they'd win the vote hands down. Therefore, the only way to 
avoid having these candidates confirmed is to deny them their 
constitutional right to an up or down vote.
  What is most tragic about this situation is that these delays have 
not come without cost. These nominees aren't the only ones who are 
being denied their rights. Let's not forget the other victims in this 
situation who have been denied their right to a fair and impartial 
judicial process because there are not enough judges to hear all their 
cases. The real victims of these delays are not the nominees, or the 
Bush administration, or even the Republican Party. No, the real victims 
are the people whose rights have been denied to accommodate some 
increased partisan bickering.
  There is a saying ``Justice delayed is justice denied.'' We make 
people with very real needs and very real issues wait while we try to 
score a few points in the game of politics. We drag out their court 
costs, their attorney's fees, and delay their restitution and damage 
payments all because we want to get one up on the other party.
  We have a crisis in our courts that we can solve today. I urge my 
colleagues to step up to the plate and become a part of the solution. I 
urge them not to accept the belief that justice for some is sufficient. 
I urge them to allow the Senate to conduct its constitutional duty and 
hold an up or down vote on these judges. If you don't agree with them, 
or feel they are not qualified, then vote against them. That is your 
prerogative and duty as a Senator. But do not continue to deny justice 
for the nominees or the courts any longer.
  Mr. SESSIONS. Mr. President, the Senator from Montana is here and I 
know he would like to finish up.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BURNS. Mr. President, a lot of questions are being asked about 
this debate as we roll along. We went late last night and there are 
probably some folks who have been short of sleep.
  Let there be no doubt about it, as we close this half hour, this is 
obstruction. A week ago tomorrow, we argued about definitions. Now we 
are worried about ideologies and how we appoint our judges. Here is one 
way you can have an issue and you can be on both sides of it and never 
worry about the consequences. That is healthy for us. We passed that 
through this Senate with strong bipartisan support and only 14 folks 
voting against it. Now we can't name conferees. ``Well, I voted for 
it.'' But we do not want it to get to conference.
  I am fighting for two judges, Janice Rogers Brown and Carolyn Kuhl. 
Both of them are nominated to the Ninth Circuit. Why am I fighting so 
hard for them? Let me tell you why.
  I am sponsoring legislation to split up the Ninth. It is too big. It 
covers California, Arizona, Nevada, Idaho, Washington, Oregon, Alaska, 
Hawaii, and my home State of Montana. It covers 14 million square 
miles--that is a fairly good sized pasture--with 45 million people. The 
second highest population is the Sixth Circuit with 29 million. It has 
the highest number of active judges with 28. The average number per 
judges per circuit, including the Ninth, is 12.
  Let me tell you another reason why. The decisions that have been 
handed down by the Ninth lately--from 1996 through 1979--the Supreme 
Court heard 228 cases from the Ninth Circuit, and 27 of those decisions 
were overturned, 17 of them by unanimous decision.
  From 2001 through 2002, 12 of the 17 Ninth Circuit decisions were 
reversed, and 7 of those were unanimous.
  How would you like to have that track record? And we live in that 
circuit. Then you wonder why we get excited about the appointment of 
judges to that Ninth Circuit.
  It is absolutely unbelievable.
  I am an original cosponsor of S. 562. We must get it done.
  What we are talking about here is people in a circuit who can't 
handle the work and come up with decisions that can't stand the test in 
the Supreme Court. That is pretty bad--1 in 27. That is almost as bad 
as 0 and 1 in a gunfight in judicial terms.
  I am not an attorney. I don't think I will ever be one. But I will 
tell you that you can read and you know where the American people are, 
and those people are denied representation on the Ninth Circuit.
  Definitions: We have heard it. If we cooperate, things would really 
get along good here. If we cooperate--we did--that is healthy for us. 
Now we can't name conferees to finish the job that is in front of us.
  This is not my first rodeo. I know what is going on here. They should 
be ashamed--ashamed to contradict their own conscience.
  Obstructionism: Give these judges a vote up or down. That is the way 
you got here. They deserve the same.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama has 3 minutes 30 
seconds remaining.
  Mr. SESSIONS. The Senator from Virginia.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. ALLEN. Mr. President, I wish to speak about some statements that 
have been made in the past and the inconsistency of these statements 
with the ones we are hearing today.
  Let me quote for my colleagues some sentiments with which I very much 
agree, and I then I will ask you all to guess who said it: ``I find it 
simply baffling that a Senator would vote against even voting on a 
judicial nomination. Let the Senate vote on every nomination.''
  Here is another quote. See if you can figure out who said this: ``I 
don't know how Members tell the Hispanic community we are being equally 
as fair with them as we are with all non-Hispanic judges when that 
simply is not true. Hispanic or non-Hispanic, African-American or non-
African-American, woman or man, it is wrong not to have a vote on the 
Senate floor. What are they afraid of? What are they afraid of? What is 
wrong with a vote?''
  Another quote from one of our colleagues who quoted Chief Justice 
Rehnquist: ``As Chief Justice Rehnquist has recognized, the Senate is 
surely under no obligation to confirm any particular nominee but after 
the necessary time for inquiry it should vote them up or vote them

[[Page 28770]]

down. An up-or-down vote that is all we ask.''
  Have you guessed the speaker yet? No, that is not Orrin Hatch; it is 
not Senator Sessions; it is not Senator Enzi and it is not me. That is 
Senator Tom Daschle, the Democratic Minority Leader. These quotes are 
from October 5, 1999 and October 28, 1999.
  Senator Kennedy said nominees deserve a vote. He said: ``If our 
Republican colleagues don't like them, vote against them. But give them 
a vote. Don't just sit on them. That is obstruction of justice.''
  My goodness. Senator Daschle and Senator Kennedy certainly had the 
right idea 3 years ago.
  Senator Daschle also said that Senators ``have a constitutional 
outlet for antipathy against a judicial nominee. Vote against that 
nominee.''
  Senator Daschle, the Democrat leader in all of this obstruction and 
delay, said in 1998: ``All we are asking of our Republican colleagues 
is to give these nominees a vote and hopefully the fair consideration 
they deserve. We will press this issue every day and at every 
opportunity until they get the vote.''
  Doesn't that sound familiar as to what we have been trying to do for 
the last several years?
  Senator Daschle is also on record complaining about how long it took 
for some cases and decisions that had been pending for months. He said 
for ``anyone to be held that long is just an extraordinary unfairness 
not only to the nominees but to the system itself.''
  The PRESIDING OFFICER. The time has expired.
  Mr. ALLEN. If I may, with consent, have 2 minutes that is attributed 
to our time at 9 o'clock.
  The PRESIDING OFFICER. Is there objection?
  Ms. STABENOW. Reserving my right to object, my colleague, I 
appreciate the time, but in order for us to stay on schedule and given 
the fact I have been waiting here at this point, I would appreciate his 
wrapping it up. If he would like to take 1 minute to wrap up, I would 
not object to that.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALLEN. I would like to close with a final quote from Senator 
Daschle that he made in September 1999: ``It is so incredibly unfair to 
me that they would continue to persist in the determination not to 
allow these very qualified people to even have a vote.''
  Mr. President, that is what all of this is about. Tomorrow morning we 
will have a chance to end debate on these nominees and allow for fair 
up or down votes. In addition we will be able to determine the 
veracity, truth, and sincerity of our colleagues that I have previously 
quoted. If they were willing to tell the truth 3 or 4 years ago, they 
will have an opportunity to stop this spiral of unfair actions and 
delays which only bring more retaliation and more delays.
  Senators will then be upholding the Constitution and will be 
accounting to their constituents, as well as giving fairness to the 
nominees.
  I thank the President and I thank my colleagues.
  The PRESIDING OFFICER. The Senator from Michigan.
  Ms. STABENOW. Mr. President, as I said before on the floor, all the 
statements that are being made, and all the time we spend in relation 
to our values and our priorities, I also believe we get things done 
when we work together, when we work in a bipartisan way. That is what 
our constituents expect us to do.
  I see the esteemed chairman of the Judiciary Committee on the floor. 
I thank him publicly for working with the senior Senator from Michigan 
as we work through difficult issues that relate to Michigan. I 
appreciate his willingness to do that. That is how we get things done--
when we work together.
  When we look first at the record of legislation taken up on this 
floor, I think it shows we work together. I think when we have worked 
together to confirm 168 judges, most of those I have voted for 
overwhelmingly, and when we see that we have only had a disagreement on 
4, I think that shows bipartisan cooperation. I think that shows what 
the people of this country, and certainly the people of Michigan, want 
to see done. There is no question in my mind that this demonstrates our 
willingness to roll up our sleeves, to be fairminded, to look at the 
facts, to look at the nominees, and to work together.
  It also shows, though, that we are willing to make a critique, that 
we are not a rubberstamp for this administration, nor should we be for 
any administration of either party. It shows we are willing to make a 
judgment. When the nominees go too far, we say no. That is what 
happened four times.
  What I am most concerned about now, though, in this 30 hours--which 
now, instead of ending at midnight, is going to go until 9 in the 
morning--is that we are saying our values and priorities are spending 
time talking about four people who already have jobs and want to get a 
promotion that will last a lifetime. These are lifetime appointments.
  My concern is that we need to be spending time on this floor not only 
talking but doing something about the 3 million people who have lost 
their jobs in the last 2\1/2\ years--3 million people. They do not have 
a lifetime job. They would just like to know they have a job tomorrow 
for their families. They would like to know that the job probably 
carries health care with it and will be there so they can put food on 
the table and they can pay the mortgage, the car payment, send their 
kids to college, and know they can have a good life in America that 
they assume if they work hard they will be able to achieve.
  That is the debate I have said a number of times that we need to be 
having. One-hundred and sixty-thousand-plus of these 3 million are 
people who have lost their jobs in Michigan; people who have lost good-
paying jobs, good-paying jobs with health care and pensions. They find 
themselves in very difficult circumstances and they are asking us to 
help them.
  I am very proud of the fact that Michigan is the first in the 
production of automobiles. Thirty-one percent of all the automobiles in 
this country are produced in the State of Michigan.
  My dad and my grandfather owned a Cadillac dealership in Claire, MI. 
We have been proud to be a part of supporting the Michigan automakers.
  We also are first in the production of trucks, producing l7 percent 
of trucks. We have the three leading office furniture manufacturers in 
Michigan and produce nearly half of the office furniture.
  Why do I say this? Because we have a crisis in manufacturing in this 
country that we need to be addressing in this Senate. Jobs can't all be 
in the service industry. We need to make things and we need to grow 
things. That is what we do in Michigan. We make things and we do it 
well. We will compete with anybody any time. Just give us a level 
playing field. We also grow things. We are willing to compete with 
anybody any time. Just give us a level playing field. We don't have 
that right now. We don't have that level playing field. We are not 
addressing that.
  We are not addressing what is happening with the fact that China is 
violating the WTO or that China and Japan basically have put a tax on 
American goods and services sold in this country by manipulating their 
currency. We are not doing anything about that.
  As a member of the Banking Committee, I sit and listen to the 
Treasury Secretary basically acknowledging that something is not right 
but not wanting to step up and take the tough action on behalf of 
American manufacturers and American workers.
  We need to be talking on this floor and taking action on behalf of 
the men and women who have been the backbone of this country in 
manufacturing and have created the middle class that separates us from 
other countries around the world.
  Why aren't we having that debate? Not a debate about 4 people who 
already have jobs, who want to get promoted. Three million people do 
not have a job and are now struggling with their families.
  I want to share a few comments that I have heard. Earlier today I 
shared

[[Page 28771]]

some headlines from newspapers in Michigan about what is going on. I 
want to share one of those this evening with my colleagues. It is from 
the Ludington Daily News, in northwest Michigan. It says: ``Tough Loss, 
Straits Steel closing sad news for plant's 180 employees.'' Then it 
starts out by saying:

       Despite the looming possibility over the past few months 
     that their plant might close, workers at Straits Steel & Wire 
     Co. kept their production quality high and their attitudes 
     positive, said General Manager Tyndall.
       But on Friday, Tyndall was forced to tell his co-workers 
     and friends that corporate officials decided to close the 
     Ludington plant, 56 years after it began operations in 1947.
       Making the announcement twice--to the first shift in the 
     morning, then the second shift in the afternoon--was not easy 
     for Tyndall, who joined workers on the floor of the 
     production plant as he shared the bad news with the group.
       ``People are down,'' he said Friday afternoon. But he 
     stressed the plant's closing is not related to performance. 
     ``When we walk out, we can hold our heads high and go chest 
     to chest with anyone on the street and say we did our jobs 
     well.''

  They did their jobs well. But because of what is happening and the 
unfair competition around the world and the stress and struggle as it 
relates to cost, the plant closed.
  Why aren't we dealing with issues that will help this Straits Steel 
and Wire Company in Ludington, MI? Those are the jobs I want to be 
talking about. Those are the jobs people in my State want us to be 
trying to fill.
  Let me mention a few letters I have been receiving from people in 
Michigan that say it better than I can. First from a gentleman who 
says: I am writing you regarding the health of my business. I have a 
high tech business servicing industrial lasers, much like the ones that 
are no doubt cutting metal subassemblies for our armed services use as 
well as civilian businesses. My business has the flu. It is feverish 
and sluggish almost to the point of no business at all. Our country was 
initially built on small businesses providing services and employment. 
Our government encourages small business growth yet at the same time 
small businesses are being destroyed one by one because our economy is 
in such dire straits that business orders are essentially flat, which 
in turn is causing my business to fail. Occasionally I call the few 
customers I have left and ask questions about how they feel about the 
economy and what they think will happen in the near future. They say 
they are very concerned about the future. Some are laying off 
personnel. Others take pay cuts to keep their jobs. Still others feel 
they are sinking with no relief in sight. My business is now on the 
verge of collapsing and the only reason is the economy. I find it 
extremely difficult to believe that because of a few positive economic 
reports showing up here and there that our economy is getting better. 
The only real indicator of an improving, recovering economy, in my 
opinion, are reports coming in of companies rehiring people and putting 
them back to work. No other indicators, in my opinion, mean a thing 
until people start going back to work.
  I agree with that. It is about putting people to work and having 
businesses recover from the flu.
  Also from a Michigan resident: I am a tool die maker for over 40 
years. I now find myself out of a job and unable to find one in my 
field. I have no health insurance. Why has America farmed most of our 
manufacturing jobs out to other countries? I think America has got to 
be not only the greatest thinking country in the world but we have to 
also regain our status as the greatest producing country in the world, 
as we did in World War II. That is, as you remember, the reason we won.
  From Bridgman, MI: I would like to say I have worked in manufacturing 
for 20 years. This is the first time in my career that my hours have 
been reduced. I have a house payment, utility bills, children to feed 
and clothe, doctor bills, car payment, insurance, school lunches and 
preschool. This is just a few of my expenses. We are hanging on by a 
thread, day by day living. This is not the way Americans should have to 
live, especially in this day and age.
  I agree. If people work hard, they get up in the morning and they go 
to work and they work all day, they ought to be able to know they are 
going to be paid a good wage, that they can count on that job being 
there, that we want them to be able to have health care. We want them 
to be able to put money aside for a pension, and we want them to know 
they will have the security of being able to take care of their 
families and plan for the future as part of the great middle class of 
America.
  Our manufacturing economy has given us that. We are losing that. We 
are losing that. We need to pay attention. We need to talk for 30 hours 
on the floor about jobs and how to help our manufacturing sector. We 
need to talk for 60 hours or 90 hours. More importantly, we need to act 
to do something so we can level the playing field. As I have said 
before, I will put our workers and our businesses up against anybody, 
if it is a level playing field. Just make it fair and we will compete. 
We need to address issues of health care. We know one of the biggest 
challenges right now for our manufacturers is the explosion in the 
prices of health care. I also know from talking to our automakers about 
half of that is because of prescription drug prices, the lack of 
competition, and the explosion in prices. We ought to be doing 
something about that.
  We have bills in front of us right now in the Medicare conference 
where we could do something, if we wanted to, about that to lower 
prices. I would love to have a 30-hour debate on that because there is 
nothing right now more challenging to businesses and workers than the 
issues of health care. Workers are finding they are being asked to pay 
more in premiums and deductibles or their salary is capped in order to 
pay for health care increases or, worse yet, they are losing their jobs 
because of the increases. That is a debate worth having. That is a 
debate that would result in our focusing on something that means 
something very important to the people of this country. I would look 
forward to that debate.
  Let me read a couple more letters: I've worked in manufacturing for 
23 years, and this is the first time in my career I have had my hours 
reduced. I am worried about losing my job. My family is suffering 
because of my reduced income and planning for the future of my trade. I 
am a mold maker, and this has always been a solid trade. My trade is 
faltering, not only because of the economy but also because of foreign 
competition. How can we compete with countries that pay drastically 
reduced wages with no benefits?
  We have to address that, not by saying you have to work for less, 
Michigan workers. You have to work for less and you have to take no 
health care and no benefits. We have to be fighting for our middle 
class and creating a way to raise the standards of living around the 
world instead of lowering ours, which is exactly what is happening 
right now. It is probably the most serious threat to our future in 
terms of maintaining our economy and our middle class. That is worthy 
of a 30-hour debate.
  There are many more letters I could read that are the same. So where 
are we, when we are talking about 3 million jobs lost and counting just 
in the last 2\1/2\ years, a little less than 3 years. What is the 
response from the administration to this number? Are we pulling 
everybody together to figure out what we can do to lower health care 
costs? Are we figuring out what we can do to level the playing field 
and stop China and Japan from using advantages and manipulating their 
currency and creating a situation that is unfair to us? Are we looking 
for ways to stop the small manufacturers from going and moving their 
plants overseas? No.
  What is the response from the administration? The first thing is to 
propose to cut people's overtime pay, people who already are working. 
We are going to cut their overtime pay. That is one of the major points 
the administration is fighting for right now in the appropriations 
process. They fight every effort to extend unemployment for the people 
who are currently unemployed. In the past, on a bipartisan basis, every 
President from Nixon and Carter and

[[Page 28772]]

Reagan and Clinton, every President we have during times of recession, 
we have extended unemployment compensation for those who are 
unemployed. We have to fight now at every turn on behalf of the 
unemployed. I have mentioned earlier the administration has not been 
willing to get tough with China, has not been willing to deal with what 
is happening in Japan as well, that has so affected our automobile 
industry and our manufacturing economy.
  We need leadership to step up and do more than just words to get 
tough on them, to create a level playing field. We have seen the 
administration not be willing to address the high cost of health 
insurance and do those things that will bring prices down. Earlier 
today I offered a unanimous consent request to increase the minimum 
wage $1.50 an hour so 7 million people, a large share of them women 
with children who are working for the minimum wage and trying to make 
it and don't have health insurance, paying their child care every day, 
trying to make it, trying to do what we are asking them to do in this 
country, could get a raise. It was objected to by colleagues. So we are 
seeing the people who earn the least can't get a raise. The 
administration won't support 7 million folks getting a raise. They want 
to take overtime away from the folks who are already working, not 
wanting to deal with those who are out of work with unemployment, not 
wanting to level the playing field so we can keep our manufacturers 
here and keep those good-paying jobs.
  Over and over again, we see efforts that block what we need to turn 
this number around of 3 million jobs lost and counting.
  That is the reality of what is happening. Frankly, I am disappointed 
we are not willing to spend time. If we are going to ask people to stay 
up all night and the staff to be here and so on, let's address 
something that affects them and their families and everyone who is 
listening and watching, and that is how we move this economy forward, 
how we protect manufacturing, how we support our businesses large and 
small, and our workers working harder and harder every day just to make 
ends meet, so we can make sure the quality of life and standard of 
living we want for our families is maintained in this country.
  We are the greatest country in the world. But we are truly in crisis, 
I believe, as it relates to what is happening in our economy and with 
our manufacturing sector.
  Let me take an opportunity to read a few more of the letters I get 
every day, unfortunately, from the people of Michigan. A letter that 
says: I have never written to a Michigan Senator before, but for me, 
now is the time. You see, I am one of the discouraged unemployed in 
Michigan. After over a year of fruitless searching for a nonexistent 
job in my field as a CAD designer, I have given up. It breaks my heart 
to leave the field I love. I must just ask you this: Where are all the 
automotive engineering jobs? Is it true that we in Michigan have lost 
much of our employment base as it relates to engineering through 
outsourcing? I know many colleagues who are also out of work and many 
who have left the field altogether, as I am contemplating. I just want 
you to know how one of your constituents is feeling about the 
employment situation here in Michigan.
  Of the 3 million jobs that have been lost, over 2.5 million of them 
are in manufacturing. These are jobs that pay well, that bring health 
care with them, that bring a pension, that create middle-class America, 
those folks who can buy the houses and the cars--we want them to all 
buy them American made--who buy the boats and the snowmobiles and the 
cottage up north, who send the kids to college and believe in the 
American dream: that if you work hard, you can be successful in this 
country and you will have the opportunity to have the dignity of work.
  From Union City, MI: I am writing this letter because there seems to 
be some confusion about our economy. Our government seems to think that 
a tax cut will help but I don't think so. Since the year 2000, there 
has been over 3 million manufacturing jobs that have been lost, gone to 
China. My wife and I own a small machine shop in Union City, Michigan. 
At one time we had 7 employees. Now my wife, my son and myself are all 
that is left. Most of the time we don't even have enough work for 
ourselves. I have watched as many of my friends and competitors have 
gone out of business and just closed their doors or filed bankruptcy. 
While we fight the war on terrorism, if we are not careful, we will 
lose a much bigger war to the rest of the world without a shot being 
fired.
  From Clyde, MI: My husband, a 25-year mechanical engineer, designer 
of automotive special machines, has been laid off for seven months. The 
company he worked for was bought by Fiat and within two years, began 
outsourcing the engineering to countries such as Bosnia where engineers 
will work for $6 an hour. Our workers can't compete with that 
obviously. The engineering department is now closed completely, 
everything is outsourced. He is 55, laid off, 2\1/2\ weeks short of his 
retirement, vesting at 100 percent, can't draw Social Security, and has 
been unable to find work. The market is flooded with engineers because 
outsourcing is happening all over. I work two jobs and a third when I 
can get the work. If we want to maintain the quality of our environment 
and keep our families fed, we need legislation to address the 
inequities in manufacturing standards globally, balancing tariffs, 
something. Our workers can't compete with the salaries outsourcing 
provides from other countries but for which foreign workers can 
maintain their own standard of living.
  Again, I have received letter after letter after letter saying the 
same kinds of things. I also receive letters from furniture makers. I 
have had the opportunity to be in Grand Rapids, MI, and talk with 
furniture makers who have lost their contracts to Chinese contractors 
or subcontracting has moved over to China. They say: Well, it is 
because they can't compete. It is just the way the economy works.
  Well, no, it is not. China manipulates their currency and it amounts 
to about a 40 percent tax on goods and services we send to China. They 
are not playing by the rules. They don't play by the rules. Why aren't 
we standing up for us? My constituents are saying: What about us? What 
about our jobs? We appreciate the fact that four people who wanted to 
be promoted as judges have not had the opportunity to do that. One 
hundred sixty-eight, yes; four, no.
  But I hear from people representing this 3 million people saying: 
What about us? What about a marathon for us? What about spending time 
on the floor debating solutions that will create jobs for the people in 
this country that represent the majority who believe in this country, 
who work hard every day, who want to work hard, who want the dignity 
and respect of work? They don't want a handout. They want to work. They 
are finding their jobs are leaving, and they need our help.
  Our manufacturers, large and small, and the people who work for them, 
need our help. They are asking us to work on a bipartisan basis. These 
folks are not Democrats or Republicans. They are Americans. They are 
Michigan citizens. They are asking us to turn our focus to those 
families, those people in our country who need our help. What we do is 
always about values and priorities--always. It is always about values 
and priorities.
  I believe this debate is about misplaced priorities and we need to 
return to what is most important in the precious hours we have here and 
the time we have to get something done for the American people, because 
there is a lot at stake, including the quality of our way of life as a 
country. We cannot afford to lose our manufacturing base. We cannot 
afford to lose the middle class of this country, which has made us 
strong. If we are not careful, that is exactly what is going to happen.
  I call on my colleagues to spend this time on how we move forward and 
take this number of 3 million jobs down to 2 million and to 1 million 
and get it down to zero, because that is the number that truly counts 
for all of us.
  Thank you, Mr. President.
  The PRESIDING OFFICER. The Senator from Idaho.

[[Page 28773]]


  Mr. CRAIG. I inquire of the time. Where are we?
  The PRESIDING OFFICER. The minority still has 41 seconds remaining.
  Mr. REID. We are happy to yield 41 seconds to the majority.
  The PRESIDING OFFICER. Does the Senator from Idaho seek time?
  Mr. CRAIG. The chairman of the Judiciary Committee is on the floor. I 
will yield to him.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, I apologize to those listening in and to my 
colleagues for having laryngitis.
  Mr. REID. I want my 41 seconds back with that voice.
  Mr. HATCH. Your voice is not much better than mine, from what I can 
hear.
  Whenever you are losing an argument, you try to bring up something 
that might help you to win. This argument about jobs is very important, 
but I remember all last Monday being wasted by our colleagues on the 
other side. I can list all of the obstructions that have occurred this 
year, time after time, when we tried to do something that might be good 
in that area. This phony chart of 168 to 4, it doesn't take any brains 
to realize that is totally false.
  Tomorrow, we are going to have two cloture votes on two more, so 
there are at least six. If you go through all those they really do plan 
to filibuster, you get up around 15, 16, or 17. This is the first time 
in history this has happened.
  I rise to speak about the judicial nominees being filibustered by a 
minority of Senators. I have served in the Senate for 27 years, and I 
can honestly say President Bush's nominees are among the best I have 
ever seen. They are experienced, intelligent, ethical, hard working, 
respected in their communities, and they have given their lives to 
public service. We honor these great men and women for volunteering to 
serve their country. They have put forward their good names for 
evaluation by the Senate and they deserve a simple up-or-down vote--
just the dignity of the vote. Our priority is to vote on these 
nominees. We owe them no less.
  By June of this year, we had two well-qualified nominees blocked by 
filibusters. These filibusters were the first two in the history of 
this body. By the end of July, we again made history, adding a third 
filibustered nominee. By October, we had four nominees filibustered, 
another record. Shortly, we will have two more filibustered nominees, 
yet another record. The number continues to rise.
  Those who are watching this, don't believe this phony chart. That has 
never happened before. Like you say, it is one thing to say we gave the 
168 a trial. Most of them are district court judges now. So we gave 168 
a trial, but we only lynched 4 of them--6 of them now, or 8 probably 
next week. It will be up to 17 before long.
  I promise not to talk about the color of somebody's tie or my 
favorite fast food. I want to talk more about numbers tonight. I want 
to talk about President Bush's nominees to the Federal court. Ambrose 
Bierce defined nominee as a ``modest gentleman [or gentlewoman] 
shrinking from the distinction of private life and diligently seeking 
the honorable obscurity of public office.'' That may or may not be the 
case, but I want to highlight several of the distinguished and 
respected judicial nominees who are currently being filibustered by the 
Democratic Party members, Justice Janice Rogers Brown, Justice 
Priscilla Owen, and Judge Carolyn Kuhl. We can talk in terms of 
numbers, but I prefer to talk about why these three distinguished 
judges deserve a simple up-or-down vote on the Senate floor, and why 
they deserve to be confirmed as Federal judges.
  We started hearing from the other side that, according to my 
colleagues, these nominees have despicable views, or are wildly out of 
the mainstream, or from the hard right, are mean people, have 
embarrassing records, are far out and off the charts, are unqualified, 
are activist, are extremists, or rightwingers who would like to take 
the country back to the 1890s, are deeply hostile to and actively 
seeking to undermine civil rights, women's rights, and workers rights--
gee--seek to turn back the clock on constitutional rights, have records 
of not really helping women, seem to have little regard for the rights 
of women, and represent the ``worst of the worst,'' as one colleague on 
the other side put it the other day. Those were the nice things they 
have said.
  Actually, Judiciary Committee hearings often remind me of an old Far 
Side cartoon showing three cowboys on Main Street in the Old West. One 
cowboy lies sprawled on the dusty street, with a revolver lying next to 
his arm. The cowboy on the left stands with a smoking gun, staring at 
the fallen man, and saying: ``OK, stranger . . . What's the 
circumference of the Earth? . . . Who wrote the `Odyssey' and the 
`Iliad'? . . . What's the average rainfall of the Amazon Basin?'' The 
cowboy on the right stands stunned, with his hands to his face, saying, 
``Bart, you fool! You can't shoot first and ask questions later!'' In a 
similar vein, Ambrose Bierce wrote that to nominate someone was to 
``designate for the heaviest political assessment. To put forward a 
suitable person to incur the mudglobbing and deadcatting of the 
opposition.'' I often fear we do not give our judicial nominees a fair 
chance before shooting them down.
  The other side, before they heard one word out of Janice Rogers 
Brown's mouth, was already shooting her down; they didn't give her a 
chance.
  I hope we can move past applying labels to the fine men and women who 
have volunteered to serve their country through judicial service. Our 
duty under the Constitution is to determine whether judicial nominees 
possess the experience, intelligence, and temperament needed for 
judicial service. Our constitutional responsibility is to judge whether 
judicial nominees are willing and able to place the rule of law above 
all other concerns in rendering justice. The Senate cannot fulfill its 
constitutional duty when a minority of Senators refuses to allow an up-
or-down vote for the President's nominees. As it stands, a bipartisan 
majority of U.S. Senators stand ready to vote on and confirm each of 
these excellent nominees.
  Mr. COLEMAN. Will the Senator yield for a question?
  Mr. HATCH. Yes, I am happy to.
  Mr. COLEMAN. A concern we have with nominees is they are competent 
and able to do justice and do the right thing. There are ways to 
measure that. I ask the chairman, is it true the three nominees we are 
debating have been rated qualified or well qualified by the American 
Bar Association? Is that an objective standard by which nominees can be 
rated?
  Mr. HATCH. That is true. Remember, all throughout the Clinton 
administration, on all their nominees, our friends on the other side 
were saying if the ABA approves them with a qualified rating, then they 
deserve to have an up-or-down vote. When they have a well-qualified 
rating, the highest rating you can possibly have, then there is no 
question they deserve an up-or-down vote. Like the three cowboys in the 
street I talked about, they shoot them down before they even get a 
chance to have that vote up or down.
  Mr. COLEMAN. Sometimes the people can rate judges, when judges are up 
for election. I ask, is it true Justice Owen was elected to the Texas 
Supreme Court by 83 percent of the vote in Texas?
  Mr. HATCH. Absolutely true.
  Mr. COLEMAN. Is it true Janice Rogers Brown was retained to serve by 
76 percent of California voters?
  Mr. HATCH. Yes. I might add Justice Owen, to get back to her, had 84 
percent of the vote in the year 2000. That is the highest support of 
any State supreme court justice that year. Most every major newspaper 
in Texas endorsed her. Our colleagues on the other side say she is out 
of the mainstream. Give me a break.
  In the case of Justice Brown, she won 76 percent of the vote. I think 
there were four, if I recall correctly, supreme court justices up for 
election. She won the highest vote of all of them in a State not known 
for conservative politics. Yet they have tried to paint her

[[Page 28774]]

like she is some sort of a rightwing nut. Well, just look at NBC News. 
They made it pretty clear she is no rightwing nut. She is a very good 
person.
  Mr. COLEMAN. I ask the chairman, sometimes judges can be graded by 
peers, folks who served with them, who know firsthand the quality of 
the work they do. Is it true Judge Kuhl has the support of over 100 
California judges across the political spectrum?
  Mr. HATCH. Yes, of both Democrats and Republicans. She is one of the 
most highly rated judges in California. She is outstanding. Frankly, 
these are Democrats saying she made one of the best judges on the Ninth 
Circuit Court of Appeals.
  Mr. COLEMAN. I ask one last question. How is it the opponents of 
these nominees can claim these nominees are extreme or out of the 
mainstream, or not qualified?
  Mr. HATCH. Well, I suppose the overwhelming majority in the most 
populated State, in the case of California, is out of the mainstream. I 
guess the overwhelming majority in one of the largest States in the 
Union, Texas, is out of the mainstream. You know, I suppose having the 
support of her fellow judges, in the case of Carolyn Kuhl, across the 
board, Democrats and Republicans, is out of the mainstream. According 
to these people over here--I will tell you who is out of the 
mainstream, it is these people over here who are filibustering judges 
for the first time in history and really endangering this process. It 
is ridiculous. It is wrong. I think the American people have to rise up 
and let them know it is wrong.
  Mr. COLEMAN. I thank the Senator.
  Mr. ALLARD. Will the Senator yield for a question?
  Mr. HATCH. I am happy to.
  Mr. ALLARD. I am a veterinarian by profession, and we have a code of 
ethics in our profession. I understand we are expected to abide by the 
code of ethics, and I understand the American Bar Association has a 
code of ethics for judges. My understanding is the code of ethics says 
you will not take a position, when you are in the process of seeking a 
position on the bench, that might prejudice your ability to decide a 
case. Every one of these individuals up for consideration is highly 
respected by their peers. I suspect it is because they are honorable 
and they live by the code of ethics.
  I am disturbed by the specific questions that come from members of 
the committee when, in my view, it makes it difficult for the nominee 
to answer those questions because it would make it difficult for them 
to be objective in the way they look at a case that comes before them. 
I wonder if you would share with me about the code of ethics and the 
question on how is that practical, and do you have any reason to 
believe these are horrible individuals who would not measure up to the 
highest standards of the court, based on their peers who recommended 
them as highly well qualified?
  Mr. HATCH. I have been on the Judiciary Committee for 27 years. I 
have to say I have not seen any better nominees in that whole time. As 
far as ethics, the only one the Democrats demanded an answer to every 
question--questions about future cases that will come before them--not 
the only one, but the main one, was Bill Pryor. The other one was 
Miguel Estrada. To make a long story short, it has been a very unfair 
process for these people. We have more than made the case that Miguel 
Estrada was treated completely different from John Roberts. Both of 
them served in the Solicitor General's Office. They asked these stupid 
questions about documents that are the most highly privileged documents 
in the Government today, and seven former Solicitors General said these 
cannot be given, and they used that as a phony excuse to shoot down 
Miguel Estrada, who is well qualified by the American Bar Association. 
When Bill Pryor answered all the questions, they said you answered too 
many questions. You are damned if you do, damned if you don't.
  It is pretty clear, they just wanted to shoot these people down right 
from the beginning. To come out here and make such a fuss about jobs 
when they have been obstructive all year long is so phony that I have 
to admit, it almost brings tears to my eyes. Maybe it does bring some 
tears to my eyes because phony things tend to do that.
  Mr. ALLARD. I thank the Senator for responding to my question. I have 
one other followup question. You mentioned jobs and it seems to me we 
have an efficiently operating judiciary. We don't have a lot of 
lawsuits that help the economy. That means we need to move out of 
filibuster and get these nominees voted up or down and get them on the 
bench, particularly in the circuit courts where we have a lot of 
pending cases. One of the best things I think we can do is to get these 
nominees on the bench and fulfilling their duties. Do you agree?
  Mr. HATCH. I do. Sometimes the district courts are involved and that 
is why we need the circuit court of appeals. Yet this President is 
treated different than prior Presidents, including President Clinton. 
About two-thirds of the circuit court nominees haven't even had a vote. 
Usually by this time in a President's career about 90 percent have had 
a vote.
  Ms. COLLINS. Will the distinguished Senator yield for a question?
  Mr. HATCH. I am delighted to.
  Ms. COLLINS. The Senator from Utah is an extraordinary lawyer, and he 
also has a distinguished history in the Senate and has served so ably 
as the chairman of the Senate Judiciary Committee. I wonder, given the 
Senator's breadth of experience, if he happens to know the origin of 
the word filibuster and could he enlighten the Members of this body and 
those who are watching tonight as to its origin and meaning.
  Mr. HATCH. I was hoping somebody would ask that. We have a chart 
prepared. They put it up. Filibuster comes from a Spanish word 
``filibustero,'' meaning a pirating or hijacking, one word for 
obstruction. That is what it is. Look, I have no problem with 
filibusters on the legislative calendar because the Senate can set its 
own rules. But when it comes to the Executive Calendar, that calendar 
depends on your exercising restraint by advising and consenting, which 
means a simple majority vote up and down.
  In the Clinton years, every Clinton nominee who came to the floor got 
a vote up or down. We did have a few who wanted to filibuster Clinton 
nominees. I personally stopped that because I recognized it would be 
disastrous for the Senate if we went down that road. As you can see, it 
is disastrous. We are in the middle of going down that road. We have 
already gone down it because our colleagues on the other side just 
don't seem to understand how important it is for them not to filibuster 
Federal judicial nominees. But I thank my colleague for bringing it up.
  Ms. COLLINS. I thank the Senator for his clarification. That is 
indeed fascinating and we have learned a great deal here this evening.
  Mr. SESSIONS. Will the Senator yield for a question?
  Mr. HATCH. I will be happy to.
  Mr. SESSIONS. Addressing the distinguished chairman of the Judiciary 
Committee, who has served so ably for so many years on these matters, I 
would like to follow up on that question that was just asked.
  During your tenure as chairman of the Judiciary Committee when 
President Clinton was President, and he was nominating judges that 
sometimes would not have been our choice, or your choice for a judge, 
did you have occasion to express your opinion as to whether a 
filibuster was appropriate or not?
  Mr. HATCH. As the Senator will recall, right in the middle of a 
couple of very controversial nominees, Judge Paez, now Judge Berzon, 
there were some on our side who legitimately felt they should 
filibuster both of those----
  Mr. SESSIONS. I hate to interpret the Senator, but his microphone is 
distorting pretty badly. Maybe the cord is broken?
  Mr. HATCH. Maybe I can bring it down here. Maybe it will work better 
here. I have it too close to my mouth. I am glad the Senator corrected 
that.
  Judge Paez had been an activist judge in the eyes of many of our 
colleagues on the district courts out there

[[Page 28775]]

in California. Marsha Berzon was one of the leading labor lawyers in 
the country. We had some who wanted to filibuster them. I stood up in 
caucus and said that is not going to happen. To his credit, the then 
majority leader Trent Lott stood up and said that is not going to 
happen.
  We are both leading conservatives, but we knew that was a disastrous 
thing to do in this body because it would lead to animosities you could 
never quite--that would remain. It would lead to partisanship. It would 
violate the Constitution, it would violate the very advice and consent 
clause, the great power we have been given by the Founding Fathers.
  Frankly, as the distinguished Senator has pointed out, I stood up and 
said that is not going to happen and it did not.
  Did we have some cloture votes? Yes. But the cloture votes were to 
get to the nominee so we could vote. Every Clinton nominee who came to 
the floor, who was brought to the floor, got a vote up or down. Only 
one was defeated and that was Ronnie White, on a straight vote up or 
down. But every other one, all 377 of them, the second highest total in 
history, passed.
  Did I agree with all those judges? You bet your life I didn't. But 
they were qualified. The fact I didn't agree with them ideologically 
was irrelevant. What is relevant is, Are they qualified? I certainly 
would not take away the opportunity of serving in the Federal 
Government for an otherwise qualified person just because I disagreed 
with that person on abortion or on any other issue, for that matter.
  Mr. SESSIONS. Will the Senator yield for a further question?
  Mr. HATCH. Yes, I yield.
  Mr. SESSIONS. I remember that very well. I remember you speaking 
clearly that the filibuster was inappropriate. You both said it 
publicly and in the Republican conference when the issue was raised by 
people who did not have your experience in this matter. Trent Lott, the 
Republican leader in debate--I voted to end debate, Trent Lott voted to 
end debate, you voted to end debate and allow an up-or-down vote, and 
when that occurred I voted against the nominee. But I agree with your 
argument that a filibuster was not sound.
  Let me ask you this. At that time, when Senator Daschle was the 
Democratic leader and Senator Leahy was ranking member on the Judiciary 
Committee, did they take a public position that a filibuster of Clinton 
judges was not appropriate?
  Mr. HATCH. Virtually every Democrat said it, took the position a 
filibuster should never take place. All they asked for was an up-or-
down vote. That is all they wanted, if we would just be decent enough 
to give them an up-or-down vote. We did. We were decent enough.
  What does that imply about what is going on on the other side? I will 
let the public draw their own conclusions. But we were decent. We did 
what was right. We gave them up-or-down votes. Frankly, what is going 
on here is just appalling.
  Mr. SESSIONS. Let me follow up. Now that President Bush is in the 
White House and he is sending judges over, has your position on whether 
a filibuster is appropriate or not changed in any way?
  Mr. HATCH. No, it has not, because a filibuster is inappropriate when 
it comes to judicial or even executive nominees, especially judicial 
nominees. Our ability to give advice and consent means if you don't 
like the nominee, vote against him or her. If you do, vote for them. 
But, above all, don't obstruct, which is exactly what they are doing 
here, obstruction, from the Spanish word, ``filibustero,'' meaning a 
pirating or hijacking. Just one more objection. Now we have six more 
objections, as of tomorrow--actually they require cloture votes to be 
filed on Janice Brown, and of course Carolyn Kuhl, so we now have six. 
I could name up to 17 they have threatened to filibuster and probably 
will.
  To keep bringing that phony chart up here is an insult to everybody 
on this floor. It is an insult to everybody watching. It just shows 
they are void of any real arguments. To now try to change the nature of 
the debate to jobs, when they have obstructed all year long, is an 
insult.
  Mr. SESSIONS. Will the Senator yield for one following question?
  Mr. HATCH. I will be happy to.
  Mr. SESSIONS. Senator Hatch, so it is clear to me, it is your 
position, the position of Trent Lott, has not changed as to whether a 
filibuster was appropriate, and neither has that of our majority 
leader, Bill Frist?
  Mr. HATCH. It has not changed. But their positions have changed.
  Mr. SESSIONS. Let me ask you with regard to Tom Daschle, the 
Democratic leader, and Senator Leahy, the ranking member on the 
Judiciary Committee, who argued so aggressively against filibusters 
just 2 or 3 years ago, has their position changed today? Are they, in 
fact, participating in an unprecedented procedure, an unprecedented 
filibuster of judicial nominees?
  Mr. HATCH. No question. They were very forthright and very strong 
that there should never be filibusters of judicial nominees. Now all of 
a sudden when it is to their advantage, they think--I think it is to 
their great disadvantage. They lost the 2000 election in part because 
of the way they are treating judgeship nominees. I think they are going 
to lose a lot of standing in this country. The way they are treating 
southern nominees is abysmal, like Bill Pryor. Like Charles Pickering.
  It doesn't take any brains at all to realize they just don't think 
these two able people are worthy of being on the bench when in fact 
they are more worthy than many of the nominees we approved for them in 
the 8 years of the Clinton administration.
  Mr. SESSIONS. I thank the Senator for his leadership. I asked those 
questions because it was suggested last night in debate that somehow 
those on this side had changed our view. I think it is quite crystal 
clear the only views that have changed and only positions that have 
been changed are those on the other side. Unfortunately, it has changed 
the historical principles of this Senate with regard to filibusters of 
nominees.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, will the chairman of the Judiciary 
Committee yield for a question?
  Mr. HATCH. I will be happy to.
  Mr. CRAIG. The chairman in earlier questioning by the Senator from 
Minnesota alluded to the fact that NBC News tonight featured as their 
lead story Janice Rogers Brown, Supreme Court justice from California. 
I am a freshman on the Judiciary Committee so I have not had the 
experience you have had, going through numerous years of confirmation 
hearings. But I must tell you I was so impressed with this woman's 
talent and her clarity in answering questions.
  What is her background? What was her beginning, if you will? I think 
it is the great American story, I am told.
  Mr. HATCH. She was born a sharecropper's daughter. This woman had it 
rough all the days of her life. She put herself through college and law 
school as a single mother. She has worked in State government now for I 
think it is 26 years. And they are trying to say she is against 
government? My gosh, she has worked there and been supportive for I 
think 26 years. She is one of the best nominees I have ever seen.
  If we had done to three woman nominees what they are doing to these 
three--Priscilla Owen, who broke through the glass ceiling, getting 
women a right to be partners in law firms; Carolyn Kuhl has the support 
of 100 of her fellow judges out there, Democrats and Republicans; 
Janice Rogers Brown, sharecropper's daughter, has risen to the top of 
the heap, who has fought her way all her life--if we had done this to 
any of their nominees they would be screaming about it right up to 
today. It is unbelievable they are trying to do this on these three 
women nominees. They want a regimented liberal approach to everything, 
and if it is not there, then they are out of the mainstream, according 
to them.
  I think most people in this country are in the middle and, I think, 
the middle or moderate conservative. But, be

[[Page 28776]]

that as it may, these are competent, qualified, well-qualified women, 
and they are treating them like dirt. I don't understand it, myself.
  Mr. CRAIG. Will the Senator yield for another question?
  Mr. HATCH. I will be delighted to.
  Mr. CRAIG. It was also mentioned in that questioning by the Senator 
from Minnesota that Justice Brown had received--I think your response 
was--74 or 76 percent of the vote of the State of California in a 
reconfirmation of her position. We have heard a great deal about judges 
who dissent too much. She was criticized by the Democrats for some of 
her speeches, that she was ``out of the mainstream,'' even though she 
received this phenomenal vote in California. Didn't Justice Brown write 
more majority opinions than any other justice in the Supreme Court of 
California--in the last term, I believe is what they are saying?
  Mr. HATCH. Yes, the distinguished Senator makes a good point. She was 
elected by 76 percent of the vote. I would have to say, she wrote a 
majority of the majority opinions, and joined in some 73, if I recall 
correctly, unanimous opinions. In other words, she is not only in the 
mainstream, she is one of the best justices, State justices in the 
country. They are treating her like dirt. I don't understand that kind 
of treatment.
  The PRESIDING OFFICER. The majority's time has expired.
  Mr. CRAIG. I thank the Senator for his answers to my questions.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. NELSON of Nebraska. Mr. President, I rise this evening to express 
what might be best described as my disappointment in what has occurred 
during the past 24 hours, now I understand perhaps another 12 hours. I 
ask we move the process forward.
  Mr. HATCH. Will the Senator yield for a unanimous consent request? It 
will only take a few seconds.


                      Unanimous Consent Agreement

  I ask unanimous consent at 8:30 a.m. on Friday the Senate begin an 
hour of debate equally divided prior to the first cloture vote; 
further, that the last 20 minutes be equally divided, the first 10 
minutes under the control of the Democratic leader or his designee and 
the last 10 minutes under the control of the majority leader or his 
designee.
  Mr. REID. No objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. I thank my colleague.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. NELSON of Nebraska. Mr. President, I rise tonight to express 
disappointment over what has happened over these past nearly 24 hours, 
or past 24 hours-plus, and perhaps another 12 hours. I just ask we move 
the process forward.
  I would like to make very clear a few statistics I think are 
appropriate tonight. We have seen many statistics or many different 
versions of the same statistics over these past many hours. Tonight I 
would like to make very clear a few statistics with respect to my 
voting record on confirmation of judicial nominees, which is really 
based on the principles I hold as a Member of the Senate.
  I voted to invoke cloture 13 times. That is a 100 percent voting 
record on judicial nominees. To date, I have never voted against 
invoking cloture on a judicial nominee, not one.
  I have voted in favor of confirming all nominees except one, and I 
voted for cloture to move the process forward, even on a nominee I 
cannot support.
  I have done all these things because I believe in moving the process 
forward. As Governor of Nebraska, I had the great privilege of 
appointing judges to the bench. I appointed the entire Nebraska Supreme 
Court and the entire Court of Appeals over my 8 years, and nearly 50 
percent of the judges in Nebraska. I may not be good at it, but I have 
had a lot of experience.
  I would hope we could move forward this process. If we cannot agree, 
then at least we ought to move on. What is happening right now during 
these hours of debate is not about moving the process forward. In fact, 
what is being accomplished seems to me to be just the opposite, setting 
us back. This debate has served only to further frustrate the work of 
this body, delayed action on critical legislation that must be 
addressed, and has further polarized the competing sides on these very 
controversial appointments.
  The question I ask tonight is, Does using a tactic of delay to 
criticize and attack another tactic of delay cause you to make the 
point or lose the point?
  To add further frustration to this matter, this delay occurred only 
after we were forced to choose between missing votes on Tuesday, 
Veterans Day, or cancelling the many obligations most of us made to our 
constituents to participate in events to honor veterans back home. The 
leadership basically decided having these hours of debate seemed to be 
more important than honoring those who fought and died while protecting 
the freedoms that under ordinary and normal circumstances are debated 
and defended in this very Chamber every day. By having votes on 
Veterans Day, I could not participate in that exercise, and I didn't 
appreciate having to choose between Nebraska veterans and votes on 
legislation before this body. Like others, I chose to be with my 
veterans. I missed two votes. I would do it again in a heartbeat.
  But it is not only our veterans who were not given the consideration 
they deserve. It is also our seniors, who are anxiously awaiting a 
prescription drug benefit. What do I say to George and Lee back home 
when they ask me, ``Why haven't you been able to get a prescription 
drug benefit but the Senate could debate on other issues for 30-plus 
hours''?
  It is those who suffer from mesothelioma who desperately await an 
asbestos reform bill. What do I say to a widow of a recently deceased 
judge in Nebraska who was waiting to collect money because of the 
bankruptcy of a particular company? She is unable to collect it, but 
would have the opportunity, under an asbestos reform proposal, to 
collect on behalf not only of herself, but on behalf of her young 
children.
  I am just one of 100 in this great legislative body, and I am very 
honored to be here. Even though I am relatively new to the scene, I 
think it is very clear each of us is entitled to his or her own 
opinion. I have to say some of us are moving the process forward. I 
find it difficult to explain to others why we cannot be independent in 
our thinking about judges. Someone might say there is not too much of a 
difference about this judge or that judge. That is what this process is 
all about. But when we can't come to an agreement about a particular 
judge and we can't move forward, we cannot delay in this situation, but 
we must in fact move on.
  I oftentimes try to impress upon myself and my family and my friends 
and others that reasonable people can and will disagree. But when they 
are unable to agree, it is unreasonable to expect the process to come 
to a halt regardless of the rules, but it is important to go ahead and 
move on. I embrace that philosophy because I too would always like to 
have everything go my way. I would like to see every bill read exactly 
as I wish and every nominee be the one I choose. Instead, I do embrace 
that philosophy because I believe we can have those differences of 
opinion, hold different views on the issues, serve different 
constituencies from diverse regions of this great Nation, and we can, 
in spite of all that, and in many instances because of that, achieve 
progress in addressing the critical issues of our entire Nation.
  I don't believe these hours of debate have helped us move closer to 
resolving our differences on these 4 nominees. In fact, I am afraid it 
has achieved just the opposite. I fear this exercise may have poisoned 
the well, leaving this body with such stark disagreements, and any 
progress on the issues that matter to my constituents--a prescription 
drug benefit, an energy policy, asbestos reform, welfare reform--and 
the bills that run the Government may not be now attainable.
  Many Americans question the motives of both sides as this spectacle 
continues. I am not going to suggest a

[[Page 28777]]

motive for all of this, but I can surmise a conclusion: These hours 
have been needlessly carved out while the critical issues remain 
unresolved. My constituents sent me here to get things done--not to 
pander, not to be a partisan, not to disrupt, delay, object, or deny, 
not to waste 30 minutes or 30 hours.
  In the interest of moving forward, making progress, and doing good 
work for the American people, I urge my colleagues, not in any partisan 
way, to think long and hard about what is being orchestrated here for 
these hours and what the American public expects of us during the final 
days of the session--so we can deal with the prescription drug benefit, 
so we can deal with the energy needs, so those folks who are today 
worried about the cost of natural gas and the high cost of energy 
sources in the future know there is a solution in sight.
  Drought relief: I can go back to Nebraska and say, Well, we couldn't 
get a drought bill. I guess it was OK that we debated 30 hours on other 
issues, but in fact when you are losing your family farm as a result of 
the continuing drought, that isn't probably going to sell.
  Highway reauthorization: Many States today are waiting for the 
highway reauthorization so they can continue to build and improve their 
infrastructure, because that relates to jobs--jobs in construction, but 
also jobs because of the improved infrastructure.
  Many States are worried today about FAA reauthorization. I have 
airports in smaller communities in Nebraska that are worried about 
being able to build and expand and improve their airports due to part 
of the reauthorization.
  What do I say to them if that doesn't get accomplished? What do I say 
to those who are waiting for asbestos legislation? What do I say about 
class action? When are we going to get that accomplished?
  When are we going to say enough is enough? If these 30 hours-plus 
that are now going into more hours had been used to debate health 
insurance, the full funding of special education, dealing with the 
Federal unfunded mandates, or some of us had worked previously on State 
fiscal relief, or in finding more ways to create jobs and improve the 
jobs and the markets we have today, looking for ways to make trade not 
only free but fair so we don't export jobs but we do import and export 
our products at the same time--if we had spent the time on that, then 
this time could have been productive.
  In many ways perhaps there can be a catharsis as we move forward on 
finding new ways to deal with the judiciary. I have looked back and 
forth over the years looking at the role of the judiciary to see if 
there is anything anywhere that ever gives the judge the right to 
legislate or to make law. The one thing I made clear with every 
judicial candidate was: Are you going to be in the position of a judge 
or do you want to be a legislator? Are you going to legislate or are 
you going to adjudicate? The position of a judge is not to legislate. 
It is to interpret law, to apply law, and to adjudicate.
  To win constituency groups in Presidential elections, the unfortunate 
thing for some time has been to say I am going to appoint judges to do 
certain things, to rule certain ways on the Supreme Court bench, to 
rule in certain ways on certain issues that will appeal to a 
constituency or to win constituency groups.
  Sometimes I think we politicize the judiciary, and that is why we are 
where we are today. We need to move away from worrying about ideology, 
political philosophy, and to make sure judicial activism is not a part 
of what we do. If Presidential candidates say they are going to appoint 
Supreme Court judges not to be conservative or liberal, but those who 
will fairly apply the law and those who will do what they think is 
right under the law, not to make the law, then I think it is important. 
Politicians do keep promises. In the view of many, maybe not many 
promises. But politicians do keep promises when they say they will 
appoint judges of a certain kind. Then they are obligated to 
constituency groups to do that.
  That is the root cause of our problem--moving away from ideology and 
political philosophy so we only deal with judges who come to the bench 
with the idea they are there to apply, to interpret the law, not to 
legislate, not to make the law. Until we do that, we are going to be 
hopelessly bogged down from time to time. But I am here to move the 
process forward. If the rest of us can't get together to move the 
process forward as a body, then we at least ought to move on.
  Thank you, Mr. President. I yield the floor to my colleague from West 
Virginia.
  The PRESIDING OFFICER. The Senator from West Virginia.


                   Unanimous Consent Request--S. 1853

  Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that the 
Senate proceed to legislative session and that the Finance Committee be 
discharged from further consideration of S. 1853, a bill to extend 
unemployment insurance benefits for displaced workers, the Senate 
proceed to its immediate consideration, the bill be read a third time 
and passed, and the motion to reconsider be laid upon the table.
  Mr. CRAIG. Mr. President, reserving the right to object, I ask 
unanimous consent that the Senator modify his request so that just 
prior to proceeding as requested, the three cloture votes would be 
vitiated and the Senate would then immediately proceed to three 
consecutive votes on the confirmation of the nominations with no 
intervening action or debate.
  Mr. ROCKEFELLER. The Senator from West Virginia will not do that.
  Mr. CRAIG. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. ROCKEFELLER. Mr. President, I am extremely frustrated that the 
Senate continues this debate, or whatever it is. It is already more 
than a day. We are dealing with the nominations of a handful of judges. 
That is not trivial. I understand that. As a Senate, we have a 
responsibility to address the most urgent issues facing our Nation. 
Unemployment insurance for those who are unemployed, I think, happens 
to be one of them. Today we are, embarrassingly, failing to live up to 
that responsibility.
  This morning I talked at some length about the crisis facing our 
Nation's manufacturing sector. I will not relent on that subject. As 
factories close down, people across this country are losing jobs, 
losing health care benefits and retirement benefits. As a country, we 
are losing the industrial base that is responsible for the greatness of 
this Nation.
  Some of the statistics I mentioned this morning I am going to repeat.
  Manufacturing employment is at a 41-year low, and more than 2\1/2\ 
million manufacturing jobs have been lost in the last couple of years.
  This morning I described legislation I introduced to address this 
manufacturing crisis. I happen to feel very strongly about that 
legislation. As I explained, the bill I crafted would offer relief to 
American manufacturers in three ways:
  First, by lowering the effective corporate income tax rate by about 3 
percent; second, by providing employers tax credit up to 75 percent to 
help cover the cost of health care coverage for retirees who had worked 
for that company; and, third, by strengthening our trade protection 
laws. There is a plan I laid out to help stem the terrible flow of 
manufacturing jobs from the United States overseas. I recognize other 
Senators have different ideas about the best way to help our Nation's 
manufacturing companies compete. I welcome the vigorous debate. I 
believe we ought to leave no stone unturned when looking for a solution 
to this crisis which is so vital to so many of our people. That is why, 
frankly, I am so frustrated and disappointed we are going through this 
30-hour charade.
  On the 1st of October, the Senate Finance Committee, on which I am 
proud to serve, approved legislation known as the JOBS Act. That stands 
for ``Jumpstart Our Business Strengths.'' The legislation enjoyed broad 
bipartisan support in the Senate Finance Committee and passed out of 
it. But 6 weeks later it is still awaiting action by the full Senate.
  I do not necessarily agree with every provision of that bill, but 
that did not happen to be important to me because

[[Page 28778]]

it represents a serious effort to help America's factories and the 
people who work in those factories. I care about those people. I 
represent those people and I will fight for those people.
  The more important provision of the bill reduces the corporate tax 
rate, much the same as my own legislation would do. Unfortunately no 
debate has been scheduled for this important legislation. Some seem to 
believe we will not have time to consider the legislation before 
adjourning this year. That is tragic for the people who are not 
working. This Presiding Officer faces that in his own State, the State 
of Illinois.
  I cannot understand that thinking. How can we possibly have 30 hours 
to air our grievances about judicial nominees when we all know exactly 
what the result is going to be? There is no time to debate a way to 
protect American factory jobs. I could pick on many other subjects and 
would be happy to do so, but I pick one subject tonight.
  I believe if the Senate took up the JOBS Act, we could have a 
thoughtful, constructive debate and we could pass it. In fact, as I 
look about the Senate floor, I see the Senator from Nebraska, the 
Senator from Maine, and the Senator from West Virginia, and the last 
time we were on the floor together, we passed a bill which spread out 
to the States $16 billion of Medicaid assistance which they desperately 
needed--two Democrats and a Republican. It could have been two 
Republicans and one Democrat. It makes no difference. We got the job 
done. The bill passed, and the States benefited from it.
  But what are we doing now? We are talking. We could pass legislation 
on all kinds of things. I would ask all of my colleagues to think for a 
minute about the Americans who right now as we speak are hard at work 
on the evening shift in factories around the country. They are making 
everything from cars to contact lenses. Many of these factory jobs are 
exhausting. They require concentration and heavy lifting. They cause 
injuries. They require concentration. When Americans are toiling away 
in our factories right now, we cannot help but be inspired ourselves to 
concentrate and to do some heavy lifting of our own. We must work hard 
and do our jobs. It is our job as Senators to look at the serious 
policies that make our country work or work less well. People having a 
job and putting food on the table is a very major part of that.
  Much to my dismay, we are not engaged today in serious debate about 
ways to create and maintain jobs in America. That is the subject of 
discussion in my State. We are not a wealthy State. We are a good 
State. Our people are as good or better than anybody in any other 
State. I fight for then. But they need work. Instead, our factories 
continue to struggle and are forced to shut down. Millions of Americans 
are out of work. Because so many of our factories are leaving the 
country, it is more and more difficult for Americans to find new jobs.
  People always think when you lose a job, you can get another job. 
There was a day when that was true. That is no longer true. Indeed, 
economic experts have concluded the vast majority of job losses 
suffered in the last few years are permanent, are not replaceable. 
Factories are closed and will not reopen.
  Let me take a moment to discuss the economic situation in my own 
State of West Virginia. Our steel industry has been struggling to 
recover from years of unfair and illegal competition against steel that 
was dumped on our markets and sold in America at below the cost that it 
cost to produce it in the country it came from--dumped steel, illegal 
steel, breaking our national law.
  What was once our State's largest employer, Weirton Steel, recently 
announced it will cut an additional 800 jobs. I can remember when 
13,000 people worked at that company. If President Bush backs down on 
the steel tariffs, of course, it will hurt the industry just as it is 
poised to recover. Ending the tariffs early will cost many more 
Americans jobs and at a time we know that new factories are not being 
opened in steel. We have to protect those steel jobs we have. I mean 
``protect'' in the best sense of the word by using the American law and 
by being faithful to our own conscience.
  Employment in the coal fields is also affected. The coal industry has 
long supplied our steel industry with the finest quality coal in the 
world. That has continued to decline. There are not many coal miners 
left anymore in West Virginia. Indeed, the manufacturing base all over 
my State continues to shrink drastically, and, as it diminishes, so do 
jobs with good wages and good benefits. That is the American dream.
  In the southern coal fields, two other established prominent 
manufacturers--EIMCO, a Norwegian company that manufacturers mining 
equipment, and the Dean Company, with which I spent most of my life, a 
maker of wood veneers--are closed; they went overseas.
  The past year has brought the closing of two long-time manufacturers 
in north-central West Virginia, the Clarksburg Casket and Glassworks 
Company. In the Mid-Ohio Valley in Parkersburg, two long-time 
manufacturers, Johns Manvillle and Ames True Temper, closed plants. 
Just 3 weeks ago, it was announced another 50-year-old plant was 
scheduled to close in Parkersburg, putting almost 200 workers at Schott 
Scientific Glass out of work. Their jobs went overseas.
  In the Kanawha Valley where this Senator lives, two well-established 
chemical companies are closing, Flexys in Nitro and FMC in South 
Charleston. These closings mean hundreds of jobs lost.
  Where are these workers supposed to turn? Their average age may be 45 
to 55. What are they meant to do? Take up computer sciences? 
Biochemistry, physics? They can't do that. There is no place for them 
to go. There are no replacement jobs. Some of them take temporary jobs 
where they don't get benefits and try as best as they can to work with 
their families.
  I was extremely pleased at the recent news of the strong economic 
growth in the third quarter of this year in this country. This does not 
translate into new jobs in West Virginia. New jobs is what we look at. 
People do not feed their families and do not pay their mortgages with 
news of strong economic growth. They need paychecks. It comes from 
jobs.
  This Congress has not done enough to protect the paychecks of hard-
working Americans. We have failed to stem the flow of jobs overseas, a 
subject about which I could speak for 6 hours. We have not done enough 
to provide temporary assistance to workers who have lost their jobs. 
Currently, 9 million Americans are unemployed and almost 2 million 
Americans have been unemployed for more than 6 months. In West 
Virginia, almost 42,000 workers are facing the holidays without a job.
  Today, the Senate ought to be addressing the needs of these workers. 
Therefore, I am pleased to be a cosponsor of legislation introduced by 
Senator Kennedy that would extend the unemployment compensation for 
those Americans of which I speak who are still struggling to find work 
in our so-called jobless economic recovery.
  As factory after factory closes its doors, or freezes hiring, workers 
are unable to find new jobs. They are running out of unemployment 
benefits at an alarming rate. As many as 80,000 workers per week are 
expected to exhaust their unemployment compensation in December itself. 
Senator Kennedy's bill would continue Federal unemployment benefits for 
an additional 6 months. The legislation would also provide 33 weeks of 
additional Federal benefits in States with especially high unemployment 
rates.
  This bill provides crucial assistance for long-term unemployed 
workers. There are more than 1 million workers who have already 
exhausted their extended benefits but have not been able to find a new 
job.
  Let me be clear. Men and women in West Virginia and across the 
country would rather have a paycheck than an unemployment check. We all 
know that. However, the jobs are not available. The choice is not 
theirs. They have families to feed. The Federal Unemployment Insurance 
Program was specifically created to help workers when the economy 
suffers prolonged

[[Page 28779]]

downturns. Workers have paid into the unemployment compensation fund 
and they deserve to collect benefits from the fund during such a weak 
jobless recovery.
  Currently, the unemployment insurance trust funds have $20 billion 
sitting in a bank. The benefits outlined in Senator Kennedy's bill 
would cost $16 billion. To me it is unconscionable to leave the funds 
in the bank when they are needed by workers during hard times. 
Moreover, by making additional unemployment benefits available, 
Congress will also obviously be helping our economy.
  I am afraid that the charade we are engaged in at the moment is a 
lose-lose proposition for the American people. I do not diminish the 
importance of judges, but I do not diminish the importance of 
unemployed workers whose self-esteem is destroyed and whose skills are 
ready to be put to work. It does nothing to help 9 million Americans 
who have already lost their jobs to have this debate. It does nothing 
to protect the jobs and factories that are currently struggling to 
compete to have this debate. I would also suggest that it hampers the 
ability of Senators to come together to address the urgent business of 
the Nation because of the nature of this debate.
  There is certainly no shortage of important business before the 
Senate. We need to pass a prescription drug bill, and there are many 
other issues I could discuss.
  I will end with simply this thought: I love America. I love my State 
of West Virginia. I love its people. I know they need to be well 
represented by judges. But I also know they have to work or else it 
probably doesn't make much difference to them.
  What I am talking about tonight, what I talked about this morning is 
the ability for Americans to have jobs, to hold jobs and, if they lose 
them, to get unemployment insurance.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Enzi). Who yields time for the majority?
  Mr. HATCH. Mr. President, I appreciate our colleague's comments about 
the necessity of jobs. I agree with him. We are debating the third 
branch of Government, without which there wouldn't be any jobs for 
anybody, without which the Constitution wouldn't be alive today, 
without which we wouldn't have the freedoms we have.
  In all this talk about jobs, I haven't heard any real ideas as to how 
we get more jobs. It is as though they think Republicans aren't 
concerned about jobs. Of course, we are. We are debating something that 
is equally important; in fact, over the long run, much more important 
than almost anything else we can debate. That is, are we going to have 
an honest, decent judiciary to uphold the Constitution?
  I have seen this body and the other body pass unconstitutional 
legislation many times in my 27 years. I have seen Presidents act 
unconstitutionally a number of times in my 27 years, and before that. 
It has been the judiciary that has saved the Constitution. It has been 
the judiciary that has corrected matters. It has been the judiciary 
that has helped small business, where the jobs are. It has been the 
judiciary that has given justice to this country, that has protected 
Americans from criminals, that has done so much good for this country. 
That doesn't mean all judges are perfect or right. But by and large, it 
has worked very well. That is why we make these positions lifetime 
appointments, so they don't owe anything to anybody but the law.
  Here we have a distortion for the first time in history, 
filibustering judges and phony, untrue charts of 168 to 4. Let me tell 
you, they wouldn't have allowed the 168 to go through had we not been 
fighting as hard as we could and forcing them to allow those judgeships 
to be brought up. We would have nowhere near 168.
  With regard to the four, we are already up to six. We were there last 
night. We were there months ago when they indicated they were going to 
filibuster Janice Rogers Brown and Kuhl, in addition to the other four 
who have been mentioned. Then there are probably at least 13 others who 
I can name. There will be more, because there is an arrogance here, it 
seems to me, that goes beyond doing what is right for this country.
  Very few things rise to the dignity of the importance of judges and 
getting a good Federal judiciary. I am for jobs like everybody else, 
but because they don't have any other arguments, that is why they are 
doing that.
  I would be happy to listen to my colleagues on any suggestions they 
have with regard to jobs. Usually it is another big Federal program 
that literally doesn't create any jobs. It just creates another burden 
for taxpayers. That is what they think creates jobs.
  I am happy to yield to the distinguished Senator from Virginia.
  Mr. WARNER. I listened carefully as our distinguished chairman was 
referring to other nominees who have been acted upon by the 
distinguished members of the Senate Judiciary Committee. I have been 
studying extensively the very impressive record of achievement of a 
number of these individuals who are awaiting action on the floor.
  You mentioned Justice Janice Rogers Brown, a distinguished jurist of 
25 years on the California Supreme Court. The record shows that she was 
born to very proud parents but ones of modest means. Sharecropping was 
their profession.
  This distinguished, hard-working young person worked her way through 
college, worked her way through law school, and has now served the 
people of California for a quarter of a century, including the last 7 
years as a California Supreme Court justice. That is remarkable.
  Further, we heard that she was elected or reelected to the California 
Supreme Court. I think the chairman should explain the distinction 
between our Supreme Court, which is subject to the process we have been 
discussing these several days. But in a number of States, they do have 
a State election. All of us in this Chamber are here by virtue of the 
support of people in elections. But how many of us have been elected to 
the Senate with 76 percent? I don't think my distinguished junior 
colleague from the State of Virginia got that.
  Mr. ALLEN. Far from it.
  Mr. WARNER. Well, I was pretty close to it, I mention to the Senator. 
But I don't claim 76 percent. That is quite a record. We have heard 
that she has ruled for the plaintiffs in many civil rights and consumer 
protection cases. She is supported by her colleagues in California, 
those who know her best.
  But could the distinguished chairman advise the Senate with regard to 
his opinion with respect to the nomination as it is hopefully brought 
before the whole Senate?
  Mr. HATCH. Well, of course, she is subject to the same advice-and-
consent rule of article II, section 2 of the Constitution, as are all 
of these Federal judges. But she deserves the dignity of an up-or-down 
vote.
  The senior Senator has brought out she is an African-American woman 
who has come from nowhere, in a sense, a sharecropper's daughter, to 
being a justice on the California Supreme Court.
  Mr. WARNER. That is a dream of millions of students all across this 
country, to have that opportunity to come up through our system, to 
gain their degrees, to take their place in society, to stand for the 
cause of freedom in this great country, and some few do manage to get 
on the judiciary of the States. I know that Presidents look to the 
jurists in States, because they have a proven record, to select them 
for the Federal judiciary.
  Mr. HATCH. That is right.
  Mr. WARNER. I do hope this distinguished nominee will fare well and 
be treated with fairness when that name is brought before the Senate.
  Mr. HATCH. I appreciate my dear colleague. But we will find out 
tomorrow that the other side is going to vote against cloture. They are 
filibustering this terrific African-American woman justice who has made 
it on her own throughout life, who wrote most of the majority opinions 
in the California State Supreme Court while joining unanimously with 
others in over seven cases just last year.

[[Page 28780]]

  They have tried to paint her as though she is out of the mainstream. 
I would like to suggest who is out of the mainstream. It is a high 
percentage of those on the other side of the aisle who think that only 
the left has any ideas in this country. Because she is a conservative 
black woman and she is not monolithically in step with what they think 
black people ought to be, they are against her. If we did that to one 
of their nominees, the whole world would come down on us.
  Mr. WARNER. She is proud of her African-American heritage. I hope the 
Senate gives her fair treatment.
  Mr. HATCH. I do, too. I hope the Senator is right. But from what I 
have seen here, she is going to be filibustered right along with the 
rest of them.
  I recognize the distinguished Senator from Virginia, and then I will 
come to the distinguished Senator from North Carolina.
  Mr. ALLEN. Mr. President, following up on my esteemed colleague from 
Virginia's comments and observations on Justice Janice Rogers Brown, 
she is the first African-American woman to serve on the California 
Supreme Court, having come from segregated schools in the South, worked 
her way up.
  I find it very interesting that the following quote was made a few 
years ago: Whether it is Hispanic or non-Hispanic, African American or 
non-African American, woman or man, it is wrong not to have a vote on 
the Senate floor. What are they afraid of? What are they afraid of? 
What is wrong with a vote?
  Tomorrow the person who made that statement on October 28, 1999, 
Senator Tom Daschle, Democratic leader, is going to lead a filibuster 
against Justice Janice Rogers Brown.
  Mr. HATCH. That is my understanding.
  Mr. ALLEN. Clearly, a prior inconsistent statement showing duplicity. 
I would ask, when you referred to some of their arguments that she is 
out of the mainstream, I was looking at the record from the hearings. I 
understand Justice Brown was criticized for a single ruling she made on 
a parental consent case. We have parental consent laws in Virginia. The 
vast majority of people, even some who consider themselves pro-choice, 
recognize that if an unwed minor daughter is going through the trauma 
of an abortion, that at least the mother or father ought to be 
notified, ought to be involved, because it is a medical procedure that 
even for ear piercing or tonsils being taken out, you need consent. So 
for something as traumatic as the surgery of abortion, which is 
physical obviously, but also something that is emotional, parents 
should know when their 17, 16, 15-year-old daughter is going through 
such a procedure.
  She is being criticized for that. I don't find that, at least from 
Virginia standards, or if the Senator could share with us, do you 
consider that out of the mainstream? From what I can see from surveys, 
80 percent-plus of all Americans, regardless of the color of their skin 
or their ethnicity or gender, think parents ought to be involved when 
their unwed minor daughter is contemplating such a procedure.
  Mr. HATCH. Well, the Senator raises a good point. But not according 
to that side. It is out of the mainstream. Just think about it. The 
Senator is correct. Eighty-two percent of the people are for parental 
notification laws. Challenging the reasonableness of parental 
notification statutes lies somewhere between hard and impossible. That 
is why an overwhelming majority of Americans support those laws, 
including the parents of Holly Patterson. Holly was a young girl who 
died 7 days after taking RU-486, the abortion drug.
  Her father learned about her abortion just hours before her tragic 
death. If there was a parental notification statute, Holly might still 
be alive today.
  Parents do have some rights here. Most people acknowledge that. But 
that is one of the big reasons why our friends on the other side are 
against all three of these women nominees, I suppose. If there had been 
a parental notification statute, young Holly would be alive today.
  It is ridiculous to criticize these two fine nominees for their 
opinions upholding parental notification statutes. Justice Brown's 
opinion on the parental consent statute is well within the legal 
mainstream. The U.S. Supreme Court has routinely found notification 
statutes constitutional.
  So the Senator has raised a very important point. But that is 
considered out of the mainstream by our colleagues. Again, we know who 
is out of the mainstream. It certainly isn't Janice Rogers Brown.
  I will just point to the side that is out of the mainstream. Yet they 
are trying to make everybody march in unison, in accordance with their 
liberal plan for America. That is not right. I turn to the 
distinguished Senator from North Carolina.
  Mrs. DOLE. Mr. President, will the distinguished Senator yield for a 
question?
  Mr. HATCH. I would be delighted.
  Mrs. DOLE. I have heard that the Senate minority leader called 
Priscilla Owen unqualified. Yet I understand Justice Owen attended 
Baylor University and Baylor University Law School, graduating cum 
laude from both institutions. I understand that she finished third in 
her law school class and earned the highest score on the Texas bar 
exam. And she accomplished these remarkable achievements at a time when 
women were a distinct minority in the legal profession.
  Isn't it true that 15 past presidents of the Texas State bar, both 
Democrats and Republicans who hold a variety of views on important 
legal and social issues, agree that Justice Owen is an outstanding 
nominee and should be confirmed as a Federal judge?
  Mr. HATCH. Absolutely true. By the way, one of the arguments that the 
side across the aisle from us is out of the mainstream again is over 
parental consent, a dissent that she had written, upholding the finder 
of fact in the lower court. The majority just ignored those facts and 
overruled the right of parents to consult with their daughter before 
the daughter had an abortion.
  She is not out of the mainstream. Guess who is out of the mainstream? 
I thank the Senator.
  Mrs. DOLE. Senator, is it not the case that former Texas Supreme 
Court Justices John Hill, Jack Hightower, and Raul Gonzalez, all 
Democrats, say Justice Owen is unbiased and restrained in her 
decisionmaking?
  Mr. HATCH. That is correct. These are people who know her or who have 
worked with Justice Owen on the Texas Supreme Court. They are all 
Democrats. They are all partisan Democrats, by the way. They think she 
would make a fine judge on the circuit court of appeals.
  Mrs. DOLE. As I understand it, some of our Democratic colleagues 
oppose Justice Owen because she is too pro-business, her opinions are 
results-oriented. Didn't the leading tort law professor, Victor 
Schwartz, look at Justice Owen's opinions and find those opinions, 
those characterizations of the opinions to be untrue?
  Mr. HATCH. Victor Schwartz is one of the law professors who wrote the 
book on torts. He is one of the most distinguished legal thinkers in 
the country. In fact, Professor Schwartz wrote:

       Any characterization of Justice Owens as pro-plaintiff or 
     pro-defendant is untrue.

  But we are getting used to that. The reason they are all talking 
about jobs, it is a political reason, of course. They are trying to get 
people to not pay attention to this debate. But the reason they are 
talking about jobs is because they don't have a good argument against 
Priscilla Owen, nor do they have one against Janice Rogers Brown, nor 
do they have a good argument against Carolyn Kuhl. And three 
outstanding women who, if we treated three of their women justices like 
that or nominees like that, all hell would break loose.
  In all honesty, Professor Schwartz said that just isn't true.
  Ms. LANDRIEU. Parliamentary inquiry.
  The PRESIDING OFFICER. Does the Senator from Utah yield?
  Mr. HATCH. Not yet, I yield to the distinguished Senator from Texas.
  Mrs. HUTCHISON. To follow along with what the distinguished Senator 
from North Carolina was saying, Justice Priscilla Owen, a personal 
friend of

[[Page 28781]]

mine who I have known for years, isn't it true that she was endorsed by 
every newspaper in Texas when she ran for reelection to the Supreme 
Court of Texas, every single one?
  Mr. HATCH. The distinguished Senator from Texas knows that is true. 
That is not easy in the State of Texas. There are some very liberal 
newspapers down there that scrutinized every aspect of her life.
  Mrs. HUTCHISON. It was really phenomenal. In fact, isn't it true that 
she got the highest number of votes of any person running for the 
supreme court that year?
  Mr. HATCH. No question about it. She is a terrific person.
  Mrs. HUTCHISON. I heard one of my colleagues on the other side of the 
aisle say: There are not enough hours in the universe that would be 
sufficient for debating Justice Owen's nomination. I thought that was 
very interesting because, the fact is, if we had 1 more minute of 
debate, it wouldn't matter, because she already has a majority vote in 
the Senate. Isn't that true?
  Mr. HATCH. That is true. In fact, all three of them do.
  Mrs. HUTCHISON. If she has the majority vote on the floor of the 
Senate, and the Constitution says that advise and consent is not a 
supermajority, that is what it implies because it didn't ask for a 
supermajority, then why isn't she sitting on the Fifth Circuit bench 
right now?
  Mr. HATCH. Well, I think it is because she is not a liberal. That 
seems to be the only mainstream the other side is interested in. I 
cannot say she is all that conservative either. But the fact of the 
matter is, she is not a liberal Democrat. Here is a woman who has every 
credential in the world, as the Senator from Texas pointed out, who 
broke through the glass ceiling for women so women can now become 
partners in law firms, when that was tough to do. Here is a woman who 
has fought every day of her life to excel, who has excelled. Yet look 
how she is being treated, like she is ``outside of the mainstream.''
  Since they don't have any real legal arguments, any real 
philosophical arguments--they don't have any real arguments, and that 
is why we are getting a filibuster on one of the best nominees I have 
seen. By the way, she got the highest rating from the not-conservative 
American Bar Association, which during the Clinton years was called the 
gold standard. If you got a ``qualified'' from the ABA and you were a 
Clinton nominee, that meant you were OK, you were in the mainstream.
  Here is a woman with a ``well qualified,'' the highest rating from 
the ABA, and they are trying to say she is outside of the mainstream. 
That is just another misuse of terms because they don't have a real 
argument against her.
  Mrs. HUTCHISON. You know, the distinguished Senator from North 
Carolina is a graduate of Harvard Law School. She went through when it 
was very tough. I am a graduate of the University of Texas Law School, 
and there were five women in my class of 500. So we know what it is 
like to go through those hard times and graduate from law school. 
Frankly, we would have a hard time finding a job.
  Priscilla Owen went through that. She has known the tough times. She 
has known herself to be superior. That is why I appreciate the Senator 
from North Carolina talking about my friend, Justice Owen, and why I am 
standing up for her today, because I know what she has been through. 
She has come out on top. She has come out on top in everything she has 
done, and she would have gotten a majority vote on the floor of the 
Senate. She deserves to be sitting on the Fifth Circuit today.
  I will ask this final question. Why in the world would the Senate put 
a blemish on the record of a woman who has high moral standards, who 
has faced the electorate and won overwhelmingly, who has been endorsed 
by every newspaper in Texas, and got the highest number of votes the 
year she ran? Why would the Senate keep her from getting the 
appointment she is so qualified for?
  Mr. HATCH. I cannot see a good reason. It is a mystery to me why our 
Democratic colleagues refuse an up-or-down vote. Like the distinguished 
Senator from Texas said--and I really admire the Senator from Texas, 
who is a lawyer, from the University of Texas, and the Senator from 
North Carolina, Senator Dole, who is a lawyer, who graduated from 
Harvard Law School. I think the other side ought to be listening to the 
two of you, especially with regard to an eminent woman jurist named 
Priscilla Owen, and another jurist named Janice Rogers Brown, and 
another one named Carolyn Kuhl.
  To make a long story short, if they don't like these nominees, then 
vote them down. The reason they are stopping them is because all three 
of them have a majority of the Senate willing to vote for them. They 
are flying in the face of the advise and consent clause, refusing to 
give them the dignity of an up-or-down vote. I think women across this 
country ought to be outraged by it--liberal women, moderate women, and 
conservative women. It is a slap in the face to every one of them, the 
way these three women are being treated by the other side. I have heard 
for 27 years how much greater they are for women. Don't believe it. If 
they were, they would not be arguing against these wonderful women 
nominees. Don't believe that for one second. It is all politics.
  The only reason they are talking about jobs, in all honesty, is 
because they don't have the arguments against these eminent women 
lawyers and judges. It is pathetic.
  Mrs. HUTCHISON. I thank the Senator from Utah.
  Mr. HATCH. How much time is left?
  The PRESIDING OFFICER. There are 6 minutes 15 seconds.
  Mr. CRAPO. Will the Senator respond to a question?
  Mr. HATCH. I surely will.
  Mr. CRAPO. The Senator from Utah spent time responding to questions 
about the nominees we are going to vote on tomorrow. I note those who 
oppose this vote often bring up a chart that says 168 to 4, noting they 
have only filibustered 4 judges in this Congress. I think it is 
important to point out, though, that number 4 is the first time in the 
history of this country, in the history of the Senate, a filibuster has 
been sustained against a judicial nominee of the President of the 
United States.
  I think it should be clarified to the American people that the fact 
we are now seeing a filibuster sustained against nominees of the 
President turns the Constitution on its head and begins a very 
dangerous precedent with regard to how the nominees for the judicial 
branch are treated by this Senate.
  Mr. HATCH. No question about it. That 168 to 4 doesn't even begin to 
tell the story, because if it had been up to our colleagues on the 
other side, there would not be 168. We had to fight for every one of 
those people, and we had to fight hard fights. We had to force them to 
vote. They cannot vote against everybody. So there is not just four. We 
have already got six. We had to file cloture on Carolyn Kuhl and Janice 
Rogers Brown, which will be up tomorrow. I can name probably another 11 
they are going to filibuster. So that is a blatant, outright lie.
  Mr. CRAPO. Would the Senator from Utah tell us how many of the 
nominees of President Clinton to the bench were filibustered during his 
Presidency?
  Mr. HATCH. Not one. Our side would not permit that because of the 
detriment to the Senate, the detriment to the Federal judiciary, the 
detriment to the Constitution, the detriment to just good reasoning. We 
didn't filibuster one.
  Mr. CRAPO. Isn't it also true that out of the last 11 Presidents--and 
I think we used 11 Presidents because it was 1949 when the filibuster 
became possible--not one of their nominees, until today, until this 
Congress, not one of the President's nominees has been successfully 
filibustered in the Senate of the United States because of the 
understanding of the fact that the Constitution gives the President the 
right to a vote?
  Mr. HATCH. That is right. Once they hit the floor, they have had a 
vote up or down. And 377 Clinton judges are

[[Page 28782]]

serving in the Federal judiciary today because we had the decency to 
give them the dignity of votes up or down--something not being accorded 
our nominees.
  Mr. CRAPO. It is my understanding that 2,300 nominations have come to 
the floor since the filibuster was possible.
  Mr. HATCH. It is 2,372.
  Mr. CRAPO. Zero were filibustered this year, and this year four have 
been successfully filibustered, and what is it, five, six, or seven 
more are scheduled to be filibustered?
  Mr. HATCH. That is right. Actually, it is more than that. We have two 
more tomorrow. That gets us up to six. Then probably there are another 
11 I can name. I won't take the time to do that now. There hasn't been 
one filibuster by us. There have been cloture votes, but they were used 
for time management purposes to get us to a vote. In every case, the 
Clinton nominee got voted up, except for one.
  Mr. CRAPO. I thank the chairman. I think it is important to look at 
this and understand what this debate is about and why we are giving it 
this time, to focus on the threat to the Constitution that is being 
posed by the treatment of judicial nominations in this Congress. I 
thank the Senator.
  Mr. HATCH. I thank my colleague. The real number, for the past 11 
Presidents of judicial nominees confirmed versus the filibustering they 
are doing, is 2,372 that were confirmed. None were filibustered, until 
President Bush became President. He is being treated wrongfully. It is 
unfair to him, unfair to these nominees. I like what the Senator said 
earlier. I think he said we gave a fair trial to 2,372--actually 168. 
We gave a fair trial to them and with regard to the four, we just hung 
them. That kind of shows in that one sense it is great to give a fair 
trial, but we are not giving a fair trial to these four. They are 
arguing it is all right for four because it is only four. Well, it is 
not all right if people are hung without a fair trial. They are 
certainly not getting a fair trial.
  Mrs. HUTCHISON. Mr. President, will the Senator yield for a question?
  Mr. HATCH. I surely will.
  Mrs. HUTCHISON. I think in hearing the debate, the most egregious 
misrepresentation I have heard is about Judge Carolyn Kuhl and a case 
she had, where there was a woman who was being examined who had breast 
cancer, and there was someone in the room who was not a doctor, a 
person from a pharmaceutical company. It was said she callously let the 
pharmaceutical company be dropped from the case. Isn't it true, though, 
there was also an action against the doctor who was negligent, and she 
kept the lawsuit alive so that woman could have a recovery?
  The PRESIDING OFFICER. The time of the Senator is expired.
  Mr. HATCH. I ask unanimous consent for 30 more seconds.
  Ms. LANDRIEU. I object.
  Mr. HATCH. Let me just say that it is true.
  Ms. LANDRIEU. I object. I know the distinguished chairman has been on 
the floor for a while making some truly offensive statements to 
colleagues on this side of the aisle that, in my opinion, are beneath 
the dignity of the committee on which he serves as chair. I ask the 
chairman if he recognizes the number on this chart. Could he state for 
the record what it is.
  Mr. HATCH. I don't recognize the number. However, I do recognize the 
argument.
  Ms. LANDRIEU. The Senator from Utah----
  Mr. HATCH. Let me answer the question, if I may.
  Ms. LANDRIEU. The distinguished Senator from Utah has answered the 
question.
  Mr. HATCH. May I please finish?
  Ms. LANDRIEU. He has answered my question. He said he didn't know 
what the number was. I would like to explain to him and to the other 
Members.
  Mr. HATCH. Will the Senator yield?
  Ms. LANDRIEU. No, I will not. The number is 98 percent----
  The PRESIDING OFFICER. Senators will address other Senators through 
the Chair.
  Ms. LANDRIEU. The number the distinguished Senator from Utah did not 
recognize--I don't know why he would not recognize it since he is 
chairman of the committee, but he says he doesn't recognize it. The 
number is 98. Ninety-eight percent of the judges that were sent to this 
Senate by President Bush we have approved--98 percent. There are not 
many people in America, not white people, or black people, or Spanish 
people, or women, or men, who think the Senate should approve 100 
percent of any President's nominees. It is beyond the realm of reason, 
particularly a President who did not win the popular vote.
  Earlier in the debate, the chairman, who also doesn't recognize this 
number, this 98 percent, also fails to recognize the numbers in the 
last election. The numbers of the last election were Bush 50,456,169; 
Gore 50,996,116. So 500,000 more people voted for Vice President Gore 
in the popular vote than President Bush. He won by a handful of 
electoral votes in Florida, and we know that. The Court decided it. I 
am not complaining about it, but numbers are important. Let me tell you 
another number----
  Mr. SESSIONS. Will the Senator yield for a question?
  Ms. LANDRIEU. I will not.
  Mr. REID. Regular order.
  Ms. LANDRIEU. I will not yield for a question.
  Another number is 63. I want the public who is watching this--and I 
think a lot of people are watching this, and I am glad because this is 
what the next election is going to be about, and I am very excited to 
help lead this fight. Sixty-three nominees were blocked. It wasn't an 
open filibuster. It wasn't debated in the open, like tonight where 
there are no secrets and we can all speak about what we believe. This 
was done in secret, and not by many Senators who represent millions of 
people, but maybe by one Senator who just decided he or she didn't like 
the nominee, and so they would not sign the slip.
  The chairman of the committee reigns over this. He understands this 
number 63. They didn't even have the decency of getting a vote or a 
hearing in committee because the chairman from Utah had a system in 
place that blocked them.
  Mr. HATCH. Will the Senator yield?
  Ms. LANDRIEU. No, I will not yield.
  Mr. HATCH. I have a question.
  Mr. REID. Regular order, Mr. President.
  Mr. HATCH. I object to that, Mr. President.
  Mr. REID. How rude that is.
  The PRESIDING OFFICER. The Senator from Louisiana has the floor.
  Ms. LANDRIEU. Thank you, Mr. President. I will not yield the floor, 
and we are not going to yield this point.
  Technically, the majority is correct that there has not been a 
technical filibuster successfully completed. But there have been 
filibusters on this floor that have been tried, but they weren't strong 
enough to stand up to them because their arguments weren't strong 
enough. The only way a filibuster can survive is if the arguments and 
the truth is strong enough to stand up to lies. That is the only way a 
filibuster survives. That is why this filibuster survives, because the 
truth is always stronger than a lie.
  This 63 people never could come out of committee. I am not even going 
to go into that. I am going to talk about something else.
  How much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 24\1/2\ minutes.
  Ms. LANDRIEU. Good. I am going to take every one of them.
  I want to tell the Republican majority something quite simple. This 
country, no matter your best efforts, will not be divided. No matter 
your vicious rhetoric about Protestants and Catholics and blacks and 
whites and Hispanics and women, we refuse to be divided. In a time of 
war, which we are in, when the country is under assault and we have men 
and women dying in Iraq, it is the height of disrespect and un-
Americanism to come to this great floor and talk about the pettiness 
and say this woman Senator, who has spent 25 years in public office, 
and every woman who has ever served, that there is something wrong if I 
don't want a

[[Page 28783]]

woman as a judge or I don't want African Americans to be here.
  The Senator from Utah must forget where I am from. I would like to 
remind him where I am from. I am going to fight for Louisiana. In the 
63 years before Rosa Parks decided to sit down in her seat because her 
feet were so tired she could not move, a man named Homer Plessy decided 
he would get on a rail car that was entitled ``whites only.'' He got on 
it in New Orleans, my hometown. He rode on the train and he knew he 
would be arrested. But a group of lawyers, African-American free men of 
color, had decided that he would be the right one. Why? Because he was 
white enough to pass, to get on the train, and black enough to be 
arrested. And that is exactly what happened.
  Forty years before the Civil Rights Act, Plessy rode that train and 
the great movement began to free people who had been slaves for 300 
years.
  I have to sit in the Senate Chamber and listen to the Republican 
majority argue that, in the whole country, they can't find a better 
African-American woman than this Janice Rogers Brown to serve on the 
bench, to hold up Rosa Parks, to honor the work of Louis Martinet, and 
to honor the memory of Plessy. The only person they can find to serve 
on the bench is a woman who says--and I want to read what she says so 
the people in this country can just decide for themselves. Don't listen 
to all the technical parts. I am just going to read to you what the 
woman said and you decide for yourself if you think this is mainstream 
or not:

       Some things are apparent. When government moves in, 
     community retreats, civil society disintegrates, and our 
     ability to control our own destiny atrophies. The result is 
     families under siege, war in the streets, the precipitous 
     decline of the rule of law, the rapid rise of corruption, the 
     loss of civility and the triumph of deceit. The result is a 
     debased, debauched culture which finds moral depravity 
     entertaining and virtue contemptible.

  What do you think Rosa Parks thought when the Federal judge came down 
to Alabama and government intruded and said: Lady, you don't have to 
suffer anymore. You think that Rosa Parks thought that government was 
bad?
  Let me go on to say what this mainstream woman thinks of all the 
grandparents in the United States.

       My grandparents' generation thought being on the Government 
     dole was disgraceful, a blight on the family honor. Today's 
     senior citizens blithely cannibalize their grandchildren, 
     because they have a right to get as much ``free stuff'' as 
     the political system will permit them to extract.

  Excuse me, but on behalf of all the grandparents I represent, this is 
an insult to every single one of them who raised their children, and 
then when some of their children got into trouble, raise the 
grandchildren and the great-grandchildren on their Social Security 
paychecks of $672 a month, which the Republican side refuses to raise, 
and a minimum wage which is $5.50, which they won't raise, and you are 
asking me to put a woman on the court that insults the grandparents of 
Louisiana? Take your dossier and go somewhere else.
  Now, if these people are in the mainstream, then I don't know what 
mainstream we are talking about, because it is not mainstream in 
Louisiana. That is what this debate is about.
  The Senate Democrats didn't want to have this filibuster. We are made 
to have this filibuster because the Republicans on that side think they 
can divide the country and split us up and cause trouble. I will tell 
you what people at home want. We are in a war. They want us to be 
united and fight together. But they have us fighting against Catholic, 
Protestant, rich, poor, young and old. It is a disgrace, and it is not 
the Democrats fault. It is the Republican majority.
  I will just say this. I know the men and women who serve over there 
and individually they are fine. But, boy, collectively they can sure 
get themselves up into a lather. The country deserves better. The 
people want better.
  We have an Energy bill to pass; we have appropriations bills to pass; 
I have 400,000 veterans in my State who are looking for help, and they 
turn on the television to see the chairman from Utah saying something 
about the women in the Senate don't want women on the bench, and we 
don't want Hispanics on the bench, and we don't want African Americans 
on the bench? Whoever heard of such ridiculousness?
  I beg this body, let's stay on the facts. The facts are that we have 
approved 98 percent of President Bush's nominees. We have rejected 
people such as Janice Rogers Brown, and no matter how many times they 
bring her up, she will be rejected because she makes statements like 
this that are an insult. She is not going anywhere. We will vote on her 
100 times. She will never get on the bench. Whether or not we have a 
vote on her, she is not going to get on the bench.
  Let me say I just made a call--how much more time do I have?
  The PRESIDING OFFICER. The Senator has 16\1/2\ minutes.
  Ms. LANDRIEU. Good.
  I just made a call to the National Bar Association, which is the most 
distinguished group of African-American lawyers in the country. I am 
sure maybe there are smaller groups that other people might think are, 
but this is the most well thought of group of lawyers. This group of 
lawyers, more than almost any other group, would surely know the 
history of the civil rights movement. They would surely understand the 
characters and people I have talked about, and all the stories and all 
the drama. You would think that President Bush, who ran on 
compassionate conservatism, and the Republicans who keep saying we are 
reaching out to African Americans--we want to reach out to African 
Americans, we want to go and put African Americans on the bench--you 
would think that sometime in the last 3 years they would have called 
the National Bar Association, or the President would have called the 
National Bar Association and said: Look, I'm a conservative. You all 
probably are more liberal as a group, although there are probably some 
conservative members. Why don't you give me a recommendation, knowing 
that I can't support a real liberal judge. But if you work with me we 
could get some really good African Americans on the bench that are 
highly qualified, that the Democratic majority would like. I would feel 
happy about that. We are in a war. It would be really important for us 
to unite our country.
  Do you think he ever consulted with them? No. The President, this 
White House, or the Republican leadership never called the National Bar 
Association, which is the most prestigious group of African-American 
lawyers, to just ask them. Is there any conservative judge, moderate 
conservative judge you all would think would be good that I could 
appoint?
  This is not about doing what is right. This is about winning 
elections and ginning up the far right in the wings. I understand that. 
It has been done before. But not during a war. Not when people are 
dying. It is just not right.
  So we could stay on the floor all night, all tomorrow, all next week, 
but I tell you the people in this country are going to have enough of 
it pretty soon because they don't believe this is right. They can tell 
when something is not moving in the right direction.
  I will end with this. No matter how hard the Republican majority 
tries to divide us, we will not be divided. We are going to stand 
united. We are going to speak the truth. We will debate in the open why 
these nominees do not deserve to sit on the bench and why we will 
filibuster these nominees.
  We will continue to do that until the people decide in the next 
election what kind of America they want. In my heart I believe they 
want an America that is united, not divided.
  I see my colleague from New Jersey is here. We have a few moments 
left. I thank him for his patience.
  Mr. CORZINE. I thank the Senator from Louisiana. I think you have 
spoken brilliantly tonight, about the idea of trying to divide us over 
something that is basically a disingenuous issue to start with.
  You talk about the 98 percent. Over the last 24 hours, we have seen 
this 168 to 4 over and over. No one could speak more eloquently about 
the facts; 98 percent is a hell of a number.

[[Page 28784]]

  Ninety-five percent of judicial positions in this country are filled. 
When President Clinton left office and President Bush took office, it 
was at 75 percent. The reason was because those 63 that the Senator 
from Louisiana was talking about never got a hearing, never got a 
chance to get a vote in committee, never got reported to the Senate to 
get voted on. Sixty-three judges were blocked. It is a different 
technique under the rules of committees as opposed to here on the 
floor, no committees, no votes, no reports--63 qualified judges, at 
least in the opinion of the then-President, never had a chance to fill 
that void, and 25 percent of seats went unfilled. Now 95 percent are 
filled.
  When there is cooperation--I can tell you there has been cooperation 
in New Jersey. We have had five district court judges and a circuit 
court judge, we worked with the White House and the Judiciary 
Committee, and it has worked very smoothly. It can work if we reach out 
and work with each other, which we have to do in this society if we are 
going to get good things done--not by dividing us.
  You know, it strikes me that we spent a lot of time talking about 
four judges or six judges. One of those 63 judges--by the way, who 
couldn't get a hearing, it went on for a year and a half--is now the 
dean of the Harvard Law School. It is hard to understand how he wasn't 
qualified to be considered for the bench but is qualified to be the 
dean of the Harvard Law School.
  By the way, this shows it in a pictorial sense. This is the list of 
63. This is the 4. It is very clear.
  I want to dwell on something else. The real issue is not 4 people who 
are not being approved on this Senate floor. The real issue are the 3 
million people who have lost jobs since 2000, the 9 million Americans 
who do not have a job, the 2\1/2\ million Americans who have lost 
manufacturing jobs, and the real agony we have in the country because 
we are not creating jobs fast enough in this country.
  We have gone fast enough to get 98 percent of the judicial positions 
filled, but we have not gone fast enough to take care of the 3 million 
Americans and the 9 million unemployed and the 2.5 million 
manufacturing jobs lost.
  I think we have our priorities wrong. We have been debating 4 people 
while there are 9 million Americans out of work. We have been doing 
that now going on 24, 26 hours. We are going to go on some more.
  Americans know what impacts their lives: their ability to take care 
of their kids, their families, their grandparents, their future. They 
are interested in having a job. Jobs count. We are talking about 4 
while 9 million are missing in action in our debates on the floor of 
the Senate.
  I think it is disingenuous. I think it is clearly staged. I think we 
are off on the wrong target.
  I point out today I went through some of the press reports that came 
out over the AP wire today. The U.S. trade deficit grew to $41.3 
billion in September--$41.3 billion. We are going to have a $500 
billion current account deficit in this country, and what we are going 
to have, more importantly, is a deficit in manufacturing jobs because 
they are all going overseas. We ought to have a debate here about 
economic policy that puts Americans to work--a $41.3 billion trade 
deficit this month. It is going to be $500 billion for the year.
  We have had discussions in committee--which, by the way, we had to 
cancel all our committee meetings--about whether we have the proper 
trade policies, the proper positioning with China where we are losing 
jobs right and left across the manufacturing sector. We had the biggest 
trade deficit with China we have ever had in the month of September.
  Why are we talking about 4 jobs when we are losing millions of jobs, 
2\1/2\ million jobs, because we have an economic policy that is out of 
kilter with the needs of the American people?
  If that is not enough, the poverty rate has grown 1 percent in this 
country in the last 3 years. That is about 1.7 million people. We have 
seen the uninsured in America, those without health insurance, go up a 
little over 2 million. We are having no discussion on issues that 
impact people's lives who are watching this debate. We want to have 
real debates that make a real difference in people's lives. We ought to 
be talking about these jobs. We ought to be talking about health 
insurance. We ought to be talking about that trade deficit, ripping out 
the heart of middle-class America's jobs.
  I don't understand why we have our priorities on 4 people when we 
have a 98-percent positive ratio of confirming judges. It doesn't make 
sense, particularly when we can argue about whether they are mainstream 
or they have made the kinds of statements the Senator from Louisiana 
quoted from one of those individuals who is going to be considered 
tomorrow for confirmation. It doesn't make sense.
  There are all kinds of things we could be doing right now. We could 
be raising the minimum wage. That would improve the lives of about 4 
million Americans. We could pass a transportation bill that would 
create, by almost every estimate about 1 million jobs. It is lingering 
in committee. We don't want to talk about it on the floor, but it is a 
million jobs. It builds America; it invests in our future.
  We could talk about increasing investment in higher education or 
maybe do something about making sure we don't take 8 million Americans 
away from having the opportunity to make overtime pay so they can 
operate and live in this community of America in a more secure way.
  Then, the greatest tragedy, in the last 13 days we have had 42 
Americans killed in Iraq. We have changing policies. We have generals 
in Iraq saying we are not living in the real world. We are not talking 
about it as if it is a war. General Sanchez today said we are not 
walking away from using the word; we are going to win this battle--no, 
we are going to win this war because the people back in Washington need 
a dose of realism in their debates about this issue.
  Then we have a meeting to discuss the intelligence report that was 
leaked by someone with regard to what is happening on the ground in 
Iraq, and nobody shows up because we are debating 4 judges.
  It strikes me we have our priorities wrong in this country when we 
are talking about 4 judges when we have 9 million people unemployed, 
when we have lost 2.5 million manufacturing jobs, when we have 2 
million people losing their health insurance. We have a tie-up on the 
prescription drug benefit bill and the Energy bill and we can't get 
these bills out. We have generals in Iraq saying we don't have a 
realistic view of what is going on in the debates we have here in 
Washington. There are real issues that matter to real people across 
this country, in the millions--in the millions, not 4--not when 168 are 
approved and 4 are not.
  I don't know where our priorities are when we turn our attention to 
such an issue when there are real debates about whether they fit into 
the mainstream or not, whether we ought to have a real debate. By the 
way, other people used other techniques at another time when it was 
convenient to do it. It is disingenuous to say, use the rules of the 
Senate which are authorized under the Constitution. I hear all this 
``unconstitutional'' view. That is not unconstitutional. We should 
change the rules if we don't like the rules of the Senate, just the 
same way that we can change the rules in committees.
  It is not sensible that we are not putting our priorities on the loss 
of jobs and taking care of the American people in the way they expect 
us to--to debate and put in the time and effort.
  This whole debate, which has now gone on for 26 or 27 hours, should 
be about jobs--not 4 but 9 million. It should be about the important 
issues that impact people's lives, the people who are uninsured, the 
people who haven't had an increase in the minimum wage in 7 years--7 
years. We can't get a vote on that. We can't get a vote on the 
Transportation bill that would create a million jobs. There are all 
kinds of things we can't get votes on around here because people don't 
want to have them. They use the rules for those purposes.

[[Page 28785]]

  Four out of 172, 98 percent have gotten votes. It is very hard to see 
how we have our priorities straight in this area tonight and have had 
properly placed priorities for the last 26 or 27 hours.
  I hope we can get focused on something other than 4 jobs. We should 
get focused on the 3 million people who have lost them, the 9 million 
people who don't have jobs. We ought to be talking about extending 
unemployment benefits to the 80,000 people a day who are going to lose 
those in another 30 days when we are not in session.
  It is incredible--our priorities. It is incredible. I believe as much 
as anyone else that we ought to cooperate. We have in many, many 
places. That is how we got 168 judges approved. That is how we got to a 
95-percent fill ratio on the number of judges' slots that have been 
filled. But we have major problems with employment and the economics of 
this country. It is time we get our priorities straight.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time? The Senator from Utah.
  Mr. HATCH. Mr. President, it has been a good debate. But I have 
noticed the folks on the other side of the aisle want to shut down the 
debate on judges because they don't have an argument. Jobs is where it 
seems their only argument is, and more Federal Government programs. In 
fact, they don't even have very good arguments there. It is ``increase 
the minimum wage.'' I am not sure it will create jobs. And ``re-up 
insurance,'' which certainly doesn't create more jobs.
  On the other hand, I am not saying they are not compassionate. They 
are decent people wanting to do those things. But when you do not have 
any arguments against the judges we are talking about, then you change 
the subject. That is exactly what they have done.
  If the distinguished Senator from Louisiana were here, I would ask 
her why she took the number 129 because, of course, that is a number of 
confirmed judges that were left off her chart. We have had distortions 
of the facts. We have had distortions of the statistics. You can prove 
anything with statistics if you want to manipulate them. There are 129 
judges left off that chart she was showing. We confirmed 377 Clinton 
judges--not 248. If you want to be factual, be factual. Don't distort 
the facts.
  I was a little surprised that now at the 29th hour of debate an awful 
lot of Democrats come on the floor without any arguments that are 
really valid against these nominees we are talking about. They are 
changing the subject because their arguments don't hold water.
  As for Democrat claims that they have been blocking only the most 
extreme Bush judicial nominees, let us look at the facts.
  Priscilla Owen won 84 percent of the vote in her last election for 
the Texas Supreme Court. Bill Pryor won 58 percent in his last election 
for the Alabama attorney general's position. Janice Rogers Brown won 76 
percent in her last election for the California Supreme Court. And 
Charles Pickering was confirmed to the Federal district court in 1998 
by this body by unanimous vote. Yet he has been treated like dirt. You 
wonder why people in the South are getting sick of it.
  By the way, the unanimous consent vote included the support of 24 of 
the Democrats currently in the Senate, 23 of whom now refuse to give 
him the dignity of an up-or-down vote. Why? Because they know he would 
be confirmed.
  These nominees are hardly extremists as painted by the other side who 
claim that is what they are talking about. Give me a break.
  Let us look at this a little differently. What is more extreme? 
Receiving 84 percent of the votes in Texas, the second most populous 
State in the Nation, as Judge Priscilla Owen did in her last election? 
They are filibustering a qualified nominee for the Fifth Circuit for 
the first time in American history. That is what they are doing, 
without any real arguments against her. They don't have any. They do 
not have the facts on their side so they change the subject.
  I think jobs are important. I will tell you, there will not be any 
jobs in this country if we lose our freedoms because we don't have the 
Federal courts staffed by competent and decent judges.
  Mr. COLEMAN. Mr. President, will the Senator yield for a question?
  Mr. HATCH. I would be happy to yield.
  Mr. COLEMAN. I listened to the Senator from Louisiana. She was 
talking about filibusters. I was glad to hear her say unequivocally 
that it was a filibuster. We will filibuster these nominees. There is 
no question.
  Mr. HATCH. We are not going to let these people through.
  Mr. COLEMAN. She also said, I believe the only way filibusters 
survive is the truth--truth. I have only been in this body for less 
than a year. I know there is history in this body. The history is not 
always the greatest history when it comes to filibusters. There were 
attempts on the floor of this Senate to make sure that minorities 
didn't have certain rights; that minorities had poll taxes; that anti-
lynching laws were filibustered. I have a chart here that talks about 
filibusters.
  I ask the distinguished chairman whether under F.D.R. civil rights 
was filibustered; under Truman, civil rights was filibustered; under 
L.B.J. civil rights was filibustered.
  Again, would it be the Senator's belief that necessary laws that were 
filibustered is something to be ashamed of and they were not the truth; 
filibusters were not the truth; the attempts to provide civil rights 
and opportunities for Americans for good things and they were 
filibustered, and filibustered was not the truth?
  Mr. HATCH. Absolutely right. In every case it was Democrats who led 
the filibuster. In every case, including this one. It is not the truth.
  Janice Rogers Brown, 76 percent of the vote, State of California 
Supreme Court; Priscilla Owen, 84 percent; William Pryor, 59 percent of 
the vote.
  What is more extreme, receiving 76 percent of the vote in California, 
the most populous State in the Nation, as Janice Rogers Brown did in 
her last election to the California Supreme Court--filibustering a 
brilliant nominee to the DC Circuit, the Nation's second highest court? 
If Justice Brown is so extreme and leftwing, California voters 
certainly would have recalled her, but they didn't. Three-quarters of 
them voted to keep her on the bench.
  By the way, the late Justice Stanley Mosk on the California Supreme 
Court was the California Supreme Court's well-known liberal voice for 
decades. In that same election, she got 76 percent. He only got 68 
percent of the vote in the last retention election.
  Does anyone want to guess whether the Senate Democrats would call him 
more extreme than Justice Brown in left-leaning California if he were 
up for the District of Columbia Court? Of course not. He would be in 
the mainstream.
  Once more, extreme--receiving 59 percent of the votes in Alabama, as 
Bill Pryor did in his 2002 election to the office of attorney general 
of that State. They are filibustering a nominee with broad bipartisan 
support across the Eleventh Circuit for a judicial emergency vacancy on 
that appellate court. In each of these cases, these unprecedented 
filibusters of qualified nominees to the appellate courts are 
undoubtedly extreme.
  There is extreme action by our colleagues on the other side. There is 
nothing else you could call it. It is demeaning to this body. I don't 
care how excited someone gets on the other side. Sooner or later they 
run out of arguments and start talking about jobs because they have to 
change the subject and hopefully get the American people off of the 
importance of putting people on the Federal bench.
  The Senator brings up a very important point. Every one of those 
unjust filibusters was conducted by Democrats. It was the Republicans 
who basically pushed through the civil rights law, along with some good 
Democrats as well. I want to make sure credit is given on both sides.
  The fact is, the leaders of those filibusters were Democrats. But in 
this case, 168 to 4, virtually all Democrats--

[[Page 28786]]

not all. I know one or two who do not believe filibustering should be 
done to the judges. But all the rest of them are leading this unjust 
filibuster.
  Mr. BROWNBACK. Will the distinguished chairman yield for a question?
  Mr. HATCH. Yes, I would.
  Mr. BROWNBACK. I want to follow up on a question by my colleague from 
Minnesota. I think this is the point. He points out that you have a 
couple of filibusters on major issues to change the country. The issues 
that were filibustered ultimately got through, and I believe these 
judges will ultimately get through when the public gets the Record and 
has a chance to read it. These issues were things that were changing 
the country--when you talk about the law, civil rights laws, things 
that were being brought forth. Isn't that what is really being 
addressed here today? We are not talking about 4 judges or 29 who are 
being blocked on circuit courts. This is really about a group trying to 
block a certain set of individuals who may, as some say, have deeply 
held beliefs being on the Federal bench and trying to purge that set of 
philosophies or thoughts from the Federal bench. Isn't this a much 
bigger issue than the appointees? Those law changes were bigger than 
filibustering one law. This is about the impact on all of society, on a 
whole culture.
  Mr. HATCH. That is right. Frankly, yes. It is as important as these 
four and tomorrow's six. Next week, who knows how many nominees are 
being filibustered. It is demeaning to the Senate. It is detrimental to 
the country. It is detrimental to the judiciary. It is unfair to the 
President. It is unfair to these qualified nominees who have been rated 
so highly by the ABA--their gold standard, by the way, during the 
Clinton years. If you got a qualified rating from the ABA, that is all 
you needed, you should be confirmed. We did confirm 377 of them, the 
second highest total number of confirmations in the history of this 
country--Bill Clinton's judges. We did it because we were fair. We 
didn't filibuster those judges. Every one of them got a vote. It was 
377 to 0. We didn't filibuster them.
  For all I have heard from the other side--I heard some of the 
emotional remarks--I was the one, along with Senator Lott, who made 
sure we didn't filibuster their nominees. I don't think they are in a 
position to criticize me.
  By the way, in the past, there were 11 Presidents' judicial nominees 
confirmed versus those who were filibustered, the past 11 is when the 
filibuster rule came into being in the current filibuster rule. We can 
go all the way back to the beginning of this country 214 years ago. We 
have never had a filibuster before these folks on the other side have 
been doing it this year, 2,372 judges have been confirmed to zero 
filibustered.
  The history of the successful Senate filibuster, from July 4, 1789, 
to March 6, 2003, there is no question about the successful or 
unsuccessful because there were not any until March 6, 2003. March 2, 
to the present, we have had four so far as successful filibusters. We 
are apparently going to have two more tomorrow even though all six of 
these folks would win an up-or-down vote in the Senate.
  One of the Senators said we are going to vote on these judges 
tomorrow. No, we are not going to vote on the judges. We will be voting 
granting the right to vote on these judges. Since only 41 Senators are 
necessary on this side to stop us from granting that right for these 
judges to have an up-or-down vote, there will be six of them tomorrow. 
I suppose when we go down the line there will be as many at 17.
  Let me make a couple of other points that I think are important. Look 
at three of the President's nominees who have been accused by the 
Democrats of being out of the mainstream. They don't look to me like 
outside the mainstream. They have received overwhelming support in each 
of their home States. Apparently, these are not only a majority of the 
Members of the Senate outside the mainstream who support them but a 
vast majority of the citizens of California, Texas, and Alabama are all 
outside the mainstream, too, I guess.
  Democrats seem very fond of their 268-to-4 chart and believe this 
number 168 of President Bush's judges who have been confirmed since he 
took office will distract people from the important fact that the 
Democrats have filibustered four appellate nominees, Miguel Estrada, 
Priscilla Owen, William Pryor, Charles Pickering, and now Janice Rogers 
Brown and Carolyn Kuhl for the first time in American history.
  The point is that no raw number of confirmations means anything in 
and of itself while these unprecedented filibusters continue. While the 
number of filibusters as of today stands at four, Senate Democrats are 
virtually certain to add others to the list, including Janice Rogers 
Brown nominated to the District of Columbia Circuit and Judge Carolyn 
Kuhl nominated to the Ninth Circuit. That makes a total of six.
  There are other filibuster targets on the horizon, a Fourth Circuit 
nominee Claude Allen and Terrence Boyle, North Carolina District Court 
nominee, James Dever and Bob Conrad. They are also potential for 
filibuster. These are just some of them who we have already been told 
will be filibustered.
  That figure is extremely misleading, all the while more vacancies in 
our Federal courts continue to be classified as judicial emergencies.
  Mr. SESSIONS. Mr. President, will the Senator yield for a question?
  Mr. HATCH. I would be happy to yield.
  Mr. SESSIONS. I notice the Senator, when this 98-percent chart was 
put up the Senator didn't recognize it and neither did I. Isn't it true 
that the President has nominated some 200 judges and 160 or so have 
been--and the idea that the 98 percent of his nominations have been 
confirmed is certainly not accurate; is it?
  Mr. HATCH. The President has nominated 209 judges; 168 have been 
approved. So 20 percent of his nominations have not made it.
  Mr. SESSIONS. I do not know where the eight came from.
  Mr. HATCH. I don't know. I knew what the distinguished Senator from 
Louisiana was driving at. Again, a distortion of the facts.
  Mr. SESSIONS. I ask another question: They show a chart that says 168 
to 4. Is that the 4 they were filibustering last week or is that the 4 
who have been held hostage? What 4 are they talking about? There are 
well over 10 nominees who are being actively filibustered or obstructed 
at this point.
  Mr. HATCH. That is right.
  Mr. SESSIONS. I do not know how that chart comes about, either.
  Mr. HATCH. This chart is just the beginning of what they intend to do 
to the Federal judiciary. Democrats have also implied that it is just 
fine to prevent an up-or-down vote on at least these four nominees 
because we blocked 60 or so of President Clinton's nominees. That is 
extremely misleading. I think their number is 63.
  Let me briefly break that down. First, 18 of those nominees were 
withdrawn by Clinton himself--18 of them. Second, 25 of these nominees 
were either nominated after the August 2000 recess, do not have home-
State support because the Clinton administration did not consult at all 
with the relevant Senators, or there were confidential investigative 
reasons that prevented the nominations from moving forward. At most, 
there were about two Clinton nominees who the Republican Senate did not 
confirm.
  The numbers are even more stark. If you look at the difference 
between 168 and 209, you can see that it is about the same. The numbers 
are even more stark when you compare the number of nominees left 
hanging at the end of the first Bush administration by Senate Democrats 
with the number of Clinton nominees awaiting confirmation at the end of 
the Clinton administration.
  Let me refer to this chart. There were 54 judicial nominations not 
confirmed at the end of Bush 1. That is when the Democrats controlled 
the Senate. Fifty-four of the first President Bush's nominees were 
unconfirmed at the end of 1992.
  In contrast, at the end of the Clinton administration, only 41 
nominees remained unconfirmed. But 9 of those were put up so late there 
was no way we could have confirmed them. There were really only 32.

[[Page 28787]]

  At almost the end of the Presidencies you have that or more who just 
can't get through the system. Looking at that, according to the Senate 
Democrats, they don't even deserve the dignity of an up-or-down vote. 
Contrast this with the prior 3 Presidents' confirmations for their 
first 11 circuit nominees.
  In every case, less than 100 days, Senate Democrats in the 107th and 
108th Congress have been the most obstructionist of the President's 
judicial nominees in recent U.S. history. It is that simple. 
Confirmation times for the first 11 circuit nominees, Reagan-Bush, it 
was one. George Bush, look at how much that has gone up, and it is 
growing. This President is not being treated fairly. Neither are his 
nominees.
  Furthermore, there are more Federal appellate vacancies today, 18, 
during President Bush's third year in office, than there were at the 
end of former President Clinton's second year in office, where there 
were 15. Over half of President Bush's appeals court nominees in this 
Congress have not been confirmed. There are 41 total vacancies on the 
Federal district and appellate benches, 22 of which are classified as 
judicial emergencies by the nonpartisan Administrative Office of U.S. 
Courts. A staggering 67 percent of the vacant appeals court slots are 
judicial emergencies.
  There is a different scorecard that I find more significant. That is 
the 377 to zero. President Clinton, with 6 years of a Republican Senate 
after 1994, had 377 of his judicial nominees confirmed without a single 
filibuster by Republicans, even though Republicans had to swallow hard 
on a lot of them. Only President Reagan, with 382, had more of his 
judges confirmed, 5 more than President Clinton. But Reagan had 6 years 
of a Republican Senate to help him. Clinton only had 2 years of a 
Democrat Senate. Yet he came out with almost the same number as Ronald 
Reagan. He was treated fairly. Clinton is No. 2 in U.S. history, even 
though his opposition controlled the Senate for 75 percent of his term.
  Just to give you a sense of how unprecedented Democrat current 
filibusters are, here is another scorecard we have talked about: 2,372 
judges have been confirmed in the last 11 Presidents and zero were 
filibustered. The 11 Presidents that precede the current President 
Bush, back to President Franklin Delano Roosevelt, never had a judicial 
nominee filibustered and had 2,372 nominees confirmed. So these 
filibusters are empirically unprecedented.
  How about this scorecard? Years since the Judiciary Act in 1789 that 
we have gone without filibustering judges until this President. Since 
the beginning of the year, beginning with Miguel Estrada, there have 
been four, and there will no doubt be two more tomorrow. How many more? 
Up 10 percent, 15, 17? Up to 10 percent as Senator Schumer suggested 
last week in the Judiciary Committee? If there is some filibuster 
percentage the Democrats have in mind, what is it? The majority of the 
Senate and President Bush would really like to know. I think the 
American people would really like to know, too.
  One final word on the Democrat scorecard. Even one filibuster of a 
judicial nominee is too many, because every judicial nominee who 
reaches the Senate floor should be afforded the dignity of an up-or-
down vote. We owe our third branch of government no less. By way of 
analogy, would it be acceptable to enforce all but four of our criminal 
laws? Would it be acceptable to defend all but four of the 
constitutional amendments that comprise the Bill of Rights? Of course 
not. It is no more acceptable to allow up-or-down votes on all but four 
and counting of the President's judicial nominees. Vote them up or vote 
them down. But just vote. That is all we are asking.
  The Democrats have a right to consent. They have a right to advise. 
If they don't want to give their consent, then they have a right to 
vote against any of these nominees. That I will find no fault with. I 
might disagree, but they have a right to do that. What they don't have 
a right to do is to subvert the Constitution for the first time in 
history and allow 41 Senators to prevent an up-or-down vote of these 
judicial nominees.
  The distinguished Senator from Minnesota, with his chart on the 
terribly wrong filibusters, brought out a very good point. I don't want 
to compare rankings or anything, but this one is just as important as 
the others because without a good Federal judiciary, our civil rights 
would not be enforced. Explain the chart one more time, because I think 
people need to hear it. But in all four of those, those filibusters 
were conducted by Democrats, and every one of them was wrong, 
especially this 168 to 4 we are going through right now, but especially 
the other three as well.
  Mr. COLEMAN. Will the Senator yield for a question?
  Mr. HATCH. I am happy to yield.
  Mr. COLEMAN. Again, I listened to the words of my friend from 
Louisiana, where she made the comment that the only way a filibuster 
survives is if it is the truth.
  I was reflecting on the history of filibusters. I read about it when 
I was a young man. Certainly preceding my youth, going back to the 
times of Harry Truman and FDR, unfortunately, there is a terrible 
history in this body of opposing efforts to provide civil rights 
opportunities, opposing efforts to ensure that there were antilynching 
statutes, opposing efforts to get rid of things like the poll tax. This 
is a sad part of the history of this body. I ask the distinguished 
chairman, who has a much better sense of history than I, is it true the 
tool that was used to oppose those efforts, oppose good things, the 
tool was the filibuster, and the filibuster did not represent the 
truth? Would that be a fair statement?
  Mr. HATCH. The Senator is absolutely correct. Here we have a 
situation where we have a terrific African-American justice on the 
California Supreme Court who won 76 percent of the vote, who came from 
nowhere to somewhere, who fought her way throughout life to be what she 
is, who has ruled in favor of plaintiffs, civil rights claimants, the 
poor, the disadvantaged throughout her career, who is being treated in 
this shabby fashion with a filibuster.
  Mr. COLEMAN. Would it be the truth in regard to these nominees, in 
regard to Owens and Kuhl and Pickering and Estrada, who we haven't 
talked about, that in each and every case the measures of their 
competence, be it the bar association, the gold standard my colleagues 
across the aisle have talked about for so long, be it the 
recommendations of their colleagues, other judges with whom they have 
worked, be it the recommendations of the voters when they put 
themselves up for a vote--in each and every case, they received the 
highest recommendation; that is the truth, is it not?
  Mr. HATCH. That is right. And let me just say this: Filibusters are 
not the only means the Democrats are using to obstruct. During the 3 
years of the Bush administration, the Senate has taken 108 rollcall 
votes on judicial nominees at Democrats' insistence. Eighty-seven 
percent of these votes have been unanimous, 87 percent, calling into 
question why we needed these rollcall votes at all. Contrast that to 8 
years of the Clinton administration during which the Senate took only 
46 rollcall votes out of 377 judges, only 39 percent of which were 
unanimous. Couldn't we have been passing appropriations bills or 
creating jobs instead of wasting the time on unanimous votes?
  Look at this chart. Clinton, 18 votes, 2.25 average votes per year, 
486 minutes were consumed, 8.1 hours, 61 average minutes per year; 
Bush, 104 votes, 34.7 average votes, these are unanimous rollcall 
votes, 34.7 average votes per year, 2,808 minutes were consumed, 46.8 
hours, 939 average minutes per year. In this body that is delay, 
obstruction, complete shutdown of the body while we have these votes 
everybody knows will be unanimous. It is just another illustration of 
how far they have gone to obstruct on these judges.
  Finally, who is wasting time? Unanimous rollcall votes on judges, 
compare Clinton; we didn't require rollcall votes on unanimously to-be-
approved judges. Look what they have done to the Bush administration. 
This President is being treated very unfairly.

[[Page 28788]]

  When you hear them talking about jobs, look, I am as interested in 
jobs, and so is every other Republican, as they are. The only reason 
jobs is coming up is because they know they can't handle the criticisms 
that are coming their way for the way they are treating these judicial 
nominees. They just can't. They can distort the facts. They can distort 
the statistics. They can distort the record. But they really can't 
justify what they are doing.
  Again, go back to your chart, the distinguished Senator from 
Minnesota. Every one of those unjust filibusters that took away rights 
from people and kept people enslaved to a large degree, every one was 
led by Democrats.
  The PRESIDING OFFICER. The time of the majority has expired.
  The Senator from New York.
  Mr. SCHUMER. Mr. President, I yield myself 15 minutes and the 
remaining 15 minutes to my colleague from New Jersey.
  I have enjoyed these debates. I said at the very beginning these 
debates would be good for our side. They have proven to be. One little 
chart here, this chart seems to be under all of my colleagues' skin 
because they are debating it and coming with up with their own numbers, 
et cetera. But let me tell you, this one chart has won this debate. You 
can come up with as many others as you want, and tonight what have we 
debated, why 168 to 4 is not true? That is what the other side has 
said.
  I said at the beginning of this debate this would help us. Because 
this one chart was equal to 30 hours of palaver. To my good friend from 
Utah, he is a good man. He is my friend. But do you know what he just 
said? Rollcall votes are a form of obstructionism. I would just like my 
colleagues to have recalled the words of my good friend from Utah: 
Rollcall votes are obstructionist.
  My goodness. What are we called on to do here if not vote. And 
letting people know how you voted, isn't that the whole mark of 
democracy?
  I realize my colleagues on the other side of the aisle are 
frustrated, and so they have had to come up with all kinds of sophistic 
arguments. But this one tops the cake. The fact Democrats have asked 
for rollcall votes on judges is a means of obstructing. Maybe we should 
just, when the President nominates somebody, not have a hearing and not 
have asked questions and not have any votes and just let the President 
appoint all the judges. Next we will be hearing from my colleagues on 
the other side of the aisle that is what the Founding Fathers really 
wanted.
  Again, to all of those who are listening, I hope there are a few 
left, 168 to 4. That fact is immutable, unchangeable, irrefutable. The 
reason it has such resonance is because the other side fails to mention 
it. Whether it be our colleagues when they speak, whether it be the 
rightwing radio shows when they say we are obstructing all of the 
President's judges or most of the President's judges, whether it be the 
editorial pages that try to kneecap us, 168 to 4, 168 to 4, 168 to 4. 
Don't forget it. There is no judiciary in crisis. There is no 
obstructionism.
  There are some judges--whether they be Black, Hispanic, women, 
Catholic, Jewish, Muslim, Baptist, southern, northern, eastern, 
western--who are so far out of the mainstream that they should not be 
on the bench, and we are upholding the Constitution by doing that.
  Now the arguments of my good friend from Minnesota, these charts, are 
getting to the point of ridiculous. They are what logicians and lawyers 
would call ``outcome determinative.'' We want an outcome so we put 
together numbers. Successful filibusters. I ask my colleagues, if a 
filibuster is against the Constitution, why is an unsuccessful anymore 
unconstitutional than a successful filibuster? Why is a filibuster of 
an executive branch nominee any different than a filibuster of a 
judicial nominee?
  Do you know what the other side is saying? We are just going to take 
judges in green shoes and give you the numbers on those and not judges 
in pink shoes or purple shoes.
  They are differences that don't make a difference. What we are 
talking about here, again very simply, is how many judges have come 
before this Chamber and how many have been approved. One hundred sixty-
eight to four. No denying it. No refuting it. No getting around it. The 
truth hurts because the American people know--30 hours, I guess now it 
is 39 hours, you can debate this for 390 hours, 3,900 hours, 39,000 
hours, and all your words are not equal to 168 to 4.
  For those who watched this debate, this has been elucidating, because 
what the hard right and their allies tried to spread throughout America 
is, we were holding up all the judges, most of the judges, a judiciary 
in crisis, a huge number of vacancies. My colleagues, do you know what 
answers all of that hyperbolic falsity? One hundred sixty-eight to 
four.
  We are going to keep that chart up. I realized when I first put the 
chart up, one of my colleagues objected. I understand it gets under 
your skin. I understand it pulls the rug out from the argument.
  Now, do you want to talk about judges rejected? Do you want to talk 
about judges who didn't get a majority vote? Then talk about them. Here 
we have two charts. Sixty-three of President Clinton's judges didn't 
get a majority vote. It doesn't matter whether they didn't get it by 
filibuster or by not bringing them up for any vote. Again, that is like 
green shoes versus pink shoes. They are all judges.
  Here are some names. Did every one of these people twist in the wind? 
You bet. Some longer, some shorter. Were some withdrawn by the 
President? Of course. Some withdrew their names themselves. My good 
friend from Utah, who I dearly love said: Well, some of the names were 
withdrawn by President Clinton. Does that mean we can erase the name of 
Miguel Estrada from this debate? He was withdrawn. That is not going to 
work. He was blocked. So were the others.
  One final thing I would say, because I do want to spend about half my 
time now, or less than half, talking about one of the nominees. The 
Senator from Louisiana was correct. We are opposing judges because of 
their views, not their ratings by the bar association, which talks 
about their education and legal training, and not their sex, ethnicity, 
or religion.
  The other side seems to think that should be a determination of who 
becomes a judge. Shame on the women because they won't just rubberstamp 
any woman. Shame on the Blacks or on the rest of us because we won't 
rubberstamp every Black, shame on everybody, me. They called me because 
I didn't agree with Miguel Estrada, but should I have let him go 
because he was Hispanic? That is un-American. It is not right. It is 
un-American. It is below the belt.
  My good friend from Louisiana--I have never heard her more eloquent--
had every right to be angry and upset. To say the women should be 
ashamed of themselves because they are not voting for another woman. 
What do you think the American people would think if they thought that 
ought to be our norm? Every Baptist should vote for every Baptist and 
every Catholic should vote for every Catholic and every Jew should vote 
for every Jew. What kind of logic is that?
  Let's get back to the reality here. The reality is a handful of these 
judges are way out of the mainstream, at least in the opinion of a good 
number of us. Enough to block them. The one that I would like to talk 
about for the little bit of time I have left is Justice Brown.
  I don't agree with her views on affirmative action, but that is not 
dispositive to me in this case. What is dispositive to me is that we 
have not seen--I have not seen, in the 18 years I have been here, a 
judge further out of the mainstream than Justice Brown. I want to read 
to you what she said in a case called San Remo Hotel v. City and County 
of San Francisco:

       Turning a democracy into a kleptocracy does not enhance the 
     stature of the thieves, it only diminishes the legitimacy of 
     government.

  What does she mean by that? She was against zoning laws. Do most 
people think zoning laws are a kleptocracy in 2003? Maybe that went on 
in 1900, when

[[Page 28789]]

we could have factories built next to homes and when workers' lungs 
would be polluted. But no more.
  Here is what else she said in a speech to the Federalist Society:

       Where government moves in community retreats, civil society 
     disintegrates, and our ability to control our own destiny 
     atrophies. The result is [this is when government is around] 
     families under siege, war in the streets, unapologetic 
     expropriation of property, the precipitous decline of rule of 
     law, the rapid rise of corruption, the loss of civility, and 
     the triumph of deceit. The result [this is what government 
     brings] is a debased, debauched culture which finds moral 
     depravity entertaining and virtue contemptible.

  Many colleagues on the other side of the aisle believe in limited 
government. That is legitimate. I, for one, feel in certain areas 
Government goes too far. But this view? That is kind of disturbing, 
particularly for a judge on the DC Court of Appeals, which has more to 
do with Government than any other court in the land, with the exception 
of the Supreme Court. Please, you can find conservatives, you can find 
people who are against affirmative action who don't express these 
views; but these views are circa 1850, and even then would not be 
supported by most Americans. We are supposed to support a judge like 
that? Do you know what. I would guess if you asked my 51 colleagues on 
the other side of the aisle to nominate someone for the DC Court of 
Appeals and the record of Justice Brown were brought before them, they 
never would have nominated her.
  Why is she here today? That is the question we ask. Is this to be 
deliberately provocative? Is it that the President doesn't believe he 
should nominate African Americans who are within the mainstream? I 
don't think so. He has nominated a few. I don't get it. The views of 
Justice Brown go so beyond what there is in a consensus in America, 
liberals and conservatives, that it is appalling to me she would be 
nominated for the DC Court of Appeals. There is only one reason: The 
extremists on the hard right are demanding something of the President. 
He is doing a prescription drug bill. He is talking to the United 
Nations. He is not demanding Roe v. Wade be repealed at this very 
moment. By nominating somebody like Justice Brown, maybe he appeases 
them, even though he may know she will not be approved. I don't know. 
That is just a theory.
  But I will tell you this. If Justice Brown were White, or Asian, or 
Hispanic, a man, or if she were Protestant, Catholic, or Jewish, or 
Muslim, or Hindu, I would oppose her nomination. If Justice Brown got 
100 percent of the vote in California, I would oppose Justice Brown. 
Justice Brown does not belong on the DC Court of Appeals where over 
decades, over centuries, beliefs among Democrats, Republicans, 
liberals, conservatives, 99 percent of Americans about what Government 
should and could do would be totally rejected. Justice Brown will be 
defeated tomorrow, I hope and I believe. It will not be because of 
outside groups and it will not be because of any of the women not 
standing up for women. It will simply be because her views are so 
ideologically out of the mainstream that she does not belong on the DC 
Court of Appeals. It is that simple.
  When we knock out Justice Brown, I believe the Founding Fathers will 
be smiling upon us. One of them might say to the other: That is why we 
gave the Senate some power to block the President's nominees. This is 
the kind of nominee who should be knocked out. This is the kind of role 
the Senate, as the cooling saucer, should play, and whether it be by 
filibuster or by not bringing her up for a vote, or by defeating her in 
committee, which are the various ways the Senate has to be the cooling 
saucer, none of them--51-49, none of them simple majority, the Senate 
will be fulfilling its hallowed, ancient, and continuing role as a 
check on abuse of power of the President.
  The PRESIDING OFFICER. The Senator from New Jersey is recognized.
  Mr. CORZINE. Mr. President, I thank the senior Senator from New York 
for making sure the fundamental issue is understood by the American 
public. The fact is, 172 nominations have come to the floor; 168 have 
been approved. Four have not been sustained under the rules of cloture. 
And 98 percent--you can talk about it any way you want. The numbers fit 
the commonsense judgment of the American people that something positive 
is going on here with regard to how we are dealing with the 
confirmation of judges. I go back to the practical reality that 95 
percent of the judicial positions in the Federal courts, district and 
circuit and Supreme Court, are filled; 95 percent of them are filled. 
In 2000, at the end of the Clinton administration, only 75 percent of 
those positions were filled.
  This is the lowest vacancy rate in 13 years. The reason is very 
simple--168 to 4. It is not a complicated issue. It is not a 
complicated issue. Then you have to look at the four. The Senator from 
New York read this statement about the judge we will be looking at 
tomorrow, talking about ``when government advances, freedom is 
imperiled.'' I don't think that is what the American people would 
think--those people who believe in Social Security, those people who 
might think we ought to have a prescription drug benefit for all 
Americans, people who believe we ought to pull together an army to 
protect the American people from terrorism, the folks who think we 
ought to build highways, bridges, schools, and other things, which are 
generally done by the public. When the government advances--what is 
this? I want to say this right. ``When the government advances, freedom 
is imperiled.'' There is one out of the four. One wonders whether that 
is the mainstream of American thought.
  A couple of judges in this four have serious issues some people think 
approach or have gone over the line of ethical violations. I have heard 
almost everybody say at some level they believe integrity is an issue. 
There are serious concerns about actions of several of the people who 
are involved--aside from their views. I will not even mention the 
judge. One judge said, in talking about the role of Congress:
  Congress, for example, should not be in the business of public 
education, nor in the control of street crime.
  That may be a view that is mainstream for some in this body, but I 
have a hard time understanding where many of us believe the role of 
Congress would prohibit us from being involved in the business of 
public education or the control of street crime. It doesn't sound to me 
like a mainstream thought. That is one of the judges.
  Then another judge we will be considering tomorrow talked about 
privacy rights, threw out a case where someone was performing an 
operation on a patient, and it happened to be a female. The doctor had 
a male drug salesman attend without asking for that right of the 
individual. Then the judge said that wasn't a violation of privacy 
rights. That kind of thing--I am not a lawyer and I don't know all the 
details of this precedent, but it is kind of like 168 to 4. You would 
think if somebody is undergoing surgery and somebody asks you a 
question about who the person was who was observing you going through 
surgery, if you had a drug salesman overseeing that, you might think 
that was an invasion of privacy. That is sort of common sense to me.
  I think there are reasons to debate these four and maybe the two, if 
we are going to get people who are not necessarily following precedent, 
settled law--I hear a lot of arguments about activism on the court. It 
sounds to me like there is an active view that is different than 
settled law with regard to privacy. There is a view that is outside 
settled law and precedent with regard to the role of Government, with 
regard to schools and crime in our streets.
  I think there is a reason to question some of these four. Therefore, 
it is not inappropriate, when you think people are going to be out of 
the mainstream and may have ethical issues that are legitimate 
questions that people raise, that somebody ought to exercise that 
judgment here on the floor of the Senate when we are asked to vote on 
it. From my perspective, that is what guides my vote and one of the 
reasons I have helped make this 168 to 4 happen.
  By the way, I am proud of the 168 and while we now have the highest 
percentage of occupancy of judicial positions

[[Page 28790]]

in the last 13 years--that looks to me like a pretty good track record. 
In most walks of life, it would be a pretty reasonable statement of 
cooperation and effort to make things happen. That is certainly, again, 
the perspective I want to start with, 168 to 4, filling up the 
judiciary.
  Then we heard the argument raised that somehow we are trying to 
change the subject. This is changing the subject. We are talking about 
four folks, while we have 9 million people unemployed, 2.5 million 
manufacturing jobs lost in America, and we have the rampaging trade 
deficit, budget deficit, a rise in the poverty rate, declining insured 
and health insurance coverage in America, no prescription drug benefit 
for seniors, no passage of the Transportation bill, no consideration of 
a minimum wage increase for 7 years. We cannot get it to the floor.
  We don't want to talk about four judges when we have a war going on 
and all these economic issues before the country. They say we are 
changing the subject? I think we ought to change the subject. I would 
imagine the people watching this debate are changing the channel 
because they want to know what the heck is going on in the fundamental 
parts of their lives, their jobs, what their kids are doing in Iraq, 
what is going on with regard to jobs that are going to be created for 
the rest of their families. They want to know what is happening to 
their health insurance. They would like to know whether school class 
size is going to be 18 or 26. Those are things that matter, and we are 
debating four judges who, as I read some of the most extreme comments 
here--again, we are debating whether it is appropriate to have a 
filibuster about somebody who says ``where government advances''--it 
says ``advances relentlessly''--``freedom is imperiled.''
  We are debating that, as opposed to worrying about whether 9 million 
people can get extended unemployment benefits, whether we can get a 
jobs bill to build highways and bridges and other things in this 
country, whether we can have an honest debate over intelligence 
operations in this country. It strikes me we have our priorities out of 
place. It just makes no sense in the world we are living in that we are 
debating 4 judges out of 172 and they have views like ``where 
government advances, freedom is imperiled.'' I don't think the American 
people--anyone you sat down around the kitchen table with and you 
talked about this issue, with this language, and this perspective on 
judicial philosophy--would say I would rather you be focusing your time 
on the floor of the Senate at 5 minutes to 12, 29 hours and 55 minutes 
into a debate, saying it is more important that we are talking about 
that judge than we are talking about what is happening with our men and 
women in Iraq, or whether we have appropriate investment in our 
intelligence operations that protect them, or the 9 million people are 
getting the proper attention on their unemployment benefits. I don't 
get it. There is no comparison of the importance. It is not changing 
the subject. It is getting to the subject the American people want us 
to do. At least that is the way it is in New Jersey. I have not had one 
single person ask me about a judge, until today when we got a call-
athon calling in--the first time we got a call with regard to whether 
the filibuster was holding up these rights. I had my people read back 
this: ``When government advances, freedom is imperiled.'' About half of 
the people said I don't know whether that is somebody I want to stand 
with because I don't know that that is a position that really fits with 
the American Constitution, in my view, of what the American democracy 
is about. It is very hard for me to understand where we have our 
priorities.
  Lastly, I want to bring up a point that filibusters weren't only used 
to stand in the way of civil rights acts by Democrats back in the 1930s 
or 1940s. On February 3, 1991, a filibuster was executed on this floor 
on the Family and Medical Leave Act. There were no Democrats who voted 
for that cloture. Let's see. Handgun violence prevention on November 
19, 1993. I think that is the Brady bill. Let's see. Goals 2000, to 
educate America on March 24. I have a list of about--something that 
approaches about 50--maybe a little more than that--60 filibusters that 
were executed, including a couple with regard to judges, where judges 
withdrew their nominations that were executed by the other side of the 
aisle.
  Filibusters have been used. No one was calling them unconstitutional 
when you were trying to deal with family and medical leave, or nobody 
was calling them unconstitutional when we were talking about the Hatch 
Act. Funny how that comes up. No one was calling them unconstitutional 
when we were dealing with judges at an earlier time when they withdrew 
their names. I want to make sure we keep the right perspective here 
because we are making all kinds of statements. Frankly, I think all of 
it is irrelevant. It makes no sense when we should be talking about the 
9 million Americans who don't have jobs and we are talking about the 2 
million people who have lost health insurance in the last 2\1/2\ years, 
when we are talking about the 1.7 million people who slipped into 
poverty in the last 2\1/2\ years, when we have gone from a $250 billion 
budget surplus to a $375 billion budget deficit, a $550 billion 
negative cashflow swing in this country because we are not handling our 
finances right, and we have a war going on and the generals are saying 
we are having unrealistic views about it back here.
  I don't know, maybe we should not change the subject. We should just 
talk about these four judges. I wonder if the Senator thinks that is 
the right prioritization. It strikes me it is out of touch with 
America, and we are now 29 hours and 59 minutes talking about 4 judges.
  The Senator from New York is right; 168 to 4 actually expresses what 
the debate about judges is all about. But one could think we ought to 
be talking about the 9 million Americans or, by the way, the 130,000 
troops we have on the ground who are in harm's way. It strikes me, the 
discussion we have had for these 30 hours is missing a very major point 
to the American people.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Brownback). Is there further debate? The 
Senator from South Carolina.
  Mr. GRAHAM of South Carolina. Mr. President, we got to the bewitching 
hour. It is midnight. I am going to enjoy the evening the best I can 
because I have a chance to engage with two of my colleagues. I don't 
know how long it will last, but I really enjoy the give and take of 
dealing with Senator Schumer. It may come to surprise people, we 
actually have been working on a couple of things. We had some successes 
in the past and we will have some in the future. I believe with a great 
deal of certainty, if the shoe were on the other foot, if my party were 
engaged in filibustering nominees of a Democratic President, that 
Senator Schumer would be right out here fighting for his cause. Senator 
Corzine and I are getting to know each other. We will have all night to 
get to know each other. I have enjoyed working with him, also.
  This is unusual for the Senate. I don't know if this has ever been 
done before. I hope it is not necessary to do again. But here we are. 
We are here at midnight. We are talking about whether or not there is a 
filibuster. Has there ever been one in the past? Who shot John? Who has 
been the meanest and the baddest in the past?
  I guess what I am trying to focus on for the next few minutes is, 
What about the future? I guess that is my biggest concern. We have had 
all kinds of charts about how nominees were treated in the past. I have 
been here a year. Since I have been here, it has been like pulling 
teeth to get certain people on the floor for a vote. But that is OK. 
The process is what it is. The Constitution says what it says and we 
will all have our chance to express what we think is right versus what 
we think is wrong.
  This is a big deal. It is a big deal for the Senate. There are a lot 
of other issues that need to be talked about. Sure, Iraq is certainly 
one of them, people out there in harm's way. We have 9 million people 
unemployed. I am the first to admit there are a lot of

[[Page 28791]]

issues in this country that need to be talked about and addressed.
  But this is one of them. One of the reasons Senator Corzine has not 
had too many calls is Americans are able to walk around with a pretty 
secure feeling that the system works. I think it is a blessing we are 
not nervous every day about whether or not you can go to court because 
we expect, if we have a problem, a legal problem, there will be a place 
to go to get it resolved. That is just part of our mindset. We don't 
worry a whole lot about that and I think that is great.
  But, really, that is a luxury. There are a lot of countries in this 
world where there is no venue to go to settle disputes. You have to go 
by force or violence, or you have nobody to help you out when you are 
down.
  We have a pretty good legal system. God knows it needs to be fixed in 
some respects, but the idea of a rule of law nation caring about how 
you appoint judges is a big deal. Imagine if you had a system where it 
would be almost impossible to confirm somebody who had an actual belief 
or opinion. What you would find is there would be a lot of vacancies 
and there would be a backlog of cases. The things we assumed were 
always there for us would no longer be there. So this really is a big 
deal.
  If you believe in a system where the weak can hold the strong 
accountable, then you ought to be listening to this debate because only 
in a rule of law nation, a courtroom, is that possible, because in a 
political environment the strong always win over the weak. In a 
confrontation of resources, the strong always win over the weak.
  But America is a little bit different. You can hold anybody 
accountable. You can have your day in court. Even the President of the 
United States can be sued by an average, everyday person, if the 
President of the United States is claimed to have violated their 
rights.
  That is a big deal. That is something worth fighting for. Some people 
believe that is worth dying for.
  Now, that is very much at risk. The way we do business with our legal 
system is very much at risk. Because you can put up all the charts you 
want to put up and you can play all the number games you want to play, 
but the truth is, and I challenge someone to prove me wrong, that this 
is the first time in the history of our Nation that nominees have come 
out of the Judiciary Committee with a majority vote and have been 
blocked by a filibuster from being voted up or down. This is 
unprecedented. This is dangerous. We find ourselves in political and 
constitutional quicksand.
  Of all the conflicts we have had in this Nation, of all the fights 
between the Republican and Democratic Parties, of all the likes and 
dislikes that have happened politically, no one before has chosen to go 
down this road. The road our friends on the other side have chosen to 
go down really is the road to oblivion, in terms of trying to get good 
men and women to be willing to serve their country as a judge.
  My friend and colleague, Senator Coleman from Minnesota, is new to 
the Senate like myself. The strength of this Nation is people with 
accents have a chance to get ahead in life. I am the first person in my 
family to go to college. My dad was a World War II veteran and came out 
of the war and started his own business and married my mom and neither 
one of them finished high school. But they impressed upon me and my 
sister the value of an education. Because of the good, sound, strong 
public school system of which we partook, I was able to do things I 
never dreamed of doing. Now I find myself in the Senate.
  I am a lawyer. If you can't take a joke, you should not be a lawyer, 
because there is a lot of lawyer jokes out there. But I have always 
enjoyed the role of being an attorney because I like representing 
people and I like representing causes. The law to me was not just a 
job; it was a passion.
  The ultimate ascendancy for somebody in the law is to become a judge. 
You will make less money but you will get authority and respect, and 
you will have a chance to mold the law. To many people that is much 
more important than money.
  To me it is a shame, if you are willing to apply for the job, that 
you have to be treated so poorly as these four people we are talking 
about have been treated. But make no mistake about it, they are not 
four people; there are going to be at least a dozen in the next couple 
of weeks. They are being treated differently than anybody in the 
history of the Nation. They are having some very hard things said about 
them and all they want to do, and all they are willing to do, is to 
serve their country in the Federal judiciary.
  Our friends on the other side have pulled out a chart, 168 to 4, with 
an illustration: 168 apples represented those people who were allowed 
to go forward. The Senator who had the chart said, I like apples, so I 
picked apples to represent the 168. And the four, well they were called 
lemons. I thought that was pretty cute at the time. But the more I 
thought about it, that is really not fair. If you don't like these 
people, if you disagree with their philosophy, if you disagree with 
their view of the world, you have a chance to express it. You have a 
chance to vote them up or vote them down. But I don't think it helps 
anybody to label them as lemons. We are going to have a long talk about 
the people they have labeled as lemons. Between now and 9 o'clock in 
the morning, we are going to have a long talk, eventually, about the 
individual nominees.
  You can decide whether or not you will vote for them. You can kind of 
be a Senator for a day, if you would like. That would be an exercise 
that would be interesting for those who want to watch. If you don't 
like them, you can vote against them in the Senate. But I think you 
have an obligation to vote them up or down.
  As I talk about these individuals I will tell you why I am willing to 
vote yes. I don't expect anyone on the other side, or my side, to vote 
because of my reasoning. I do expect the people at home, in South 
Carolina, to be able to judge me and hold me accountable for my 
reasoning. I will tell you, with a deep sense of pride, that I think 
the four people who have been called lemons are very fine Americans and 
deserve more respect than they have gotten.
  The thing I like most about serving with my colleague, Senator 
Coleman from Minnesota, is that his race was one of the most watched 
and unusual races in the Nation. It was full of triumph and tragedy. 
His opponent, Senator Wellstone, who I knew fairly well and certainly 
respected for his strong beliefs, tragically died right before the 
election. Senator Coleman ran against former Vice President Mondale.
  The thing that impressed me most about his race, as I watched the 
debate, was the sincerity he had when it came time to present the 
reason he wanted to be a Senator for the people of Minnesota, along the 
lines of: I would like to go to Washington and do something. I watch 
you from afar and you seem to be fussing and fighting about everything. 
People are hurting out here and I would like to be a Senator who could 
go to Washington and work across the aisle and actually do something.
  Tonight, at almost quarter after midnight, I would argue to the 
people who may be listening in Minnesota that your Senator is doing 
something. It is not what he envisioned. It is not what he hoped for. 
It is not what I hoped for. I hoped to be home right now. And we passed 
some legislation long overdue. But I argue the Senator from Minnesota 
is doing something that needs to be done; that is, standing up for his 
beliefs and his view of the Constitution.
  I am confident that over time this exercise will be judged well in 
history. When there is an accounting in this period of the Senate, it 
will be one of the darker periods of the Senate and my hope is it will 
be a period that will not have lasted long. Because the future is why I 
am here. The future is why I and Senator Coleman ran. We have a lot of 
problems with Social Security and Medicare and a budget and a war to 
fight and many obstacles facing this country. We are dying to get on 
with it. We really do want to help win this war on terrorism and make 
the economy better and stronger and fix the retirement problem the 
Nation faces.

[[Page 28792]]

  We didn't ask for this. But it came our way. It happened on our 
watch. I think this may be one of the most important things we will 
ever do as Senators.
  With that, I will yield to my good friend, Senator Coleman from 
Minnesota, and let him know in my opinion that he is doing something 
that is very important to the country by participating in this debate.
  The PRESIDING OFFICER. The Senator from Minnesota is recognized.
  Mr. COLEMAN. Mr. President, first, I thank my friend and colleague, 
the Senator from South Carolina. We came in in the same class. He 
served in the Congress. He is more experienced and understands the ways 
of Washington. But he understands the ways of South Carolina. He is 
about as real as he can be. People think of Washington as a phony town. 
I look at my colleague, my friend from South Carolina, and he is very 
real. That is a good thing.
  In the discussion we have had tonight--now past 30 hours--I 
appreciate his effort to humanize the four individuals whose lives have 
been, in some ways, put on hold, their future put on hold, certainly by 
the actions of this body. No, they are not lemons and they are not 
simply numbers. They are people. They are moms, dads, fathers, 
daughters, sons. They are folks who have the capacity to have an 
incredible influence on our lives.
  I was a former prosecutor. The Senator from South Carolina had that 
experience of doing some prosecution in his time. I can tell you, 
courts have an impact on your lives, on your family's lives in many 
ways. So I appreciate it, if as we move now into the morning hours, 
there will be votes coming up this morning--not tomorrow morning, this 
morning--to put a human touch on what this is about.
  I think there was a mood or a feeling in the country at the time that 
we got elected that really did focus on getting something done. I was 
running for office and disaster assistance bills were being debated in 
the Congress. The House was passing bills but the Senate was not. I can 
tell you my constituents were unhappy. They were concerned.
  Last year there was a debate over a prescription drug benefit. I was 
running for office. There were still seniors forced to make the choice 
between prescription drugs and food. That is a bad thing. That is not a 
good thing. Hopefully, this year we are close and before we get out of 
here, assuming folks come together, we can get something done.
  I think that was the tone. That was the message. By the way, I hope, 
certainly the message I heard--it should not be a partisan thing. There 
are a lot of things I heard in the debate tonight from my colleagues on 
the other side. I don't disagree with all of it. My colleague from 
Louisiana made a comment that we can't be divisive. She is right. I can 
tell you we are not trying to be divisive. Being divisive is when you 
do something that is unprecedented, and that is really what we are 
talking about today.
  The fact is, one of the things we did kind of settle tonight is the 
filibuster. There was a discussion all along about whether they are 
really filibustering nominees, a lot of discussion about filibusters.
  First, I say again I was disappointed what I heard tonight. If 
anything, it was the comment of my colleague from Louisiana saying 
filibuster was the successfulness of the truth. No. With filibusters we 
have stopped some very good legislation. We have used the filibuster in 
a very terrible way in this body in its history. We have filibustered 
to try to prevent antilynching laws coming into effect. We have 
filibustered civil rights legislation. We have filibustered against the 
poll tax. We filibustered about a lot of things and not often good. A 
filibuster is often to be ashamed of and this one is to be ashamed of.
  My colleague asked what is the difference between filibustering 
legislation and judges? The difference is this little book. It is 
called the Constitution. That is the difference. The Constitution laid 
out very clearly when the President has certain powers. The President, 
by the way, doesn't get elected unanimously. He gets elected following 
the laws. Not everyone votes for him but he then becomes the President. 
Once you become the President, you have certain powers and the Senate 
has certain powers and responsibilities. So it is a matter of seeing 
there is a difference between what one can do legislatively, using 
filibusters, and what the Constitution provides.
  There is a reason why, in the history of this country of 214 years, 
up until this Congress, this body has never used a filibuster to stop 
circuit court nominees once they got through committee. That is the 
reality.
  You can put all the charts up and all the statistics; that is the 
reality. If folks are listening, they have to be thinking there has to 
be some reason in over 214 years why folks have not done what is being 
done today. In part, it is because of the consequences. If we do that, 
what we do is we let a minority--that is what we have here because in 
each of these cases the judge is being filibustered, a majority of the 
Senators, Democrats joining with Republicans--yes, they are going to 
vote for them. We know that. That is why the minority is filibustering, 
stopping the vote.
  So what you have here is a situation where the minority stands up and 
says: We don't support a person. Maybe it is because of a particular 
issue. Maybe the issue of abortion comes up again and again, which, by 
the way--and we will have plenty of time to talk about this--what is so 
interesting if you look at the record, the nominees who have been 
criticized or attacked because of their position on abortion, to a 
person have said that they would follow the law, that they would put 
personal beliefs aside.
  You choose a judge and what you ask of them over here is can you put 
your personal beliefs aside and make a judgment. That is what these 
folks have all said. Because they have those beliefs, the minority 
comes together and blocks them. What is the outcome?
  This, I know, frustrates my friend from South Carolina and it 
frustrates me. We all look into the future. I campaigned and I wanted 
to be a charter member of the ``Let's Get It Done Coalition.'' Let us 
figure out a way to solve problems.
  The Senator from New Jersey is right. We have to get an energy bill 
through. I hope we get it through. We have to do something about 
prescription drugs. We have to do something about jobs, and something 
about medical malpractice. We should do something about class action. 
Those efforts are not going to be allowed to come to a vote. Those are 
the jobs bills. Let us get it done. Let us put the bickering and 
partisan stuff aside and figure out a way to get it done.
  The problem we have as we look to the future is who is going to get 
confirmed. If anybody with deeply held views is going to be 
filibustered by one side, now the Democrats are in the minority, there 
may come a point in my time where my friend from South Carolina is 
sitting in the minority and a Democrat President may propose a judge, 
and I will say to the body that I intend to use the same standard with 
a Democrat President. Are judges qualified? Will they commit to uphold 
the Constitution? I will not support folks who will use the 
Constitution to create laws of their own beliefs. But if they agree to 
follow the Constitution and are qualified, then you support them. The 
President has that authority.
  If you look at the history of the judiciary, it is kind of a balance. 
There have been Democrat Presidents and Republican Presidents going 
back over the last 12 years--8 years of Bill Clinton, 8 years of 
Reagan, 4 years of Bush, Jimmy Carter. There are about almost equal 
numbers of Democrats and the Republicans on the judiciary. It is 
balanced. What is happening here today is we are changing that balance. 
When we allow minorities to take hold, we change that balance. That is 
what happens.
  In the future, you are going to get folks with strongly held beliefs 
and there may be a Ruth Bader Ginsburg, a liberal who went to my high 
school, James Madison in Brooklyn, NY. I disagree with some of her 
reasoning on decisions. She is a good judge. She is

[[Page 28793]]

bright. She exercises her judgment. I don't think in this environment 
if the Democrats are in charge that Ruth Bader Ginsburg would be 
confirmed. That would be sad for America. The same would be true with 
Scalia and a number of members of the Court.
  What are you going to get? The best and the brightest are going to be 
cast aside because they may have a strongly held belief, which is what 
you see in some of the nominees here because a minority says we don't 
want them to come forward. A minority then filibusters in a way again 
in contradiction to article II of the Constitution. That is why we are 
raising this. That is what we are talking about and doing something 
that has not been done in history.
  It is interesting. In terms of the Constitution, it is very clear. 
The President has certain powers--unlike, by the way, in European 
countries and in contrast to monarchs who would simply make treaties. 
Leaders in Europe could make treaties. Our folks said, no. The 
President's power of making treaties is going to be contingent upon 
two-thirds of the Senate present and concurring. That is in the 
Constitution. We wanted to limit the powers of the President. When it 
came to appointment of judges, it is not two-thirds. Two-thirds is only 
for treaties. Very clearly there is a delineation.
  For some reason to date, 214 years into our country's existence, the 
standard has been changing. That is an important thing. Jobs are 
important. As a former mayor, I have said 1,000 times the best welfare 
program is a job; the best housing program is a job; the best health 
care comes with jobs. Jobs are important. I understand that. What is 
interesting is my colleagues on the other side of the aisle are crying 
economic--by the way, never once mentioning 9/11. If you talk about 
what has happened to this economy, you have to talk about the impact of 
9/11. You have got to talk about the recession that occurred before the 
President came into office. You have to talk about the impact of 
WorldCom and the impact of Enron.
  The reality is now because of the policies, many of which this 
Congress passed, policies which cut taxes, which put money in the 
pockets of moms and dads which give businesses the incentives to 
invest, the economy is starting to move forward. The last numbers 
report 7.2 percent gross domestic product growth, and over 200,000 more 
jobs in the last couple of months. The number is revised upward. 
Business investment is moving forward, in part in large measure because 
of the tax cuts. Yet the other side of the aisle says we want to talk 
about jobs. I am looking forward to that debate. But it is all 
important. The judiciary is important. What we do with judges is 
important. In order for businesses to operate and for families to 
operate, you have to have a judiciary that works.
  What is fascinating here--and I love that chart of 168 to 4. I love 
seeing that chart. When the other side puts up a chart showing 168 to 
4, that is their argument. They keep coming back with the underlying 
supposition of, It is false. Their argument doesn't carry weight. Let 
us talk about 168 to 4. The real discussion here and what is going on 
here is the President of the United States has the power to appoint 
district court judges.
  A little lesson, for those listening, a first impression in the 
Federal system: What happens when the district court judge issues an 
opinion, there is a review process. It is reviewed by the circuit 
courts. The courts of appeal level, by the way, is right below the 
Supreme Court, which is one of the things I think comes into play here.
  When you pick judges who may be on the circuit court, what happens is 
they then became a candidate for the Supreme Court. That is the real 
deal. They are all the real deal. Being a judge on the court of appeals 
is an incredible honor. It is a higher court than the district court. 
What is happening is the President has had 29 circuit court judges 
confirmed. We as of tomorrow will have six who have been filibustered. 
There are more in the hopper. That is very clear from my colleagues on 
the other side of the aisle. They will be filibustered. Out of the 
circuit court, the other side is saying 168 to 4, and some judge like 
wearing pink shoes and green shoes--no. The difference between circuit 
and district court judges is not the color of their shoes. The 
difference between circuit court and district court judges is these 
judges are on a higher court. These are the judges who are right below 
the Supreme Court.
  District court judges sit in a particular district. Circuit courts 
sit in a multistate area. They have a broader range and geographic 
jurisdiction. It is the higher court.
  What has happened here is it is not 98 percent. Even 98 percent of 
the time, adherence to the Constitution is wrong. When we took our 
oath, when the distinguished Senator from Kansas took his oath, and the 
Senator from South Carolina took his oath on that floor, we swore to 
uphold the Constitution of the United States 100 percent. It wasn't 
qualifying.
  I find it absolutely startling that folks take pride in upholding the 
Constitution 98 percent of the time. The first amendment, freedom of 
the press: If there are 172 newspapers in the country and 168 of them 
are going to have freedom of the press and not the other 4, they 
wouldn't be very happy and very American.
  The reality here is we have 29 circuit court judges who have been 
approved and we have 12 who are being filibustered. I think we are 
talking around 30 percent, 25 or 30 percent. That is a big number. I 
believe that is the largest number certainly since World War II. I have 
to go back in the history books. That is wrong. That is the number 
here.
  The other side keeps coming back saying 168 to 4; therefore, no 
problem. The problem is you can put up all the numbers you want, but 
the difference is not the difference, whether it is green shoes or pink 
shoes; these are courts of highest jurisdiction.
  What has happened here and what is happening is unprecedented in 214 
years of the history of this country. This hasn't happened.
  All we are asking is for these 12 judges to simply have a vote. We 
are talking about a vote. A cloture vote tomorrow is not a vote on the 
judges. We are simply saying give--Miguel Estrada, by the way, 
withdrew.
  My time may be coming to an end. I want to get back to talking about 
him--an immigrant, incredible record, education record, incredible 
performance record, a brilliant man, and withdraws.
  Priscilla Owen, give her a vote. William Pryor and Pickering, give 
them a vote. If you do not support them, you vote them down. Your voice 
is heard. It is not about a rubberstamp. I am not asking my colleague, 
the Senator from New York, to vote for these folks. Vote them down. If 
you do not like Judge Brown, vote her down; Judge Kuhl, vote her down. 
Vote these folks down. But give them a vote. That is what the 
Constitution requires.
  Thank you, Mr. President.
  The PRESIDING OFFICER. The Senator from Searchlight, NV.
  Mr. REID. Thank you, Mr. President.
  First of all, I want to extend my appreciation--and I speak for the 
Senate, both Democrats and Republicans--to the staff which has been 
supporting us the last few days. People are working very long hours. 
The Capitol Police are working a 16-hour shift. Their shifts are very 
important. There are some people from all over the world who target the 
Capitol of the United States where we now stand. These men and women 
who guard us, protect us, make us secure, have to be vigilant. They are 
among the best trained police officers in the entire world. I extend 
appreciation from all Senators to them for the work they do, not only 
during the time in the past few days but all of the time--having been a 
Capitol policeman in the day when things were much more calm and 
deliberate than they are now.
  I also extend the appreciation of all Senators to all the staff, 
Parliamentarians, clerks, the enrolling clerks, the court reporters--I 
don't think I have done that--and the pages. We have juniors in high 
school who are here tonight. I haven't mentioned everyone.

[[Page 28794]]

But my compliments go to everyone who supports this great institution. 
I am sorry they have had to work another night, but that is the way it 
is.
  The reason you have seen all the charts on the other side of the 
aisle change is because this number Mr. Schumer talked about bothers 
them a lot. Now they have come up with judges who haven't even come 
before the Senate. They know only four have been turned down. But now 
they have the other thing, that there is going to be 12. Well, we might 
wait and see what is going to happen. Why don't we wait?
  I say this: The 30 hours we have spent so far has been totally 
wasted. There isn't going to be a single vote changed. Nothing is going 
to change. This has been an effort to toss meat to the rightwing 
extremists. Many Senators--and I say many--certainly at least a dozen 
Republican Senators approached me and made different excuses and 
apologies for what is going on on the other side. They know this is 
very nonsenatorial. But we are involved in this and we are going to 
proceed in the best and most dignified way we can.
  There is something else I would like to spend some time talking about 
tonight, and that is jobs.
  Let us talk about what is happening in the last 30 hours. What has 
happened? We can start at a number of different places. During the last 
30 hours, 2,833 Americans--men women, teenagers, old people, married, 
unmarried, grandparents--have been laid off. They have lost their jobs.
  In America today, things are so difficult dealing with jobs. For the 
2,833 Americans who have lost their jobs during the last 30 hours, the 
average time for them to find a good job will be 5 months. Five months, 
2,833 Americans will wait an average of 5 months to find another job.
  It seems to me it would be good for us rather than spending 30 hours 
plus on 4 people and not a single vote has been changed--4 people who 
have jobs, good jobs--that we would spend some time talking about how 
to create more jobs, thirty hours of debate here in the Senate about 
programs.
  For example, I think what we should have is an infrastructure 
development program where the Federal Government is involved in putting 
out money so the contracts can be let in the private sector so 
companies can build roads, they can build dams, they can build bridges, 
they can do water systems, sewer plants. We could spend some time here 
debating where it should go and how much we should spend. We know for 
every $1 billion spent, we would create 47,000 jobs as compared to 
2,833 Americans who have lost jobs in the last 30 hours--47,000 high-
paying jobs. Of course, the spinoff from these jobs would be 
significant and magnificent.
  As I indicated, 2,833 people have lost their jobs in the last 30 
hours. The four people who have been dwelled on by the majority have 
jobs--good jobs. Who are the people who have lost their jobs? I have 
already talked about parents, single parents, families. It is really 
sad to understand that 2,833 people are going to have to wait on 
average 5 months to find another job.
  During the last 30 hours, 8,698 people have lost their health 
insurance.
  A man flew in from Arizona to meet with me today. He graduated from 
Utah State University where I did. He was a star football player at 
Utah State University. He is a big man physically and a big man 
emotionally. He flew back here because he is now a physician. He is 
terribly concerned about the 8,698 people who have lost their health 
insurance. He understands what it means for people to come to him and 
have no health insurance. He talked to me and my staff about what we 
can do about it. He felt so strongly about it that he came back and 
talked to me.
  How does a mother feel, how does a father feel, who have children or 
no children, how do they feel going to bed at night recognizing if 
something happens to them or their family, they have no health 
insurance. What do they do? They do not get the treatment and care they 
need. They only go when something desperate has happened to them. An 
automobile accident, they go to the emergency room. Preventive care, 
forget about it. During the last 30 hours, 8,698 people have lost their 
health insurance. I think we should talk about that. We need to do 
something about that. There are 44 million Americans who have no health 
insurance.
  In addition to 44 million people who have no health insurance, there 
are millions of people who are underinsured, meaning they have 
insurance but it isn't very good. That is what I talked about today 
among other things with my friend from Utah State University, a 
wonderful man, who is a young physician who cares about his community 
and his country.
  We have 44 million Americans with no health insurance, and we are 
here, and we have been here for the last many hours talking about four 
people who not only have jobs but they have health insurance. Every one 
of the four have health insurance. And they have jobs.
  What does it mean not to have a job? Does it take away someone's 
dignity? Does it cause divorce, dissension? Does it cause kids not to 
be able to go to school, to college? Of course it does. Does it cause 
crime? Of course it does. Does it cause our welfare rolls to go up? Of 
course it does.
  But the 4, the 168 to 4, those 4 have jobs. They have health 
insurance. Why are we not here talking for 30 hours of constructive 
debate about doing something in this Nation about health insurance so 
people when they get sick can go to a doctor, people when they need 
preventive care can get it. In the long run it would save the country 
lots of money.
  In the last 30 hours, the trade deficit of this country has gone up 
$300 million. In 30 hours, the trade deficit has gone up $300 million. 
What does that mean? It means we have bought more into this country and 
sold less outside our country to the tune of $300 million. That is not 
good.
  I have heard my friend from North Dakota, Senator Byron Dorgan, give 
lectures in this Senate about the need to do something about our trade 
policies because the trade deficit continues to rise, causing this 
country lots of problems. We are doing nothing about it. We have a 
trade deficit with China. They jiggle their money, and it is 
continuing. We are afraid to take that issue up here.
  My friend, the distinguished Senator from New York, Mr. Schumer, has 
attempted on several occasions to bring forth an amendment to stop the 
Chinese from playing with the numbers so that the trade deficit 
continues. But we have been unable to do that. Why? Because we are 
talking about four people who have jobs, who have health insurance, and 
could care less about the trade deficit.
  In the last 30 hours, focusing away from some problems that to some 
may not seem important--the trade deficit--we could talk about 
something that is real important. During the last 30 hours when we have 
been here talking about four people who have jobs, who have health 
insurance, and who have nothing to do directly with the trade deficit 
but are keeping us from talking about it, during that 30 hours the food 
stamp rolls in this country have gone up by 6,237. During the last 30 
hours, 6,237 desperate people have signed up for food stamps saying, in 
effect: We are hungry. Government, will you help us buy food for our 
families? We have never done it before. But these are new people 
signing up for food stamps.
  I could say without any qualms or reservations, the four people I 
have talked about here tonight and the majority has talked about here 
for a long time, they have not lost their jobs. They have not lost 
health insurance. They don't even have to consider food stamps. But 
wouldn't it be good for us as a nation to spend some time talking about 
food stamps?
  I can remember when I was a new Senator, the great Senator Pat 
Moynihan--his chair was right back there. There was a vote going on 
about the homeless. Senator Moynihan said to me: We have helped create 
the homeless by Federal policies where we have, in effect, emptied out 
our mental institutions, but we have done nothing to have community 
health centers. A lot of the people who are homeless are people who 
need medical attention.

[[Page 28795]]

  Well, food stamps, we need to do something about that.
  About poor people, in America today, as sad as it seems, the rich are 
getting richer. The rich are doing fine. The wealthy are doing fine. 
The elite of America are doing great. The poor are doing real bad. The 
middle class is narrowing all the time. We need as a nation to figure 
something out to do something about that. We don't want to live in 
America like many countries where you have the rich and the poor and no 
middle class. Why don't we spend 30 hours doing that? Not spending 30 
hours talking about four people who are well educated, have jobs, have 
health insurance, are not on food stamps.
  During the last 30 hours, when we have been here in the Senate 
talking about these four people, we have had in America 36 mass 
layoffs. Employers have had 36 experiences where they said: We have to 
lay off more than 50 people. A mass layoff, by Department of Labor 
standards, is more than 50 people. During the last 30 hours, we have 
had 36 of those.
  Why are we having so much trouble in America today keeping people 
working? Why is it taking so long for people who lose a job to find a 
job? I would think this Nation would be better served talking about 
jobs, not about four people who have jobs, who have health insurance, 
who are not on food stamps, who have not been part of a mass layoff in 
the last 30 hours.
  On this Senate floor, during these last 30 hours, there have been 
seven attempts by the minority to extend unemployment benefits for 
people whose unemployment benefits have run out. Is that important? 
During the last 30 hours, while we have been here talking about four 
people who have jobs, who have health insurance, who are not on food 
stamps, who have not been part of mass layoffs, 13,194 people have had 
their unemployment benefits run out. The people who have lost 
unemployment benefits are real. These are not statistics that somebody 
made up.
  Let me read to you a letter I received from a woman in Las Vegas, NV. 
We will just call her Margo. I won't give her full name. She writes, 
October 10, 2003:

       Dear Senator Reid:
       On July 2, 2003 I became a displaced airline worker after 
     38 years as a TWA (now American Airlines) Flight Attendant. 
     As a result of union concessions given to American Airlines, 
     I received no severance pay.
       My Unemployment Benefits will expire on January 2, 2004.
       Congress has passed new legislation which made December 28, 
     2003 the cut-off day for Temporary Extended Unemployment 
     Compensation. After that date, there will be no more 
     extensions. I will miss the deadline for Extended 
     Unemployment Benefits by 5 days.
       I am a single woman and a sole supporter. I have no skills 
     applicable to this difficult job market and my age makes an 
     already bad job market even more limited. It will take time 
     to learn skills and find a suitable job. Extended 
     Unemployment Benefits will be needed for my very survival.
       I ask you--

  She has it in bold type--

     to please support S1708--

  The one we have tried to move seven times to the floor in the last 2 
days, objected to by the majority--

     which will extend the TEUC [benefits] and provide additional 
     Unemployment Benefits to those who cannot find jobs.

  This is a real person. This is not someone who is made up. This is 
descriptive of the 13,194 people who, during the last 30 hours, have 
lost their unemployment benefits. That is sad.
  I have another letter here from another woman. I will read the last 
paragraph:

       I am not writing this letter to get a hand out or sympathy. 
     For every job that is open, 50 people apply. I have faith in 
     God that he has a perfect job for me and that he will provide 
     for us.

  I ask unanimous consent that these two letters be printed in the 
Record, and with the permission of the Chair, I would ask the clerk to 
block off the names because I have not spoken to them for permission to 
make their names public.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                                    July 31, 2003.
     To: President George W. Bush, Congressman John Gibbons, 
         Senator Harry Reid.
     Re unemployment benefits.
       Gentlemen: I really don't expect that any of you will 
     actually read this letter. It will probably go to an aide and 
     if I am lucky I may get a response. So why I am writing this 
     letter? Because there are many other people in this country 
     who are unemployed and have run out of unemployment benefits. 
     Man people like me, feel that writing a letter like this is a 
     waste of time. Many have no hope, but I believe that one 
     person's voice can make a difference.
       I live in a small community in Northern Nevada. There are 
     at least 50 people applying for every job opening. We have 
     thought about moving to other cities, but the job market is 
     tight every where. My husband is disabled and receives a 
     small social security check each month. It pays all but $15 
     of our first mortgage on our house. I have to supply the 
     money to pay a second mortgage and all of our living 
     expenses. Three years ago we had to file for bankruptcy. With 
     a job and a new start we have been rebuilding our credit, but 
     have not been able to refinance our home.
       In December of 2001 I had to quit my job. I quit for cause. 
     My doctor wrote a letter and I was eligible for unemployment 
     benefits. Less than 6 months after I left that company, the 
     position that I had held for 6 years was eliminated company 
     wide. Some people moved up into management, but many were 
     laid off. It took me five and a half months to find a job. My 
     training and experience has mostly been in the accounting 
     field. I took a job as an outside sales rep. for an office 
     supply company, because that was what was available. The job 
     lasted 8 months. Then the company that I was working for 
     updated their computer system to make it easier to purchase 
     items off an internet web site. As a result they laid off 
     some sales people including me.
       Here in lies the problem. Because I was on unemployment 
     from January to June 2002 it affected my base period for 
     benefits. When I got laid off on March 2003 I was only 
     eligible for 13 weeks of unemployment benefits not the full 
     26 weeks. My lack of employment in the base period was not by 
     choice. I was on unemployment, but because I was on 
     unemployment and had no job earnings it shortened the amount 
     of weeks that I was eligible for benefits. When I applied for 
     the federal extension the same thing happened. I was eligible 
     for 7 weeks not 13 weeks. I have sent out hundreds of resumes 
     with little response.
       I am not writing this letter to get a hand out or sympathy. 
     I have faith in God that He has the perfect job for me and 
     that He will provide for us. There are many thousands of 
     people who do not have this hope. They have been laid off 
     multiple times, and were eligible for little or no benefits. 
     I have friends that were laid off over a year ago and are 
     still trying to find work. Unemployment should not be a free 
     ride. There has to be a limit on benefits or it would turn 
     into another welfare situation. People would get on it and 
     have no incentive to better themselves and get off it. But 
     the way the current system is setup, it paralyzes people who 
     have been laid off multiple times over several years. All I 
     am asking is that people, who are truly trying to find work, 
     get a fair chance to provide for their families while they 
     seek employment. I would work a part-time job or 2 part-time 
     jobs in lieu of a full-time job if I could find them. So the 
     solution is two fold. Get the economy going so that people 
     like me can find a decent paying job or jobs. And revise the 
     current system so as not to penalize people who have already 
     gone through one or more layoffs in a short period of time.
       Gentlemen, this is the greatest country in the world. The 
     middle class needs a break. I don't want a free ride. I just 
     want a job or jobs that will supply the basic needs for our 
     family.
                                  ____

                                                 October 10, 2003.
     Hon. Harry Reid,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Reid: On July 2, 2003 I became a displaced 
     airline worker after 38 years as a TWA (now American 
     Airlines) Flight Attendant. As a result of union concessions 
     given to American Airlines prior to my furlough, I received 
     no severance pay.
       My Unemployment Benefits will expire on January 2, 2004.
       Congress has passed new legislation which made December 28, 
     2003 the cut-off date for Temporary Extended Unemployment 
     Compensation (TEUC). After that date, there will be no more 
     TEUC extensions. I will miss the deadline for Extended 
     Unemployment Benefits by 5 days.
       I am a single woman and sole supporter. I have no skills 
     applicable to this difficult job market and my age makes an 
     already bad job market even more limited. It will take time 
     to learn skills and find a suitable job. Extended 
     Unemployment Benefits will be needed for my very survival.
       I ASK YOU TO PLEASE SUPPORT SENATE BILL S. 1708 which will 
     extend the TEUC bill and provide additional Unemployment 
     Benefits to those of us who cannot find jobs.
       Thank you for your consideration in this matter.
           Respectfully submitted.

  Mr. REID. I would also say that this woman says she would take two 
jobs at

[[Page 28796]]

minimum wage just to make things work. She has a husband who is 
disabled. That is what this is all about.
  We know that during the last 30 hours people in America have had some 
problems. Two thousand eight hundred thirty-three people have lost 
their jobs; 8,698 have lost health insurance; food stamps increased by 
6,237; the trade deficit has gone up $300 million; 36 mass layoffs, 
13,194 people lost their unemployment.
  During the last 30 hours, we have 65,357 people who applied for 
unemployment benefits for the first time. We have had, during this 30 
hours, desperate people; 5,137 people have filed for bankruptcy.
  I did general practice. I have had interviews with people who told me 
they had no choice but to file bankruptcy. Usually it is some problem 
with medical expenses, but these people are desperate. We don't have a 
bunch of deadbeats out there. We don't have 5,137 deadbeats. We have 
5,137 desperate people.
  What are we talking about here? Not doing something about the 
bankruptcy law when we came that close to passing it. There was one 
provision in it that because of the ideology of certain people it 
didn't pass. We came so close to reforming the bankruptcy law which 
would have helped a lot of these people. We should spend some time on 
bankruptcy.
  I have talked to the distinguished senior Senator from Iowa on many 
occasions about the need to do something about this. And by the way, he 
is a Republican. We need to do something about it. But what are we 
doing? Spending 30 hours talking about people who have jobs. They have 
not lost their health insurance. They are not drawing food stamps. They 
have not been part of mass layoffs. They have certainly not lost their 
unemployment. They have not had to file for unemployment benefits for 
the first time, and they have not had to file for bankruptcy.
  During the last 30 hours, to get real personal about this, 80 people 
have committed suicide. While we have been here talking about these 4 
people, 80 people in America have killed themselves. These are real 
people. The distinguished junior Senator from Oregon lost a 22-year-old 
son about 2 months ago as a result of suicide. In this Senate Chamber, 
there are lots of people who have suffered as a result of suicide. My 
father killed himself.
  We need to learn more about suicide. More than 31,000 people in 
America a year kill themselves. We don't know why. It is one of the 
leading causes of death for teenagers. Why are we spending time on 
these four people? Why couldn't we spend 30 hours trying to find out 
why people kill themselves? We don't know. And we, as a Congress, have 
trouble even having a hearing on it. The first hearing on this was held 
less than 10 years ago. We have done a little since then but not very 
much. There are desperate people out there trying to decide are they 
going to kill themselves today.
  I met up here in my office today with a prominent person, a prominent 
name in Washington, DC. She proceeded to tell me when she was 17 years 
old she tried to kill herself. She took a lot of pills. She described 
to me how she believed she went to the other side and came back. This 
isn't some nut. This is a good friend, someone who a lot of people 
know, a wonderful person. We need to learn more about suicide. But we 
are not going to do it talking about these four people, these four 
people who have jobs, who have health insurance, who are not on food 
stamps, who have not been part of mass layoffs, who have not filed for 
unemployment benefits or bankruptcy.
  During the last 30 hours--and this is very difficult to comprehend--
during the last 30 hours, 10,000 people have died in Africa because of 
AIDS; 10,000 people in 30 hours have died in one continent because of 
AIDS; 70,000 people in a week. There are no vacations. Christmastime, 
Thanksgiving, Easter, it doesn't matter, they keep dying. What about a 
debate for 30 hours recognizing what we can do to approach the needs of 
this worldwide problem which has an affect on America?
  During the last 30 hours, Nasiriyah, Iraq, a suicide bomber, 31 
killed; during the last 30 hours in Baghdad, Iraq, 2 of the 1st Armored 
Division killed; during the last 30 hours in Iraq, 37 attacks by 
terrorists, many of our troops not dead but injured; during the last 30 
hours, seven funerals of American servicemen killed in a helicopter 
downing in Iraq, seven funerals.
  I understand how strongly people feel about these four people. I know 
how strongly people feel about this. But as I said yesterday, I don't 
in any way suggest we are wrong. I believe as strongly as I can that we 
have done the best thing for America in turning down these people who 
would be bad for the judiciary.
  I have been to juries lots of times. I have tried over 100 cases with 
juries. I have the greatest respect for our justice system. I have 
tremendous respect for judges who try cases themselves. But I also have 
some idea in my own mind, having been a trial lawyer, how important it 
is to have good people on the bench, especially the Federal bench. 
These are appointments for life. I think no matter how strongly people 
feel about this issue, and assuming for purposes of this discussion 
that we are wrong, which I disagree, but let's assume for purposes of 
discussion, don't you think we have carried this thing a little too 
far? Don't you think the same points could be made?
  I have tremendous respect for my friend from South Carolina. I sat 
right here, just like this, scared to death 5 years ago. It was the 
first time I had ever sat this close, first time I ever had the job as 
the assistant leader of the Democrats. I was afraid to be here. The 
first big thing was the impeachment trial of the President of the 
United States. The Senator from South Carolina was one of the managers. 
He is a fine lawyer. I have great respect for him. He is a man of 
courage. He breaks from his party on occasion. I admire him for that.
  But I say to my friend, I think we have made our points. I mean, you 
make a good case. But for Heaven's sake, everything has been said by 
your side, and everybody has said it. On our side, I think everything 
has been said, and everybody has said it.
  Enough is enough. I think during the last 30 hours we could have been 
discussing issues that are more important, such as jobs, not the four 
people who have jobs, who have health insurance, who have not had to go 
on food stamps, who have not been part of mass layoffs. They have not 
lost unemployment benefits. They haven't had to file bankruptcy. There 
are just so many problems we need to deal with that we have not done 
because of these 30 hours.
  I say to my friends, we have had an equal discussion. I think that is 
good, that the two leaders worked that out, because it could have been 
a real nasty situation here without allocating the time in a balanced 
fashion. Maybe history books will look at this as something that has 
been important to the country. I hope so. But I have my doubts.
  I think the more important issues are not those dealing with these 
four people. The more important issues are those dealing with the 
personal lives of other than those four people.
  I would ask that we recognize that. I know the content of the 
character of the Senator from South Carolina who is leading the debate 
on the other side. I know he will lead a civil debate. I appreciate 
that. But I just say: Why don't we all just wrap it up and go home. 
Come back and vote at 8:30. That is what the schedule is anyway. I 
think that would be better for the whole body.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. REID. Whatever time we have remaining, I yield to the majority.
  The PRESIDING OFFICER. Time is yielded back from the minority side. 
The Senator from Minnesota.
  Mr. COLEMAN. Mr. President, I have great respect for the Senator from 
Nevada and the deep concerns he has for a range of problems and 
concerns that he talked about. They are real. We are talking about more 
than just four people. We have to recognize that. It is not just about 
four people. For people who were confirmed and should be confirmed as 
court of appeals judges, we

[[Page 28797]]

will have a tremendous impact on the lives of the folks about whom the 
Senator from Nevada was talking. That is what the courts do. It is not 
a personal thing. This is not a measure of whether these nominees have 
jobs, don't have jobs. It doesn't take away from anyone else. This is 
about the third leg of the stool of Government: legislative branch, we 
are part of that; executive branch; and judicial. Those are the three 
legs of the stool that uphold the system we have.
  It is not about four people. The Senator is right. There are so many 
important issues to talk about, such as AIDS. I came back from a trip 
to Africa with the majority leader and a group of my colleagues. We saw 
the devastation and destruction. We were in South Africa where 5 
million people are HIV positive, and 20,000 of them on treatment. We 
looked into the eyes of people who were dying and into the eyes of the 
doctors treating them. We are doing stuff about that; we are acting. We 
passed in this body a bill that provides over $2 billion--$2.4 billion, 
and you add in our commitment to the global fund. The President made a 
commitment of $15 billion, which is unprecedented, and overwhelmingly 
we are acting on it.
  It is not enough to simply lay out a litany of problems. Maybe I am 
more of an optimist and a realist. My favorite quote is from the first 
Prime Minister to serve Israel, who said that anybody who doesn't 
believe in miracles is a realist. Goodness gracious, the world is not 
falling apart. There is a lot of hope and optimism. It is not just 
enough to talk about problems, as my colleagues on the other side of 
the aisle do. We can talk about the economy and jobs. What are you 
doing about it? That is the question. What is the plan? Their plan has 
been to roll back the President's tax cut. That is what their nominees 
for President are talking about--rolling back the tax breaks we are 
giving to moms and dads, that we are giving to small business, 
accelerating depreciation, increasing the opportunity to expense 
capital investment to generate more investment. The latest survey shows 
that business investment is up by 15 percent. So it is not simply to 
lay out a litany of woes, how terrible the world is. What are you going 
to do about it?
  That is what my colleague from South Carolina and I talked about in 
our campaigns. We want to do something about it. It is not enough to 
lay out just how the sky is falling and how the world is falling apart. 
We are trying to do things here.
  We will have time to debate the economy. We have debated it, and we 
passed the third largest tax cut in the history of this country. And 
what do you see? The GDP is estimated at 7.2 percent, down in the third 
quarter of 2003. Employment increased by 126,000 in October, while the 
number of jobs added in September was revised to 125,000 from the 
previous estimate of 57,000. The unemployment rate decreased from 6.1 
percent in September to 6 percent. It is still too high but it is 
decreasing. There is a downward trend in jobless claims. The stock 
market, on November 3, jumped to a new 17-month high. We have trillions 
of dollars of new investment in this economy.
  The tax cuts we passed here, which were opposed by our friends across 
the aisle, are responsible for the accelerated growth in opportunity. 
Spending by businesses grew at an annual rate of 11.1 percent in the 
third quarter, following an impressive 7.3-percent gain in the second 
quarter. Again, these are things we have done that have encouraged 
investment and, in the end, generated opportunity and are generating 
jobs. That is what it is all about. We have a ways to go, absolutely. 
But it is not enough just to lay out the litany of how terrible things 
are. What are you going to do about it? One of the things we do about 
it is why this debate is important--it is to make sure we have a strong 
Government, that we have a strong judiciary. That is what this is 
about.
  The fact is, when the President of the United States has 30 percent 
of his circuit court judges and court of appeals judges filibustered, 
it is unprecedented in 214 years of the history of this country, and it 
is wrong. The fact is, we should talk about upholding the Constitution.
  I am a former solicitor general in Minnesota. I had the opportunity 
to argue before the highest court of my State many times. I have great 
love and appreciation for its constitution and history, and it is 
important. To the person who is unemployed and is getting a job, that 
is important.
  I say to that person that I am committed to doing everything I can, 
with every breath that I have, to make sure you have opportunity. I am 
going to do that. At the same time, we have the ability to do more than 
one thing at a time in this body. I can tell you, we are debating at 1 
in the morning, but to those listening, I hope this is an educational 
experience.
  Let's talk about the Constitution now. By the way, to my friends 
across the aisle, I noted his conversation with the doctor from Utah 
State, that he was concerned about health insurance, as he should be. 
One of the keys to getting health insurance is jobs, small business. 
The things that we have done to generate new investment and grow jobs, 
that helps people get health insurance. I ask my colleague, the 
distinguished minority leader, assistant minority leader, whether the 
doctor talked to him about medical malpractice, whether he talked to 
him about the impact that medical malpractice has on his ability to 
practice and to provide quality health care. The cost of that, by the 
way, on businesses makes it more difficult for them to grow jobs. That 
is another issue that was filibustered by our friends across the aisle.
  I think we came within a vote or two on class actions--within a vote 
of changing that. The fact is, it is not enough just to talk about it. 
So it is important to talk about the Constitution. That is what we are 
going to do.
  The fact is that all of us, when we got sworn in, raised our hands 
and swore to uphold it. The Congressional Oath of Office is: I solemnly 
swear that I will support and defend the Constitution of the United 
State against all enemies, foreign or domestic, that I will bear true 
faith and allegiance to the same, that I take this obligation freely, 
without any mental reservation or purpose of evasion and that I will 
well and faithfully discharge the duties of the office upon which I am 
about to enter, so help me God.
  That is a pretty strong commitment. It is not a partial commitment. 
It is not a 98-percent commitment, and it sure as heck isn't a 70-
percent commitment. That is what we are dealing with today. My 
colleagues seem proud of that. You are even using the 98-percent 
figure.
  Again, the reality is we are dealing with circuit court judges, and 
close to 30 percent have not been confirmed and have been filibustered. 
The fact is that right now it is four but tomorrow it will be six. We 
know the other six are there. Unless my friends from across the aisle 
would say we are not going to filibuster another six, I will run the 
names by them. We will change the chart and say something different. We 
all know the reality. Let's lay it out here at 1:10 in the morning.
  Twenty-nine nominees were confirmed and 12 were not. Just think, if 
we took the approach that it is not important, you know, 98 percent--as 
I said before on the floor, if the airline that got me to St. Paul told 
me that I had a 98-percent chance of getting there and a 2-percent 
chance I would crash, I would not be flying.
  The Constitution is wonderful. The first amendment says:

       Congress shall make no law respecting an establishment of 
     religion, or prohibiting the free exercise thereof; or 
     abridging the freedom of speech, or of the press; or the 
     right of the people to peacably assemble, and to petition the 
     Government for a redress of grievance.

  I want those listening to think why is it that in the 214 years of 
the history of this great Republic, this great country, the Senate has 
not done what we are doing now. We are changing the system. It is very 
dangerous.
  The second amendment says:

       A well regulated Militia, being necessary to the security 
     of a free State, the right of the people to keep and bear 
     Arms, not be infringed.


[[Page 28798]]


  Minnesotans are pretty strong about the second amendment. We like to 
hunt and we like our firearms. That is OK. Imagine if I went to a group 
of 172 using my colleagues' chart and said 168 of you are going to have 
the second amendment, or if I went to 41 and said we are going to give 
these rights to 29 of you. There would be a revolution.
  The third amendment says:

       No Soldier shall, in time of peace be quartered in any 
     house, without the consent of the Owner, nor in time of war, 
     but in a manner to be prescribed by law.

  Can you imagine if I went to 41 Minnesotans and said 29 of you are 
going to have a third amendment right, but 12 may be forced to quarter 
without your consent. I don't think they would do it. They would say, 
where is America? There is a reason why we have fidelity to the 
Constitution.
  The fourth amendment says:

       The right of people to be secure in their persons, houses, 
     papers, and effects, against unreasonable searches and 
     seizures.

  Can you imagine going to 41 Minnesotans and saying 29 of you will 
have the right not to be subjected to unreasonable search and seizure 
but 12 of you don't have that right? There would be a revolution. On 
and on.
  The fifth amendment talks about the right against self-incrimination.
  The sixth amendment says:

       In all criminal prosecutions, the accused shall enjoy the 
     right to a speedy and public trial, by an impartial jury of 
     the State and district wherein the crime shall have been 
     committed, which district shall have been previously 
     ascertained by law, and to be informed of the nature and 
     cause of the accusation; to be confronted with the witnesses 
     against him; to have compulsory process for obtaining 
     witnesses in his favor, and to have the Assistance of Counsel 
     for his defence.

  Can you imagine if out of 41 defendants, 29 were told you would have 
a right to speedy trial? Even if you told 168 they would have that 
right, but not the other 4, there would be a revolution.
  We are not just talking about four individuals here. We are talking 
about one of the foundations and the underpinnings of this Government.
  I tell the young people listening in the Chamber, this is your 
future. The greatness of this country is built on its fidelity to the 
constitutional principles. It has allowed us to kind of grow into the 
greatest nation in the world with the freedoms we enjoy, and those 
freedoms we have enjoyed have triggered great entrepreneurial 
opportunity--growing jobs. It is tied together and it is about growing 
jobs.
  You grow jobs when you have a constitution that is adhered to and you 
have stability. I am chairman of a subcommitte of the Foreign Relations 
Committee on which we both serve. I can tell you that the concerns I 
have about some of the countries in Latin America have to do with 
whether they have rule of law. The reality is, if there is no rule of 
law, we see there is no investment, you don't grow jobs. So they are 
related. They are related.
  In the end, I want to get away from just talking about the 
principles, these sorts of abstract constitutional principles. They are 
important and that is why we are here, because we must have fidelity 
there. We have to get things back in sync. We have to get away from 
this process, this unprecedented filibuster. By the way, those are not 
my words. Those are the words, as I understand it, of John Corzine, the 
chairman of the Democratic Senatorial Campaign Committee. In an e-mail 
he had--we have a chart here--it says:

       Senate Democrats have launched an unprecedented effort by 
     mounting filibusters against the Bush administration's most 
     radical nominees. Senate Democrats have led the effort to 
     save our courts.

  Unprecedented filibuster, that is what this is about. There has to be 
a better way. This is about being divisive. We have to get away from 
divisiveness, from everything being a battle. We have to get back to a 
fidelity to the principles that founded this great country. They are 
pretty clear. You don't need a Ph.D. or a law degree to understand the 
Constitution. It is pretty clear, pretty easy reading.
  So that is what this is about today. In the end, it is not simply 
about four people; it is not about whether they have a job. It is 
whether, in fact, we uphold the obligation that we have, that we do our 
duty, that we do our job. In the end, we should simply give people a 
vote. If you think that they are good nominees, vote for them. If you 
think they are bad nominees, vote against them. But you give them a 
vote. That is what we have done for over 200 years. To fail to do that 
will have terrible consequences.
  One last story before I turn the floor over to my colleague from 
South Carolina. It is about this building and a little bit of history 
from a number of years ago. There is an old Senate Chamber down the 
hall. When you walk out of here, it is maybe about 50 yards away. When 
we get sworn in in here in the official ceremony, we then have a 
ceremonial picture taking with the Vice President. It is a very special 
moment for all of us, especially for kids from humble roots. I am one 
of 8 kids, and to have my mom and dad there was very special.
  In that old Senate Chamber, in the old days the Supreme Court 
actually operated on the floor above the Senate. At one time, they were 
planning on remodeling the Supreme Court chambers. Some enterprising 
young architect decided that one of the pillars that was kind of 
holding it up didn't need to be there. So they said don't worry about 
that. What happened was that the Supreme Court crashed into the Senate, 
disrupting its work.
  There is a moral to that story. If you displace or undermine one of 
the pillars of Government, which is what we are doing here, beware of 
the consequences. We cannot let that happen. These nominees--100 
percent of them--deserve what we have done for 214 years: give them a 
vote, vote them up, vote them down, but give them a vote.
  With that, I yield the floor to my colleague from South Carolina.
  Mr. GRAHAM. I thank the Senator. The Senator did an excellent job of 
trying to put into perspective what we are trying to do. Senator Reid 
from Nevada has left. If anybody deserves a break, he does. A couple of 
days ago, he spent about 8 hours-plus on the floor trying to prevent 
some legislation from coming forward that he thought was inappropriate. 
He was committed to making sure that the activity of the Senate did not 
go forward. He used his right as a Senator to speak. I applaud him for 
that. I don't agree with him, but the worst thing I think I can say 
about Senator Reid is that sometimes I disagree with him. He is a very 
nice man. I have enjoyed getting to know him over the years and serving 
with him. I appreciate the nice things he said about me.
  The point is that we disagree on this, and I don't question his 
motivation. I just question the judgment of what we are doing here. He 
described the United States problems in very graphic terms. God knows 
we have problems in this country, but I think it was used to try to 
illustrate or trivialize what we are doing tonight. If we have all 
these problems, why are we talking about this? I don't think it is 
healthy to trivialize the constitutional process of nominating judges. 
Whatever problems we have in this country--and there are a lot of 
them--none are going to be made better by hijacking the Constitution. 
If you expect us to just lay down and forget about it, then you have 
mistaken who we are. If you feel strong enough to stand up for 8 hours 
to stop something from happening, God bless you; if you think other 
people are not going to do the same, you have made a huge mistake. We 
are going to talk until 9 o'clock and do other things.
  I announced today that if this doesn't change, I am going to ask the 
Supreme Court to decide whether or not the tactics of the minority have 
violated the Constitution, because I believe they have. If you are into 
numbers, I can tell you this. In the past 11 Presidents, on their 
judicial nominees confirmed versus those filibustered, we have had 
2,372 people confirmed. We have not had one person filibustered. Now we 
have 4, and in just a couple weeks we are going to have a dozen. Some 
things were said. If nothing changes, nothing will change.
  I can stand here, talk until I am blue in the face, and I have no 
illusions about my ability to change anybody's vote on the other side. 
I feel a real need to let history know, and my constituents back in 
South Carolina know, I

[[Page 28799]]

think this is a lousy thing that is going on. I think this is a change 
for the worse, that you are taking the country down a road no other 
group has ever taken it in the Senate. You are doing it for political 
reasons you believe are just, but I think history is going to judge you 
poorly. I think it is going to be one of the darkest chapters in the 
history of the Senate. You have started something you can't stop, and 
most likely we will answer in kind down the road and you have taken 200 
years of history and thrown it in a ditch. That is a big deal.
  There are a lot of problems in this country, but you are about to 
create one that is very bad. You are adding to that list of problems 
the fact the Constitution has been changed in a way I think is illegal. 
Certainly it violates the traditions of the Senate. And we have to deal 
with it and we are going to deal with it. We are going to talk about it 
and we are going to try to get you to vote and we are not going to let 
this go.
  I am going to ask the Supreme Court to look at this case that is 
going on before the Senate and see if the filibuster, requiring 60 
votes, violates the terms of the Constitution because the Constitution 
requires a simple majority vote to confirm a judge sent over by the 
President.
  Since we are going to have about 8 hours, I will save some of the 
time to talk about the history of the constitutional debate that went 
into that clause, why they picked a majority versus a two-thirds 
requirement that you have for ratifying treaties and impeaching the 
President. There is absolutely a rhyme and a reason for everything in 
this document.
  There is no rhyme or reason for what is going on now, other than 
politics of the moment.
  If you listen to Senator Reid, you would want to leave the country. I 
mean it is an assessment of the problems of the country, given to try 
to trivialize our objection to the Constitution being changed in an 
improper way. But it also is a distortion of who we are as Americans, 
because Americans, given all of our problems, are still the most 
hopeful people in the world. After listening to this rendition you 
would just wonder why everybody is not moving to Canada or Mexico.
  We are not leaving the country. Other people are trying to get into 
our country. One of the biggest problems we have that he did not talk 
about is illegal immigration. People are literally risking their lives 
to get to be part of the American dream.
  I would rather focus on some of the positive aspects of our country, 
one of them being a courtroom available to everybody and anybody, 
regardless of your status in life, where you can go have your day in 
court, and that requires a judge. Judges are picked by the President 
and confirmed by the Senate. The advice and consent clause for the 
Senate has never meant a minority telling the President what to do. It 
has always meant a vote on the nominee with a majority being required 
to put you on the bench, until now.
  Let's talk a little bit about some of these people, the four names. 
But there are many more affected by this than just four. This is the 
America I like to talk about, and relish.
  Justice Brown: Janice Rogers Brown is one of the four who is being 
filibustered. She sits on the California Supreme Court. Senator Schumer 
said she is out of the mainstream. She is not of the temperament and 
the thought process, in his opinion, that makes her a mainstream 
person, so she would do harm to the country if she served as a judge.
  President Bush disagrees with Senator Schumer because he chose her to 
go on the court of appeals. Senator Schumer has an obligation under the 
Constitution to give his advice and give his consent and eventually 
vote. He doesn't have the right, in my opinion, to band together with 
39 other Senators and bring us to a screeching halt. No one has ever 
done that before. It is called a filibuster. The number of filibusters 
in the last 11 Presidencies is zero up until now.
  Let me tell you a little bit about Justice Brown. No. 1, she lives in 
California and she got 76 percent of the vote. In California you get to 
vote on a judge. You get to decide. You, as a citizen, get to vote to 
retain a judge once they become a judge. You actually get to express 
yourself. I am going to go out on a limb here and say no rightwing nut 
is going to get 76 percent of the vote in California. I am going to 
stand firmly behind that statement. I don't believe 76 percent of the 
electorate in California would vote for somebody described as Senator 
Schumer has described this lady. I believe 76 percent of the people in 
California see Judge Brown like the President sees Judge Brown. This 
whole argument that she is somehow out of the mainstream just does not 
pass the smell test because the people of California get to vote on 
Justice Brown.
  We finally got a Republican Governor of California. Arnold is an 
interesting figure, Governor Schwartzenegger is a larger-than-life 
figure--literally. But I don't think anybody would ever accuse him of 
being a rightwing nut. California's political makeup is such that the 
person described by Senator Schumer would never, ever make it. This is 
just one example of the cut-and-paste job on all four of these judges, 
with more to follow.
  Let's talk about the America she came from. Only in this country can 
you do what Senator Coleman and myself have done. I grew up in a pool 
hall restaurant--beer joint is probably a more accurate term--and made 
it to the Senate. I am very proud of my parents. They worked hard. They 
are small business people. I feel I am the luckiest person in the 
world.
  She is the daughter of a sharecropper. She was not born in 
California; she was born in Greenville, AL in 1949. She attended 
segregated schools. I attended segregated schools up until I was in the 
sixth grade. I was born in 1955.
  I can remember, I think it was the sixth grade--about 1967, somewhere 
along that period of time--showing up and for the first time in my life 
having African-American students attend my class. It all worked well 
back home where I lived. In other parts of the State it was more 
dramatic. In Alabama it was more dramatic. This is the State where 
George Wallace stood in front of the door of the University of Alabama 
and said, No, you are not coming here if you are an African American. 
It took the Alabama National Guard, federalized by President Kennedy, 
to open that door.
  That is where she grew up. She talked about listening to her 
grandmother's stories about the NAACP lawyer Fred Gray, who defended 
Dr. Martin Luther King, Jr., and Rosa Parks, and her experiences as a 
child of the South, and that motivated her to become a lawyer.
  Senator Schumer said she is not very good on affirmative action. 
Maybe her view of affirmative action is not what Senator Schumer's view 
is, but I would argue if she was somehow in the right ditch on 
affirmative action, 76 percent of the people in California wouldn't 
have voted for her and somebody would have informed them otherwise.
  This lady's story is compelling. She moved to Sacramento when she was 
a teenager. She got a BA in economics from California State in 
Sacramento in 1974, her J.D. from the UCLA School of Law in 1977. She 
received an honorary doctor of law degree from Pepperdine University 
Law School, Catholic University of America School of Law, and 
Southwestern University School of law.
  Prior to more than 8 years as judge in the State courts, she served 
from 1991 to 1994 as the legal affairs secretary to California Governor 
Pete Wilson, another known rightwing crazy person, where she provided 
legal advice on litigation, legislation, and policy matters. From 1987 
to 1990 she served as deputy secretary and general counsel for the 
California Business, Transportation and Housing Agency, where she 
supervised the State banking, real estate, corporations, thrift, and 
insurance departments.
  She was deputy attorney general in the Office of the California 
Attorney

[[Page 28800]]

General. She began her career as a legislative counsel of the 
California legislature and more will come about Justice Brown.
  The PRESIDING OFFICER. The time of the majority has expired. Who 
yields time? The Senator from Minnesota.
  Mr. DAYTON. Mr. President, I was on the floor the second time 
yesterday, 4 or 5 in the afternoon. I observed, then, the time we 
devoted to this had already become excessive as indicated by the fact 
the statements being mailed were becoming increasingly repetitive and 
redundant. Now I see the added problem is, as we go even further, they 
become less and less factually correct and reliable, which is bad 
enough under normal circumstances. But the accusations that are being 
made are the most serious accusations that can be directed toward 
another Senator.
  One point of factual agreement is we all do take an oath of office 
when we are sworn in here in this Chamber by the Vice President of the 
United States and we do swear to uphold the Constitution of the United 
States. When I took that oath 3 years ago, that was the most solemn 
oath I have taken in my lifetime. There is nothing I ever committed to 
that I take more seriously, and I do my best, as I can possibly see to 
do so, to uphold that. I have never had occasion in my almost 3 years 
here to question or certainly not to cast aspersions on any other 
Member for failing to uphold that solemn oath as he or she believes it 
is best performed.
  We have information available to us through the Library of Congress 
and the Congressional Research Service that has been in existence since 
just about the time the country began. We use it as a learned and 
nonpartisan and, as much as possible, nonbiased source of information 
about the 216-year history of this body. It is not hard to get this 
information. You just pick up the phone and call and ask to get it. So 
I did the other day.
  They list the chronological history of efforts to limit debate in the 
Senate. It goes back to the Journals of the Constitutional Congress in 
1778. It references the very first session of the Senate in 1789, which 
started adopting these rules of various sorts. You can read, and over 
and over in the summaries, I am sure you can go back to the Journals 
and read in greater detail, how this has been discussed, considered, 
debated, argued, voted upon, modified, turned down by Members of this 
body for 216 years.
  When people are accusing us of acting outside the rules and the 
procedures of this body in doing what has been done here and debated 
about here for all that time, they either are woefully ignorant of the 
facts or they know the facts and they are being, I think, extremely 
irresponsible to the American people, if they have the misfortune to be 
watching this at this hour, to lead them to believe we are doing 
something here which is anything other than our right, well established 
in 216 years.
  If the Members on the other side want to disagree with what we are 
doing, or why we are doing it, or who we are doing it for or against, 
they are perfectly within their rights to do so. But to say we are 
violating the rules of this body is not true. To say we are violating 
the Constitution of the United States is a heinous fault and I will go 
with the Senator from South Carolina, I will join with him going to the 
courts of this country, right up to the Supreme Court and let's get the 
ruling he wants. Because I guarantee what it will be. Courts have ruled 
for the last 216 years the House and the Senate have the right under 
the Constitution to establish their own rules. That is what we have 
done. That is what this book is about.
  This book is 1,524 pages, called ``Senate Procedure.'' These are all 
the precedents and changes in the rules and modifications and the like. 
It only goes up to about 1992 because over the last 11 years the chief 
Parliamentarian, who is the editor of this book, hasn't had the time to 
add to it. There are probably another 500 pages or whatever that have 
not been added to this that are all the different precedents, all the 
different changes. Any time any one of us thinks anybody else here is 
acting in violation of those, we have somebody right there. Every 
minute we are in session we have somebody we can ask and get a factual 
answer, an impartial and nonpartisan answer, and that is the 
Parliamentarian.
  I ask the Parliamentarian if anything in these books for 216 years 
precludes our right to do what we are doing and if it is not within the 
rules of this body. I think it is shameful that anybody states 
otherwise.
  One important rule, in 1902, was adopted. Rule XIX was amended by 
inserting at the beginning of clause No. 2 the following:

       No Senator in debate shall, directly or indirectly, by any 
     form of words impute to another Senator or to other Senators 
     any conduct or motive unworthy or unbecoming a Senator.

  I can't think of any imputing of any conduct or motive more unworthy 
to a United States Senator than the violation of the U.S. Constitution, 
violation of the Constitution that we each took the oath of office to 
uphold. To do so without basis in fact is just beyond the pale.
  The Senator from Mississippi, the chairman from Mississippi, earlier 
today said he had his disagreements, he thought we should review these 
matters in the Rules Committee. I laud him for saying so. He doesn't 
have to agree with what we are doing. He has every right to disagree 
and he has every right as the chairman of the committee to go through 
that process and I welcome the opportunity for him to bring in 
constitutional scholars, the Congressional Research Service, the 
Library of Congress authorities, and go through all this and consider 
other questions about whether the minority should be able to hold up 
the nominations of some 60 nominees of a President of the other party 
when they are in the majority; as the Senator from Florida suggested, 
whether these should be lifetime appointments. By the time he passed 
away, Thomas Jefferson was opining that they should not be, to the 
Federal judiciary.
  Let's get the facts. Let's ask the Library of Congress, the 
Congressional Research Service, to tell us if this is wrong. It's on 
their stationery that up until 1917, when the Senate first adopted a 
cloture rule, until 1949, I read directly:

     . . . cloture could be moved only on legislative measures and 
     nominations could not be subjected to cloture attempts.

  But then the Senate rule was changed, by the Senate. Following the 
rules and procedures of Senate they changed it so these steps could be 
taken with regard to nominations.
  I am on page 3, reading again exactly:

       Even after Senate rules began to permit cloture on 
     nominations, cloture was sought not until 1968 on a motion to 
     proceed to consider the nomination of Justice Abe Fortas 
     which was debated at length.

  Moving ahead:

       Cloture was sought on no other nomination until 1980. 
     Subsequent to 1980, of the 12 nominations on which cloture 
     occurred during the 103d Congress, ten were for executive 
     branch positions except in that Congress most nominations on 
     which cloture had been sought have been to judicial 
     positions.

  They have a table which says between 1967 and 2002 on judicial 
nominations cloture was invoked by the Senate 11 times; cloture was not 
invoked 6 times. Executive branch nominations, cloture was invoked 10 
times, not 8 times.
  It is pretty easy to get this information. If somebody thinks they 
are just making it up, they are wrong. They should make that case. But 
otherwise people are making up misrepresentations and misinformation. 
It is outright false. They are doing a great disservice to this body 
and to the credibility we all strive to maintain.
  One of our predecessors from Minnesota, a man I worked for back in 
1975 as a legislative aide, Walter Mondale, former attorney general of 
Minnesota, served for 11 years as a Senator. He said one of his 
proudest accomplishments was modifying the procedures under rule XX 
from two-thirds to three-fifths of Senators. On behalf of the change, 
Senator Mondale said at the time as sponsor of this resolution the 
proposal was a reasonable accommodation of the right to debate and the

[[Page 28801]]

right to decide. We believe this might be harmonized in such a way as 
to protect action.
  Anybody in this body has a perfect right to disagree with that 
statement by Senator Mondale with the actions of the majority of his 
colleagues in that session to make this modification and to leave this 
rule as it essentially is today. But to just imply it is a violation of 
the rules in what we are doing--implying we disrespect the body and the 
purpose of the established procedures and upholding the best interests 
of this country for 216 years--by people who have been here less than a 
year themselves I think is an abomination. Then to go beyond that and 
say we are in violation of our oath to uphold the Constitution of the 
United States is I think a disgrace.
  I yield to my colleague from New Jersey the balance of our time.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. LAUTENBERG. Mr. President, I thank the Senator from Minnesota. It 
is obvious he is outraged at the triviality that is being thrown out 
here about how we are violating our oath and violating our standards.
  Think about this. We are now in the 32nd hour of this talkathon on 
judicial nominations, brought to you by the Republican Party. I guess 
the first 30 hours were so successful they decided to extend the hours. 
But instead of helping anyone promoting a good cause, Republicans are 
using this staged event to push for job applicants who are unfit to 
take the job. They are unfit, they are unqualified, they have shown 
they are likely to abuse their authority as circuit court judges who 
advance an extreme rightwing agenda and not in the best interests of 
America.
  The Republicans so desperately wanted this talkathon to be a made-
for-television movie they attempted to coordinate their efforts with 
FOX News, the providers of fair and balanced Republican television. It 
comes from the distinguished majority leader's office, one of his staff 
people. It says: ``It is important to double your efforts to get your 
boss to S. 230 on time. FOX News channel is really excited about this 
marathon. Brit Hume at 6 would love to open with all of our 51 Senators 
walking onto the floor. The producer wants to know we will walk in 
exactly at 6:02 when the show starts so they can get it live to open 
Brit Hume's show. If not, can we give them an exact time for the walk 
in start?''
  That hardly sounds like a sincere effort to me to get something done.
  I hear the outrage about how we are playing politics on this side. 
What is this? If that is not raw production, I have never seen it. Line 
up. I wonder if the suit colors and ties were described at the same 
time. It is good to see a bunch of penguins walking down here 51 deep.
  FOX News presents--it says 30 hours. They made a mistake. They didn't 
know how enjoyable this was, that we were going to go on with this.
  The passions are so high there are things said that are just not 
accurate.
  I point to this hallowed document, Senate Manual, which talks about 
the Constitution of the United States. It is part of the book. It talks 
about the powers of the President. He ``shall have power by and with 
the advice and consent of the Senate to make treaties et cetera and 
with the advice and consent of the Senate shall appoint ambassadors, 
other public ministers and consuls, judges of the Supreme Court and all 
other officers of United States.''
  Advise and consent--it doesn't say consent and advise. It doesn't say 
just approve them and we will talk about it later. We are maintaining 
our responsibility to the Constitution to a ``t''. It is our friends 
who want to ride roughshod over it and perhaps maybe find another way 
to curtail the appropriate dissent of the minority as has been 
evidenced so many times in the past.
  I think about what is going on here after a visit I made yesterday 
along with others to Walter Reed Hospital, and I met a young man there. 
I knew he was in a ward in an area--a single room but in an area where 
the amputees are cared for. I didn't want to really inspect him with my 
eyes. I reached out my hand to shake his hand, and I wound up feeling a 
cloth and nothing in the cloth. His hand was missing. On the other side 
his arm was missing. He is about 23 years old, full of life. My guess 
is 23. I know he is young. He was positive and said, I am going to get 
on with this. We had the good fortune to have former Senator Max 
Cleland from Georgia who lost three limbs in Vietnam and was made out 
to be unpatriotic in the last election. Figure that one out. But he had 
the good judgment to ride in there in his wheelchair and look at this 
young fellow who had been, by the way, 3 weeks in Iraq, and about 4 
months in the Reserve; no hand on either side, and no arm on one side. 
He told this young man, Have courage. There is life for you. And then 
he gets visited by Danny Inouye, Congressional Medal of Honor winner, 
missing an arm. He comes in to say to this young fellow, There is life 
out there. You can accomplish something.
  And here we stand on this nonsense. Why aren't we talking about what 
the problems are in Iraq and how we solve them?
  Let me read to my friends on the Republican side what a very 
distinguished Republican Senator said, John McCain. Few had his 
experience in military matters in a war. He said:

       The Pentagon's proposed withdrawal of U.S. troops in Iraq 
     would be an irrational move. ``If anything,'' said McCain, a 
     senior member of the Senate Armed Services Committee and an 
     outspoken critic of the administration's postwar policies in 
     Iraq, ``the United States needs to increase its troop 
     presence in Iraq, specifically special forces and Arabic-
     speaking intelligence officers. The attacks are up. The 
     wounded Americans are up. Killed Americans are up, and the 
     Pentagon announced a withdrawal or decrease in the number of 
     American troops. It is not reasonable or rational,'' says 
     John McCain.

  I agree with him. Why aren't we discussing that? Why aren't we having 
a marathon, 30-hour marathon, and talking about the war, talking about 
what is going on and talking about what we do to make it easier on 
those to make them safer, and send the 10,000 or 20,000 additional 
troops John McCain says are necessary and I believe are necessary? I am 
no military expert. I spent 3 years in the Army. I was a corporal 
during World War II. But I know we need more there. We have to help our 
troops.
  Do not talk about whether we are violating the Constitution. Where is 
your oath? Is it in your heart? It is the process we are talking about. 
Go to the Supreme Court and have a great trip. We will escort you 
there. Take and read the Constitution--just like you can, just like I 
can. Forgive me--just like the Senator from South Carolina can.
  That is what we ought to be talking about and not talking in front of 
the American people about the process and about how fair we have to be 
with judges we think are unfit and we are going to talk about it. Just 
as we were threatened by the debate that went on, we are not going to 
go away, as I heard the Senator from South Carolina say. We are going 
to stay here. We are going to do this, and I am going to the Supreme 
Court. Have a good visit. The fact of the matter is it is very clear 
what our responsibilities are.
  I talked about my trip yesterday to Walter Reed. On Monday, I made a 
trip to the Sacred Heart Cathedral in Newark and watched a young man 
who was on a Chinook helicopter. By the way, the fellow I saw in Walter 
Reed was not the American amputee. The other fellow, burned, broken 
bones all over his body, he was in the Chinook helicopter also. It 
wasn't many days ago this fate befell them, and they were already in 
the hospital here.
  But Sergeant Joe Parez--25 years old, wife, little baby girl, mother, 
father, brothers--was buried at the Cathedral in Newark. He was one of 
the 16 who perished when the Chinook helicopter went down.
  We had a brief moment of conversation. I said we would try to be of 
help to the widow and the family. She is a very young woman totally 
overcome by the loss of her husband.
  This was a week for me that brought home reality. I saw it when I 
served in Europe during World War II, and I saw it here, and I saw it 
when I went to the hospital that took care of Vietnam veterans.

[[Page 28802]]

  There is a price, a terrible price people are being asked to pay. 
They are there. They are worried about their families. They are worried 
about their jobs. They are worried about this country. They are worried 
about how they are going to adjust back into society after being away 
too long. We are stretching this rubberband so tight. We have 
reservists who signed up for duty that included weekends and a couple 
of weeks a year out in field exercises. Their job primarily was to be 
there in the case of emergency, floods, natural disasters, riots, those 
kinds of things that happen. But we do not talk about those. As a 
matter of fact, what has happened here I find quite shocking is there 
is a deliberate attempt by this administration to conceal the fact that 
these dead guys are coming home in caskets, and they deserve the honor 
of being acknowledged and not hidden off in some obscure air terminal 
and shipped quietly in trucks to get them out of the way. Stand up, Mr. 
President, and stand up, my friends on the Republican side, and demand 
we have an inquiry about this instead of fooling around with 30 hours 
here to prove nothing.
  The Constitution tells you how it goes. Read it. Read it and tell the 
truth to the American public. Stop talking about politics because that 
is exactly what you are doing. You think the TV perhaps is going to get 
your brave message out to the rest of the country. Yes. Our heroes 
stood up and they stood up for a process. The rate, I think, is 
something like $80,000 an hour it costs to put on this not very good 
circus, I would say.
  I say to the critics on the other side, stand up, talk about things 
that affect people, tell us how we are going to get out of Iraq without 
losing more of our young people. We are over 400,000. There are far 
more casualties than we had in gulf war 1.
  I managed to be the first legislator to be there in 1990. We had 
540,000 people on the ground and we lost far fewer than we have lost in 
Iraq II. Why? Maybe we were better prepared. Why? Maybe we had enough 
people to make sure they couldn't maraud our troops and our units there 
and decimate them, and not only break their lives but break the hearts 
of the Americans across the country because they do not understand what 
is happening.
  This is a colossal waste of time. Face up to it. The minority 
disagrees with the selection. You have seen the statistics--168 to 4. I 
think the number is a very small percentage of those who have been 
challenged. More judges have been confirmed in this Senate than we saw 
in the entire years of the Clinton administration. We have done our 
job, and we have done it well. Tempers fly high. I think they ought to. 
I don't like losing my temper. But I dislike losing my mind.
  That is what is happening here. This is a loss of purpose. This is 
raw politics. To call it anything else is unfair and false. The 
Constitution says advise and consent. It doesn't say consent and 
advise. It says nothing in the Constitution, no matter how many 
attributions, that we have to lay down and simply accept what the 
President sends down. There are checks and balances, just as a 
reminder, in case one doesn't understand that. This is a perfect 
example of what it is about.
  No, we will not accept people who we think are unfit. This has not 
been an unreasonable Senate. We have done what we have to. We have 
watched appropriations bills language all over the place. We have seen 
there is hardly a serious long day of work to get the job done. But 
this falsely heroic effort to make a difference in the way our society 
functions is I think see-through politics. I think it is obvious what 
we are watching--someone called it theater. I call it a circus. It is 
not fair to the people we serve.
  I hope we will be able to get on with the business of the people 
soon. We have our votes tomorrow morning. I would like to see us turn 
to the war in Iraq and have a serious debate about it and hear from the 
high-posted officials, the Secretary of Defense, the National Security 
Adviser.
  I was at a briefing today. I don't know whether any of the other 
Senators here were in the room. It was a relatively junior staff 
presentation. The news didn't particularly have much insight attached 
to it. But we went to try to find out.
  We ought to make a pledge right now that we will do another 30 hours, 
maybe start tomorrow night and talk about the Iraq war, talk about our 
people, talk about how we are going to get them home and talk about how 
we are going to end it; talk about how we are going to justify to the 
American people why we are spending $20 billion for the reconstruction 
of Iraq but we can't rebuild schoolhouses filled with asbestos or 
otherwise.
  The PRESIDING OFFICER. The minority's time is expired.
  Mr. LAUTENBERG. I yield the floor.
  Mr. GRAHAM of South Carolina. Mr. President, I thank Senator 
Lautenberg for his services to this country. Serving in World War II is 
a big deal no matter your rank. My dad was a corporal, too. If you 
think it is a waste of time, have your say. This is a huge deal. The 
Democratic leadership and the members of the Democratic Party have set 
in motion something I don't know how to stop. I had a chart that says 
in the last 11 Presidencies we had 2,372 people confirmed and not one 
person filibustered. You decided to do something different. It bothers 
me as much as our response bothers you. The people being filibustered 
are very qualified people, in my opinion, and you certainly have your 
right to disagree.
  I don't believe the Constitution gives the minority of the Senate the 
right to advise and consent. We have 214 years of history where the 
advice and consent clause has been the Senate speaking as a majority. 
What hurts the most about the filibusters, which are unprecedented and 
are harmful to the country, is every nominee that is being filibustered 
by our friends on the other side has enough votes to become a judge. 
Literally a minority of Senators have taken it upon themselves for the 
first time in the history of the country to make sure a majority of the 
Senate cannot vote to confirm a judge by using a rule of the Senate.
  I would like the Supreme Court to hear that case because I don't know 
of any other way to make this go forward. Chances are the Supreme Court 
may very well say this is not something we decide because you are the 
Senate. We are the Court. These rules are your rules. They may well say 
that, but I feel a need to push this as far as you can to get an answer 
and try to move on and have a better future.
  The future of the Senate when it comes to judges is going to be 
lousy. We have four filibusters going on with another seven or eight to 
come. But if we behave with each other like this, we will have hundreds 
before long. As time marches on, we will have a lot of people caught in 
this vise.
  Senator Coleman from Minnesota made a great point, I thought. Justice 
Ginsburg would not have a prayer because she has a liberal view of the 
law and a lot of people on this side voted against her. But they voted 
and she won the day. Justice Scalia is vilified by the left. He would 
never have a shot. A lot of people on the Democrat side voted against 
him. But he won the day and he is sitting on the Court. That is the 
strength of the Nation. When you have someone like Ginsburg and Scalia 
in a room having to talk to each other trying to find a way to move 
forward in terms of judges, it is going to be very disappointing 
because good people are not going to put themselves through this.
  Justice Brown will be filibustered just as sure as I am standing 
here. She is an African American who sits on the Supreme Court of 
California. She has authored more majority opinions in California than 
any other justice. I gave a rundown a while ago about her story coming 
from a sharecropper family in Greenville, AL, going all the way to the 
Supreme Court in California, getting 76 percent of the vote in her last 
election. And you have to vote on judges in California. My argument is 
that no one would get 76 percent of the vote in California if they were 
the rightwing ideologue that the other side is describing.
  I am not here to convince Members that I am right. I am here to set 
the

[[Page 28803]]

record straight in terms of why I believe President Bush picked a good 
person. If you disagree, vote against her. Don't allow the Constitution 
to be changed in the way you are doing because you are putting the 
country in constitutional and political quicksand. Members will regret 
it down the road. I know the country will regret it.
  Now, there is politics going on here. I will put a human face on 
this. Justice Brown has had a pretty rough time of it in committee. She 
has been very successful with her career in California. She has been 
successful in every endeavor she has engaged in, serving in a variety 
of capacities to the point that people want to promote her and the 
three-fourths of the citizens of her State think she has done a great 
job. But she comes to the Senate and she runs into a buzz saw because 
she is conservative. Apparently that is a crime.
  This is a cartoon by the Black Commentator, a paper. The first 
amendment allows people to talk about public figures. This is just a 
little bit of what it is like to be in the environment our friends on 
the other side have created. This cartoon has ``Welcome to the Federal 
Bench, Ms. Clarence, I mean, Ms. Rogers Brown. You'll fit right in.''
  And it is a caricature of President Bush and a racial stereotype, an 
offensive drawing, of Miss Brown. The people in the choir are clapping, 
as Justice Clarence Thomas--a very distorted picture which is 
offensive, I think--Colin Powell, African American, Secretary of State, 
a great general and somebody I admire, and Condoleezza Rice, our 
national security adviser, another African American who I think will 
help us do a good job in Iraq. This has been a miserable experience for 
this lady. I am very sorry she has had to go through this.
  Over 50 percent of the Senate will vote for her when the cloture vote 
comes. Pickering, Owens, Pryor, all have received over 50 votes but we 
cannot get to passage because the filibuster rule requires us to get 60 
votes. Therein is my problem. The Constitution does not require 60 
votes to confirm a judge. There are several places where two-thirds are 
required. The Constitution says you will advise and consent by majority 
vote in the Senate.
  They are using a procedural device, the Democratic Party is in this 
case, to block a vote on what I think are well-qualified people. No one 
else in the history of the country has done this before, Republican or 
Democrat. This is the first time someone has come out of the Judiciary 
Committee with a majority vote who cannot receive an up-or-down vote. 
There are four of them with a bunch more to come.
  I give no apology for wanting to try to do something about this 
because, as sure as we are all here tonight, there will be a Democratic 
President come later on and that person will make a recommendation to 
this body, a nomination to this body, and if we do not change the way 
this trend is going, it will be a miserable experience. We will get 
bogged down and we will never be able to move forward as the 
Constitution has envisioned. This has worked well for 214 years. This 
is not time to change it.
  Senator Lautenberg was right, there is a political dynamic going on 
here. I am sure Republicans have been abusive in the past in terms of 
the way the judges have been treated. I have heard a lot about that. 
Like Senator Coleman, I am new to the Senate. I would rather not 
perpetuate that problem. I would like to be someone who solved that 
problem.
  We have some quotes from the past that I will read quickly. Senator 
Leahy, the ranking member of the Judiciary Committee, said in 1998: I 
stated over and over again on this floor that I would refuse to put an 
anonymous hold on any judge--that is a way of keeping a judge coming 
through the committee--that I would object and fight against any 
filibuster on a judge, whether it is somebody I opposed or supported, 
that I felt the Senate should do its duty. If we don't like somebody 
the President nominates, vote him or her down.
  Very wise advice. We are not doing that at all. I don't know why we 
changed but we have.
  Senator Leahy, 1998: I cannot recall a judicial nomination being 
successfully filibustered. I do recall earlier this year when the 
Republican chairman of the Judiciary Committee and I noted how improper 
it would be to filibuster a judicial nomination.
  I will read before the night is over many statements in the past 
where our Democratic colleagues were absolutely against the idea of 
doing anything other than giving a person an up-or-down vote. That has 
changed in an unhealthy way.
  E-mails were talked about before. Let me read an e-mail that I think 
says a lot. This came from Senator Corzine, the chairman of the 
Democratic Senatorial Campaign Committee, November 3, 2003, not very 
long ago, and it was sent out to raise money. I am sure we have sent e-
mails and letters saying: Help us. The Democrats are destroying all of 
President Bush's nominations. That is the political environment we have 
gotten ourselves into. Like Senator Coleman, I would rather not 
perpetuate this. I would like to end it and move on and get it right.
  Based on the prior statements of Senator Leahy and others that we 
will read later on, they have changed for some reason. Now they are 
going into the past and saying, we are doing this because you did that. 
Where does this end? The truth is, no one has done what they are doing 
now. That is just a fact.
  From the e-mail:

       Senate Democrats have launched an unprecedented effort.

  I will stop right there. I think that is a true statement. I don't 
believe Senator Corzine is misleading the donor population. I think he 
is trying to tell them, folks, we are doing something nobody else has 
done before. This is unprecedented. You need to pay attention. You need 
to look at your Democratic Senators, pay attention to what we are 
doing, because we are taking a step no one has ever taken before. What 
is that step?

       By mounting filibusters against the Bush Administration's 
     most radical nominees, Senate Democrats have led the effort 
     to save our courts.

  This e-mail is designed, quite simply, to let people in the 
Democratic Party know that the Senate Democrats have done something 
different, something unprecedented, and they are filibustering the 
President's nominees because they are radical. You cannot send this e-
mail out to collect money and spend 32 hours denying you are 
filibustering anybody. You are filibustering judges in an unprecedented 
way. And they are the Bush administration's nominees. The question is 
whether or not they are radical.
  If you think they are radical, vote against them. I don't believe 
Justice Brown is radical. I don't think 76 percent of the people in 
California who have voted would have voted for her if she was radical. 
I think the attacks against her have been radical. But that is just my 
opinion.
  This e-mail clearly establishes the fact that the Democratic Party 
has made a calculated effort in the Senate wing of the Democratic Party 
to do something different, to stand up against President Bush. They are 
blinded by the political moment. If we continue down this road, there 
will be more e-mails such as this on both sides of the aisle and it 
will be a disaster for the Constitution.
  There are men and women serving in Iraq. There are people putting 
their lives at stake for this country. God bless them. We all did take 
an oath. They have their opinion and I have my opinion about what the 
oath means. But it will not withstand the filibustering of these 
nominees. It would be irresponsible on my part, given what I believe my 
oath is, to just let this go and make like it is no big deal because I 
think this is a huge deal.
  I yield to the Senator from Minnesota.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. COLEMAN. Mr. President, following up on the comments of my friend 
and colleague from South Carolina, you have to ask yourself, 214 years 
and the Senate has not done this,

[[Page 28804]]

has not stopped a judicial circuit court nominee by filibuster. That is 
a fact. My colleagues on the other side can argue with charts but that 
is the reality.
  You have to ask yourself, for 214 years was the Senate a rubberstamp 
for the President? I don't think so. I don't think anyone could make 
that argument. What you have is the reality that the Senate was 
exercising its constitutional responsibility. And doing it in a 
constitutionally responsible way.
  That is what is important, doing it with respect for the 
Constitution, respect for the authority of the President to set forth 
the nominee, respect for the obligations upon the Senate to advise and 
consent, by a majority vote. Again, the Constitution, article II, says 
treaties need a supermajority, not a simple majority vote. What we have 
here is the minority saying we are not living by majority votes when it 
comes to judicial nominees regardless of what is in the Constitution. 
That is unfortunate. It is more than unfortunate. It undermines the 
principles upon which this democracy is based.
  My colleague from Minnesota, the senior Senator from Minnesota, 
talked about this not being unprecedented. We have done it before.
  Here are the facts. This is a listing of judicial nominations subject 
to cloture attempts from 1968 to 2003. I will go through every one of 
them. The first one is Abe Fortas, Chief Justice. Cloture was rejected. 
I will come back to whether that was even a filibuster. That was not a 
partisan filibuster. In fact, it was a bipartisan effort because of 
ethic complaints about Fortas but it was not a partisan filibuster.
  A letter was sent to John Cornyn, chairman of the Subcommittee on the 
Constitution from the former Senator from Michigan, a predecessor of my 
colleague, Mr. Levin, who is sitting there, talking about the Fortas 
nomination and basically saying that it was not a filibuster.
  What happened, in a letter he says, while a few Senators might have 
contemplated use of the filibuster, there was no Republican Party 
position that it should be employed. Indeed, the Republican leader of 
the Senate, Everett Dirksen, publicly expressed his support for the 
Fortas nomination shortly after the President announced his choice. Our 
position in 1968 to the Fortas nomination was not partisan. Some 
Republicans supported Fortas; some Democrats opposed him.
  Go through every listing on this chart. Outcome of cloture attempt, 
may have been rejected, may have been invoked, may have been withdrawn, 
but every nominee got a vote. That is what this is about. Vote them up 
or vote them down but give a vote.
  We have a minority for the first time in the history of this body 
basically saying, regardless of what is in the Constitution, regardless 
of the language of the Constitution that makes it clear that the advice 
and consent is based on majority, they are changing the rules of the 
game. The argument is that these candidates, these nominees are outside 
the mainstream.
  What is the mainstream? Who is the mainstream? Priscilla Owen 
received 84 percent of the vote in the last election for the Texas 
Supreme Court.
  I have to tell you, I would love to see an 84 percent in any 
election. Just about anybody in this body would love to see 84 percent. 
They would tell you that is mainstream. That is mainstream. That is the 
``wholestream.'' What is left is extreme. And that is what you have.
  Bill Pryor, 59 percent in his last election for Alabama Attorney 
General--59 percent.
  Janice Rogers Brown received 76 percent in her last election to the 
California Supreme Court.
  I would note one of the Senators from California, Mrs. Boxer, 
received 53 percent. Who represents the mainstream in California? 
Seventy-six percent of the vote. The other Senator from California, 
Mrs. Feinstein, by the way, former mayor of San Francisco--I am a 
former mayor. I have great respect and appreciation for mayors. It is a 
tough job. She is a great Senator. I do not always agree with her, but 
she is a great Senator. She got 56 percent of the vote. Janice Rogers 
Brown, who supposedly is the extreme, got 76 percent in her last 
election for the California Supreme Court. That is mainstream, not 
extreme.
  Charles Pickering was confirmed to the Federal district court in 1990 
by this body by unanimous consent. What that means is no one objected; 
everybody agreed. And today he is described as extreme?
  If I could go through some of the candidates, Priscilla Owen--a whole 
bunch of these nominees are out of the mainstream? I am not sure what 
they are talking about. She has served in the State of Texas on the 
highest court. She has been given the support of 15 past presidents of 
the State Bar of Texas, a bipartisan group. We are talking about the 
folks who know them best.
  Justice Owen was unanimously rated as well qualified by the American 
Bar Association. Apparently, this unanimous rating of the American Bar 
Association is out of the mainstream as well. I would submit, by the 
way, the American Bar Association is not a conservative interest group. 
I do not know who the members are, but I have to guess it is a 
bipartisan group. I have to guess there are some Democrats in that 
group.
  It is clear the so-called mainstream being portrayed by some in this 
body is not only an incorrect reflection of the average American but a 
single-issue extreme which flows only in the direction of special 
interest groups. That is really what this is about.
  You have to go through the records of these folks. I went to law 
school. Senator Graham went to law school. I went to the University of 
Iowa, did fairly well, and served 17 years in the attorney general's 
office, and solicitor general, chief prosecutor of the State of 
Minnesota. But you would love to have the qualifications and 
credentials of the folks here, the folks the President has nominated. 
These are quality, quality, quality folks.
  Then you read the statements of some of their supporters. Mary Sean 
O'Reilly, lifetime member of the NAACP and a Democrat:

       I met Justice Owen in January, 1995, while working with her 
     on the Supreme Court of Texas Gender Neutral Task Force. . . 
     . I worked with Justice Owen on Family Law 2000, an important 
     state-wide effort, initiated in great part by Justice Owen. . 
     . . In the almost eight years I have known Justice Owen, she 
     has always been refined, approachable, even tempered and 
     intellectually honest.

  That is what you want from a judge. That is what you want from a 
judge. You do not want fidelity on a single issue. What you want is the 
judge to be tempered, to be intellectually honest, to apply their best 
judgment, to interpret the Constitution.
  Raul Gonzalez, former Democratic justice on the Supreme Court of 
Texas. In Texas they elect their justices. In the elections, Democrats 
run, Republicans run. Senator Cornyn, one of our colleagues, also 
elected with us, is a former member of the Texas Supreme Court, former 
attorney general.
  Raul Gonzalez, former Democratic justice on the Supreme Court of 
Texas:

       I found her to be apolitical, extremely bright, diligent in 
     her work, and of the highest integrity. I recommend her for 
     confirmation without reservation.

  John L. Hill, former Democratic chief justice on the Supreme Court of 
Texas:

       After years of closely observing Justice Owen's work, I can 
     assert with confidence that her approach to judicial 
     decision-making is restrained, that her opinions are fair and 
     well reasoned, and that her integrity is beyond reproach.

  That is what it is about: integrity beyond approach, opinions that 
are fair, well reasoned. That is what you look for in judges. You 
cannot allow a minority of folks in this body to toss about the label 
mainstream, fueled by folks with special interests. They are kind of 
pounding the drum, and people follow that drum.
  But you have to ask, who is in the mainstream? Folks who get 
overwhelmingly elected by the people of their State, who receive 
bipartisan support.
  Another former Democratic justice on the Supreme Court of Texas, Jack 
Hightower:


[[Page 28805]]

       I am a Democrat and my political philosophy is Democratic, 
     but I have tried very hard not to let preconceived philosophy 
     influence my decision on matters before the court. I believe 
     that Justice Owen has done the same.

  That is what you want. The reality is, judges are people. They have 
heart and soul like everyone else. If you are a defendant in front of 
them, you may worry about that. But they are people. They bring a life 
experience. They bring a perspective. They bring a philosophy. You 
cannot divorce that. You do not divorce that. Some may have been active 
in politics. There is no question about that. They bring positions on 
issues. They are not issue neutral. They have not been lobotomized. 
They bring a life experience and perspective.
  What we ask of them is to do what these folks--their colleagues, by 
the way, are from a different political perspective--say they do. We 
look to their ability to be well reasoned. We look to their ability to 
have integrity. We look at their ability to put aside the preconceived 
notions and simply say they will examine each case on the facts, and 
apply the law, the law that is done by--yes, that is what we do. That 
is what legislators do. That is what you are looking for.
  Former law clerk of Justice Owen, Lori Plager:

       During my time with her, I developed a deep and abiding 
     respect for her abilities, her work ethic, and, most 
     importantly, her character. Justice Owen is a woman of 
     integrity who has a profound respect for the rule of law and 
     our legal system.

  That is what it is about: respect for the law and the legal system. 
To be described as extreme, when you have this body of opinion of folks 
who know you, who have worked with you, who have been your colleagues, 
who sit side by side, who have watched you process and reason, and then 
to render judgments, when they are willing to put aside their political 
predisposition--and what we are asking for is our colleagues to put 
aside the politicization of this process, put aside what we have done. 
Do not go back on a history of 200 years. We have not allowed this to 
happen on the floor of this Senate. We have not rejected judges on the 
floor of this Senate by virtue of filibuster for 214 years.
  Hector De Leon, past president of Legal Aid:

       As the immediate past president of Legal Aid of Central 
     Texas, it is of particular significance to me that Justice 
     Owen has served as the liaison from the Texas Supreme Court 
     to statewide committees regarding legal services to the poor 
     and pro bono legal services. Undoubtedly, Justice Owen has an 
     understanding of and a commitment to the availability of 
     legal services to those who are disadvantaged and unable to 
     pay for such legal services. It is that type of insight and 
     empathy that Justice Owen will bring to the Fifth Circuit.

  That is what you are looking for. You cannot do any better than that. 
Do not allow folks to wave a flag and say ``extreme'' when you have 
folks who in their own community, overwhelmingly--overwhelmingly--
voted, reelected her to the Supreme Court of Texas in overwhelming 
numbers, and her colleagues coming forth and saying: Hey, this is a 
woman who is right. This is a woman who is talented. This is a woman 
who will not put the life experience she brings, perhaps preconceptions 
about issues--you have folks saying she will do what judges need to do. 
That is what it is about.
  Before the night is over, we will talk about others. We will talk 
about Bill Pryor. We will talk about Judge Kuhl. We will talk about 
Miguel Estrada, who has withdrawn. We will talk about Judge Pickering.
  But the common denominator in all of these, what the President has 
done is he has exercised his authority under the Constitution to 
nominate people who have integrity, who have the qualifications, who 
have the support of those with whom they have worked, and who, in many 
cases, when they have had to go before the people of their State, have 
been overwhelmingly endorsed as being part of the mainstream, not the 
extreme.
  The PRESIDING OFFICER. The Senate majority's time has expired.
  The Senator from Michigan.
  Mr. LEVIN. Mr. President, how I wish we could take a week's worth of 
time to debate the issues which are of some critical importance to the 
people of my State; namely, the loss of manufacturing jobs and the 
problems we have in Iraq. These issues, the economy in general, job 
loss in particular, and loss of our troops abroad dominate the minds 
and the hearts of my constituents.
  But the majority has the power to take the Senate on a fruitless 
cruise. That is what we are about: rehashing the merits and demerits of 
4 of the 172 candidates who we have voted on in this Senate. I know 
these numbers are numbers which are very troubling to the majority. I 
can tell that by the fact they have attempted to come back with a whole 
bunch of other numbers.
  When this debate is over, when the dust is settled, what I think most 
people will remember, at least in terms of the calls to my office, is, 
Is this Senate being tied up, night after night, with complaints that 4 
of 172 judges have not been confirmed.
  Mr. President, 168 is a number now which is impressed on the minds of 
people who have watched this debate and heard this debate. The number 
four is a number which people now understand. Maybe the 98 percent 
confirmation rate is not quite at the same level as these 2 numbers, 
but those numbers--168 of President Bush's nominees confirmed by this 
Senate, 4 have not been confirmed by this Senate--those 2 numbers are 
very much emblazoned in the minds of people across this country.
  In rejecting these four, the Senate has exercised its advise and 
consent function according to our rules. It has carried out the checks 
and balances role according to the Constitution that gives us a check 
and a balance, according to the rules of the Senate.
  I want to go back a little bit in history. We have heard quite a bit 
tonight that this is the first time a filibuster has been used against 
a judge on the floor of the Senate. I will get into this in a little 
more detail. I hope to have a little time to talk about the economy and 
manufacturing job loss, and other things which are very much on the 
minds of my constituents.
  But since the majority has decided to set aside this time, mainly to 
debate the fact that only 98 percent of the judges who have come before 
us have been confirmed, and have now suggested, over and over and over 
again, that filibusters have never been used relative to judges, this 
is the New York Times headline of September 25, 1968 relative to Abe 
Fortas: ``Critics Of Fortas Begin Filibuster. . . .'' This is what the 
Senate Web site says about that filibuster. This is not a Democratic 
Web site. This is the Senate Web site for the date October 1, 1968: 
``Filibuster Derails Supreme Court Appointment.'' That is a Senate Web 
site.
  Folks on the other side, our colleagues on the other side, are 
saying: Well, what about circuit court nominees? We sometimes hear 
those words put in there when the statement is made that filibusters 
have not been used to derail judicial nominees. Sometimes the words 
``circuit court nominees'' are put in there instead of ``judicial 
nominees,'' sometimes the words ``circuit court'' are left out, 
sometimes they are included.
  If circuit court nominees have not been derailed by filibuster, it is 
not for a lack of trying. The complaint of our colleagues on the 
Republican side, it seems to me, more accurately would be: Well, we 
have tried filibusters many times, but we have not succeeded. You folks 
are succeeding.
  That is the complaint when you strip away the rhetoric and look at 
the reality. If filibusters have not succeeded in derailing circuit 
court nominees of Democratic Presidents by Republican Senators, it is 
not for lack of trying. Because the effort was made over and over and 
over again with Clinton circuit court nominees. The difference is, the 
filibuster effort did not succeed because the supermajority, which was 
required during those filibusters, was achieved for those circuit court 
nominees. That is the difference.
  This is not at all unprecedented. This use of extended debate 
requiring a cloture vote on judicial nominees has been used repeatedly. 
It has not succeeded repeatedly, but it has been used repeatedly.
  One of our Republican colleagues, during a debate on a nominee--this 
is

[[Page 28806]]

not a judicial nominee, but this is a nominee which is subject to this 
exact same language of the Constitution about advise and consent as our 
judicial nominees are--when a Clinton nominee to be Ambassador was 
before us, and there was a filibuster underway and that nomination was 
blocked, this is what one of our colleagues said. Now this was in 1994, 
and the Senate was controlled by Democrats. The White House was 
controlled by Democrats. The House of Representatives was still 
controlled by Democrats. Our Republican colleague here in the Senate 
was pointing out the only power that was left to Republicans was the 
use of a filibuster and forcing a cloture vote. And I emphasize, this 
is on a nominee who had exactly the same rights or lack thereof to an 
up-or-down vote as a judicial nominee because the nomination is 
governed by the same advise and consent clause of the Constitution as 
our judicial nominees. Here is what our colleague said:

       In considering the nomination of Mr. Samuel Brown to be 
     Ambassador . . . I have reflected on the latitude which ought 
     to be accorded the President in making this decision for the 
     Ambassadorship, reflecting as well on the constitutional 
     responsibility of the Senate for advice and consent as a 
     check. I am troubled by a situation where the only pressure 
     point Republicans have in the U.S. Government is on cloture. 
     Once cloture is obtained, there are more than enough votes on 
     the other side of the aisle to cover the day. While the House 
     is not involved in this matter, the House is overwhelmingly 
     Democratic. There is a Democrat in the White House. The only 
     place that Republicans can assert any effective, decisive 
     action is by stopping somebody from coming up. We have 44 
     votes and we have more than enough, if there is unity among 
     the Republicans, to do that. I think Mr. Brown's nomination 
     and the responsibilities of the Conference on Security and 
     Cooperation in Europe are sufficiently important to preclude 
     his nomination.

  That is what our Republican colleague said in 1994:

       The only place that Republicans can assert any effective, 
     decisive action is by stopping somebody from coming up. We 
     have 44 votes.

  That has been the case not just with ambassadorial nominations but 
with other nominations subject to the advice and consent clause. The 
only difference with the circuit court nominees of President Clinton, 
for instance, who were filibustered is that there was not a 
supermajority to stop the confirmation of the judges. That is not a 
distinction which I would think the Republicans in this debate would 
want to emphasize, but it is a distinction in fact.
  Mr. President, 168 of this President's nominees have passed the test; 
4 have not. When the filibuster has been used relative to those four, 
the rules of the Senate which provide for that to occur, and there was 
not a supermajority, then those nominees have not been confirmed.
  What is at stake here is the functioning of the Senate as a check and 
a balance on executive power. Our Republican colleague who spoke that 
way in 1994 was exactly right. He was using the rules of the Senate in 
a totally appropriate way and saying that the only way we can stop 
this, the only way the minority has a voice, if we feel so deeply that 
there are 41 or more of us who wish to stop this nominee from being 
confirmed, we must use the filibuster, and we must force a cloture 
vote. Checks and balances are what are at stake here. The historic role 
of the Senate is what is at stake here.
  Then-Senator Lyndon Johnson, in March of 1949, said the following 
relative to these checks and balances:

       A man elevated to the Office of the President has virtually 
     unlimited powers of influence over his country. His own 
     personality is a force of great impact upon all the people of 
     the Nation and, in fact, upon the people of the world. Add to 
     those powers directly all those less conspicuous powers of 
     his aides, his administrative agencies and the multitude of 
     channels which feel his influence, and you have a force no 
     other representative government has even trusted for long to 
     one man.
       If on occasion you grant to this titular head of government 
     the further intoxicant of an overwhelming majority of loyal 
     supporters in the legislative branch, then you have a force 
     well nigh irresistible. The distinctions between legislative 
     and executive are difficult to preserve under such 
     circumstances. Mere memorandums become laws and laws become 
     mere memorandums. In such a situation, which happily is more 
     hypothetical than historical, the entire theory of our 
     Government system of checks and balances dissolves and 
     evaporates. The right to check and balance was not granted to 
     the majority because a majority rarely seeks control over 
     itself. Those rights were conceived and installed in the 
     Constitution solely as safeguards for the minority.

  He said:

       I am no historian, but as I have studied the history of 
     governments gone before us, I have been impressed by the fact 
     that the freedom of unlimited debate in legislative chambers 
     has been given up many times by members themselves who are 
     irritated or frustrated by a minority. But so far as I have 
     found, once that freedom was yielded, it has never been 
     returned. If we now give up this freedom in the Senate, I, 
     for one, do not expect to live to see its return.

  Much has been stated here about filibusters on the floor of the 
Senate. Too little has been said about stealth filibusters which occur 
in committee. Political scientist Sheldon Goldman of the University of 
Massachusetts, who is a neutral observer of the process, said the 
following in a Los Angeles Times article on November 6:

       The Bush administration has been spectacularly successful 
     in getting the overwhelming proportion of its judicial 
     nominations confirmed. There are only a relative handful 
     being filibustered and held up, and this contrasts with the 
     dozens of Clinton nominees who were held up by the 
     Republicans in the last 6 years of the Clinton 
     administration.

  Professor Goldman expressed it this way:

       The Republicans obstructed quietly in the committee. If 
     they didn't want to approve you, you just didn't get a 
     hearing.

       Here is one example. Kent Markus was nominated by President 
     Clinton for a seat on the Sixth Circuit. He testified to the 
     Senate Judiciary Committee on May 9, 2002, as follows. To 
     their credit, Republican Senators told him two things.

       There will be no more confirmations to the Sixth Circuit 
     for the Clinton administration.

  Two:

       This has nothing to do with you. Don't take it personally. 
     It doesn't matter who the nominee is, what credentials they 
     may have, or what support they may have.

  Mr. Markus went on to testify that one Republican Senator told him 
the following:

       This is bigger than you, and this is bigger than me.

  Senator Kohl, who kindly championed his nomination in the Judiciary 
Committee, encountered a brick wall. The fact was a decision had been 
made to hold the vacancies and see who won the Presidential election. 
With a Bush win, all those seats could go to Bush, rather than Clinton 
nominees.
  That is what happened. That is exactly what happened to Kent Markus 
and his nomination. A hearing was denied to him. A vote was denied to 
him. And if there is some constitutional right which is being created 
here on the floor, I assume Kent Markus was denied his constitutional 
right to a vote, as were the dozens of other nominees of President 
Clinton who never got a hearing, much less a vote.
  I can't believe for one minute that any court, even if it reaches the 
merits of this case that is going to be brought, would say there is a 
constitutional right to have your nomination voted on when there are so 
many ways of blocking a nomination from getting a vote, starting with 
not having a hearing, starting with not having a markup, starting with 
not reporting a nomination to the floor, starting on the floor not 
reaching a vote up or down.
  When the Republican Senate denied committee hearings and votes for 63 
judicial nominees and more than 200 executive branch nominees, they 
blocked a vote on those nominations. That was their right. They may 
have done the wrong thing in doing so, but they had a right to do so. I 
wish they hadn't. I wish they had allowed those to come to hearings. At 
least have a cloture vote, if nothing else, on the floor, but that was 
not to be.
  There are a lot of ways you can have a vote on this floor. One of 
them is a cloture vote and one of them is a vote up or down. But these 
63 judicial nominees never even got to a cloture vote, never even got 
to see if there could be a supermajority put together for them under 
our rules on the Senate floor.
  It is remarkable to me that our colleagues on the other side of the 
aisle make the claim that blocking nominees from having an up-or-down 
vote

[[Page 28807]]

on the Senate floor is unprecedented, given the actions during the last 
administration.
  Republicans filibustered several Clinton nominees on the floor of the 
Senate, including Richard Paez, Marsha Berzon, Rosemary Barkett, and H. 
Lee Sarokin. Cloture votes requiring supermajorities were required to 
be produced for each of them.
  Our colleagues say these nominees were not blocked by a filibuster, 
which is an artful way of saying that the effort at the filibuster 
failed. That is very different from saying that the filibuster was not 
tried. It was. Cloture votes were required but supermajorities were 
obtained. That is the difference between those Clinton nominees and 
these four nominees. Here supermajorities have not been obtained. 
Therein lies the difference. Same cloture votes, same type of cloture 
votes required, but cloture was invoked for Berzon, Barkett, Paez, and 
Sarokin. Supermajorities supported those nominations, and the 
opposition had a right to force those votes. That required a 
supermajority. They had a right to filibuster, and, in fact, did so.
  Two of President Clinton's nominees, not judicial but nominees, still 
governed by that same advice and consent clause in the Constitution, 
were defeated by filibusters. One was Henry Foster nominated to be 
Surgeon General, and the other one was Sam Brown nominated to be 
ambassador. The argument relative to that nomination was quoted by me 
at some length a few moments ago where a Republican colleague within 
his rights using the rules said: We have only to put together 41 
Republican Senators and we can block this nomination. It is the only 
way to block a nomination with which we fervently disagree.
  Given the fact that the Democrats didn't control the White House, the 
Democrats controlled the Senate, our Republican colleague pointed out 
accurately that the only way to block that nominee was by use of the 
filibuster. Were his constitutional rights violated? I don't think so. 
I think he was given consideration by the Senate in the way that the 
Senate decides to consider nominees, and it can consider nominees in 
many ways.
  It can decide never even to give a nominee a hearing should it 
choose. I don't think that is a wise course, in most cases, but should 
the Senate choose not to give a nominee of the President a hearing, 
that is the Senate's decision. Or after a hearing, if it decides not to 
have a markup to vote that nominee either out of committee or to defeat 
that nominee, that is the Senate's decision. Should a chairman, acting 
alone, decide not to put a name on a markup, that may be that 
chairman's power.
  So the suggestion that requiring a supermajority vote by filibuster 
is new to the Senate is just simply wrong. We can argue--legitimately 
argue--and disagree over whether or not the Senate should give up this 
important check and balance on Presidential power, but we cannot argue, 
it seems to me, that it is unprecedented in its exercise.
  Here are the words of one more of our colleagues during a filibuster 
of a Clinton nominee on March 3, 2000. During the filibuster of the 
nomination of Judge Richard Paez to the Ninth Circuit, this is what our 
colleague said:

       I say to the American people who may be listening right 
     now, judges impact our lives big time in the decisions they 
     make. Citizens complain about violence and the criminals 
     getting out. There are bad judges making bad decisions that 
     cost Americans their liberties, cost them their lives 
     sometimes. That is wrong. We have an obligation in the Senate 
     to take a good hard look at a lifetime appointment to the 
     circuit. The members are there forever, even when they get 
     real old. It is pretty hard to get rid of them. This is a 
     lifetime appointment. We have a responsibility to make darn 
     sure these judges are going to represent the views of a 
     majority of the American people in terms of the law. I intend 
     to do that as long as I can stand here to do it.

  He didn't have 39 others or 40 others to stand with him. As a result 
of that, there was a supermajority for that judge, but it was despite 
the filibuster. It wasn't that there was no filibuster. It was despite 
the filibuster which the Republicans had a right to stage and did 
stage. But most Republicans decided, or at least enough Republicans 
decided not to continue that filibuster but, rather, to invoke cloture.
  To suggest the filibuster has never been used flies right in the face 
of history and recent history, as well as the history of Abe Fortas.
  Historian Robert Caro wrote the Rules Committee of this Senate as 
follows:

       In short, two centuries of history rebut any suggestion 
     that either the language or the intent of the Constitution 
     prohibits or counsels against the use of extended debate to 
     resist Presidential authority. To the contrary, the Nation's 
     Founders depended on the Senate's members to stand up to a 
     popular and powerful President. In the case of judicial 
     appointments, the Founders specifically mandated the Senate 
     to play an active role, providing both advice and consent to 
     the President. That shared authority was basic to the balance 
     of powers among the branches.

  He continued:

       Surrendering such authority is not something which should 
     be done just because of a Senator's point of view on the 
     particular issue of the moment--because much more than the 
     particular issue is involved. What if a Senator--let us say a 
     Senator from a small population state without any other means 
     of defense votes to support a new limitation on debate today. 
     What will he [or she] do in some future year when he is 
     trying to stop a bill or a nomination that a bare majority of 
     the Senate supports, but that he and 40 colleagues believe 
     would be terribly detrimental to their states or to the 
     nation. . . . What will he feel when he suddenly realizes 
     that his right to hold the Senate floor against that action 
     has been so greatly reduced that the bare majority can 
     silence him before he is finished making his case? What will 
     he do when he realizes that, without the right of extended 
     debate his cause is ultimately helpless?

  Finally, I ask unanimous consent that the letter from Senator 
Corzine, which has been referred to, apparently a fundraising letter, 
be printed in the Record in full because I think the words which were 
quoted by my friend on the other side had some very critical dots in 
there, and I think the dots should not have been there. The two 
sentences should not have been pushed together as though they were one. 
The document of Senator Corzine says the following:

       Senate Democrats have launched an unprecedented effort to 
     protect the rights of all Americans by keeping our courts 
     fair and impartial.

  That is the unprecedented effort. The next sentence is:

       By mounting filibusters against the Bush Administration's 
     most radical nominees, Senate Democrats have led the effort 
     to save our courts.

  The suggestion that the words read ``an unprecedented effort to mount 
filibusters'' is not an accurate reflection of that letter. The dots 
which were in the chart, it seems to me, take the place of some very 
critical words making two sentences look as though it is one sentence.
  I ask unanimous consent, just so we can have full disclosure of this 
letter, that this letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Despite the administration's desire to ignore the 
     Constitution's rule of ADVICE and CONSENT, Senate Democrats 
     are holding Republicans accountable.
       Why must the Democrats continue their fight against Charles 
     Pickering?
       While in law school, Mr. Pickering wrote an article 
     suggesting ways the state of Mississippi could better enforce 
     its ban on inter-racial marriage.
       As a state senator in the 1970's, Mr. Pickering worked to 
     repeal important provisions of the Voter Rights Act.
       In 1994, he went out of his way to seek a more lenient 
     sentence for a convicted cross-burner.
       Once defeated when Democrats had a majority in the Senate, 
     President Bush nominated Charles Pickering for a second time 
     after the 2002 elections and now two successful filibusters 
     launched by Senate Democrats have kept him off the bench!
       The Bush Administration is devoted to using the courts to 
     its political advantage. Time and again, this administration 
     has nominated ultra-conservative candidates who are zealously 
     devoted to advancing corporate interests, taking away 
     reproductive freedom, smashing the wall of separation between 
     church and state, and dismantling equal opportunity.
       But the Administration has got a big problem: Senate 
     Democrats. Senate Democrats

[[Page 28808]]

     have launched an unprecedented effort to protect the rights 
     of all Americans by keeping our courts fair and impartial. By 
     mounting filibusters against the Bush Administration's most 
     radical nominees, Senate Democrats have led the effort to 
     save our courts.
       Help the Senate Democrats keep fighting. Support the DSCC 
     efforts to help elect more Democrats to the Senate--and keep 
     the proven leaders we have. Help the DSCC send a message to 
     the Bush Administration--Senate Democrats will NOT rubber 
     stamp extremist judicial candidates. Help us fight to 
     maintain judicial integrity by sending more Democrats to the 
     United States Senate in 2004.
       Contribute Now!
           Sincerely,
                                              Senator Jon Corzine.

  Mr. LEVIN. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER (Mr. Allard). Forty seconds.
  Mr. LEVIN. I thank the Chair and thank my colleagues. I am happy to 
share with them the feeling that somehow or another hopefully we can 
find a way some day to get over the place we are at, not just on judges 
but on all of these nominees.
  I look forward to that Supreme Court case which my friends are going 
to file. I think it would be just fine to have the Supreme Court rule 
on this issue to clear the air on it. I have great confidence that they 
will support the right of the Senate.
  The PRESIDING OFFICER. The minority's time has expired.
  Mr. LEVIN. I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. COLEMAN. Mr. President, I have the greatest respect for my 
colleague, the Senator from Michigan. He serves as the ranking member 
on the Subcommittee on Investigations, which I chair, and serves this 
body as ranking member of Armed Services. He is a credit to this 
institution.
  I disagree with him, however, in his interpretation of the reality of 
the history of this body. It is very clear that this body has not 
successfully filibustered a circuit court nominee in its history. The 
one case that is mentioned again is Abe Fortas.
  As I indicated earlier, this was a bipartisan effort. It was not a 
partisan filibuster. So what we have here on the floor today is the 
first partisan filibuster, and the purpose is clear. My colleague has 
said this is the only tool that the minority thinks they have to stop 
the President from exercising his authority, but I think that he is 
right when he says the historic role of the Senate is what is at stake 
here.
  I say that because we have to reflect upon how our colleagues who 
preceded us--by the way, some of them are still here in some of the 
cases he talked about--what was going through their minds when they 
were faced with the same circumstances we are faced with today; that 
is, a group of folks in the majority in many cases who objected to a 
particular nominee.
  We can use the Clinton years as an example. There was a Republican 
majority for 6 years of President Clinton's term. No judicial nominee, 
not one judicial nominee, was ever deprived of a vote on the floor of 
the Senate. That is what we are talking about, a vote on the floor--not 
one.
  My colleague and friend from Michigan made reference to the cases of 
Marsha Berzon and Richard Paez in the year 2000, Ninth Circuit. 
Although most Republicans opposed their confirmation--and we heard some 
of my colleagues earlier tonight. Senator Sessions talked about that 
case. Senator Lott talked about that case. He was majority leader at 
the time. They also opposed any effort to prevent the full Senate from 
voting on their nominations. They did so and they told you it was 
because of their reverence and respect for the historic role of the 
Senate. That is what is at stake. That is the principle that has guided 
us for 214 years before today, before this 108th Congress.
  Colleagues had the opportunity to invoke cloture only if the 
Republican majority said we were to go along, and it was not because, 
as my colleague from Michigan somehow inferred, that they could not 
kind of put together the necessary votes to block it. No. What happened 
is that they were not willing to ignore the history and the tradition, 
and I think most importantly what the Constitution says, and that is 
that supermajorities are not required to confirm nominees for circuit 
courts.
  Debate on each of these nominations, Berzon and Paez, lasted only 1 
day and a majority of Republicans joined all Democrats in supporting 
cloture motions for debate on each nomination, including over 20 
Republicans who would eventually vote against confirmation and a 
majority of the Republican members of the Judiciary Committee. Senator 
Hatch talked about that.
  So our colleagues at that time faced two candidates in the Ninth 
Circuit. By the way, that is the same circuit that ruled the phrase 
``under God'' unconstitutional. That is the same circuit that initially 
was going to prevent the California recall from taking place until 
finally en banc the entire circuit had to come together and change 
that.
  In neither case did Republicans mount a party-line filibuster effort 
to prevent voting on a nominee. In fact, Majority Leader Lott filed the 
cloture motions for the above debates. So what we have is not what my 
friend and colleague from Michigan would infer, that somehow before 
there was simply an ability--yes, there were cloture motions and either 
they were invoked or they were rejected, and that somehow they were 
invoked and that is why you were able to vote on it. No. Here you had 
the Republican majority leader file the cloture motions for Berzon, for 
Paez. My colleague, Senator Sessions, said: I opposed them. I voted to 
support cloture. I voted against the nomination, and that is what we 
are asking for.
  Follow the history. That is what is at stake, as Senator Levin said, 
the historical role of the Senate. If it has changed it, it has changed 
it at great risk.
  The situation was similar in 1994 when some Republicans voiced 
objections to President Clinton's nomination of H. Sarokin to the 
United States Court of Appeals of the Third Circuit. A majority of 
Republicans supported a cloture motion after a relatively brief period 
of debate and cloture was invoked by a vote of 85 to 12. Judge Sarokin 
was then confirmed by a vote of only 65 to 35. Twenty-three then of my 
colleagues supported cloture. The majority supported cloture. Yet at 
the same time they voted against the candidate. That is the history of 
this body. That is what the Constitution requires.
  I am told that the only judge nominated by President Clinton who 
faced a partisan filibuster was that of Brian Theodore Stewart, a 
nominee to the Federal district court in Utah. However, it was Senate 
Democrats who filibustered the nominee in protest over purported delays 
in bringing other judicial nominees to the floor. A cloture motion was 
voted upon on September 21, 1999, and failed, falling short of the 60 
votes by a vote of 55 to 44, with all Democrats except Senator Moynihan 
opposing cloture.
  Once again, Democrats' objection was not to Judge Stewart himself and 
on October 5, 1999, the Senate confirmed him by a vote of 93 to 5. So 
for all the handwringing that we heard about the treatment of President 
Clinton's nominees, one is very clear: Every single one of them got a 
vote.
  The fact is that what happened here is that my colleagues followed 
the history and tradition of this body and said they would make sure 
they got a vote because that is what the Senate is called upon to do, 
advise and consent. There is a principle of majority rule, a principle, 
again, espoused in this document, in this Constitution, of the United 
States.
  My colleague also implied that it is just fine to prevent an up-or-
down vote on at least 4 of these nominees because we blocked 60 of 
President Clinton's nominees. I have two observations about that, and I 
know this is what frustrates me and my colleague Senator Graham. The 
fact is that there is and has been a tradition in this body, shortly 
before the end of the President's term. What happens is that folks kind 
of say, well, let's see who the new guy is, see what happens, and they 
slow it up.
  The numbers are even more stark, by the way, if we compare the number 
of nominees left hanging at the end of the

[[Page 28809]]

first Bush administration by Senate Democrats with the number of 
Clinton nominees awaiting confirmation at the end of the Clinton 
administration. The Democrat-controlled Senate left 54 of the first 
President Bush nominees unconfirmed at the end of 1992. In contrast, at 
the end of the Clinton administration, 41 nominees remained 
unconfirmed.
  Let's stop that practice, unless a game is being played, unless these 
are clearly unqualified nominees, unless there is some reason to 
suspect we are not having qualified folks coming before us and we are 
playing politics.
  On the other hand, well, they did it to us and we are going to do it 
to them. It is like the Hatfields and McCoys, like Montague and 
Capulet. It is like a family feud. It is futile and it needs to stop. 
It needs to change.
  I appreciate the comments of my friend Senator Levin at the end 
saying maybe we can get beyond this. I hope we can get beyond this. I 
hope we can do what Senator Graham talked about when we started this 
conversation a little over 3 hours ago and he said let's look to the 
future.
  The future is only going to be a bright future if we, one, follow the 
dictates of the Constitution, understand that there is this concept of 
majority rule, that the Constitution dictates that these nominations be 
dealt with on a majority basis, and that this body respect the history 
and tradition. That is what we have.
  Then, of course, it is the responsibility of the President to bring 
forth qualified nominees and get past the rhetoric of extreme. I dealt 
with Priscilla Owen. Let me talk about Bill Pryor, for example. Alabama 
Attorney General Bill Pryor, nominee to the Eleventh Circuit, has 
earned a reputation as one of America's most experienced and esteemed 
State attorneys general. His nomination has received overwhelming 
support from across the ideological and political spectrum. Mr. Pryor 
was appointed attorney general of Alabama in 1997 and was 
overwhelmingly reelected; outstanding credentials. He was a law clerk 
for civil rights legend, the late Judge John Minor Wisdom.
  Senator Lamar Alexander, also one of our newer brethren, fraternity 
of those who just got elected this year, had an opportunity to work 
with Judge Wisdom, who is, by the way, one of the great civil rights 
legends. Attorney General Pryor worked for him. Pryor graduated magna 
cum laude in 1987 from Tulane University School of Law and was then 
chief of the Law Review. What is interesting is that Attorney General 
Pryor is being attacked as being extreme. He is a man, by the way, who 
does have very strong beliefs. He is human. He has strong beliefs. That 
is not a bad thing. That is a good thing.
  He is a person who has shown that he is willing to put his beliefs to 
the side to look at the law and to interpret the law, and that is what 
we expect a judge to do.
  My friend Senator Graham and I have talked about this. We talked 
about Bill Pryor. There is the chief judge in Alabama, who was involved 
with the case about the Ten Commandments in court. The courts have said 
that is unconstitutional.
  Now, I suspect General Pryor believes that is probably a good thing, 
but General Pryor then leads the effort to challenge--in effect, to 
prosecute--the chief justice saying the law has to be enforced. That is 
what it is about.
  Bill Pryor has also been a moderate voice in the partial-birth 
abortion debate. By the way, that is a mainstream position, but a court 
decision came down and challenged the Alabama law. General Pryor, in 
accordance with his duty to defend the statute, that is what he did. He 
then exercised that authority putting aside what I am sure are personal 
opinions to enforce the law. That is not extreme. That is mainstream. 
That is what we want on a court.
  Yes, we have people of character, principle, and strong beliefs. What 
the other side has done is they take folks who have these strong 
beliefs, who then espouse them. Along the way they may give a speech, 
they may give a writing, and then they wave that around to see how 
extreme they are, but we have to judge people by their actions. We have 
an attorney general who puts aside his personal beliefs to say he will 
enforce the law. That is what you do.
  My distinguished colleague who will take the floor after me, Senator 
Pryor, was a former attorney general. I know he operated in the same 
way. That is what he would expect of his colleagues, put aside personal 
beliefs to enforce the law. That is what makes a good judge. Vote them 
up, vote them down. Give them a vote.
  I yield the floor to my colleague, Senator Graham.
  Mr. GRAHAM of South Carolina. I thank the Senator for yielding. I 
think he did a very good job of trying to explain the best we can that 
this has never been done before, that this is truly a new era for the 
Senate. We are filibustering judges who have been reported out of the 
Judiciary Committee for the first time in the history of the country. 
That fact will never go away. It has never happened before. Abe Fortas 
was not a partisan filibuster. Republicans and Democrats thought the 
man was not qualified to be chief judge because of some ethics 
complaints, and the President withdrew it. But you had Republicans and 
Democrats banding together trying to send a message to the President 
that they did not think this person was promotable. They had 4 days of 
debate. It was not a filibuster. It wound up being a bipartisan effort 
to come together to send a message to the President.
  There is nothing bipartisan about this other than the fact that every 
nominee who is being filibustered has Republican and Democratic support 
to sit on the bench in a majority fashion. That is the problem here, 
that if all of these people who are being filibustered had their day on 
the floor, an up-or-down vote, they would be judges and they would have 
Democratic votes. One of them has 55, we believe, because 55 people 
have voted to allow a vote on the floor. That is important.
  These people would be judges, just like the two Senator Lott 
intervened on. The two Democrats who were being opposed by some Members 
of the Republican Party, Senator Lott stepped in and stopped it. He 
filed a cloture motion and it passed overwhelmingly to end debate, and 
they are sitting on the bench today. Good for him. I am glad he did it.
  I want to be fair, too, to Senator Corzine. There is nothing wrong 
with people talking about issues before the Senate in trying to get 
money sent to the parties. Both parties do that. I have never suggested 
that Senator Corzine has done anything wrong. I am just trying to put 
in perspective what this debate truly is all about, because when you 
are out there talking to your base about what you are doing that can be 
a pretty good evidence of what is in your heart and what you mean to 
do.
  Now I have the whole document. This chart is an excerpt from a 
November 3 fundraising e-mail sent out by Senator Corzine, the head of 
the Democratic Senatorial Campaign Committee. It says:

       Senate Democrats have launched an unprecedented effort . . 
     . By mounting filibusters against the Bush administration's 
     most radical nominees, Senate Democrats have led the effort 
     to save our courts.

  I have been saying for days now that this e-mail indicates that they 
view this to be an unprecedented effort by Democratic colleagues and 
the unprecedented effort is mounting filibusters. But this dot, dot, 
dot, now I have the whole e-mail and I do want to be fair. I do not 
think it has changed a thing. Having looked at the e-mail, I think it 
reinforces my point.
  This is what the actual paragraph says in full:

       Senate Democrats have launched an unprecedented effort to 
     protect the rights of all Americans by keeping our courts 
     fair and impartial. By mounting filibusters . . .

  I think a fair reading, a fair interpretation of the English 
language, is that the unprecedented effort refers to the filibusters. 
They are throwing in some nice language about being fair in there. 
Nothing has changed.
  This was an e-mail sent out to try to tell Democrats that we are up 
here

[[Page 28810]]

fighting Bush in an unprecedented way by filibustering his judges 
because we think they are radical. This e-mail is about a particular 
judge, and I am going to read the whole thing. This is the way it is 
entitled:

       Senate Democrats protect our courts again. Dear Erin, 
     Senate Democrats have stopped another judicial extremist who 
     wants nothing more than to turn back the clock on fifty years 
     of progress on civil liberties. Reproductive freedom, equal 
     opportunity, and corporate accountability again.

  What a lousy person that is--that is me stating.

       After being defeated under a Democratic controlled Senate, 
     controversial judicial nominee Charles Pickering was defeated 
     again on Thursday by Democrats in the Senate.
       For the first time in history, a President of the United 
     States re-nominated a judicial nominee that the committee had 
     already voted down but the Senate Democrats stopped the Bush 
     Administration in its tracks.

  That is true. When the Democrats had control of the Senate, Judge 
Pickering was voted down on a party-line vote. The President has a 
right to resubmit the nominee. I am very glad he did because this time 
he came out of committee on a party-line vote.
  We just have a different view of whether or not this man is a racist, 
because there is no other way to interpret what this e-mail is saying 
about this man.
  Continuing:

       Despite the administration's desire to ignore the 
     Constitution's rule of advice and consent, Senate Democrats 
     are holding Republicans accountable.
       Why must the Democrats continue their fight against Charles 
     Pickering?
       While in law school, Mr. Pickering wrote an article 
     suggesting ways the State of Mississippi could better enforce 
     its ban on interracial marriage.
       As a State senator in the 1970's, Mr. Pickering worked to 
     repeal important provisions of the Voter Rights Act.
       In 1994, he went out of his way to seek a more lenient 
     sentence for a convicted cross-burner.

  They have described somebody who is not what you would want to have 
on the bench. There is no other way to say it other than this e-mail is 
directly and indirectly suggesting Charles Pickering is racially 
motivated. What a horrible thing to say about somebody if it is not 
true.

       Once defeated when Democrats had a majority in the Senate, 
     President Bush nominated Charles Pickering for a second time 
     after the 2002 elections and now two successful filibusters 
     launched by Senate Democrats have kept him off the bench!
       The Bush Administration is devoted to using the courts to 
     its political advantage. Time and again, this administration 
     has nominated ultra-conservative candidates who are zealously 
     devoted to advancing corporate interests, taking away 
     reproductive freedom, smashing the wall of separation between 
     church and state, and dismantling equal opportunity.
       But the Administration has got a big problem: Senate 
     Democrats. Senate Democrats have launched an unprecedented 
     effort to protect the rights of all Americans by keeping our 
     courts fair and impartial. By mounting filibusters against 
     the Bush Administration's most radical nominees, Senate 
     Democrats have led the effort to save our courts.
       Help the Senate Democrats keep fighting. Support the DSCC 
     efforts to help elect more Democrats to the Senate--and keep 
     the proven leaders we have. Help the DSCC send a message to 
     the Bush Administration--Senate Democrats will NOT rubber 
     stamp extremist judicial candidates. Help us fight to 
     maintain judicial integrity by sending more Democrats to the 
     United States Senate in 2004.

  That is the e-mail in its entirety. Now the accusations in that e-
mail are strong, they are direct, and I think vicious. Judge Pickering, 
according to this e-mail, is someone who wanted to keep the interracial 
marriage statute alive when he was in law school by writing law school 
papers in support of this. He went out of his way in 1994 to make a 
sentence more lenient for a convicted cross burner.
  The only thing a rational person would receive from that litany is 
Judge Pickering is friendly to a cross burner. If that is true, he 
should never have been a judge for 30 seconds. If the other things are 
true, it was a huge mistake to ever advance this man forward.
  But here is the problem I have with believing what is in this e-mail. 
Number one, I have met the man. I have talked to him. I served in the 
House with his son, Chip, who is one of the nicest, brightest young men 
I have ever met. This e-mail describes him as a very intolerant, 
racially insensitive person. But I can tell you without a doubt from 
personal experience he did a great job as a father because his son is 
anything but racially intolerant. His son is a wonderful young man.
  If that e-mail is true, then you explain to me how the American Bar 
Association could give him the highest rating possible, well qualified. 
Did they miss this racial past? Or do they condone it? How about this, 
maybe this is a cut-and-paste job and they didn't buy it. He graduated 
first in his class; 99.5 percent of the cases were affirmed or not 
appealed. His reversal rate is below the national average, two times 
lower than the average district judge in the Fifth Circuit Court of 
Appeals. He has never had a voting rights case appealed or reversed. He 
has never had a formal discrimination case reversed in 170 cases and is 
endorsed by the current president and 17 past presidents of the 
Mississippi State bar. Maybe they are all racist, too. He is endorsed 
by all major newspapers in Mississippi. He is endorsed by all statewide 
elected Democrats and the chairman of the Mississippi legislative black 
caucus. He was endorsed by former Democratic Governor William Winter, 
Bill Waller, former Democratic lieutenant governor, and the list goes 
on and on and on.
  Other people object, but I assure my colleagues this e-mail is a 
distortion of this man. Here is the Judge Pickering I have come to 
know. In 1967 when Mississippi was red hot and racial tensions were 
very high in the South, particularly in Mississippi, he served as an 
elected county prosecutor. He was asked to testify against the Imperial 
Wizard of the Ku Klux Klan of Mississippi. He took the stand against 
the Imperial Wizard successfully but lost his job. He was not in the 
mainstream; he was swimming upstream.
  In 1967, when schools were integrated in Mississippi--and I have told 
the story about integration in South Carolina--he chose to keep his 
children in public schools at a time when White flight was the dominant 
way of dealing with the problem in that part of Mississippi. You will 
see class photos in that era of a lot of African-American children and 
a smattering of White kids. Among those White families, White kids, 
were Judge Pickering's kids.
  He chose at a time, when others did not in large numbers, to try to 
make Mississippi better. He has been head of the Mississippi Baptist 
Association. He has been on the Federal bench for a dozen years, rated 
well qualified by the American Bar Association.
  Of all the events that have occurred in the Senate since I have been 
here, this one bothers me the most because southern White males are 
very open to the accusation that we are racially insensitive, due 
mostly to the way the South has conducted itself.
  When I grew up, my family had a restaurant and African Americans came 
to get their food and to buy a beer and they had to leave because there 
was no mixing of the races until I was in high school. That is not 
something to be proud of. Judge Pickering was part of the solution.
  What they are trying to cast this man as being is unfair to him; it 
is unfair to his family. If you believe it to be so, you can vote 
against him. But he is the best example of how sick the Senate has 
become.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. COLEMAN. I ask unanimous consent we use 5 more minutes of the 
majority's time and we subtract it from the next hour.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COLEMAN. Mr. President, I will continue the Pickering story 
because I think it is important.
  My colleague, Senator Graham, has done a tremendous job of laying it 
out. I don't know Judge Pickering's son as well as Senator Graham does, 
but I have met him. I have to go beyond that.
  Senator Graham mentioned when he was in law school that he wrote an 
article on interracial marriage. That was in 1959. He was assigned to 
write an article. It was required, not voluntary. It

[[Page 28811]]

was an academic exercise. The article evaluated various State laws on 
interracial marriage. He took no position on the moral nature of these 
laws nor did he advocate or condone the ban on interracial marriage. He 
was given an assignment and required to do it.
  In the case of the cross burning--and I am a former prosecutor and I 
have seen this happen--he simply sought precaution in sentencing. There 
was a bad investigation done by the Clinton Justice Department. They 
recommended a plea bargain to the guy in the cross burning who was the 
ring leader. So he gets off. There is a trial then for the other guy. 
Judge Pickering is there and he sees it is simply not proportioned. He 
told the guy he tried, who was not the ring leader--but the other got 
was off the hook. He said what he had done was heinous and dastardly 
and would not be tolerated and someone would have to spend time in the 
penitentiary for his act and ruled according to the sentencing 
guidelines. On and on.
  This is an individual who, again, sent his kids to interracial 
schools in the 1970s. This is a guy who testified against the KKK. This 
was a death sentence.
  In 1985, he was president of the Mississippi Baptist Association, and 
he presided over the first convention addressed by an African-American 
pastor.
  I could go on and on and on. Again, what we have here is mainstream, 
not extreme. This is a person who was supported by the folks who know 
him best. Many African-American judges have written in support of Judge 
Pickering, including Justice David Keith, the first African-American 
Federal judge in Mississippi, Henry Wingate, the first African-American 
Supreme Court judge in Mississippi, Rubin Anderson, and Mississippi 
court judge Johnny Williams.
  What we have is a case where the people who know him best see this is 
a decent man. This is a man without prejudice. We have special interest 
groups with their own agenda from outside looking to shoot him down. In 
doing so, what we have is this Senate undermining the Constitution and 
our obligation. They are doing something that has not been done before, 
without legitimate base. Vote them up, vote them down, give them a 
vote.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. PRYOR. As I understand what just transpired, his additional 5 
minutes or so will be applied to the next hour so I still have 30 
minutes.
  The PRESIDING OFFICER. That is correct.
  Mr. PRYOR. Mr. President, I thank my colleagues on both sides of the 
aisle for their zealousness on the issues that are present here with 
regard to these judicial nominations. I know my colleagues on the 
Republican side have very strongly held opinions and viewpoints they 
are very sincere about holding. I may differ with them on some of the 
particulars and some of the conclusions, but I respect their opinions 
and I respect their zealousness and their commitment to their cause.
  Likewise, on the Democratic side, I have a number of colleagues over 
here who have done a very good job of poignantly discussing these 
issues and trying to present the other side of the story. I think they 
are equally passionate.
  In some of the finest traditions of the Senate, this august body, 
this Chamber, is like an arena where maybe two great competitors come 
in, hash it out and fight it out. That is how the Senate is designed. 
It is almost like in the Bible, the Book of Proverbs, as iron sharpens 
iron, one man sharpens another. I just hope that is the process we are 
going through, that we are sharpening the other, that we are making 
this engine better and we are progressing as a people and as a nation.
  I appreciate the Presiding Officer being here. It is the second night 
in a row the Senator has had the graveyard shift. Someone with your 
seniority, I am surprised to see down here two nights in a row. I know 
you are doing your duty for your colleagues and for your Nation. 
Certainly there are untold numbers of staff people who work for the 
various Senators, who work for the Senate itself, the Capitol Police, 
the C-SPAN team. I have been watching some of this at home or in my 
office and C-SPAN has done a great job. Periodically when a term will 
come up that may be unfamiliar to the viewers around the country, they 
will flash up a definition of that term, such as what a filibuster is, 
what a hold is, whatever the case may be. They have been taking this 
opportunity to use this as an instructional time for viewers back home 
to help understand their Government and help understand their Congress.
  I thank the cloakroom staff on both sides. I could go down the long 
list. The stenographers are doing double duty. There are so many people 
who should be thanked for allowing this marathon to go on. It has put 
strains on people. I am very sensitive to the fact they have families 
they need to get home to and they have lives outside of what goes on 
here on Capitol Hill. I express a deep and sincere debt of gratitude to 
those people.
  Let me talk about the judicial nomination process. Both my colleagues 
across the Chamber know I signed on to a letter with them this spring 
about trying to make this process work better. One thing I was 
concerned about in signing that letter is we might come to this point 
today where we would lock horns and have some gridlock on a few 
nominees. I hope we do not get to the point of gridlock overall in this 
process.
  As to the numbers, since we have been here this Congress, I believe 
we have confirmed 68 of President Bush's nominees and 4 have been 
blocked. Last Congress, there were an additional 100, so I believe the 
grand total is 168.
  We have seen a lot of charts with numbers and percentages, but I hope 
the whole process does not bog down. So the people around the country 
understand, we are talking only about a select few of the nominations, 
not the overall nomination process.
  One thing I was concerned about and one reason we wrote that letter 
several months ago was because we wanted to try to make the nomination 
process better.
  We want to try to make it more constructive and more productive. To 
me, a lot of that responsibility rests with the White House. We talked 
about that very briefly in that letter. I feel strongly that since the 
President, under the terms of the Constitution, is the one who begins 
the process of nominating, he and the White House staff need to try to 
get the Democratic and Republican leaders involved and sit down to try 
to work through some of these controversial nominations and try to 
figure out how we can do this better as we move forward.
  One thing I am concerned about is we, around here in the Congress, 
particularly in the Senate, probably more than the House, are so 
focused on tradition and history and how things have been done in the 
past that it is human nature, I guess, that we oftentimes cannot put 
aside the things that happened in the past. Sometimes those things are 
perceived to have been ill-willed or for whatever reason perceived to 
have been unfair, unjust, whatever the case may be. Of course, I have 
said many times that I have a concern that in this judicial nomination 
process there is sort of partisanship and gamesmanship, and it is just 
counterproductive for the people.
  So, again, I hope we can move forward. I want to try to continue to 
work with President Bush on his nominations. I believe I voted for 66 
of his nominations of judges. In fact, I was talking to my staff the 
other day, and I said: Well, the people who are calling in about some 
of these controversial judgeships, what are they saying to you? They 
say they want Senator Pryor to vote for candidate X, whoever that may 
be. The staffer will say: We appreciate your call. But we also want you 
to know he voted for 66 or 67 of President Bush's nominees. Invariably, 
the person on the other end of the line says: No, he hasn't. Because 
they are not hearing the other side of the story, that, again, we are 
only talking about a small percentage of the nominees who are not 
getting through.

[[Page 28812]]

  If you look at the numbers and the percentages that President Bush 
has accomplished since he has been President, they are historically 
high numbers.
  So I want to continue to work with the President and find that common 
ground. I believe we all have the constitutional responsibility to 
advise and consent on judicial nominations. Mostly what I am hearing on 
the other side--mostly--people believe the Senate should not be a 
rubberstamp. I think the vast majority of Senators believe the Senate 
should not be a rubberstamp and an automatic approval process for the 
President.
  I think we have a responsibility to the Nation to look at these--
again, the concept of iron sharpens iron, the President and the Senate 
sharpening each other, because he knows we will review and look very 
carefully at the nominations he puts forward. He puts forward a higher 
quality nomination than if it was just a rubberstamp. That 
accountability is a positive thing for the people and for the 
Government. I take this responsibility seriously. I know all Members of 
the Senate do take their responsibility very seriously.
  Another thing I wish to say is that when I look at judges I kind of 
have a criteria. I have kind of broken it down into four parts. We try 
to be consistent in our office when we look at these four factors.
  One is just a starting point: Is the nominee qualified? Most of the 
people who make it through the committee are qualified. I think, again, 
there is a weeding out process there, but I start with the presumption 
that if they get to this stage in the process they are qualified.
  The second thing I ask myself is, can they be fair and impartial? I 
think that is an extremely important criteria. Admittedly, it is 
somewhat subjective. Reasonable minds can differ about if someone can 
be fair and impartial, and reasonable minds do differ.
  Again, that is one thing we get back to in the Senate. Someone like 
either of my two colleagues, who have spoken here in the last few 
minutes, who are so articulate and so good, they look at some of those 
nominees and there is no doubt in their minds, they are going to be 
fair and impartial. I look at them and I have some doubts. Again, that 
is how the process works. I am proud that their two States have sent 
them to the Senate. They are here to do their duty as God gives them 
the right to do it. I feel like I am here to do the same.
  So reasonable minds can differ about being fair and impartial. But 
regardless of how you come out on the conclusion, that is one of the 
criteria I use. I think it is extremely important for a judge.
  There is another, a third, element I look at; that is, has the 
nominee demonstrated an ability to exercise and to show the proper 
judicial temperament? For all the lawyers out there, and all the 
parties out there, if you have been in court before, you understand how 
important the judicial temperament can be in cases. Literally these 
judges oftentimes hold life or death in their hands for a criminal 
defendant. Or they may hold a business's solvency or whatever the case 
may be. It is very important. Their temperament oftentimes is 
determinative in how the case will come out. So again it is subjective, 
but I try to look at their judicial temperament.
  Then the fourth criteria is sort of the elastic clause. The 
Constitution has an elastic clause, so part of my criteria is kind of 
an elastic standard--and I don't say standard but elastic 
consideration--and that is, are there other factors or other 
circumstances, when you look at these nominees, that should be 
considered? And, boy, that is just open-ended.
  But I think, as Senators, we should consider the totality of the 
circumstances. We should look at these nominees in a historical 
context; it may be a social context; it may be something unique to that 
region or that State or that person. I think it is incumbent on us to 
look at those carefully.
  Here again, it is subjective. Is that something you can really write 
down as criteria of how it is going to work in every single case? No. 
Maybe it should not be. Maybe it should be left elastic so it can be 
changed and be looked at from different perspectives with each 
particular nominee.
  But regardless of that, I do take my role and my duties as a Senator 
very seriously. One of those roles that I believe very strongly about 
is the people of Arkansas sent me here to work with everybody else who 
is up here. If the people of this country want to elect George Bush as 
President, I am here to work with President Bush. Mississippi sends 
their set of Senators and Texas sends their set of Senators, and 
Massachusetts and California, and I believe my responsibility, as a 
Senator for Arkansas, is to work with who is here. That is what I have 
tried to do, and I will continue to try to do that.
  One thing also we need to keep in mind is that these judicial 
nominations we are talking about today and that we always have under 
consideration here in the Senate are lifetime appointments. Only under 
extreme circumstances will these people be removed from office. It is 
very rare that happens in American history, but it can happen. But 
these are lifetime appointments.
  I think it is critical that our judiciary is independent. I think 
that is the way our Founding Fathers set it up. We better get these 
nominees right on the front end because these people will serve for 
life.
  Like I say, they hold justice in their hands. Their application of 
the law will be determinative for so many things during the course of 
their careers.
  I think, simply put, people are entitled to know what nominees think. 
I think people are entitled to know about the qualifications. They need 
to have the assurance that these nominees under consideration by the 
Senate--the people need to have an assurance that if these people do 
put on the robe, do serve on the bench, that the integrity of the 
system will be there and that these people will do justice, as their 
responsibility requires.
  I personally believe the people of America want a moderate and 
balanced approach. Personally, I think most Americans do not want to 
see the courts packed with judges with a conservative agenda or judges 
with a liberal agenda. I think most Americans want to see moderate, 
fairminded people on the bench. Because people understand that if you 
go into this with an agenda, then the courts will not be balanced and 
that judge and the court will have one dominant point of view. That is 
not good for our justice system.
  I do think there has been a lot of discussion about some of these 
judges' records. Again, I think those are subject to interpretation. I 
am not going to try to get into all the particulars of those. We do not 
have time tonight, plus my colleagues, for the last several hours, the 
last 30-plus hours, have tried to do that. Many of them have done a 
very good job.
  What I would like to do, if I can, is talk about one thing that does 
bother me, and that is the fact we are getting toward the end of our 
calendar year in the Senate and this is crunch time for the Congress to 
get its work done. In fact, right now our colleagues in the House, down 
the hall, basically are only meeting about 1 day a week, maybe 2, for 
votes because they have taken care of a lot of their legislative 
business--not all. They still have some things pending. But they have 
gotten theirs down to the point where they do not have to be in very 
many legislative days. In fact, a lot of what they are doing is waiting 
on us to accomplish and to finish our business.
  Well, here we are spending 30-plus hours in a talkathon about these 
four judicial nominations that have been blocked. I think we need to 
keep it in perspective. Some of the Democrats have talked about 3 
million jobs that have been lost in the last 3 years and what we are 
arguing about here are four judicial jobs. Well, that may be fair; that 
may not be. But I think there is some merit to that.
  To keep it in perspective, 98 percent of President Bush's nominees 
have been confirmed. That is a pretty good percentage. You try to find 
another percentage like that in history, I am not sure you will find 
it. Also, when

[[Page 28813]]

you look at Government and we look at anything involving human events, 
98 percent is a pretty high percentage.
  So again, I would encourage all of us to try to keep this in 
perspective. I heard one of my colleagues last night talk about 98 
percent of this and 98 percent of that. In fact, it was Senator 
Chambliss of Georgia. He had a very humorous monologue about that. But 
the truth is, 98 percent in politics and in Government is a pretty 
doggone good success rate. In fact, I would go so far as to say I am 
not sure anybody in Washington ever gets 100 percent of what they want. 
Most people are happy to get 50 percent of what they want, if they can 
just get that done.
  But regardless of that, I think most people I talk to back home 
understand that judges are important, and they understand that it is 
important that we have an independent judiciary, but they also perceive 
that these four nominations are not urgent to the welfare of our 
Nation. So that causes me to question why we are doing this right now. 
If this is a big issue, can't we put it off until another time? But 
regardless, we find ourselves here. That is just where we are right 
now.
  I want to talk about one other thing that is a concern to people all 
over the Nation; that is, losing jobs in the manufacturing sector of 
our economy. It was announced the other day that one of the great 
companies in the world, I guess--Michigan-based Whirlpool--plans to 
move some of its refrigerator production, which is made in Fort Smith, 
AR--they plan to move those jobs from Fort Smith down to Mexico. Very 
sad news.
  Jim Pickens, who was, until very recently, Arkansas' economic 
development director, said that it is clear that some of the 4,500 
Whirlpool jobs in Fort Smith will go.
  The problem with this is it is not an isolated incident. It is a 
trend. It is something to which we in the Senate should be devoting our 
time. It is something that folks back home are very concerned about, 
losing these manufacturing jobs.
  One thing that is of particular concern in the Whirlpool case is it 
was just a few months ago--about a year ago--when Whirlpool made an 
announcement they were going to actually add 700 jobs in Fort Smith. Of 
course, there was a lot of excitement about that announcement. Now 
there is a lot of disappointment about what Whirlpool has decided to 
do. I am not saying this to be critical of Whirlpool, but I am saying 
to my colleagues instead of spending this much time on these four 
judicial positions, let's spend this much legislative time in trying to 
figure out how to save our manufacturing sector. Because I think long 
term when you look at what is good for technology and good for this 
Government, good for this country, saving those manufacturing jobs is 
probably more important than these four judgeships we are talking 
about.
  Another thing that I must tell you I experienced today is I went to 
Walter Reed Hospital, the Army hospital here in the DC area, and talked 
to men and women who had come out of Iraq and Afghanistan. Very 
sobering, very serious. These are patriots of the first order. Some of 
them will have lifelong injuries due to their service to this country.
  One thing that was emphasized with us over and over is that Iraq is a 
very dangerous place right now. There again, I hope, and I sincerely 
hope, the Senate will spend this much time in deliberation and in 
consideration of how we should move forward in Iraq and what that 
future looks like for Iraq.
  Mr. President, it does not bother me to work late. This is the second 
night in a row that I have had a late night slot. But it does bother me 
a little bit that we may have lost some perspective in that we need to 
keep these other important issues in perspective. No question that our 
judiciary is important. That is our third branch of Government. But we 
also need to keep it in perspective.
  Mr. President, may I inquire, how much time do I have remaining?
  The PRESIDING OFFICER. Four and a half minutes.
  Mr. PRYOR. How much time?
  The PRESIDING OFFICER. Four and a half minutes.
  Mr. PRYOR. Let me read part of a letter from Robert Caro. He is the 
man who wrote the Pulitzer Prize winning book, ``Master of the 
Senate.''
  ``Master of the Senate'' is the story of Lyndon Johnson when he was a 
Senator. In June of this year, Robert Caro wrote a letter, not to me, 
but to Trent Lott and Chris Dodd, the two leaders of the Rules 
Committee.
  Mr. President, I ask unanimous consent to print this letter in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                               Robert A. Caro,

                                                     June 3, 2003.
     Hon. Trent Lott, Chairman,
     Hon. Christopher J. Dodd, Ranking Member,
     Senate Committee on Rules and Administration, Russell Senate 
         Office Building, Washington, DC.
       Dear Senators Lott and Dodd: Several members of the Senate 
     have asked me whether my research on the history of the 
     Senate sheds light on the current debate over the role of the 
     Senate with respect to President Bush's judicial nominations.
       Defining the right of extended debate is always tricky. If 
     it is being used against you, it is a vicious weapon of 
     obstruction, whose use in a democracy is unconscionable. If 
     it is you who is using that weapon, it is a great one to have 
     in your arsenal.
       Many times in America's history, the right of extended 
     debate has been used to defend causes with which I profoundly 
     disagree. In Master of the Senate, I tried to show how it was 
     a last-resort, but very effective, barrier thrown up in the 
     most ignoble of causes: the continuation of racial 
     segregation.
       Nonetheless, great care should be taken in placing new 
     restrictions on that right. Senators who are considering 
     doing so should understand that they will be taking a step 
     that has significant implications for the balance of powers 
     created under the Constitution, and also for another very 
     fundamental concern in a democracy: the balance between 
     majority and minority rights.
       The writings of the framers of the Constitution make clear 
     that Senators, whether acting alone or in concert with like-
     minded colleagues, are entitled to use whatever means the 
     Senate rules provide to vigorously contest a President's 
     assertion of authority with which they strongly disagree. One 
     could say, in fact, that under the fundamental concept of the 
     Senate as envisioned by the founding fathers, it is not 
     merely the right, but the duty of Senators to do that, no 
     matter how popular the President or how strongly the public 
     opinion polls of the moments support the President's stand on 
     the issue involved.
       I said in Chapter 1 of Master of the Senate that ``. . . in 
     creating the new nation, its Founding Fathers, the Framers of 
     its Constitution, gave its legislature . . . not only its own 
     powers, specified and sweeping . . . but also powers designed 
     to make the Congress independent of the President and to 
     restrain and act as a check on his authority, [including] 
     power to approve his appointments, even the appointments he 
     made within his own Administration. . . . And the most potent 
     of these restraining powers the Framers gave to the Senate. . 
     . . The power to approve Presidential appointments was given 
     to the Senate alone; a President could nominate and appoint 
     ambassadors, Supreme Court Justices, and other officers of 
     the United States, but only `with the Advice and Consent of 
     the Senate.'''
       I also pointed out that ``the Framers wanted to check and 
     restrain not only the people's rulers,'' but also the 
     possibility that the majority will would be used, in 
     Madison's words, ``to oppress the minority.'' The Framers, he 
     said, established the Senate as the body ``first to protect 
     the people against their rulers; secondly to protect the 
     people against the transient impressions into which they 
     themselves might be led. . . . The use of the Senate is to 
     consist in its proceeding with more coolness, with more 
     system, and with more wisdom, than the popular branch.'' The 
     Constitutional Convention adopted the two-House Congress with 
     almost no dissent.
       To give the Senate strong protections from transient public 
     passions or executive pressure, the Convention kept the 
     Senate small so that it would have, again in Madison's words, 
     less propensity ``to yield to the impulse of sudden and 
     violent passions, and to be seduced by factious leaders into 
     intemperate and pernicious resolutions.'' To make the Senate 
     more stable, to keep it ``firm,'' and ``to insure their 
     independency'' [Edmund Randolph], the Framers gave Senators 
     terms three times as long as House members and half again as 
     long as the President's. As a final layer of armor, only one-
     third of the Senate would be elected every two years, so that 
     the Senate would change only gradually over time.
       As I wrote, since the power of the President and the power 
     of the people would be very strong under the Constitution, 
     ``to enable the Senate to stand against these powers--to 
     stand against them for centuries to

[[Page 28814]]

     come--the Framers of the Constitution made the Senate very 
     strong.''
       I have pointed out that one of the first acts of the Senate 
     was to write the 1789 statute setting up the federal 
     judiciary system. Sixteen years later, the Senate was called 
     upon to preserve and protect the independence of that system 
     by standing up to Thomas Jefferson, a popular President with 
     a majority in both Houses. Jefferson wanted the Senate to 
     help him tilt the Supreme Court in his own direction, by 
     convicting Justice Samuel Chase after the House had impeached 
     him on a party-line vote. Jefferson had more than enough of 
     his own party members in the Senate to convict Chase, but 
     enough Senators from both parties voted against the President 
     to sustain the independence of the Judiciary from the 
     Executive. As your colleague Senator Byrd said some two 
     centuries later, ``The Senate exercised in that fine moment 
     of drama the kind of independence, impartiality, fairness and 
     courage that, from time to time over the years, it has 
     brought to bear on the great issues of the country.'' The 
     independent Senate had vindicated the Framers' hope that it 
     would stand against the tyranny of presidential power and the 
     tides of public opinion.
       The Founders, in their wisdom, also gave the Senate the 
     power to establish for itself the rules governing exercise of 
     its powers. Unlike the unwieldy House, which had to adopt 
     rules that inhibited debate, the Senate became the true 
     deliberative body that the Framers had envisioned by 
     maintaining the ability of its members to debate as long as 
     necessary to reach a just result. For more than a century, 
     the Senate required unanimous agreement to close off debate. 
     The adoption of Rule XXII in 1917 allowed a two-thirds 
     cloture vote on ``measures,'' but nominations were not 
     brought under the rule until 1949.
       In short, two centuries of history rebut any suggestion 
     that either the language or the intent of the Constitution 
     prohibits or counsels against the use of extended debate to 
     resist Presidential authority. To the contrary, the nation's 
     Founders depended on the Senate's members to stand up to a 
     popular and powerful president. In the case of judicial 
     appointments, the Founders specifically mandated the Senate 
     to play an active role, providing both advice and consent to 
     the President. That shared authority was basic to the balance 
     of powers among the branches.
       Surrendering such authority is not something which should 
     be done just because of a Senator's point of view on the 
     particular issue of the moment--because much more than the 
     particular issue is involved. What is a Senator--let us say a 
     senator from small-population state without any other means 
     of defense--votes to support an new limitation on debate 
     today? What will he do in some future year when he is trying 
     to stop a bill or a nomination that a bare majority of the 
     Senate supports, but that he and 40 colleagues believe will 
     be terribly detrimental to their states or to the nation--an 
     action that he feels a few members of the senate may change 
     their view about if only he has enough time to explain the 
     full consequences to them and to the public? What will he 
     feel when he suddenly realizes that his right to hold the 
     senate floor against that action has been so greatly reduced 
     that the bare majority can silence him before he is finished 
     making his case? What will he do when he realizes that, 
     without the right of extended debate, his cause is ultimately 
     helpless?
       I am not attempting to say that the right of extended 
     debate should not be modified. I am, however, attempting to 
     say as strongly as I can, that in considering any 
     modification Senators should realize that they are dealing 
     not with the particular dispute of the moment, but with the 
     fundamental character of the Senate of the United States, and 
     with the deeper issue of the balance between majority and 
     minority rights.
       As I told a group of Senators last month, you need only 
     look at what happened when the Senate gradually surrendered 
     more and more its power over international affairs to learn 
     the lesson that once you surrender power, you never get it 
     back.
           Respectfully,
                                                   Robert A. Caro.

  Mr. PRYOR. Mr. President, basically what Robert Caro points out in 
this letter is:

       Several members of the Senate have asked me whether my 
     research on the history of the Senate sheds light on the 
     current debate over the role of the Senate with respect to 
     President Bush's judicial nominations.
       Defining the right of extended debate is always tricky. If 
     it is being used against you, it is a vicious weapon of 
     obstruction whose use in a democracy is unconscionable. If it 
     is you who is using that weapon, it is a great one to have in 
     your arsenal.

  I think right there we see the tension Mr. Caro captured so well in 
his book, but here again he has captured it and framed up the issue 
very well for us. The right of the filibuster or unlimited debate is 
something that is viewed very differently, depending which side of the 
filibuster you are on.
  It has historically in this country been used time and time again for 
almost everything under the Sun--sometimes successfully, sometimes not 
successfully. One thing he talks about is:

       Nonetheless, great care should be taken in placing new 
     restrictions on that right. Senators who are considering 
     doing so should understand that they will be taking a step 
     that has significant implications for the balance of powers 
     created under the Constitution, and also for another very 
     fundamental concern in a democracy: the balance between 
     majority and minority rights.

  I have no doubt some of my colleagues on the Republican side 
genuinely feel the Democrats are out of line in using the filibuster in 
this context. Also, I have no doubt many of my colleagues on the 
Democratic side feel we are perfectly within our rights to use the 
filibuster. Here again, I encourage my colleagues to look at this 
letter from Robert Caro dated June 3, 2003, which brings a historical--
not a political, not a partisan, but a historical--perspective to what 
we are talking about tonight and what we will be voting on in the 
morning.
  Again, I thank all my colleagues for being here. It is late-night 
duty. It is not easy. The staff has just done a fantastic job. My 
legislative director, Walter Pryor, has been with me every step of the 
way. I know he would like to get some normalcy back in his life, as do 
so many of us.
  Has my time expired, Mr. President?
  The PRESIDING OFFICER. The Senator has 40 seconds.
  Mr. PRYOR. Mr. President, again, I thank you and thank my colleagues 
on both sides of the aisle for all their hard work in bringing these 
issues to the forefront. I see my colleague from Rhode Island, Senator 
Reed, walk in. We went to Walter Reed Hospital today. I know he has had 
a long day. I look forward to listening to his remarks.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM of South Carolina. Mr. President, I wish to acknowledge 
Senator Pryor's commitment to moving this process forward. He did write 
a letter a while back trying to find a way to better handle the 
problems we are having with judges. I think he has a very good heart 
about this. I respect him as a person. He has truly become a friend.
  With that kind of attitude, maybe we will find a way out of this down 
the road. Right now, unfortunately, we are stuck in the quicksand, not 
mud. The more we fight each other, the deeper into it we get. The 
atmosphere in the Senate right now about judges I think has taken a 
turn for the worse.
  There are probably many things one can point to in the past on the 
Republican side. I am not here to defend the past. I am here to talk 
about the future, and we have to deal with the present. Here is what 
about the present bothers me the most.
  There is an effort to filibuster judges in a way that has never 
occurred before in the history of the country. I think it is very 
unhealthy and constitutionally impermissible and will only be answered 
in kind. We are going to set the future course of the Senate down a 
road where it will be hard to get good men and women to apply. Let me 
tell you why I think they will not apply.
  I read a fundraising e-mail that concerned Charles Pickering. As one 
can tell when I spoke, it bothered me greatly what they are trying to 
do to Judge Pickering because I come from the South. I know how easy it 
is to be associated with the sins of the past, to be, for lack of a 
better word, sometimes stereotyped. Here are the accusations in the e-
mail:

       Why must the Democrats continue their fight against Charles 
     Pickering? While in law school, Mr. Pickering wrote an 
     article suggesting ways Mississippi can better enforce its 
     ban on interracial marriage.

  That statement clearly tries to make the reader believe this is a 
person who has supported interracial marriage bans and is racially 
insensitive. I ask the country to look at it in these terms. He was 
unanimously confirmed by this body 12 years ago. Not one person 
objected. I can't believe the whole body was asleep at the switch and 
this law school article was not known. He didn't advocate the ban on 
interracial marriage. It was under attack, and he wrote a scholarly 
dissertation about it.

[[Page 28815]]

  If you believe what the statement says, the entire Senate either 
didn't know about this or ignored it because the entire Senate 
unanimously approved Judge Pickering 12 years ago, long after he got 
out of law school, to sit on the Federal bench as a district court 
judge.
  The second point:

       As a State senator in the 1970s, Mr. Pickering worked to 
     repeal important provisions of the Voter Rights Act.

  The reader of this e-mail who is being asked to give money to help 
Democrats fight President Bush's nominees--what is the message you are 
trying to convey to the reader of this e-mail? That yet again in the 
1970s this same person, while holding public office in Mississippi was 
working to undermine laws that protected African Americans in the State 
of Mississippi. There is no other fair interpretation of why that is in 
this e-mail and trying to cast him in that light.
  Again, it is beyond my understanding and real belief, if that were 
true, if this man used his office in Mississippi in 1960 to undermine 
the Voting Rights Act, that this body 12 years ago would have 
unanimously approved him to be a district court judge.
  I believe these two statements were designed to emotionally charge 
the reader and to unfairly label Judge Pickering in a way that is not 
deserved and flies in the face of the fact that the Senate confirmed 
him unanimously 12 years ago.
  The last point:

       In 1994, he went out of his way to seek a more lenient 
     sentence for a convicted cross burner.

  My colleague from Minnesota very eloquently spoke about that case. I 
am on the Judiciary Committee. When I heard that accusation, it really 
did pique my interest. I wondered what was going on because none of us 
want a judge who is going to be sympathetic to such a horrible crime.
  Here is what actually happened. There were three defendants, not 
two--three defendants. The ringleader and the second oldest man, I 
believe, received a probationary sentence. The youngest of the three 
was charged with a crime of arson.
  What this judge did is he looked at the way the prosecutor handled 
three defendants, and he said: That is not fair. You are letting two of 
the worst guys go and impounding the youngest guy.
  That is what I want a judge to do. I want a judge to make sure the 
people who come before his court are treated in an apportioned manner.
  The third person, the youngest one, was given a speech and a lecture 
by Judge Pickering about the act of cross burning that should make us 
all very proud. The youngest defendant went to jail, but his sentence 
was adjusted in light of what happened to the other two people who 
basically got away with it because the prosecutor did a deal I don't 
understand myself.
  I do understand why Judge Pickering wanted to adjust the sentence, 
but if you listened to the words and read the transcript, he didn't go 
out of his way to do anything other than to make the sentences 
apportioned. He went out of his way to let the defendant know what a 
sleazy person he was by engaging in this activity, but he brought 
balance to the people before him.
  The reason I keep talking about this situation and Justice Brown is I 
am trying to let the record reflect for future review that I believe 
very sincerely these judicial nominees are having a tremendous hatchet 
job done on their lives. They are trying to make up reasons to justify 
a filibuster, and there is no good reason to have a filibuster.
  Senator Pryor is a very fairminded person. If he disagrees with me 
about Judge Pickering or anybody else, that is just life; he is right. 
All I am asking him and other Senators to do is to follow the 
Constitution, and the advice and consent clause for the entire history 
of the country when it comes to judges has been interpreted in a manner 
that the majority of the Senate will advise and consent, not a 
minority.
  What is happening to these four people--and we will talk more about 
the others--is very unhealthy for the country. The reason I say that is 
they are taking statements and articles, speeches, and letters to their 
church out of context, and liberal special interest groups are trying 
to oppose conservatives coming on the bench in an unfair way.
  These four individuals' lives have been distorted. That is what 
bothers me the most. If you don't like their philosophy, vote them up, 
vote them down, just vote, is the saying. If we continue what we are 
doing today into the future, no reasonable person is going to feel good 
about wanting to go on to the Federal bench given what is happening to 
these people, and that will be a huge loss to the country.
  The process we are engaged in today has no upside; it only has 
downsides, and the downsides I think are extremely dire for the 
country. Not only are you going to drive good people away because 
nobody is going to want to go through this--and I assure you it will be 
answered in kind, and that is sad because I know politics.
  The other downside is special interest groups, liberal or 
conservative, are going to have more power than they deserve over 
individual lives because all they need to do is get 41 votes.
  Special interest politics is part of our political landscape. The 
Constitution has checks and balances against each branch. One of the 
checks and balances I like the most about the way the judicial 
nominating process works is if a majority of us feel a person is 
qualified, they get to sit on the bench.
  Please, let's not as a group empower special interest groups to the 
point that 41 of us can stop somebody from sitting on the bench because 
we will have rewritten the Constitution, not only in its letter but its 
spirit.
  I end with this. Federalist Paper No. 66 has the following comment:

       It will be the Office of the President to nominate and, 
     with the advice and consent of the Senate, to appoint. There 
     will, of course, be no exertion of choice on the part of the 
     Senate. They may defeat one choice of the executive and 
     oblige him to make another, but they cannot themselves 
     choose. They can only gratify or reject the choice of the 
     President.

  For the sake of the future of law in this country, for the sake of 
the future of the Senate, let's not let a small group make it 
impossible for good people to serve.
  I yield the rest of the time to my good friend from Kansas, whom I 
have known since I have been in politics at the Federal level, Senator 
Brownback.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Mr. President, I appreciate my colleague from South 
Carolina carrying the comments and the load for several hours in the 
early morning as we approach 4:15 in the morning. We are talking about 
something of great importance. He has real wisdom in his words, too, 
about the point that the process on which we are embarked has no upside 
to it. When you have good people, qualified people blocked from the 
Federal bench not by majority vote but by filibuster, you are headed 
down a bad path. This bad path doesn't have a good ending.
  We will continue to have division in this body. I don't doubt we can 
be blocked on these for some time, but that is certainly going to carry 
over into the next election cycle, and this doesn't have an upside to 
it. Plus, we have good people waiting. We have people who are qualified 
and are not going to be serving on the Federal bench.
  We have a lot of hurt feelings. We have a lot of accusations made 
without truth. We have harsh words, harsh comments, and that all leads 
to a downward cycle. There isn't an up cycle here.
  I wish to take a few minutes to describe why I think we got to this 
point. We didn't used to be here. We have approved people of strong 
judicial opinions in recent times. They have generally been from the 
left, and those have been approved during the Clinton years.
  Lord knows we are talking about circuit court nominees now. What if 
we got a Supreme Court nominee? Does the body get tied up for 2 years? 
We have actually had one Supreme Court Justice who has been 
filibustered in the past.

[[Page 28816]]

  Why did we get to this point? It used to be if people had a litmus 
test on candidates, that was seen as a terrible thing and they were 
castigated. I don't know if the Presiding Officer or others remember 
when Ronald Reagan was accused of having a litmus test. That was just a 
horrible thing. His administration denied it. They didn't put forward 
people under a litmus test, and we were moving forward.
  Now people are being subject to a litmus test. They are being 
blocked. They are qualified, and they are being stopped. How did we get 
to this point? I want to take a shot at that and develop it from the 
standpoint of a case that is currently before the Supreme Court. It is 
the case of Michael A. Newdow v. The U.S. Congress, United States of 
America, George W. Bush, President of the United States, State of 
California, Elk Grove Unified School District. That would be the 
operative group in the Newdow case, the flag suit case. It is the case 
most people are familiar with where the Ninth Circuit Court of Appeals 
determined it was unconstitutional for our children in school to say 
the Pledge of Allegiance. The reason it is unconstitutional is because 
of something Dwight Eisenhower signed into law when he was President of 
the United States in 1954, and that is where the Congress of the United 
States added the phrase: ``One Nation under God.''
  That phrase was so offensive to Mr. Newdow or his child who was in 
the school that he said: I can't stand this any longer. He was joined 
by some other people and took this case to the Court.
  The Ninth Circuit said you are right. You should not have to. This is 
not right for our children to say one nation under God. That evoked 
quite a comment across the country. It evoked quite a comment by this 
body. I believe this body voted 99 to 0 to say that the flag salute is 
right; we should say this; it should be allowed by our children.
  There were a lot of protestations and the people commented that it 
was terrible that the Ninth Circuit would be so out of whack, so 
lacking of mainstream thought, so out of context and touch with the 
American public that they would rule against something that 98 percent 
of the American public is for, the flag salute.
  The problem with the public outpouring on Newdow and the problem 
facing the Supreme Court now on this Newdow case is that they were 
following precedence being developed over a period of 40 years, that 
the Supreme Court, circuit courts, and others had been working for a 
period of 40 years to remove the recognition of a higher moral 
authority from the public square. They were saying this is something we 
do not want in the public square.
  It started in 1962 that these series of cases is built upon. In 1962, 
Engel v. Vitale was the case that really started this whole string 
going. That was when our children were allowed to say a prayer at the 
beginning of the schoolday, and Engel v. Vitale said that was 
unconstitutional. It was followed by School District of Abington 
Township v. Schempp. There the Court held that the Bible readings in 
public school also violated the first amendment. It was followed, in 
1992, by Lee v. Weisman, a case about prayer that was being held at a 
graduation exercise. The Court held that was unconstitutional. It was 
followed, in 2000, by Santa Fe Independent School District v. Doe where 
prayer was being removed from being said at a football game. That is 
followed by the Newdow case now before the Court. I predict it will be 
followed by a case that will call for this body to remove ``In God we 
trust'' off the mantle that is here. I predict it will be followed by a 
case that will call on us to remove off of our money any reference to a 
higher moral authority, ``In God we trust'' being taken off of the back 
of the one dollar bill. It will follow, follow, follow.
  Well, people do not agree with that. Massive amounts of people in 
this country do not agree with that. People have mounted up now. 
Actually, some people do agree. Some people say, yes, we should remove 
the recognition of some higher moral authority, of God, from the public 
square. So we are engaged in this great ideological fight.
  I contend that this battle, this fight, of blocking these justices 
started about 40 years ago. Some of us participating in this form of 
debate feel as if the last couple of days have been along that 40-year 
line. What we are seeing is the courts injecting itself here into a 
societal issue that many people feel deeply about and immersing itself 
in this. Then both sides get fired up and we get good people such as 
Charles Pickering and Priscilla Owen and others--particularly a guy 
like Charles Pickering. He is probably the most instructive of the 
cases here.
  We have gone through ad nauseam his qualifications, but I want to 
make this point of him: First in his law school class, highest rating 
by Martindale Hubbell, unanimously approved by the Senate for a 
district court judge in 1990, affirmed on appeals 99.5 percent of the 
time, reversed only 26 times out of approximately 5,300 cases, received 
the ABA, the American Bar Association, highest rating, well qualified.
  So what is the problem with this picture? Mr. Pickering was president 
of the Southern Baptist Convention for Mississippi, so he is a man of 
faith. As such, when we have these 40 years of cases coming up that say 
we have to remove God from the public square and run into a guy such as 
Charles Pickering who says, I will uphold the law--and he has upheld 
the law because, if he had not, he would have been overturned many more 
times--he says I will uphold the law but I really think this line of 
cases and some of these discovered rights the court has done in just 
these last 40 years, I think they are wrong personally. I disagree with 
these. I will uphold the cases. But they run into people who are saying 
we are trying to remove God from the public square and we are going to 
try to remove people who believe in God from serving in the public 
square.
  You run into this clash, and you get this great clash in the 
civilization and you get this great clash in the culture. Now you have 
the courts injecting themselves in a great culture conflict that we are 
involved in in this country today. One of the key division issues in 
our country today is issues of culture. People ask what is that?
  Culture, it is difficult to say what that is, but people are 
concerned about it. There is not a company in this country that is not 
deeply concerned about its corporate culture. There is not a family in 
this country who is not concerned about its family's culture. There is 
now in the country itself concern about what its culture is going to 
be.
  The central issue is, are you going to recognize a higher moral 
authority or not? Is the motto ``in God we trust'' true or not? You get 
a guy qualified such as this who would say, yes, that motto is true. I 
believe it to be true. I will uphold the laws as ruled to date, but I 
do believe this motto is true. And it runs right smack into this series 
of cases and we are going to see it front and center again in Newdow. 
We will see it again and again.
  That is the problem actually with this, because it divides us on 
something that should not. It divides us on something that should unite 
us. It divides us in a way that I do not think is healthy for the 
country. I do not think this is good at all. I think it divides us on 
something that as a policy matter is not good and that is why I think 
it is also bad politics when this happens. I think bad policy is bad 
politics. That is why we have this level of fighting today. That is why 
I am speaking on the floor of the Senate at about 4:30 in the morning.
  We are going to continue to have this fight. Regardless of the vote 
that we take later this morning, how it takes place, probably really 
regardless of the dispensation of these four and future ones coming on, 
this is the cultural clash that we have. It is not healthy but it is 
going to continue.
  Mr. SANTORUM. Would the Senator from Kansas yield for a question?
  Mr. BROWNBACK. I would be happy to yield for a question.
  Mr. SANTORUM. Mr. President, the Senator from Kansas points out that 
Judge Pickering, who is a sitting Federal court judge right now, was 
affirmed in 99.5 percent of his cases.

[[Page 28817]]

What I have heard from the other side is that we do not want these 
judges out of the mainstream being nominated.
  Now, would the Senator from Kansas say that someone who has been 
affirmed or not appealed in 99.5 percent of the cases since he has been 
on the Federal court is someone out of the mainstream?
  Mr. BROWNBACK. Mr. President, the number speaks for itself. 
Absolutely, this is a mainstream judge. When you get approved on that 
percentage of your cases that you have ruled on--remember, this is at 
the district court level, so he is both finding fact and applying law. 
You have to be a really good judge, if you are going to be upheld by 
people reviewing you 99.5 percent of the time on both facts, that means 
there is wisdom there, and law, which means he is applying it 
correctly.
  Mr. SANTORUM. I would ask the Senator from Kansas if he would look at 
maybe what the Senator from New York, Mr. Schumer, said yesterday he 
considers a mainstream judge. He referenced the Ninth Circuit and some 
of the judges that President Clinton nominated and were unanimously 
supported by Members on the other side of the aisle, a judge such as 
Richard Paez who was involved in the case the Senator just spoke of, 
the ``under God'' case in the pledge, who went in and tried to hold up 
the California election, ruled unconstitutional the California three 
strikes and you are out. This is a man that has been overturned--in 
fact the Ninth Circuit, with a majority of Democrat nominees, has been 
overturned more than any other circuit.
  Is that group of judges mainstream in the Senator's opinion?
  Mr. BROWNBACK. It is not mainstream.
  The PRESIDING OFFICER. The majority's time has expired.
  The Senator from Rhode Island.
  Mr. REED. Mr. President. Once again, we are engaged in the early 
hours of the morning in a discussion about judges and the role of the 
Senate, and our role is stark. We have the responsibility under the 
U.S. Constitution to give advice and consent to the nominations of the 
President of the United States, not advice and approval, not just 
advice, but advice and consent. That requires the Senate to take a very 
active role in reviewing the qualifications of nominees who come before 
us and making judgments about their ability to serve as members of the 
Federal judiciary.
  We take that seriously. I think that responsibility implies that at 
times we have to disagree with the President. It is not unusual that 
such disagreements take place. This whole debate, I believe, might 
begin and end with a very simple statement of fact, 168 to 4. One 
hundred sixty-eight of President Bush's nominees have been reviewed by 
this Senate and have been confirmed. Four have not. It suggests to me 
that the Senate is properly discharging its responsibilities to advise 
and consent with respect to the nominees of the President to the 
Federal judiciary.
  In fact, of those 168 individuals, they represent, I would suspect, 
jurists who have a conservative outlook, probably a different outlook 
than I have, on certain issues. Yet they represent both in terms of 
their conduct personally, but just as importantly their judicial 
temperament and their judicial philosophy, individuals who uphold the 
tradition of the Federal judiciary at the level of the district and 
circuit court individuals who follow law, not try to make it, who do 
not impose their views on the case before them but, in fact, follow 
precedence, who follow the guidance of the Constitution and the 
Congress in establishing the law.
  It is in those cases and the very few cases, 4 out of 168, where 
there seems to be a record of ideological commitment rather than legal 
scholarship, of political--with a small p--interest, rather than a 
judicial temperament that is fair and balanced, that the President's 
nominees have not passed the test.
  An example of this is the comment I made in May of 2003 when I 
contrasted the nomination of Judge Edward Prado to the pending 
nomination of the Texas Justice Priscilla Owen. Judge Prado served 19 
years on the United States district court. He is someone who has a 
record of fairness and evenhandedness. I would suspect, since he is a 
nominee of President Bush, that he has a conservative outlook in his 
approach to cases. But he is an appropriate judge. He follows 
precedence. He does not insert his particular philosophy, his 
particular ideology, into the cases before him. As a result, he was 
confirmed, an example of the 168 judges who have been confirmed by this 
Senate on behalf of President Bush.
  The four who did not pass the test were those whose record suggested 
that they were not evenhanded, they were not balanced; that indeed they 
inserted political or ideological bias in the conduct of their 
decisions. In that case, I think it is not only appropriate but it is 
our responsibility, as the constitutional body entrusted with advice 
and consent, to register our consent and to register our protest. And 
we have.
  This is not an unusual circumstance in the history of this Senate and 
of this country. There have been instances several times when 
Republicans have used the device of cloture votes and filibusters to 
express their concern about the qualifications or quality of a judicial 
nominee. It goes back many years, and it certainly continued into the 
administration of President Clinton. Abe Fortas, whose nomination as 
Chief Justice of the Supreme Court of the United States was subject to 
cloture votes, was subject to attempted filibusters by the Republicans. 
So were Rosemary Barkett and Stephen Breyer as a judicial nominee for 
the circuit court. Justice Breyer is now a member of the U.S. Supreme 
Court. In fact, I was here yesterday morning and listened to my 
colleague, the junior Senator from Missouri, talk about how Justice 
Breyer was at a conference he was attending and how he was articulate 
and appropriate, and might not be someone he philosophically agreed 
with but that he was a good judge--but Justice Breyer was the subject 
of cloture motions and a filibuster.
  Mr. SANTORUM. Would the Senator from Rhode Island yield for a 
question on that?
  Mr. REED. Could I just continue?
  Mr. SANTORUM. Certainly.
  Mr. REED. He was subject to a filibuster and subject to cloture votes 
before he was ultimately confirmed, and then ultimately went on to the 
U.S. Supreme Court.
  So this is not a procedure or a device that has not been used by the 
Republicans, because, in fact, it is part--indeed, a significant part--
of the procedural devices of the Senate, something that is appropriate.
  As I pointed out yesterday, what I find disconcerting and indeed 
somewhat contradictory to the argument of the Republicans today is that 
they were quite adept during the Clinton administration of using delay 
and denial of hearings to frustrate the nominations of so many 
individuals, so many potential judges, because many of these 
individuals never even reached the floor of the Senate for a vote. It 
was, in my words, a pocket veto.
  We are all familiar with the notion of a pocket veto. The President 
of the United States, in the last 10 days of a session, can simply put 
the bill in his pocket, not sign it, not comment on it, and it 
essentially dies as legislation. Well, that was done all too often in 
the Clinton administration.
  The most significant case is the one I mentioned before. In fact, the 
Senator from Pennsylvania and I yesterday had a bit of a colloquy about 
this. That is a nominee, Elena Kagan, who was nominated in 1999, spent 
18 months waiting for approval, no action was taken, and her nomination 
expired. Fortunately for Ms. Kagan, she has found other employment. She 
is now the dean of Harvard Law School, which might suggest that she 
certainly had some legal abilities that could have been used on the 
Federal bench. But that is an example of a pocket veto.
  Again, we are engaged in this discussion, this debate. It is a 
serious one, but it is taking place at a time when there are other very 
serious issues pressing this country. As my colleague from Nevada, 
Senator Harry Reid, pointed out in his long floor statement preceding 
this debate, that as we worry about four individuals who have not

[[Page 28818]]

yet been confirmed, other Americans are seeing their jobs undercut. We 
are looking at unemployment rates of about 6.0 percent. They are 
hovering there. They seem to be persistent. Long-term unemployment is 
growing. It is becoming increasingly difficult for people to maintain 
their employment with good, solid jobs. We see the poverty rate going 
up. Meanwhile, the vacancies on the Federal courts have diminished 
significantly. We are at almost record levels of Federal judicial 
employment. But as we look at the people throughout this country, the 
poverty rate is growing. It is affecting children particularly. The 
rate of the uninsured, or people lacking health insurance, is 
increasing. Our budget deficit is soaring. The national debt is 
soaring. These are difficult issues, and yet we are here today talking 
about 4 individuals, out of 172, who have not been confirmed as judges 
and not been confirmed based, I think, on sound analysis and sound 
review of their records.
  So I think, again, to place this in context, we are performing our 
historic responsibilities that have been used and deployed by countless 
other Senates, both by Republicans and Democrats, throughout the course 
of this country's history. And indeed I think that is our 
responsibility and we are doing it.
  What I regret, and I hope after the conclusion of the votes this 
morning we can get back to, is critical business such as how do we 
expand economic opportunity in this country? How do we reinvigorate our 
manufacturing base, which is eroding dramatically? How do we give 
working families additional resources by raising the minimum wage? That 
would be something that would be very beneficial to millions of 
Americans. Can we pass good legislation that allows us to continue to 
invest in our infrastructure, in our highways, in our roads? And then 
in international affairs, how do we come to grips with the increasing 
crisis overseas in Iraq, a crisis that sees our soldiers, marines, 
airmen, and sailors each day engaged in conflict over there in a very 
difficult insurgency?
  As Senator Pryor mentioned, yesterday several of us had the 
opportunity to go up to Walter Reed Army Hospital. I have been there a 
few times over the last several months and have seen a Rhode Island 
military police unit, National Guard, assigned to Baghdad. They have 
suffered, unfortunately, casualties. To go there and see these young 
men, to see them having suffered, having served so magnificently, it 
makes you wonder why we are spending so much time on this debate, and 
not more time talking about the way ahead in Iraq, not talking about 
other situations of international concern.
  I find it startling just a few days ago the Central Intelligence 
Agency released a report concluding the North Koreans likely have 
several nuclear devices and likely will be able to deploy those devices 
without testing. That they have apparently mastered a technological 
means to circumvent testing is startling, in fact, horrific 
information, but this is being lost in the shuffle with the Iraq 
situation. This is a fact that is startling and is pressing on our 
national security and our future security.
  But there is no extended debate on North Korean policy. There is no 
extended debate on the way ahead in Iraq. We have committed ourselves 
as a nation to a course of conduct that requires sacrifice, and yet we 
are not fully coming to grips with the nature of that sacrifice and 
what we should do.
  For many of these reasons, although this debate is certainly 
appropriate--that is one of the great things about the Senate, you can 
talk of the issues of the moment, the issues of the time, but certainly 
there are so many more pressing issues, so many more critical issues to 
the future of this country and to the future of America's families the 
continued obsession with this topic does disservice.
  Mr. SANTORUM. We have had debates in the past and I would like to ask 
the Senator from Rhode Island this question, and I am posing a 
hypothetical. Assume that, and I am sure some in this country would 
like to see this happen, in the next election President Bush is 
overwhelmingly defeated at the polls, after his defeat at the polls in 
November, President Bush nominates a judge to a circuit court after the 
election, and that the Senate happens to be in a lame-duck session 
after the election. He would nominate a judge to the circuit court. 
Let's also assume when President Bush gets defeated, not only does he 
get defeated but the Republicans lose control of the Senate. It is a 
huge win by the Democrats. Assume all that happens.
  President Bush, in the face of that, comes out after the election, 
nominates a judge to the circuit court and the Republicans jam that 
person through committee, get him to the floor and try to move a vote 
on that nomination to confirm him prior to the end when the Republicans 
would lose control and a new Democrat President is in place. Does the 
Senator believe your side of the aisle would confirm that nominee like 
that?
  Mr. REED. Reclaiming my time, I like your hypothetical. I like the 
context.
  Mr. SANTORUM. I thought this would be an interesting example.
  Mr. REED. I think you are being overly generous. I like to believe if 
the nominee was of the quality to serve on the Federal bench as a 
circuit judge, he or she would be approved, which is the rule that 
applies so far to 168 of the nominees of President Bush.
  I do say quite sincerely that, indeed, if someone was nominated by a 
President who did not measure up to those standards, the 168 judges who 
have been affirmed, they would not be voted in because they lack 
ability, skill, or judicial temperament, or the other criteria, and 
they would be opposed.
  Again, the record suggests that in dealing with President Bush's 
nominees, 168 have been confirmed. I suspect all of them are more 
conservative than any nominee suggested by President Clinton. All of 
them are individuals who, had a Democratic President been in office, 
would not have been nominated. That is the nature of the nomination 
process. Nonetheless, they were confirmed.
  Now, the last 2 days of a legislative session, with a change of 
power, et cetera, that introduces a unique aspect.
  Mr. SANTORUM. Do you believe anyone on your side of the aisle would 
try to block or attempt to filibuster given the unique nature of that 
circumstance?
  Mr. REED. There might be an attempt to do that, but your question to 
me is, what do I believe. Maybe this is an expression of my beliefs. I 
would like to think that, as in the case of 98 percent of President 
Bush's nominees, they would receive not only careful review but 
ultimately confirmation.
  Mr. SANTORUM. I ask the Senator two more points quickly. A nominee in 
November, to be confirmed within 3 or 4 weeks, the Senator would agree 
a careful review would be very difficult during that period.
  Mr. REED. I think the Senator is trying to refer to the more 
philosophical than pragmatic logistics. The reality is if someone, 
either someone who is a sitting judge or otherwise, was nominated----
  Mr. SANTORUM. Even assuming it was not a sitting judge.
  Mr. REED. Nominated in November, simply the FBI, background checks, 
the questionnaires, reviews, all those things, take time. In fact, the 
reaction, frankly, if any President did that, President Bush or 
President X or President Y did that, the public reaction would be very 
adverse, regardless of the Senate. I would like to move on.
  Mr. SANTORUM. The final point is, Justice Pryor, 1980, nominated by 
Jimmy Carter after the November election in 1980. The President's party 
lost the election, the Democrats lost the Senate, he was nominated 
after the election and was brought to the floor with no judicial 
experience, and the Republicans, who then took control of the Senate in 
1980, were asked to confirm him.
  What did the Republicans do? There were some on our side, I think the 
Senator can understand in response to the question, who said we should 
filibuster because we do not have the time to

[[Page 28819]]

read his record, he has no judicial experience, but the Republican 
leader who was going to be the majority leader pushed his side not to 
filibuster, and moved him through. It was Justice Breyer.
  Mr. REED. My point was Justice Breyer was subject to a cloture vote, 
subject to a procedure that is being used here.
  Mr. SANTORUM. Under extraordinary circumstance, I think the Senator 
from Rhode Island would admit.
  Mr. REED. Let me reclaim my time. The circumstances might have been 
extraordinary but, again, this was an example of Republicans using the 
device of cloture votes, of threatened filibuster, of extended debate, 
to make a point that they felt uncomfortable with a judicial 
nomination. That is the principle.
  There is no special rule for the last 20 days of a session. There is 
no special rule that says that is when the filibuster is OK. There were 
sincere, well-meaning Senators, Republican Senators, who felt that 
because they did not have a chance to evaluate his record or because 
they felt his record was too liberal, they needed to do what they did. 
Justice Breyer, in fact, was well known to every person in this body. 
He had been the counsel to the Senate Judiciary Committee, and worked 
for Senator Kennedy on the deregulation of the airline industry. He was 
someone who had personal knowledge of every Senator in this body at the 
time.
  So this was not a question of who is this person. This was a question 
of some people expressing their sincere belief that because of his 
judicial philosophy, because of his temperament, because of the way he 
conducted himself, the Senate should not go forward in this automatic 
fashion.
  The point remains the same. This notion of the unprecedented, 
unconstitutional, un-American use of cloture votes and filibuster is 
quite wrong. It has been used before by both sides.
  The question must be back to the original hypothetical posed by the 
Senator from Pennsylvania, What is the criteria we are using. I urge 
that criteria has to be based upon a careful review of the conduct and 
temperament of the nominee. That is a better construct of the 
individual. Is this person someone who recognizes the careful balancing 
a judge must perform daily? Is this someone who, although he has very 
strong beliefs, strong ideas about the way the law should be 
interpreted, respects the fact that as a circuit judge or a district 
judge he or she has to follow precedent? Is this someone who does not 
try to impose their views on the law but tries to faithfully judge 
based on the law? That is the issue. That is the issue of all of these 
nominees, and 168 of President Bush's nominees have passed that test 
with flying colors. Four have not. That, I believe, is what we have to 
focus on.
  Once again, as we move forward--and this is an appropriate debate, 
this is one of the virtues, the glories of the Senate. We can stand 
here at 4:50 in the morning and talk about great issues that affect 
this great country. However, this is not the only issue. I would say 
there are so many more pressing issues. We will conclude this extended 
debate this morning. We will vote, and then we have the responsibility 
of getting back to some very critical business the business of this 
economy, of this country, both here and across the globe.
  There is one issue among many issues we have to be particularly 
concerned about and that is the issue of our long-term economic 
vitality. We have a situation in the country where we are losing jobs 
left and right. We are particularly vulnerable to the loss of 
manufacturing jobs. Under the Clinton administration, in a huge jobs 
growth of the late 1990s, we saw an increase of 257,000 manufacturing 
jobs. Now we are seeing a contraction of employment generally, and 
particularly in manufacturing. We have lost about 2.45 million jobs in 
manufacturing. We have to do something. I hope we can.
  So far we have not taken action aggressively or as aggressively as we 
should. What we have seen in many respects is our manufacturing sector 
are jobs being lured overseas by lower wages, poor environmental 
quality standards, very little in the way of labor rights. It is 
attractive to employment. We have to do something about it. We operate 
in a context of international trade rules where we cannot simply put up 
a wall of tariffs around our country, so we have to be more creative 
and innovative. One of the problems that inhibits our creativity and 
our innovation is the fact that to help manufacturing concerns we have 
to provide some resources, in terms of manufacturing tax credits, in 
terms of a solution or at least progress when it comes to the issue of 
health care costs to companies throughout this country, which is 
probably one of the key problems facing every business enterprise in 
this Nation. That does not come cheap. When you look as it as we are, 
not only erosion of jobs but an erosion of the Federal budget moving in 
this administration from a surplus projected to be in the trillions of 
dollars over a decade, to deficits which are equally now being 
projected into the trillions of dollars, it constrains our ability to 
respond to these issues, to provide some type of benefits to alleviate 
the cost of health care for the manufacturing sector, to provide 
incentives for manufacturing, to provide tax credits and other programs 
so we can help manufacturing companies particularly deal with 
environmental concerns.
  One of the consistent complaints I get in Rhode Island is it is not 
fair, Senator, I have to abide by very strenuous rules on environmental 
emissions, yet I see competitors in China and other countries spewing 
smoke out of their smokestacks and pouring solids into the wastewater 
streams. I cannot do that.
  In fact, up my way, the manufacturers have been zealous in protecting 
the environment. But they are in a terrible dilemma. How do we help 
them? We could provide tax credits for environmental improvements. But 
again that costs money. It costs something else, too. It costs the time 
and attention of this Senate on this issue. It costs the same time we 
are spending to talk about judges to invest in the future of our 
economy and the future of this Nation. I hope we can spend the time.
  We have seen over the course of the last several years an economy 
that is beginning to at least show some signs of life, but we are not 
back yet by a long shot. There is a real fear we are leaving millions 
behind, a real fear in parts of this country that those jobs that were 
there 3 years ago, particularly in manufacturing, have not only been 
lost temporarily but have been lost forever. That goes not just to the 
individual families that have been affected, it goes to the fabric of 
the lives of those families.
  When a manufacturing plants closes, it is not just a sad day in the 
lives of the workers, it is a community feeling a loss. We are seeing 
too much of that.
  We have not only this challenge, we have the challenge of the 
tumultuous world. Again, when we look at the requirements and demands 
on our economy, and the requirements and demands of protecting 
ourselves internationally, we have to ask ourselves where are we going 
to get the resources, given the budget, to fund our military? To 
provide the resources to conduct a very expansive and aggressive 
foreign policy?
  Just a few days ago this body voted $87 billion for reconstruction of 
Iraq. That is $87 billion in the context of a deficit in which we are 
spending money literally we do not have. I am sure that will not be the 
last time we consider additional resources for Iraq, Afghanistan, and 
other countries. Yet we are not doing those things we need to do to 
ensure fully that our nation is entirely protected.
  So we have serious challenges before us. I hope again at the 
conclusion of this very extensive debate and at the conclusion of these 
votes this morning, we can get back to that critical business. 
Interestingly enough, we interrupted Senate proceedings at a juncture 
where we were ready to pass the HUD-VA appropriations bill to get on to 
the discussion of these judges. At that point, we were considering how 
we could strengthen further, increase further, the resources going to 
our Veterans Administration. That is another

[[Page 28820]]

area of concern I have and I am sure we all have. We have to make sure 
those young Americans who are today struggling--and the fact those 
young Americans I visited yesterday who are being sent literally from 
Walter Reed Army Hospital to a VA facility, many of them amputees 
because of the nature of the conflict in Iraq that 5 years, 10 years 
from now they have the same quality of services they are getting today.
  That is a challenge. And it is a challenge we cannot meet unless we 
focus our attention and our time and our effort on this bill. That was 
the very bill we left to come on to this discussion of judges.
  How much time remains?
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. REED. I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, before I resume debate on the judicial 
nominations, all this talk about not having done work on the economy 
ignores the fact this Senate early this year passed a jobs and growth 
package that is working--7.2 percent growth in the last quarter. A lot 
of people, maybe some, may be upset we are having great economic growth 
and 300,000 jobs have been created.
  As this chart shows, we are now in the most jobs in the history of 
America, 138 million people. See the signs of doom and gloom and 6 
percent unemployment that 10 years ago would have been full employment, 
we are at that level now. The idea we are going to hell in a hand 
basket with the economy, some may wish that to be the case for 
political purposes, but it just is not. It is not a fact.
  The facts are this economy is growing. Sure, we have more to do. That 
is why we have the jobs and growth package we are trying to push 
through having to do with litigation reform, which is being blocked by 
the other side of the aisle. On several fronts, whether it is medical 
lawsuit abuse, whether it is class action reform--which we lost on the 
floor of the Senate by one single vote--whether it is asbestos 
legislation--talk about manufacturing jobs. Asbestos litigation is 
killing us. What is happening? The other side of the aisle is blocking 
it because their trial lawyer friends in the Democrat Party, who 
support the Democratic Party more than any group, they are blocking 
productivity, they are blocking job creation.
  They come to the floor and complain that there are no jobs available. 
The fact is, the policies of this administration are working, and it is 
just driving the other side crazy. They want to complain about the 
past.
  Look to the future. Things are looking great, except when it comes to 
the third branch of Government.
  The third branch of Government, the judicial branch of Government, is 
one of the most important branches of Government because it interprets 
our Constitution. It says what our rights and responsibilities are 
according to that Constitution.
  You have to wonder because I get this question all the time: Senator, 
why are you spending all this time on judicial nominations? What is so 
important? How does it affect me? I get reporters' questions all the 
time. Reporters sometimes can be insightful and sometimes they can ask 
the most basic of questions. And you wonder why. But in this case the 
basic question is a good question: Why should we care about this?
  Now, if you would listen to some on the other side, they would tell 
you, you should not care about this. Turn your televisions off. Nobody 
is paying attention. The sign from the Senator from Iowa: I am going to 
be watching ``The Bachelor'' tonight. That, to me, was one of the most 
telling things. It was a joke. Oh, but you know humor. Humor is one of 
the great things in our society, every society, because for humor to be 
really effective, there has to be a little bit of truth in it. The 
little bit of truth in that--I am going to be watching ``The 
Bachelor''--is don't pay attention. Please, don't pay attention to 
this. Go do something else. We would rather have you not know what is 
going on. We would rather have you, at 5 o'clock in the morning, be 
safely snuggled asleep in your bed knowing that, trust me, we have 
taken care of all of your concerns and needs. So go watch ``The 
Bachelor,'' something really important, something really significant, 
something that is going to elevate your life. Don't pay attention to 
one of the most important debates this Senate has ever had. Go watch 
``The Bachelor.'' Go watch the continued debasement of our society. 
That is what you should be doing.
  Now, I know that people are going to say: Oh, well, you can't take a 
joke. But in humor is truth; otherwise, the humor does not work, does 
it? Go watch the debasement of our society. I would argue, if you want 
to watch the debasement of our society, you should turn on to C-SPAN 
right now because what is happening on the floor of the Senate is an 
attempt by a minority to circumvent the Constitution.
  Why? Circumvent the Constitution by requiring a higher standard for 
the confirmation of judges than has ever been held before. Well, they 
say there have been filibusters before. There has never been a case 
where there has been an organized attempt to block a nomination by 
requiring a supermajority. There have been cloture votes filed here.
  In the case of Stephen Breyer, Justice Breyer, nominated after the 
1980 election, after Jimmy Carter lost, after the Democrats lost 
control of the Senate in a landslide election--can you imagine if 
President Bush had the gall to nominate someone to a circuit court 
after getting swamped in an election? There would be audible laughter 
on the other side of the aisle that we would consider a nomination at 
that point. Filibuster? My goodness, they would be screaming how dare 
you have the gall to do something like that?
  I know the Senator from Rhode Island said: Well, I would hope we 
would consider this. Oh, please. Please. Look at the nominations they 
are blocking now, ``out of the mainstream'' nominations they are 
blocking now.
  Janice Rogers Brown: 76 percent of the vote in California. Out of the 
mainstream?
  Priscilla Owen: 84 percent of the vote in Texas. Out of the 
mainstream?
  Oh, I would hope we would consider these nominations in due course? 
Really? Really not. No. What the Senate Republicans did in 1980, by 
confirming someone to an appellate court, shows what the Senate was 
like years ago. But it has fundamentally changed. Why? Well, back then 
we had leaders. You had Howard Baker. You had people here on this side 
of the aisle who put the institution first, who said, as a leader: We 
are not going to filibuster. In fact, they moved the cloture vote to 
move the judge. Why? Because we only had a week or so left when the 
nomination came up.
  Here in the Senate just to move anything takes weeks. At the end of a 
session, one Senator has enormous power because they can make you go 
through the procedures in the Senate to get to a vote, which takes 
weeks if there is not consent. So just one Senator, at the end of a 
session--we all know it. We all use this leverage. It is the beauty of 
this place. It is why one Senator is so much more powerful than dozens 
and dozens of House Members. It is because of the rules here.
  But the Senate minority leader, soon-to-be majority leader said: We 
are not going to do that. We are not going to filibuster. If there is a 
hold on soon-to-be Judge Breyer, we will work with the soon-to-be 
minority that was swept out of the election--huge losses; 
hemorrhaging--we will work with you to confirm someone who, by the way, 
is now on the United States Supreme Court and is writing opinions that 
make me throw up.
  But we did it because the Senate was a different place then than it 
is now. We did it because the leaders were different then. Leaders did 
not respond to the latest pro-choice Web site. They were not 
manipulated by organizations far from this place, who fund their 
campaigns and support their grassroots activity, narrow special 
interests, who seep into this Chamber like hidden gases underneath the 
door panel. That is what is poisoning this atmosphere.

[[Page 28821]]

That is what is poisoning this atmosphere. It is narrow zealous special 
interests. That is what has changed in this place.
  But it is not just them. They cannot do it without us because there 
have been the NARALs and the ACLUs, and People for the American Way, 
and the trial lawyers association and all--labor unions--they have been 
out there before. But people in the Senate always stood up for the 
Senate against the passions of the moment, the special interests of the 
moment, the needs and wants of your supporters at the moment.
  They felt a responsibility. They felt a responsibility for their 
leadership in the Senate.
  It is amazing to stand here. The Chamber is basically empty. No 
offense to my colleagues from Kansas and South Dakota, but it is 5:10 
in the morning, as my voice echoes, resonates without very many people 
here. But you still look around this place, and you look at the empty 
chairs and you close your eyes and you can just feel the presence of 
the greats who have been here in the past, of the people who have sat 
in these chairs--these very chairs at these very desks in this very 
place, this beacon of deliberation, this beacon of sometimes delay and 
sometimes not particularly pretty debates in the Senate, but yet the 
essence of democracy here. And for 214 years--214 years--the leaders in 
this Chamber, not necessarily all the Members--we are a society of 
saints and sinners and everything in between, but the leaders in this 
Chamber always took the responsibility of leadership of this august 
body as a sacred trust because what we do here sets precedent for what 
will happen.
  The Senator from West Virginia changed the filibuster rule. I know 
with his sense of history he knew the consequence of his action. When 
he changed the rules postcloture for the recognition of a quorum, the 
Senator from West Virginia knew what the consequences of that would be. 
When we change any procedural thing in this Senate, we know because 
history has taught us that there are profound consequences.
  So when Senator Daschle, Senator Reid, Senator Kennedy, Senator 
Leahy, Senator Durbin, Senator Clinton, and Senator Schumer--the 
leaders of this new strategy--decided they were going to enlist their 
colleagues on a new course, they could not help but know. You cannot 
help but know, if you spend any time in this place. If you are a page, 
who comes in 15, 16, 17 years old, and comes in and just sits in this 
place for any period of time, you know that what you do here over the 
years remains in some way because you set precedent.
  You all know, just by looking at these sometimes not particularly 
attractive, sort of stodgy-looking leather chairs that this place is a 
place of tradition. It is a place of precedent. These are old wooden 
desks. We have little ink wells. Look at this little sand that comes 
out of these things that were used for people who signed documents with 
feathered pens. Come on. You cannot be here and not know that this is a 
place of tradition and precedent. It reeks of it.
  So when you change something here, you have to realize that it has a 
huge impact on our society. So I ask, what is the great issue of the 
day--issues of the day--that are so urgent, that are so powerful, that 
are so necessary for this precedent of the Senate, for a leader never 
to involve his party in a partisan attempt to block a nominee by 
requiring an unconstitutional supermajority to confirm the nominee. 
Never has been in history. Mr. President, 2,730 nominees since the 
filibuster rule was put in place in the last century. No nominee--
never, never with a nominee in the history of the country did a 
minority leader ever enjoin his forces to block by using the 
filibuster. Never before. Now that is a precedent-setter, folks.
  Why? Why? Why is it so important? What has changed that would not 
lead George Mitchell to do that? That would not lead Howard Baker to do 
that? That would not lead Mike Mansfield to do that? That would not 
lead Everett Dirksen to do that? That would not lead Senator Taft or 
Senator Vandenberg or Senator Johnson to do that?
  Let's go on back through history. All of these men--the giants of the 
Senate--the giants of the Senate never once employed this tactic. Do 
you think that Lyndon Johnson, as majority leader, ever had a nominee 
he did not want? I assure you, having read some of the history of 
Lyndon Johnson, and Caro's book--the Senator from Arkansas talked about 
it--there were people the Senator from Texas did not like. There were 
people the Senator from Ohio, Mr. Taft, did not like.
  You could go on throughout history, but did they ever apply a higher 
standard? Did they ever do that? The answer through history is no. 
Could they have? Well, obviously from what is happening right now, the 
answer is, yes, they could have. But did they do it? No.
  Were there issues of great importance during those times? Well, I 
would suggest if you were living through those times of war and 
depression and communism and segregation, and in prior centuries, 
slavery, reconstruction, and trust busting, and human rights, I would 
argue those are pretty big issues. Never before used.
  So I am going to go back to what the Senator from Kansas was talking 
about in the last hour. What are the issues--or what is the issue--that 
is so important that the Senator from South Dakota and the leadership 
of the Democratic Party would seek to change the way the Senate does 
business, would seek to change the precedent of the Senate and 
potentially forever change the judiciary of this country?
  Let's make no mistake about it, you are going to dramatically affect 
who is going to be applying for these judges, who is going to be 
confirmed, and what their point of view is going to be--I would argue 
what their competence is. The issue is clear, it all centers around 
this issue called the right to privacy--the right to privacy.
  Now, here is a copy of the U.S. Constitution. I am holding it up in 
my hand. I challenge any person in this country, in the world, to find 
the words ``right to privacy'' in this document. It does not exist. It 
does not exist. Wait a minute. I always thought--I ask students all the 
time: What section of the Constitution is the right to privacy? Will 
you please read the section that the Founders, or through 
constitutional amendment, established the right to privacy? Can you 
please find that for me?
  Well, oh, yes, it is in the--let me see. Is it in the 14th amendment? 
Is that where it is? No. I am sitting here reading: ``All persons born 
in the United States subject to jurisdiction . . .''--no, no, I don't 
see the words ``right to privacy'' in there. Maybe I was wrong. Maybe 
it is the 10th amendment: ``No powers delegated to the United States 
Constitution prohibit the States or reserve the States with respect to 
. . .''--no. Oh, it has to be the first amendment. Good: ``Congress 
shall make no law respecting the establishment of religion, prohibiting 
free speech or the exercise thereof, or abridging the freedom of speech 
or the right to peaceably assemble . . .'' --no, it is not there.
  Where is this right to privacy? Well, it was created by whom? It was 
created by judges. Was it amended because there is a provision in the 
Constitution, we can find that, that says how you amend this document. 
Is that the way it happened? No, it did not happen that way.
  We amended the Constitution because we put in place a power of 
authority, people on the highest court of the land who decided it was 
their responsibility to change the Constitution, that it was their 
responsibility to find new meaning in these words that have been around 
for a couple of centuries.
  I have always thought we were a government of laws and not of men, 
but that is not the case anymore. That is fundamentally what this 
debate is about because, you see, the written words of the Constitution 
that says a majority vote is necessary do not mean anything anymore 
because the Constitution is a dusty old document we can manipulate and 
change for whatever purpose because we have advances

[[Page 28822]]

in society; we know more than they did then; we are enlightened. Come 
on, folks, 240 years ago, they didn't have the level of sophistication 
and knowledge of our culture today, and so these dusty old documents 
need to be revised; it is so complicated to go through the amendment 
process of the Constitution; it is so cumbersome; we, the enlightened, 
will change it as, of course, the culture demands us to do, to free us 
from the bonds and shackles of these now long departed Founders of our 
country who couldn't possibly understand the complexity of the world 
today and the advancements today that have made this document so 
unnecessary. So we don't need to find anything in this piece of paper. 
In fact, if we can't find it, that is fine; we will simply create it.
  Who does this creating? It is the very judges we are debating today. 
The Senator from Kansas talked at length in the last hour about the 
line of cases that is taking an eraser to the word ``God,'' religion, 
erasing it from our public consciousness. It is as if the first 
amendment was never written:

       Congress shall make no law respecting an establishment of 
     religion, or prohibiting the free exercise thereof. . . .

  ``Free exercise thereof.'' I asked a group of students yesterday what 
were the first words in the Constitution, separation of church and 
state or exercise of free religion. Half said separation of church and 
state. Of course, if you listened to the judges and what popular 
culture says, you would believe that.
  Can you imagine, half the people I talked with yesterday did not 
think free exercise of religion was in the Constitution? Can you 
imagine? Why would they think that? Because in practice that is the 
message the culture sends about the Constitution. It is not about 
freedom of religion. If it were about freedom of religion, we wouldn't 
be erasing God from everything that is public in our culture.
  Who is doing the erasing? Is it Congress? Did Congress pass a law 
that says you can't have prayer before a football game? Did Congress 
pass a law that says we will scrap ``under God'' from the Pledge of 
Allegiance? Did the people speak out and say, We don't want the mention 
of any faith in the public square? Is that what Congress did? No.
  So people ask: What are the consequences of what we are doing here 
today? The consequences are clear. We have elected people who are 
erasing from the public consciousness some of the most important and 
fundamental rights and, I would argue, some of the most important and 
fundamental principles that keep our country moral, safe, free, and 
prosperous.
  Mr. BROWNBACK. Mr. President, will the Senator from Pennsylvania 
yield for a question?
  Mr. SANTORUM. I will be happy to yield to the Senator from Kansas.
  Mr. BROWNBACK. Mr. President, I have been listening, and I think the 
Senator from Pennsylvania puts forward a brilliant and eloquent 
argument, and it gets to the nub of what we are talking about instead 
of the areas. It is in this last 4-year time period that a 
constitutional right to privacy has been discovered and which has 
spawned a series of cases. This is done by the Court. The Court has 
discovered this, and the Court has done this.
  Let me ask a simple question: Has the U.S. Supreme Court ever been 
wrong?
  Mr. SANTORUM. You would think from the debate here that this right to 
privacy, that has now been established as this incredibly well thought 
out and documented thing, is wholly supported within this document. I 
have folks on my side of the aisle--I always think of the former 
Senator from Washington, Slade Gorton, who is for abortion rights who 
thought Roe v. Wade was one of the worst legal decisions he had ever 
seen. So many people who are for abortion rights, who would have voted 
as a legislator to allow the legalization of abortion, saw this 
judicial construction or deconstruction of the Constitution as an 
abomination to our legal system.
  Has that ever happened before? Obviously, the Senator from Kansas is 
referring to some of the cases such as Plessy v. Ferguson where the 
Court looked at this Constitution and said: You know, equality really 
doesn't mean equality. The words here aren't exactly what we think they 
are, and you can be separate and equal. Or we can go back to Dred 
Scott. They looked at this Constitution and said: You know, equal 
doesn't mean equal. This rash of cases we have seen where the courts 
have just decided to take these hallowed words and twist them into the 
culture of the day, this is not a new thing in America; unfortunately, 
it is a very old thing in America.
  The Court in Dred Scott said: Yes, people have rights and people 
should be treated equally, but--I think of ``Animal Farm''--some people 
are more equal than others. Some people have more rights than others. 
In the case of the slave, they really don't have much in the way of 
rights at all.
  We look back at those cases now with disgust, but judges found in 
this incredible document the right to do incredible harm to this 
country--incredible harm--and, in many cases, with complicity from the 
Senate, for it is we who are the guardians of this document because we 
put these judges in these places. So it is an important responsibility.
  That is why this debate is so important. That is why we shouldn't be 
watching ``The Bachelor.'' We should be watching out for the future of 
this country.
  In my next block of time in the next hour, the Senator from Kansas 
and I are going to talk about this right to privacy, this line of cases 
that has tried to erase God from the public memory and consciousness, 
all instigated by judges who would find wide praise and admiration on 
the other side of the aisle, who would be called mainstream judges--
mainstream judges who are striking at the heart of this document.
  What is a mainstream judge? Let's understand it. A mainstream judge 
says God has no place in the public square. That is a mainstream judge.
  A mainstream judge says you have the right as an individual to have 
dominion over somebody else and terminate their life if you want to. 
That is a mainstream judge.
  A mainstream judge says we are going to take the institution of 
marriage and corrupt it, deconstruct it, tear it apart, put it back 
together to mean nothing. It means any two people for any reason who 
want to get together should be recognized as married, irrespective of 
who they are. It has nothing to do with fathers and mothers and having 
children. What does that have to do with marriage? That is a mainstream 
judge.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SANTORUM. It is an extreme judge, not a mainstream judge.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. JOHNSON. Mr. President, reference has been made at this early 
hour this morning about debasing the values of this institution and 
this country. If any American sadly wants to see debasing of the 
institution, they have only to look at the strategy that has been 
foisted upon this body and on the American people by the Republican 
leadership of this Senate with their fabrication of a ``crisis'' 
relative to the nomination and approval of Federal judges.
  There is no crisis. The fabricated crisis the media has talked about 
is a polite way of saying the phony crisis, the fake crisis.
  The reality of the situation is that this Senate has approved 168 
Federal judges nominated by President Bush. The Senate has blocked the 
approval of 4 Federal judges, a remarkable 98 percent success rate.
  The ratio of unfilled judgeships is now at its lowest point in some 
13 years. The pace of approval of judges is at a higher rate than that 
of past Presidents of either political party, and I think it is fair to 
say that of these 168 judges, most of whom I voted for, virtually all, 
if not all, were conservative Republican judges. That is to be 
anticipated. They were all nominated by President Bush.
  The question is not whether we should approve conservative Republican 
judges. We have, overwhelmingly.

[[Page 28823]]

The question is, Should there be some shred of moderation, some shred 
of bipartisanship in this institution relative to these judges who will 
serve life terms on the bench? These are not Cabinet officers. These 
are not people who come and go with whatever President happens to be in 
office. These are people who will serve virtually their entire lives on 
the Federal bench. So this body has a constitutional obligation of 
advice and consent.
  Apparently, the other side believes unless there is 100 percent 
approval of Federal judges, that somehow we haven't done our job. I 
would say the opposite, that if all we do is rubberstamp the 
nominations of any President, Republican or Democrat, this body has 
fallen down in its obligations, constitutionally and ethically.
  One of the great things about the Senate and the great traditions of 
the Senate--and there are great traditions in this body--is that unlike 
the House--I served in the other body, as did many of my colleagues--
unlike the House of Representatives with its majoritarian philosophy, 
set up that way by the Founders, where if you have a majority of one 
vote, that is sufficient to ram through almost anything, the Senate was 
devised by the Founders of our Republic to be a moderating, cooling 
institution. That is why we have 6-year terms--because Senators are 
invited to take a longer term view of what is good for our Nation and 
what is not.
  The Senate is designed to be a body that doesn't jump every time a 
whim is expressed by the public or in the political whims of the day. 
Our role is to take a longer term view and to moderate what is 
oftentimes the hot politics of the House of Representatives.
  It is very difficult, because of the rules of this body, to jam 
through legislation for the approval of virtually anything of any 
controversy without some bipartisanship. That is the course of action 
we are seeing here today.
  While we have approved 168 of President Bush's judicial nominations, 
the minority party, a 51-to-49 minority, has said these are such 
important positions, let's make sure there is a general consensus about 
the support of these nominees. That is what the 60-vote rule requires.
  The other side is very frustrated because they like to jam things 
through the Senate with 51 votes, but that is not the way the Senate 
works on this or many other issues.
  I have to say President Bush's nominees have received prompt hearings 
compared to virtually any other standard. That contrasts greatly with 
President Clinton's experience. President Clinton was told: Don't bring 
us a nominee who is liberal; they will not receive a hearing. And, 
indeed, they did not.
  We had people nominated, closed up their law practices and put their 
family on hold for years upon years, and could not get a hearing under 
the Republican leadership during the Clinton years.
  That doesn't happen anymore. Now people who are nominated do receive 
timely consideration. They do get votes. They get votes on the floor of 
the Senate. But the Senate has chosen to use its prerogative to require 
bipartisanship on some of the judges who many in this body believe fall 
outside the mainstream of conservative thought in terms of their 
politics, in terms of their legal interpretations.
  There is no crisis in terms of judges. For over a decade, we have not 
had the ratio of judgeships filled as we have today. President Bush has 
an enormous winning record in terms of the nominations that have been 
approved. Again, virtually all of them are conservative Republican 
judges. That is his prerogative. The Senate has gone along with that. 
There is no problem there. This is not as though somehow the President 
is getting jammed.
  What is happening here, I think, is that there has been a strategy 
concocted by the leadership of the other side to try to gin up 
political support among a faction of their supporters. What we have 
here is politics, an effort to play to the radical right. It is costing 
$100,000 or more of the taxpayers' money for this debate, and yet what 
we have here is a phony, fake, fabricated crisis. This is no crisis. 
The Senate is dealing with judges in a timely and responsible fashion.
  President Bush, obviously, could have the approval not of 98 percent 
but 100 percent of his nominees if he were to send to us mainstream 
conservative Republican judges, as he largely has done. Clearly, it is 
part of the political strategy to look around the country and find a 
handful who fall far outside the mainstream of Republican or Democrat 
judicial thinking and nominate them, knowing there will be resistance 
to these individuals.
  The thought is that by nominating these individuals, they can 
energize the radical right-wing political faction within the Republican 
Party. They will contribute money then if they see all this going on. 
It is a very cynical strategy. This has nothing to do with the 
interpretation of the Constitution. We are approving conservative 
Republican judges. It does have to do with able people who are in the 
mainstream, broadly thought.
  I think it is regrettable that we find this Senate and our work 
hijacked by those who want to push aside timely consideration in the 
Senate of issues pertaining to jobs, education, health care, energy, 
environment, our veterans and our military--all the issues with which 
this body ought to be dealing.
  The Federal fiscal year began October 1. Yet the Federal budget is 
not concluded. So there is so much that needs to be done, that we are 
being prevented from doing as we spend these many hours around the 
clock on a fabricated, phony crisis that does not exist. All of this to 
play to a very small faction politically in America. It has to do with 
political fundraising. It does not have anything to do with the quality 
of the court.
  I note that 95 percent of the Federal judicial seats are now filled. 
That is the lowest vacancy rate in 13 years. Last year, this Senate, 
led by my colleague Senator Daschle, confirmed the largest number of 
judicial nominees in a single year since 1994. There ought to be 
celebrations on the part of the other side in this body over the 
remarkable, timely, aggressive approval of Federal judges, the highest 
number of judicial nominees approved in a single year since 1994. The 
highest level of judicial seats filled, ratio of seats filled, in 13 
years. That ought to be cause for celebration. That is a remarkable 
level of progress, and it was done in a bipartisan fashion.
  Part of that time, the Democrats controlled the Judiciary Committee 
with Senator Leahy as chairman. Part of that time the Republicans 
controlled the Judiciary Committee. So the track record is truly 
extraordinary. What an irony that in the face of that reality, we find 
ourselves through the wee hours of the night, through the day 
yesterday, through the day today, being prevented from dealing with the 
real legislative issues while we talk about this political gamut that 
we have before us.
  Some say, well, what about the appellate court judges? That is the 
highest Federal court next to the Supreme Court itself, and one that 
truly does write law. Well, even there the Senate has confirmed 29 of 
President Bush's appellate court nominees to date, more Bush circuit 
court nominees than--get this, President Bush has had more of his 
appellate court nominees approved by this Senate than President 
Clinton, President Reagan, or President George Herbert Walker Bush had 
by this point in their administrations. Yet here we are, the other side 
posing as though there is some sort of terrible crisis going on when, 
in fact, it is just the opposite. Conservative Republican judges are 
being approved at a record pace by this body.
  What the other side seems to find unacceptable is that the Democratic 
Party is insisting that one should not go to a lifetime Federal bench 
unless there is a generally broad consensus, bipartisan consensus, not 
unanimous but a broad consensus, of at least 60 votes that that person 
deserves to sit on the bench dealing with legal issues that are of 
monumental importance to every American citizen for the rest of their 
lives. I think that is one of the great strengths of this body. That is

[[Page 28824]]

one of the great strengths of the United States Senate, that we cannot 
be stampeded into the radical actions of a few but that we take a 
longer term view of what is good for America, what is consistent with 
American values, what is consistent with American priorities, for all 
of our people. That is what is happening in this body this year, and 
that is why a few on the other side are objecting so strenuously.
  Now, other judges have been filibustered; cloture votes have been 
held. Other judges have been held up in committee, which has been the 
favorite mechanism of keeping people from having a vote at all. That is 
to be said even for these four. They have been allowed votes in 
committee and cloture votes on the floor. They cannot get the 60-vote 
requirement and so they are not going to the Federal bench because they 
do not have that broad-based consensus of support in this body.
  That is what this body is all about. It is not just judges. This same 
60-vote rule prevails on virtually everything we do in the Senate, from 
the passage of health care, to education, to appropriations 
legislation. Virtually everything is subject to that consensus 
requirement. I think it reflects the best of our values in America and, 
in fact, it represents America coming together in this body to try to 
produce legislation that is good for us all. It is not ideologically 
driven. It is not the product of the far left or the far right. The 
product of the far left or the far right does not do well in this body 
because of the nature of the rules that have been the rules since our 
Republic began. It is one of the geniuses of the Founders of this 
Nation, that that is the profoundly important role of the Senate to 
moderate the radical winds that occasionally blow politically through 
this country and through Washington, DC.
  So it is a bulwark of individual freedom and of American values and 
priorities that we have a body like this that mandates that there be 
greater thoughtfulness, greater moderation, greater reflection than 
would otherwise be the case.
  There are other issues that we rightfully ought to be moving on to. 
Recently--yesterday, in fact--I visited the Walter Reed Army Hospital 
in Washington, DC. One of my constituents, a soldier injured in Iraq, 
was there. Senator Daschle and I and a contingent of other Senators 
visited our troops. We can take great pride in the quality of these 
young men and women and what they have done for America, what they are 
doing for America. They are extraordinary people with great courage, 
and they are getting on with their lives as best as they can.
  It was heartbreaking to go from room to room at Walter Reed and see 
our Iraq military veterans. In one room, a soldier has lost an arm. The 
next room, a 20-year-old young man has lost both arms. In the next 
room, a young man has lost his leg all the way to the hip. In another 
room, there was a young man with brain damage. In another room, a man 
has lost his feet. Another room, a man has lost his hand. In another 
room, an individual has lost his arm again. It goes on and on.
  There has been a lot of reference to those who have lost their lives 
and made the ultimate sacrifice in Iraq. Our hearts and prayers go out 
to them and their families, but we should not forget those as well who 
are alive and with us but whose bodies are shattered, whose lives are 
forever changed because of what they were willing to do for the United 
States of America in their military service.
  Their families were there. Young wives were there yesterday, many of 
them with very small babies, some pregnant. Now they have a husband who 
has no arms, who has no legs, who has brain damage. We need to give 
some thought to these families as well, think about the enormous 
sacrifices they are making for America.
  One of the great ironies and sad ironies of this debate that is going 
on is that the legislation that was taken off the floor in order for us 
to have this debate was the VA-HUD appropriations bill, the very bill 
where we will make determinations about whether these young men and 
young women, once they conclude their military service, will have the 
health care, the job training, and the therapy they need to get on with 
their lives. That was pushed aside. We do not have time for that debate 
apparently because we need to spend 2 days or more of the Senate's time 
on this phony crisis because 4 out of 172 judges have not been approved 
by this body. What a sad commentary about the priorities of the 
Republican leadership in this body.
  I do not ordinarily make partisan references lightly. I am a 
Democrat. I am elected in a State that is overwhelmingly Republican, 
and I am proud of the Republican support that has been extended to me 
for many years. They are good, wonderful, thoughtful, patriotic, 
religious people on both sides, no question about that. But I am 
profoundly disappointed, to the point of contempt, for what has 
happened in this body the last day or so with the hijacking of the 
Senate's agenda already behind schedule on these important issues that 
we ought to be talking about in order to take up this question of 168 
to 4.
  I suggest that if it was 172 to 0, that would be good evidence that 
the Senate is not doing its job of advice and consent. This body is not 
meant to be a rubber stamp. That is not what the Founders of this 
Nation thought that they were doing when they wrote our Constitution 
and devised the rules of the Senate.
  Mr. President, in 1968 New York Senator Robert Kennedy launched a 
Presidential campaign at a time of great unrest and dissent in our 
nation. He ran a campaign that lasted 85 days to empower those who did 
not have the power, to bring justice to those who did not have justice, 
and the protest the direction of our great nation. At the beginning of 
that campaign, he addressed criticism of anti-war protesters by saying:
  There are millions of Americans living in hidden places, whose faces 
and names were never know. But I have seen children starving in 
Mississippi, idling their lives away in the ghetto, living without hope 
or future amid the despair on Indian reservations, with no jobs and 
little hope. I have seen proud men in the hills of Appalachia, who wish 
only to work in dignity--but the mines are closed, and the jobs are 
gone, and no one, neither industry or labor or government, has cared 
enough to help. Those conditions will change, those children will live, 
only if we dissent.
  So I dissent, and I know you do, too.
  Mr. President, I rise today to dissent. I dissent to the majority of 
this body's unwillingness to focus and deliver on healthcare and 
education. I dissent to this body's inability to provide for our 
veterans. I dissent to the President's blatant disregard for treaty and 
trust responsibilities to Indians. And most of all, I dissent this 
political charade.
  Instead of talking about judges, as a body, we should be addressing 
the unmet needs across this country.
  Our Veterans made tremendous sacrifices in service to our Nation. 
They have answered the call to defend our freedom and served our 
country at the time of its greatest need. We are trying to provide our 
veterans with the full benefits they have earned. While the White House 
can find money for tax cuts for America's wealthiest families and a $20 
billion lavish grant for Iraq, too often poverty is pled when it comes 
time to providing our veterans the benefits they deserve. Right now 
60,000 veterans are waiting 6 months or longer for an appointment at VA 
hospitals. I think it is important to fully fund VA health care so that 
veterans of Operation Iraqi Freedom can get the care they need when 
they return home.
  My own son served with the 101st Airborne in Iraq. He is home now. He 
is safe. He did not suffer one of these horrific injuries. We are 
grateful for that, but we are very mindful that tens of thousands of 
others are still there, have suffered horribly, have lost their lives, 
and their families have gone through enormous painful stress.
  In contrast, the Republican leadership in the Senate has broken their 
promise to provide an additional $1.8 billion for veterans health care 
this year and even proposed an increase in prescription drug copayments 
that impose a $250 annual membership fee for

[[Page 28825]]

veterans seeking health care. Should we not be talking about these kind 
of priorities? It is astonishing to me that the Republican leadership 
of the Senate has set a target adjournment date only days from now, 
November 21, and has scheduled 39 straight hours of executive session 
to discuss this phony issue; not 39 straight hours to discuss critical 
legislation such as lack of prescription drug coverage facing millions 
of American beneficiaries in this country. Do not the 40 million 
Medicare beneficiaries deserve as much attention as this phony issue is 
receiving?
  We are at an impasse. We do not have a final Medicare bill. At this 
rate, spending hours and hours discussing nominations which have 
overwhelmingly been approved, instead of debating important Medicare 
legislation, makes me wonder about the priorities of the majority party 
in this body. They are dedicating nearly 10 hours each of discussion 
for four individual judges, but we cannot spend 1 hour each for every 
million individuals on Medicare. What is wrong with that picture? High 
drug spending is placing a heavy burden on American families, and many 
businesses are responding to rising drug spending by increasing the 
amount that employees must pay for prescription drugs. The public 
programs such as Medicaid and the Veterans Health Administration are 
also struggling to respond to soaring drug spending. Finding a solution 
to the prescription drug crisis in this country is a priority for me, 
for many in this body. It should be a priority for the entire body.
  States and local communities are struggling with the worst budget 
shortfalls since World War II and many have cut back on education 
funding, on instruction time, have laid off quality teachers and school 
staff. School district after school district in my home State of South 
Dakota are having opt-out votes, trying to do something to try to make 
sure that children in our communities have the resources they need to 
learn. Parents and students are holding bake sales and auctions to save 
teaching jobs, music, art, other student activities. It would be 
impossible for our public schools to meet the strict demands of the new 
Federal education law if vital school services continue to be cut all 
across our Nation.
  I believe that fighting to bridge this gap by increasing Federal aid 
to the States and raising public awareness of the school public crisis 
is essential. I think it is important to recognize that money alone is 
not the solution to improving our schools, but we need also to be 
cognizant of the fact that public schools need the financial resources 
necessary to successfully implement No Child Left Behind. The National 
Education Association's State-by-State report on layoffs and cuts 
affecting public schools and the responses of students, parents, and 
communities, NEA collected anecdotal data from 2003 through the end of 
September and finds the school district stress all across this country.
  In my home State of South Dakota, our Native-American community is 
struggling badly--high unemployment, lack of health care, high infant 
mortality, lack of jobs. Again, that is another area that deserves the 
attention of this body.
  These are the real crises that face America, not a 98-percent 
approval of conservative Republican judges, which this body has done.
  This President has been served very well by the Senate on the timely 
approval of 98 percent of these judicial nominations. I submit that the 
four who have been rejected were selected with the thought in mind that 
they would be rejected because what the other side of the body wants, 
and I think what the President wants, is a fight. They know that a 
fight will energize the radical right wing of the Republican Party and 
will energize political contributions. Sadly, that is what this debate 
is all about. That is why the taxpayers are having to fund $100,000 or 
more for the cost of this. That is why we are not able to get on to the 
other issues that truly we ought to be addressing right now.
  One hundred sixty-eight conservative Republican judges have already 
been approved, most with my support. That is not the question. The 
Federal bench has a higher ratio of judges seated now than we have had 
in 13 years. The appellate judges are being approved at a faster rate 
than Clinton, Reagan, or George Bush, Sr.
  So the record of this body, Republican and Democrat on the Judiciary 
Committee, has been one of accelerated consideration of judges in a way 
that has not been seen in many years. I think that reflects well on the 
body. What does not reflect well on this Senate is this hijacking that 
has taken place of our agenda, where we are being prevented from 
talking about the real issues, the real crises having to do with our 
children, having to do with our schools, having to do with our seniors, 
having to do with our veterans, having to do with health care costs. 
That has been hijacked by a body that wants to talk about these four 
judges who were selected, I think, by a process where the President and 
the leadership of the other side knew very well that these would be 
lightening rod candidates, that they do not fall within the same 
mainstream body as the other 168 conservative Republican judges.
  That has led to this dispute, and the dispute, I think, is not about 
principle. It is about energizing politics. It is about raising money. 
That is a sad commentary. That is contrary to the values of this body 
and of the American people, Republican and Democrat. The American 
people deserve better than what has gone on on the floor of this Senate 
over these last many hours. We are going to see the rest of today 
wasted as well.
  Mr. President, our roads, schools, and infrastructure are crumbling 
as Nero fiddles here in the Senate. Yet our friends in the majority 
complain about a 98 percent approval rate for President Bush's judicial 
nominees. In baseball, that would equate to roughly a batting average 
of .980. A power hitter is someone with a batting average in the range 
of .330. That means if the Bush Administration's judicial approval rate 
in the Senate were considered in baseball terms, we would be batting 
nearly triple what any major league manager would love to have.
  And consider a baseball team that would have a .980 winning 
percentage. A winning percentage like that would far surpass any record 
set by any team in major league baseball; and would certainly beat the 
losing seasons of the Texas Rangers when President Bush was their 
managing general partner.
  In fact, the quality of some of the judicial appointments sent up 
here by President Bush shows the same judgment he used when he traded 
Sammy Sosa, a perennial home run leader, to the Chicago Cubs.
  The PRESIDING OFFICER (Mr. Coleman). The Senator's time has expired.
  Mr. JOHNSON. Mr. President, I yield the floor. I am sure it is a 
great place. I have not been there. I am sure it is wonderful. He used 
the whole day to talk about that, while we hear endlessly, Why are we 
not talking about veterans benefits or unemployment when all Monday was 
used by the Democratic side to talk about Searchlight, NV.
  It is a wonderful place, I am sure, but I don't know of any 
legislation pending about Searchlight, NV. Why weren't we talking on 
Monday about these things and not addressing the great issues of the 
day or addressing what we need to be doing about the war in Iraq? 
Instead, we are talking about Searchlight, NV. Where was the protest? 
Where was the anger? Where was the outrage. How about rabbits eating 
cactus? Again, I am sure it is a great place. No offense to anyone from 
Searchlight, NV.
  A week ago Friday, a week ago today, the other side ate a whole day 
up and we got no votes done on appropriations bills because they were 
chewing it up on filibustering at that point. Where was the outrage? We 
were not dealing with the great issues of the day. I guess it did not 
matter at that point in time.
  I find it interesting that this is all about fundraising. It seems 
the people fundraising are the left. This is NARAL, National Abortion 
Rights Action League, their Web site, going to

[[Page 28826]]

task on Charles Pickering; others on the left, pushing this hard for 
fundraising and organizational purposes. I don't think that is at the 
root of what we are talking about and why we are spending this time and 
why we are being tied up on something that has been without precedent, 
a blockage of Federal judges. This is really about a big issue, and 
that is why we are here at 6 in the morning on Friday, because we are 
talking about a big issue and we need to talk about other issues as 
well--which I agree with; we need to talk about other items, but we 
need to talk about this one, too.
  When you get a judiciary that is blocked, you need to talk about it. 
Why would these folks be blocked? These are highly qualified. They get 
painted different ways, but we have been through ad nauseam the 
qualifications. They are highly qualified judges in mainstream 
positions in their States on the highest courts in Texas and 
California--I guess Texas and California are mainstream--they are on 
the highest courts. One is on the Federal bench in Mississippi, 
approved by this body previously.
  What this comes back to--and the Senator from Pennsylvania was 
hitting it when we last had the floor--was a discovered right by the 
Supreme Court, the right to privacy. If we blow away the smoke and we 
are stating why we are here at this point in time and why would such 
qualified judges be blocked, it is because of the court that has been 
writing laws and about the right of privacy, or this constitutional 
right, discovery. It is not in this document, as the Senator from 
Pennsylvania pointed out, the right to privacy.
  I find it interesting that others have mentioned that the appellate 
court writes laws and that is why the judges are important. The lower 
court, the Federal district trial court, does not write laws, but the 
appellate court does. There is the issue and the problem. The appellate 
court does not write laws. The Supreme Court does not write laws. They 
interpret the laws. They interpret the Constitution. They do not write 
it.
  Unfortunately, people in this body look at it differently. Some are 
saying, yes, the court can write laws at the appellate and the Supreme 
Court. If that is the case, we have a second legislative body in 
Washington: We have three units of government, but two happen to be 
legislative and one executive. Yes, one legislative also has a court 
and judicial judges as well, but we have a second legislative body. And 
we are seeing this stream develop further with some people on the other 
side of the aisle saying we should examine the political opinions of 
people we are appointing to the bench.
  If they are going to be a judge and they are going to interpret the 
law, why should a political opinion be of significance in the 
consideration? That is not their role. They are not a legislature. I am 
a legislator; you are a legislator; people in this body are 
legislators, but those on the Supreme Court or court of appeals are not 
legislators.
  Some say, OK, we need to examine the political ideology of the people 
coming forward for the bench even though they are saying we will follow 
the law and that leads to writing laws on the bench. I hold to the 
opinion--most people on this side do--what you want in a judge is 
someone who interprets the law and interprets the Constitution and does 
not write it. There would be times I would have actually liked a judge 
to interpret something to the right and write it more conservatively. I 
would think that would be appealing to me, but I don't want a judge 
like that. I don't want a judge to do that. That is my job. That is not 
his or her job.
  I am asking for one to stay within the document and not to discover 
or write amendments to this document. I want them to interpret the law. 
This is what we are seeing seep into this. These are not legislators. 
These are not legislators-to-be, going on the bench, who write laws. 
They interpret the laws.
  What we have seen taking place is one of the biggest laws written by 
the bench over the last 4 years, the right to privacy, or as is more 
common vernacular today, this is about abortion and the Supreme Court's 
discovering this right. That is why all the judges are always quizzed 
ad infinitum about their views, because if the court can write that 
law, the court can repeal that law, so they do not want someone to go 
on with a political philosophy contrary to this, who might write the 
law differently.
  Now, we have a bad premise here. The court should not be writing law. 
The court should be interpreting laws. So stick within the documents.
  We also have a bad premise in the second step, looking at the 
political philosophy of someone being appointed. No, look at the 
qualifications and their willingness to uphold the Constitution. We are 
down a bad road a couple of steps already. That is why we are here at 
this time of day, because these four appellate court judges would be 
not questioned to any degree if it was not about political philosophy. 
That is the issue, and it is a big issue, and it is worthy of this 
discussion. And it is sad we are at this point because I have some of 
my colleagues here who want to speak and I do not want to dominate this 
half hour.
  Mr. SANTORUM. I would like to ask the Senator a question. You may 
have answered the question I posed earlier: Why, throughout the history 
of the United States, have we not had a leader of the Senate, minority 
or majority, join in blocking of a nominee to require a supermajority? 
Why has it never happened prior to this session?
  I think the Senator landed on it when the Senator said for the first 
time we are seeing people come to the court not to be judges but to be 
legislators, to make law instead of decide constitutional 
interpretation and to settle disputes. So we have entered into a time 
when political considerations now become much more important than the 
quality of the judge, the temperament of the judge, the qualifications 
of the judge, the experience. Those are now important, but they are 
almost secondary issues to the political philosophy of the judge 
because the courts now are fundamentally different than they were 50 
years ago or 60 years ago.
  Is that what the Senator from Kansas is saying?
  Mr. BROWNBACK. It is what I am saying. And it is bad that we are 
seeing this route taking place. This is going to lead us down a bad 
road. We are already started down the road.
  Now we appoint legislators for life with superpowers, and we are 
unable to pull them out other than maybe for moral turpitude. You have 
people who become--in essence, they can almost be dictatorial or 
tyrannical, and they are appointed for life. That is why so many people 
are so passionate about what takes place on the bench today, because 
now you have a superlegislator who does not answer to the public. It 
starts to get irritating to a lot of people.
  This is not the way we should be going. We should be backing up and 
saying these are three coequal branches of government with different 
jobs--not legislators each, but a legislative and executive and a 
judicial branch. This is the problem.
  If we keep going down this trail, and you have to examine political 
philosophy because judges can write laws or you can discover rights, 
including rights of privacy in the Constitution, and what other rights 
can you discover in the Constitution, and it will be important to know 
the political philosophy. Say we get one or two Supreme Court nominees 
to come up. Now we have somebody such that we are looking at a 
superlegislator for life in the highest court of the land who can, with 
a couple of other people, rewrite this document--not just legislate but 
rewrite the constitutional document. That is why we have the huge 
fights on this floor.
  We used to say in the past--thanks to the question my colleague 
raised, we say, I disagree with the philosophy of Ruth Bader Ginsburg, 
I disagree with the philosophy of someone else, but they said they 
would uphold the law. They are confined, as I am as a legislator, with 
a set of power and authority. I do not agree philosophically, but they 
are qualified and will do a good

[[Page 28827]]

job and I don't have a good reason to vote against them.
  Mr. SANTORUM. This gets to the heart of this 168-to-4 number. The 
vast majority of the 168 are at the district court level, trial court 
level.
  What the Senator from Kansas is saying--and I want to make it clear--
the district court judges, by and large, do not make law. They are 
trying cases. Appellate court judges, we have seen now in recent years, 
have begun to take on the mantle of legislator in making law, and 
therefore all of the nominees who are being blocked on that side are 
these quasi-legislative-type judges.
  The Senator is suggesting the superlegislator is the Supreme Court. 
So if we are in for filibusters for appellate courts, can anyone 
imagine what a Supreme Court nominee fight will look like in the Senate 
now versus 20 or 30 years ago?
  Mr. BROWNBACK. Absolutely. That is the point. We will be in such a 
mammoth fight and engaging the entire country with this, how will you 
ever get that person through?
  It does go to this constitutional case that is being considered by 
the Supreme Court now on the flag salute, ``One Nation under God.'' 
Here was a continuation of the discovered set of laws that somehow 
discovered that our kids cannot say our flag salute, ``One Nation Under 
God.'' Ninety percent plus of the public is for the flag salute. I am 
confident that percentage is ahead of that. In this body, there is 
outrage. And the Ninth Circuit, in a consistent opinion with 40 years 
of discovery law, says: No, you cannot do that.
  So now you put somebody in a legislative role--circuit court, 
lifetime appointment, cannot remove them--and the Ninth Circuit, which 
gets overturned all the time--as a group of legislators they get 
overturned all the time by the Supreme Court. Now, say you get a 
Supreme Court position that opens. They are not going to get overturned 
by anyone. And you get people fearful of the tyranny of the judiciary 
which the Founding Fathers were fearful of themselves. They wanted the 
judiciary to be the most limited because they have the lifetime 
appointments. They have a pretty big set of powers. They feared tyranny 
could become an issue because it was a lifetime appointment and was not 
subject to the checks and balances of the people.
  People check and balance everyone in this body. But do they check and 
balance the judiciary? Where is the populace's ability to check and 
balance? That is why this is an important debate and why so many are 
concerned.
  What we should be doing is backing up and saying, no, this is about 
the strict construction of the documents that pass through the 
legislative bodies that are in the Constitution that go through an 
extraordinary process. Where, as the Senator from Pennsylvania pointed 
out, the Supreme Court discovers a new right in this Constitution, if 
we had written that in there, it would have taken a vote of two-thirds 
of this body, three-fourths of the States, to become law. This is a 
big, lengthy process and, as such, we have a limited number of 
constitutional amendments, as it should be. It is a strong document, 
standing over two centuries, and yet a court can discover this.
  We should back up and stand on the issue of, this should be about 
strict construction of what is taking place. This is a very important 
key fight to have.
  With that, I yield the floor. There are several other Members who 
seek to speak.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. I take a step back here and go through what we are 
doing. What is going on? What is going on in the Senate that has 
brought about this debate which has been so important? Can we agree on 
what is going on? I think we can. Let me use the words, and I would 
agree with these words written by Jon Corzine, the Senator from New 
Jersey, who happens to be the chairman of the Democratic Senatorial 
Committee.
  The Senator from South Carolina was here and the Senator from 
Minnesota was here talking about this throughout the night. We can 
agree on what is going on.

       Senate Democrats have launched an unprecedented effort. By 
     mounting filibusters against the Bush Administration's most 
     radical nominees. . . .

  Unprecedented. And what does ``unprecedented'' mean, according to the 
dictionary? Having no precedent. What is precedent? An earlier 
occurrence.
  So, having no earlier occurrence. What does that mean? It has never 
happened before. That is not me. It is not Republicans saying this. You 
have protestations on the other side. This happens all the time. Come 
on, no big deal. The Senator from Illinois will show a chart, look at 
all these filibusters. Come on, no big deal. We do this all the time. 
Unprecedented. Their words, not mine.
  To whom? To their people? Guys, this is what we are really doing. We 
are not going to say this on the floor of the Senate, but this is what 
we are really doing. It is unprecedented.
  So what is going on? An unprecedented filibuster to raise the bar for 
certain nominees. That is what is going on. Not my words, the words of 
the Senator from New Jersey to the people he relies upon to support 
their party.
  Let's look at the facts. Is it unprecedented? Since the filibuster 
rule was put in place, 2,372 nominees came to the floor of the Senate. 
Has anyone been blocked by filibuster? No. So you see, 168 to 4--stack 
that percentage against 2,372 to zero. Four? Let me ask if it is four.


                       Unanimous Consent Request

  I ask unanimous consent that the Senate now proceed to the 
consideration of Calendar No. 169, the nomination of Carolyn Kuhl to be 
a United States Circuit Judge for the Ninth Circuit; and further 
provided there be 100 hours of debate equally divided for the 
consideration of the nomination; and provided further the Senate 
proceed to a vote on the confirmation of the nominee, with no 
intervening action or debate.
  Mr. DURBIN. I object.
  Mr. SANTORUM. Now it is 168 to 5. So that chart is now outdated that 
the Senator from Illinois will show.


                       Unanimous Consent Request

  Mr. SANTORUM. I ask unanimous consent that the Senate now proceed to 
the consideration of Calendar No. 455, the nomination of Janice Rogers 
Brown to be United States Circuit Judge for the DC District Court; 
provided further that there be 200 hours of debate equally divided for 
the consideration of the nomination; provided further that following 
the debate, the Senate proceed to a vote on the nomination of Janice 
Rogers Brown, with no further intervening action or debate.
  Mr. DURBIN. Mr. President, I ask unanimous consent that that 
unanimous consent request be amended and that we move to legislative 
session immediately to consider an increase in the minimum wage and 
additional unemployment benefits for the 3 million Americans who have 
lost their jobs under President Bush's administration.
  Mr. SANTORUM. I want to make it clear that you are asking, in 
addition to this unanimous consent, that we would do this unanimous 
consent in addition to this?
  Mr. DURBIN. I ask unanimous consent that before we consider any 
unanimous consent request by the gentleman from Pennsylvania, that we 
first----
  Mr. SANTORUM. I would object. I object.
  Mr. DURBIN. Mr. President, reserving the right to object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. DURBIN. Mr. President, I reserve the right to object.
  Mr. SANTORUM. Mr. President, I have the floor.
  The PRESIDING OFFICER. The Senator--
  Mr. SANTORUM. Thank you.
  Mr. President, I renew my unanimous consent request.
  The PRESIDING OFFICER. The Senator may object or not object.
  Mr. DURBIN. Mr. President, parliamentary inquiry.
  The PRESIDING OFFICER. The Senator will state his inquiry.

[[Page 28828]]


  Mr. DURBIN. Will the Presiding Officer tell us what the pending 
business of the Senate is at this moment?
  The PRESIDING OFFICER. The nomination of Janice R. Brown, of 
California, to be United States Circuit judge for the District of 
Columbia Circuit.
  Mr. SANTORUM. I renew my unanimous consent request.
  The PRESIDING OFFICER. Is there objection?
  Mr. DURBIN. Mr. President, I object. If the Senator is not going to 
consider the----
  The PRESIDING OFFICER. Objection is heard.
  Mr. SANTORUM. Mr. President, I have the floor.
  Now that chart the Senator from Illinois is going to show is 168 to 
6. And I would project that 168 to 6 will soon be 168 to 7 and then 8 
and then 9 and then 10; and that this number is going to actually, 
looking forward into the future of the Senate, be a good percentage. I 
might agree with him looking forward because we will have set a 
precedent tonight. We will have set a precedent in this session of 
Congress that will go to haunt both sides forever. If we maintain it, 
it will. I guarantee it.
  What we are doing here is playing with real bullets. I tell you there 
are folks on our side of the aisle who are loving what you are doing. 
They are loving what you are doing, man. They just think, go, baby, go. 
Do this because we can't wait to get our arms around the next 
Democratic President who wants to stack the court with a bunch of 
people who believe God does not belong in the Pledge of Allegiance. We 
can't wait--who, by the way, got confirmed by the Clinton 
administration and by this Senate. We can't wait to get our arms around 
people who find in this Constitution things that are not in it, who 
believe it is their job to be the super Senator, the super legislator, 
the super President. We can't wait to block those nominees because, do 
you know what. You did it first. You did it first. You can say, oh, no, 
we didn't do it first. You did it first. You crossed the line. Oh, it 
has been threatened. It has been talked about around here. I will not 
deny that. I talked about it.
  Richard Paez, by the way, who tried to stop the California election a 
few days before the election, found somehow or other that ``you can't 
hold this election,'' that, to the people wanting to recall the 
Governor, ``you can't do that because, of course, I know more than the 
people.'' Richard Paez, Ninth Circuit, overturned more than any other 
circuit in the history of the United States. Clinton nominees, liberal, 
activist judges, out of step with the mainstream, the Senator from New 
York and maybe other Senators call mainstream, who says ``under God'' 
does not belong in the Pledge of Allegiance, who said ``three strikes 
and you're out,'' that the people of California voted for, is 
unconstitutional. The Supreme Court overturned that.
  That is the mainstream. Can't wait to get at the next Richard Paez. 
Can't wait to get at the next Marsha Berzon. Go on down the list of 
folks. Did I want to filibuster them? Did I want to filibuster Richard 
Paez because he was a district court judge? And he was awful. He 
expressed values and views that were so out of step with America and 
with my constituents in Pennsylvania, I just could not stand it. I 
said, come on. How can we continue to let these judges, who think they 
are God, who think they are Senators, who write laws that do not exist, 
who take the laws we do write and turn them into what they think, not 
what the Senate believed and what the President believed--how do we let 
these people keep coming at us and not do anything?
  My leader, Trent Lott, and my chairman of the Judiciary Committee, 
Orrin Hatch, said that is not the way we do things in the Senate. This 
is the passion of the day. But in the Senate, one of the great things--
and you hear it on both sides all the time--one of the great things 
about the Senate is we do not get caught up in the passion of the day. 
We understand the long term. We understand the greatness of America. We 
hear we are the cooling off. We do not get caught up with the passion 
of the day. We are the deliberative body. Therefore--and therefore--we 
have a higher calling than to respond to the NARAL ads or the People 
for the American Way ads. We have a higher calling. We are Senators. We 
look out for the long-term interests.
  How do you preserve the long-term interests? You do it by following 
the laws and the precedent. You do it by using what has been 
established over 214 years to protect rights, and we are throwing it 
away. We are throwing it away, and understand the stakes of what we are 
doing here. Understand the precedent we are turning over and what we 
are going to unleash on the floor of this Senate. Do you know what. 
Maybe it is a good thing. I have sat here now--I will not argue against 
my colleagues, but I have sat here now, and I listened to the Senator 
from Kansas.
  I would ask the Senator from South Carolina: Do you believe there are 
some on our side who, after listening to the Senator from Kansas and 
listening to the judges who have been put through--because we have been 
good stewards. We have allowed the Richard Paezs of this world to come 
and undermine our Constitution. We have allowed the left to seed into 
the court system those who would destroy this Constitution.
  Are there not Members of our side, I ask the Senator from South 
Carolina, who would say, thank you, we never had the courage--we never 
had the courage--to change the way the rules are here in the Senate to 
make sure that we could protect--as I think the Senator from New Jersey 
said--``protect our courts?'' We did not have the courage--as the 
Senator from New Jersey said--``to stop judicial extremists.''
  So maybe what we should be doing, I ask the Senator, is thanking the 
Senator from Illinois--and the Senator from North Dakota is here--and 
the Senator from South Dakota, Senator Daschle. Maybe what we should do 
is instead of protesting this is to thank them for giving us a tool, 
for giving us a tool to protect this document.
  I assure them--maybe I should not assure them--maybe I will ask the 
Senator from South Carolina, what do you think will happen now?
  Mr. GRAHAM of South Carolina. Well, to the best I can, to the Senator 
from Pennsylvania, for the last year--this is my first year--I have 
seen a trend that seems to be getting worse and worse. I can assure 
you, as the Senator from Pennsylvania has indicated, that for every 
liberal special interest group there is a conservative special interest 
group that feels just as passionately as the People for the American 
Way.
  The Senator is absolutely right. I have been trying to say this all 
night. We are in political quicksand. You have put us in a place we 
have never gone before, and the more we fight and the more we fuss, the 
quicksand takes you deeper and deeper, quicker and quicker.
  The truth is, the Senate will never be the same if this stands 
because the Senator from Pennsylvania is exactly right. There will be 
so much pressure on people on our side to stand up against anybody who 
is perceived to be liberal--not just whether or not they can follow the 
law, but they may have written an article when they were in law school. 
They maybe made a speech somewhere about the philosophy of life. And it 
will be seized upon, it will be touted, and it will be shouted, and 41 
of us may buy into that.
  The advise and consent clause has stood the test of time. But the 
formula that you are imposing upon the Senate is a formula for 
disaster, and a big loser. Who loses? It is average, everyday people 
who will be shut out because of special interest politics on the left 
and the right. The real big loser is somebody who loves the law who 
wants to be a judge but has said: I am not going to put myself and my 
family through that.
  So Senator Santorum is exactly right.
  The PRESIDING OFFICER (Mr. Bond). The Senator's time has expired.
  Mr. GRAHAM of South Carolina. There will be no turning back, and this 
will destroy us over time in terms of the rule of law.
  The PRESIDING OFFICER. The Senator from Illinois.

[[Page 28829]]


  Mr. DURBIN. Thank you, Mr. President.
  Let's not forget what this is all about. Mr. President, 168 of 
President Bush's nominees have been approved by the Senate; 4 have 
not--168 to 4. That is the score. This President has 98 percent of his 
nominees approved. We have now consumed 36 hours of the time of the 
Senate railing about the four who were held back.
  Those on the other side of the aisle believe the advise and consent 
clause of the Constitution is meaningless. They believe their 
President, their Republican President, should have every nominee, every 
judge. They really argue with the premise that these judges should be 
asked hard questions. They do not believe that a judge seeking a 
lifetime appointment to the bench should be asked, What do you believe? 
What values will motivate you if you were in a position of power, a 
position to decide cases and basically the position to decide the 
outcome of people's lives?
  They do not believe in that. Frankly, they are arguing that this 
Constitution, that they have sworn to uphold, which provides for the 
advice and consent of the Senate before a Presidential nominee is 
appointed to the bench, should be tossed out.
  Those of us on the Democratic side disagree. I think, frankly, in 
their heart of hearts a lot of the more moderate Republicans disagree. 
They understand that no President gets everything he wants 100 percent. 
No President should, Democrat or Republican. But they are loyalist, and 
their partisan loyalty is showing. It has shown for 36 hours.
  Let me show you the judicial confirmation scorecard so you will 
understand what has happened to nominees sent by Presidents to the 
Senate.
  President Clinton's nominees: 248 confirmed, 63 blocked. So 20 
percent of the nominees, one out of five sent to the Senate by 
President Clinton, were blocked by the Republicans, Senator Orrin 
Hatch, and the Senate Judiciary Committee.
  President Bush's nominees: 2 percent have been blocked.
  I listened to the Senator from Pennsylvania tell us, warning us that, 
frankly, stopping four judges will be remembered, and they will revisit 
this if the Democrats ever take control of the White House again.
  Well, let me remind my colleague from Pennsylvania, those 63 Clinton 
nominees who were blocked, most of them were never even given the 
courtesy of a hearing. I know this personally. Three judges from 
Illinois, three good people seeking Federal appointments, were stopped 
because one Republican Senator--in the case of one of my nominees, 
former Republican Senator John Ashcroft of Missouri--personally stopped 
this nominee. This nominee, a good person, who would have been an 
excellent judge, was stopped because Senator Ashcroft objected to him. 
In objecting to him, he never got a hearing.
  So for the Senator from Pennsylvania to come and warn us that if 
there is ever a Democratic President, you can count on nominees being 
stopped, we learned that lesson. We learned it when President Clinton 
offered nominees who were quality people, moderate people, and stopped 
because of some perceived slight, stopped because of some perceived 
position on issues that the right wing did not agree with.
  Let me show you some of the photographs of some of these nominees. 
You can see that even this small gathering of nominees here represent a 
rich diversity of people across America. The Republicans would have us 
believe these people sent to the Senate Judiciary Committee by 
President Clinton were somehow radical people, people who did not share 
the views and opinions of America.
  You can count on this: Within those people are excellent judges, 
people with the highest ratings from the American Bar Association, 
people who were rejected. It gets back to this, as shown on the next 
chart: The final score here is 168 to 4. So 168 of President Bush's 
nominees have been approved; only 4 have been held back. Ninety-eight 
percent have been approved.
  I listened to the speech just given by the Senator from Kansas. I 
hope that those who are following this debate, even though I cannot 
imagine at 3 o'clock in the morning on the west coast a lot of people 
are tuned in, but if those who are following this debate heard what the 
Senator from Kansas said, I think it was chilling and troubling, if not 
alarming. It is a clear indication of what is at stake here in this 
debate. The Senator from Pennsylvania joined in the chorus because the 
Senator from Kansas said they were opposed to judges who were 
``discovering the right of privacy in the Constitution.'' Those were 
his words, ``discovering the right of privacy in the Constitution.''
  Well, the Senator from Kansas is correct. The word ``privacy'' does 
not appear in the Constitution of the United States. But those who have 
interpreted this document have come to the conclusion that Americans 
have a basic right of privacy. I suppose from what the Senator from 
Kansas said, that is judicial activism in his eyes.
  But let's remember how that right of privacy first came to the 
Supreme Court and the decision made, the landmark decision of Griswold 
v. Connecticut, a Connecticut statute which said they would prohibit 
the right of married couples to buy birth control devices, 
contraception, an archaic statute from the 19th century that said that 
married couples could not buy birth control devices. We are talking 
about the ones most commonly known.
  The Supreme Court said that is wrong. We believe that the people of 
Connecticut, the people of America, have the basic right of privacy and 
that married couples should be allowed to make that decision, and no 
State government should prohibit them from making that decision.
  So in this case, the Supreme Court ``discovered'' the right of 
privacy in the Constitution. The Senator from Kansas believes, I 
suppose, that this is judicial activism, that the court went too far. 
How many people in America believe that? How many people in America 
believe that States or the Federal Government should prohibit the right 
of couples or even individuals to buy birth control devices, to buy 
birth control pills? Is that this discovered right of privacy at work? 
The same right of privacy, I might add, that was at the core of the Roe 
v. Wade decision.
  So there we have it. They are looking for judges who even question 
the right of privacy in the Constitution. You wonder why we would even 
stop four judges because given free rein, I am afraid that my 
Republican friends would turn the clock back, turn the calendar back to 
the 19th century, questioning the right of privacy of Americans.
  I thought conservatives, by their nature, were opposed to the 
overreach of government. But what we hear this morning from the most 
conservative members of the Republican caucus is that we have to 
question the right of privacy. That is hard to believe.
  They also went on to say, the Senator from Kansas agreed with the 
Senator from Pennsylvania that we need a check and balance on the 
courts. Think about that for a moment. Oh, it is a nice-sounding 
phrase. But think about the check and balance on the courts, and then 
think about the principle of an independent judiciary. Those two are 
inconsistent.
  The check and balance on courts comes in the process when the 
President nominates a judge, and when we review that judge's 
credentials and decide whether that judge receives a lifetime 
appointment. Then there is the correct belief that short of 
impeachment, judges in America are independent to make decisions. It is 
one of the bedrocks of our democracy. That has been challenged on the 
floor of the Senate today by the most conservative members of the 
Republican caucus.
  You wonder why we are here for 36 hours? You wonder why we are taking 
all this time. It is because of the views just expressed this morning 
by two members of the Republican caucus which indicate the extreme 
position they are prepared to take, indicate why 168 of President 
Bush's nominees being approved and 4 being stopped is unacceptable, and 
indicate that they want

[[Page 28830]]

to change the profile and complexion of the judiciary across America in 
profound ways.
  The Senator from Pennsylvania has political amnesia. He comes to the 
floor this morning and forgets that 63 of President Clinton's nominees 
never even received a hearing, not even the dignity of a hearing. And 
he warns us in a booming voice: We will remember this if there is ever 
a Democratic President.
  I say to the Senator from Pennsylvania, he is suffering from 
political amnesia. He has failed to acknowledge that 63 of President 
Clinton's nominees were never even given the dignity of a hearing. That 
was a sad outcome for those nominees and their families. To think we 
are not going to stop this process at this point in time, that we are 
going to continue on for another 3 hours is, frankly, I think, 
unfortunate.
  Yesterday, I went with a group of Senators out to Walter Reed 
Hospital to visit with some of our injured soldiers. Senator Tim 
Johnson from South Dakota was in that group, as well as Senator Byron 
Dorgan of North Dakota. There were about a dozen of us who went out and 
visited with these soldiers. It is something I am not going to forget. 
These are some of the best we have who have given the most. They have 
been subject to injuries which are truly sad and tragic in a way, but 
their courage and their determination are going to stick with me.
  Why aren't we talking about Iraq? Why aren't we talking about the 
veterans? Why aren't we talking about the need for this country's 
national security or its economy? Really, because there is another 
agenda in play here. We are involved in a made-for-TV filibuster. That 
is what this is all about. This isn't for real. Those cots were props 
on a stage. I walked around the Senate. Most of those cots are still 
cold as ice. They have never been warmed by a Senator's body. They were 
brought in here so Fox TV News and all the right wing talk shows could 
say: My goodness, we are staying up all night. There is a handful of 
Senators who have given a lot of hours here, no don't about it. This is 
a made-for-TV filibuster. Sadly, we are ignoring the agenda of this 
country.
  My colleague from North Dakota is here, and I yield the floor to him.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Mr. President, I appreciate the comments of my colleague 
from Illinois. This is, in many ways, an interesting debate and 
certainly an important debate largely because it is alleged that we 
have embarked on something unusual, something unique. Of course, that 
is not the case.
  The issue of filibusters is not a unique issue in the Senate. Let me 
talk just for a moment about something I listened to on the radio on 
the way in. C-SPAN is covering this by radio. I heard my colleagues, as 
my colleague from Illinois indicated, on the other side of the aisle 
talk about this issue of right to privacy. There is no right to 
privacy, they say. What is this right to privacy that somehow has been 
manufactured? They don't agree with the right to privacy. The American 
people don't have a right to privacy, they say; that is not in the U.S. 
Constitution.
  Let me give an example of right to privacy issues that relate 
directly to the issue of judgeships. We have a nominee before us named 
Carolyn Kuhl who is a State judge. Carolyn Kuhl was involved in a case 
and dismissed a claim and then was overturned in her dismissal. Let me 
describe the claim. It was an egregious invasion of privacy.
  An oncologist was giving a breast exam--in fact, a full examine, 
including a breast exam--to a woman in his examination room. Another 
person was in the room with a white coat, another male. That male 
turned out to be a pharmaceutical salesman. No, not a doctor, a 
pharmaceutical salesman observing the full physical, including the 
breast exam of this patient.
  The patient sued. Judge Kuhl dismissed it, just threw it out. This 
woman had no right to privacy, no right to expect privacy. That is what 
the judge said.
  That judge was overturned on appeal, and the court that unanimously 
overturned that said: The conduct was highly offensive--that is, 
allowing another male in the room to observe, and not even a doctor but 
a pharmaceutical salesman--that conduct was highly offensive and the 
patient had an ``objectively reasonable expectation of privacy.''
  My colleagues suggest this is a manufacturing of some right that 
doesn't exist. This woman has no right no privacy in the Constitution. 
Judge Kuhl would have it right, they would say.
  Judge Kuhl didn't have it right. This happens to be one of the judges 
who has been held up by the Senate--one of the 4; 168 approved, 4 not 
approved. This particular judge we decided does not merit approval by 
the Senate. The other side says there is no right to privacy, so don't 
be critical of this judge; there is no right to privacy for the 
American people.
  I don't understand that argument. I hear it, but I don't understand 
it. That is rooted somewhere in the 1930s or the 1920s or perhaps the 
1880s. It is certainly not what the American people would expect 
someone in the Senate to be asserting in the year 2003, that the 
American people have no right to privacy, or that Judge Kuhl's decision 
is the right decision, and that has already been determined. That was 
thrown out on appeal--unanimously, I might say. So Judge Kuhl is not 
advancing in the Senate. We make no apologies for that. This is someone 
far outside the mainstream whose record of decisions indicates to us we 
don't want to elevate this person to a lifetime on the Federal bench.
  Let me just say with respect to the 168 approved, 4 not, 2 of those 
are North Dakota Federal judges, judges from my State. Both are 
Republican and both nominations I was proud to support. They are both 
now on the Federal bench in North Dakota. I played a role in getting 
them there, and I am pleased I did. I think they will be great Federal 
judges.
  That happened the right way. The administration visited with Senator 
Conrad and myself and selected from among some good candidates two 
judge candidates we supported who we think will do well on the Federal 
bench.
  There are other approaches to this. One is, for example, saying to 
the two California Senators: It doesn't matter what you think, we are 
going to pick an ultraconservative in California whose record doesn't 
merit support by the Senate, and we are going to try to shove it down 
your throat because we believe we have a right to do that. That is the 
attitude. There is a kind of arrogance there, in my judgment.
  When they wrote the U.S. Constitution, the Framers decided they were 
going to have a couple of steps to this process. I am glad they did. In 
fact, they almost decided the President should not be involved in the 
process. That was part of the discussion because they didn't want to 
give that much power to one person in this country, but they finally 
made a compromise with respect to judges. They said the President will 
nominate and the Congress will have a role of advising and consenting. 
That is, the President will nominate and the Congress will say yes or 
no.
  We have been extraordinarily cooperative with respect to this 
President. In almost all cases, we have said yes. In four, we have said 
no. For that, we now have a 30- or 39-hour extravaganza in which, when 
I was driving in this morning, I heard my colleagues talk about 
corruption and all the code words they have developed especially for 
this debate, especially for their political friends so the word will 
mean something and it becomes much more than actually exists. This is 
all a manufactured debate.
  They say there has never been a filibuster. That is not true. But if 
you say it eight times an hour for 39 hours, maybe some people will 
believe it. I don't know.
  This is the oft-repeated old story about the man who comes home at 2 
o'clock in the morning, having been drinking and with lipstick on his 
collar. And his spouse angrily confronts him and says: Where have you 
been?
  He says: Riding my bicycle.
  She says: That can't be true, I took your bicycle to the shop 
yesterday.

[[Page 28831]]

  He says: That's my story, and I'm going to stick to it.
  That is what is happening here: It is my story, patently untrue, 
obviously false, but they stick to it. They say there has never been a 
filibuster. The fact is, when the Republicans were in the minority, 
they filibustered 16 nominations in 1 Congress alone. So if they say it 
eight times the next half hour, just understand, it is not true. They 
can say it, say it, and say it, but it is not true.
  I guess debate is an opportunity to exchange views. It does not 
require someone to tell you the facts. The facts are, as my colleague 
from Illinois indicated, many of the nominees in the previous 
administration never even got a hearing--not even a hearing. But in 
addition to that, there have been numerous filibusters, and some of my 
colleagues, in fact, who are here this morning voted against cloture to 
sustain a filibuster, some of the same ones who are making this claim.
  I don't understand, I guess, how they think it sticks just to stand 
up here and say something they believe to be the case when they know it 
is simply not true.
  Let me, in the couple of minutes I have remaining, talk about some of 
the issues I wish they had passion to address. This, in many ways, 
relates to the right to privacy.
  The President and my colleagues on the other side of the aisle have 
decided in recent days that this young lady--her name is Joni Scott, 
who went to Cuba to distribute free Bibles--will be fined $10,000 by 
the U.S. Department of the Treasury. Why? Because she exercised her 
right to travel and distributed free Bibles to the poor people of Cuba.
  She now is subject to a $10,000 fine. I tried to change that the 
other night. I couldn't do it. The majority in this Congress and the 
President said: Absolutely not, we are going to maintain these travel 
restrictions that restrict the right of the American people to travel.
  By the way, this woman is going to get no relief. A $10,000 fine for 
an American citizen who distributes free Bibles in Cuba--maybe we could 
be talking about that this morning and see if we can agree that it is a 
perversion to do this. It seems to me this woman has some rights. Yes, 
the right to travel, perhaps the right to privacy, the right to 
distribute free Bibles. But the majority party says: No, she has no 
such right, none at all.
  Let me ask if we might not want to talk about another subject during 
these 39 hours. We have lost 3 million jobs in the last couple of years 
with a failed economic policy.
  This is a picture of a Huffy bicycle. They used to be made in the 
United States. In fact, right here under the handlebar they used to 
have a decal that was the American flag decal. Mr. President, 850 
workers in Ohio were fired because they were making $11 an hour, and 
they moved this bicycle manufacturing plant to China where they can pay 
33 cents an hour, and they took this flag decal off the handlebar and 
put on a decal of the globe. Not an American flag, a globe. Why? 
Because they decided $11 an hour is an egregious wage, outrageous 
amount of money to pay people when you can make it for 33 cents an hour 
in China, working 16 hours a day, 7 days a week. So we lost 850 jobs. 
These 850 people went home and had to tell their families: I lost my 
job. I am a good worker. I tried hard, but I couldn't compete with 33 
cents an hour.
  I wonder if maybe we wouldn't have the same passion on this floor to 
talk about jobs that Americans had but don't have any longer. Could we 
have a few of our friends stand up and join us to have a 39-hour debate 
about jobs the American people need, want, and deserve but don't have 
because these jobs are moved to parts of the world where people are 
paid 33 cents an hour.
  I could hold up another chart to show you 12-year-old kids working 12 
hours a day, being paid 12 cents an hour, and they get the jobs and 
those jobs leave this country. Is there a passion on this floor to talk 
about that? Oh, no, we don't have time. This isn't a big issue.
  The passion is to stand up here and say with respect to the four 
nominees to the court who have not advanced that we are engaged in a 
filibuster that has never before been done. That is absolutely, 
patently false, and the people who make that charge know it.
  My hope is we can stop some of this and get on to the things that 
really matter to the American people and the economy and the future of 
this country.
  My colleague from Illinois I know has additional comments.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I thank my colleague from North Dakota for 
reminding us that there are issues out there about which the American 
people really care. I dare say if you go to Missouri, Illinois, North 
Dakota, South Carolina, Georgia, or Minnesota and take the average 
person on the street and ask them: ``Where in the list of priorities in 
your life is the fact that 4 judges out of 172 nominated by President 
Bush have not been approved,'' my guess is they are going to say: I 
didn't even know that. Is that a big problem?
  In fact, this morning's Washington Post has an interesting story 
about what we are doing here, this made-for-TV filibuster. They say:

       The greatest deliberative body shows what it does best--
     talk itself silly.

  That is the Washington Post this morning. They refer to filibuster 
buttons--we have them on both sides of the aisle--filibuster T-shirts, 
and filibuster bingo games.
  I am glad they didn't disclose the identity of this man, but they 
went out and asked one of our Capitol Police officers what he thought 
about this marathon debate. He probably would lose his job if his name 
were disclosed because of the Republican majority. Here is what this 
man said, a Capitol policeman who has been standing guard over the 
Capitol through the wee hours of the morning while we gassed on here on 
the floor about our favorite political issue: the lack of confirmation 
of four judges.
  Incidentally, for those who are keeping score, I believe it cost us 
about a quarter of a million dollars in taxpayer money for additional 
pages to be printed in the Congressional Record and for additional 
Capitol Hill Police overtime protection because of this 39-hour 
marathon--a quarter of a million dollars.
  Let me get to the quote from this Capitol policeman. They asked about 
the made-for-TV filibuster. He said:

       I can see it if it was something important, like the budget 
     or Iraq, but who cares about judicial appointments. They 
     should get a life.

  There is a lot of wisdom out there standing in the hallways and in 
the streets in the cold wondering what in the world we are doing here. 
The Senator from North Dakota knows full well, if you go to his State 
or my State and talk about 3 million jobs lost under the Bush 
administration, those are the numbers they care about, not 168 to 4.
  The Republican majority is out of touch. They just don't get it. They 
don't understand what real families and real businesses across America 
care about.
  The cost of health insurance--for goodness' sake, how much time have 
we spent in the Senate talking about the cost of health insurance this 
year? Nada, zero, rien, not at all. No time to discuss the cost of 
health insurance, the biggest single issue facing families and 
businesses across America, but, boy, for four judges we are prepared to 
stand on this floor for 36 hours and grind red meat for Fox TV News and 
the right-wing radio boys. We will spend night and day. We will bring 
in our props such as cots and suitcases, and we will pretend this is a 
really serious filibuster and ignore the really serious issues that 
America really cares about.
  You wonder why fewer and fewer people take the Senate seriously? You 
wonder why fewer and fewer people vote? It is because of this kind of 
charade.
  Mr. DORGAN. Mr. President, will the Senator from Illinois yield?
  Mr. DURBIN. I yield for a question.
  Mr. DORGAN. In the previous administration, over 50 nominations were

[[Page 28832]]

sent to the Congress in which there wasn't even 1 day of hearing--not 
even the courtesy of allowing someone to come to the Capitol for a 
hearing. Were any of the folks who are now on the floor of the Senate 
complaining about our holding up four judges who did get a hearing but 
we decided not to confirm--were any of the folks complaining back then 
that those 50 nominees never got a hearing?
  Mr. DURBIN. I say to the Senator from North Dakota, their passion for 
justice did not apply to a Democratic justice. Their passion for 
justice did not apply to 63 nominees who were not given a chance to 
come to the Senate floor. Their passion for judges did not apply to 
those men and women whose lives were changed forever. But when it comes 
to these four, we take up the time of the Senate, take up the money of 
the taxpayers to divert us from issues that people really care about. 
It tells us what it is all about.
  When the Senators from Kansas and Pennsylvania come to the floor and 
say, We want judges who don't discover the right of privacy in the 
Constitution, is that a conservative value, is that a family value--to 
reject the right of privacy? That is what they said, and I don't get 
it. If that is what they are for, they are clearly out of the 
mainstream, and we ought to take a closer look at every job.
  I even think Robert Bork, when he was trying to get on the Supreme 
Court, said he agreed with Griswold v. Connecticut, a right to privacy 
case. What we heard this morning from the most extreme members of the 
Republican caucus is they will not even acknowledge a right of privacy 
for individuals and families across America. That is a sad outcome and 
one I think, frankly, should be challenged because if that is really 
the standard we are going to play to, I am going to look a lot harder 
on the Senate Judiciary Committee to make sure we don't have nominees 
given lifetime appointments to the bench who would have our Government 
raiding the bedrooms and private lives of Americans. That is what it is 
all about. It should not be allowable.
  I see the majority leader on the floor and I respect him very much, 
but this is wrong. What we are doing is wrong. This made-for-TV 
filibuster over 4 judges after the President had 168 approved--why 
aren't we talking about issues people really care about, such as the 
cost of health care, the loss of jobs, the poor soldiers coming back 
injured who need help in veterans hospitals?
  The Presiding Officer is chairman of the Veterans' Administration and 
HUD subcommittee on the Appropriations Committee. We had to pull his 
bill from the floor the other day. We did not have time to finish the 
bill, the 2 hours it would take to finish that bill--$62 billion, if I 
am not mistaken, or $68 billion for the Veterans' Administration--
because we had to hurry on to this made-for-TV filibuster. That is sad. 
We should do the people's business. We should focus on things that 
Americans really care about.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Coleman). The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, to be referred to as an extreme Member 
of the other side of the aisle, I would like to suggest that this 
extreme Member on the other side of the aisle never voted against 
cloture on a judicial nomination. How extreme is this Member versus the 
Member who just spoke, who has voted repeatedly and repeatedly and 
repeatedly and repeatedly and repeatedly against cloture? Who is the 
extremist?
  I will posit that to the American people. Who is the extremist? The 
Senator from Pennsylvania, who never in his career voted, ever, against 
a cloture petition for a judicial nomination or the Senator from 
Illinois, who has led the effort, organized the posse, to filibuster, 
for the first time in American history, nominations for the court?
  This is only 168 to 4. When the rules are changed, upon changing the 
rules you have to start with one. Then you do two. Then you do three. 
Then you do four. And today we do five. Today we do six. Next month it 
will be seven. Then it will be eight. Years from now, it will be 127, 
and then 3,455. It starts with one. It starts with the change.
  There have been 2,372 nominations since the filibuster rule was put 
in place; zero blocked on the Senate floor. It has never been done in 
history.
  Oh, it is only four, just a few. We are doing great. ``We just 
started,'' is what they are not saying--we have only just begun. We 
just started this, folks. Not the Senator from Pennsylvania, not the 
Senator from South Carolina, not the Senator from Missouri. The Senator 
from Missouri opposed a judge. He said, look, have an up-or-down vote 
and then I will vote no. That has been the way it has been done here. 
This idea that we have filibustered nominations by folks not getting a 
vote in committee, let us look at the record.
  Fifty-four Bush nominees under the Democratic Senate got no hearing, 
did not get confirmed. Have we complained that they were filibustered? 
No, because they were not. Every President at the end of his term has 
judicial nominations in committee who have not gotten through, for a 
variety of reasons. It is just the flow of the Senate. In this case, 54 
Bush nominations. How many Clinton nominations, after 8 years? Forty-
one.
  Let me repeat this again because we are saying this is different; 
Clinton was treated so unfairly. There were 377 nominations, 1 defeated 
on the floor, up-or-down vote. No filibuster.
  I remember--the Senator from Missouri, I am sure, can remember this--
Richard Paez. I do not know if the Senator from Missouri voted against 
him or not, but I sure did. I did not vote against cloture because the 
Senator from Mississippi, Mr. Lott, and the chairman, Senator Hatch, 
said: Do not set this precedent. Do not change the rules. It is going 
to come back and bite us. We cannot do this. It is too important to the 
future of the Senate. It is going to undermine the judiciary. The Ruth 
Bader Ginsburgs of this world, the Antonin Scalias of this world will 
not have a prayer getting through this place. The best and the 
brightest are going to get knocked away or scared away if we raise this 
bar, if we allow the extreme elements of either party to start to run 
the Senate. We cannot let this happen.
  As much as we may want to, as much as we did not want Richard Paez to 
be a Ninth Circuit Court judge, you have to hold back. You cannot let 
the passion of the moment completely destroy the precedent that has 
served this body and this country so well. Do not succumb to the 
special interest groups who are pleading with you. Come on.
  The Senator from South Carolina said just in the last hour that for 
every one liberal special interest group there is one conservative one. 
Guess what. When the shoe is on the other foot, do you think we are 
going to say, oh, well, we are going to go back to the way it was; we 
are going to let you have all of your liberal judges; we are only going 
to require 51 votes? Fat chance. Fat chance.
  Mr. GRAHAM of South Carolina. Will the Senator yield for a question?
  Mr. SANTORUM. I will yield the floor to the Senator from South 
Carolina.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM of South Carolina. For something that is a waste of time, 
it has been hard as heck to get to say anything around here because 
everybody is so fired up about talking, which I think is good. We have 
been in almost 39 hours, and if Senators get 15 minutes to express 
themselves they are lucky, which I think is a testament to how 
important this is to people.
  I am very proud of what the Senator from Pennsylvania has tried to 
tell the body about what the future will be like. The Senator from 
Minnesota and the Senator from Georgia, my two good friends, my 
classmates, we were not here during a lot of these problems of the 
past. We are worried about the future.
  I want to very quickly respond to my good friend from Illinois. Here 
is what I am willing to do--and I do not know who the Capitol Hill 
policeman was, God bless him for serving--I am willing to stand by a 
poll of all the cops in America and see whether they think

[[Page 28833]]

appointing a judge is a big deal. It is my belief that most cops in 
America have had experiences in court that they really would like us to 
pick judges wisely. As a prosecutor, I can assure my colleagues who the 
judge is matters. I can assure my colleagues that most police officers 
do watch how the court operates, and they are concerned about the 
quality of judges because many of them have made cases risking their 
lives only to see it bounced.
  So I totally disagree that this police officer is speaking for the 
mainstream of cops. Cops care about judges.
  The Washington Post--I am not a great fan of the editorial page, but 
I read the Washington Post about what they think is going on here 
today. On February 5, 2003, the Washington Post said this filibustering 
of judges--Miguel Estrada--is really not a good thing. A world in which 
filibusters serve as an active instrument of nomination politics is not 
one either party should want.
  Well, the extreme Senator from Pennsylvania shares the same views as 
the Washington Post, which begins to bother me a little bit. Maybe he 
should be a little more extreme. But what he is saying is what the Post 
said back in February. You do not have to be a rocket scientist to 
figure this out because I figured it out. I am not a rocket scientist.
  This is about manufactured controversies. Judge Pickering, oh, this 
is no big deal. Why are the Senate Democrats sending out urgent e-mails 
saying send us money, my God, the country is about to blow up because 
the Bush administration is devoted to using the courts to its political 
advantage? If that does not get your blood boiling, what would? It 
would scare me if I got a memo from somebody who is a responsible 
member of the Senate Democratic leadership saying, send money quickly. 
The Bush people are taking over the courts, and they are going to put a 
guy on the court named Charles Pickering. While he was in law school, 
he wrote an article about making sure the ban on interracial marriage 
in Mississippi was not stricken down.
  As a State senator in the 1970s, Pickering worked to repeal the 
important provisions of the Voter Rights Act. That ought to scare you 
to death if you believe in racial harmony and justice.
  This e-mail is totally in contradiction of what has been said on the 
Senate floor. The e-mail says that Senate Democrats have launched an 
unprecedented effort. If you have listened to everybody for the last 33 
hours, this is just business as usual. The e-mail is the best evidence 
of what is going on over there. They have picked a few judges, for 
whatever reason. They have manufactured controversies about who these 
people are, and they are ruining their lives.
  Judge Pickering was approved by this body 12 years ago. I would 
daresay this body would not have unanimously put him on the district 
court as a Federal judge if they believed he was writing articles 
supporting interracial marriage bans and that while he was a State 
senator he actively undermined the rights of African Americans in 
Mississippi. That makes no sense. That means this place is totally 
asleep and worthless when it comes to screening, or they are 
manufacturing controversies about this judge.
  Judge Pickering was voted well qualified, the highest rating one can 
get from the American Bar Association. I am convinced that the ABA is 
not putting people on the bench well qualified if they believe they are 
a bunch of racists. It goes on and on with all four of these people, 
and it soon will become 12. That is why I am so upset.
  Special interest groups who do not live in Mississippi have declared 
war on the basic essence of who Charles Pickering is, defying all of 
the evidence out there by people who know him the best and what he has 
done with his life. That is a sad state. That will lead to chaos, and 
the Senator from Pennsylvania is absolutely right. You are going to 
have people applying for these jobs in the future who will have never 
uttered a word about anything because if they say anything that may get 
a liberal or a conservative special interest group mad at them, they 
will come and knock their head off. That is why we are here at 10 
minutes after 7 and you have to really watch it to make sure you do not 
deny your colleagues a chance to speak because contrary to what they 
say over there, this is a big deal to everybody, and, my God, it ought 
to be. If it gets to be where it is not a big deal to how a judge is 
appointed and nominated, and whether you follow the Constitution, our 
problems with the economy pale in comparison with our problems as a 
nation. When politics enters the judicial arena and the judicial arena 
just becomes another form of politics, then we have drifted far astray 
from where our forefathers wanted us to be.
  I will yield to my colleague from Missouri.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, I could not agree more with my colleague 
from South Carolina. When I hear asked on this Senate floor, who cares 
about judicial appointments, who cares about the important judiciary 
that makes decisions that affect our everyday lives, I would join with 
him in saying that the people in Missouri care.
  I have found all of the problems--and there are many problems, there 
are lots of concerns. People are concerned about Iraq. They want to see 
the President carry on the war against terrorism. They are concerned 
about jobs. They are very grateful, I might add, that the Republican 
Congress has given the economy such a boost with its good fiscal policy 
and gotten the economy growing, an economy that President Bush 
inherited that was in the tank, but it is starting to grow, and we want 
it to grow faster. They ask me more about this unprecedented filibuster 
of judges than anything else.
  No matter where I go, in the rural areas, in the big cities, in the 
suburbs--my colleagues on the other side ask, who cares? Well, people 
in my State understand. They know how important the judiciary is. They 
know that appellate courts, the courts that oversee district courts 
usually in many States, make decisions that affect our everyday lives.
  The Senator from South Carolina was right. The police officers, the 
sheriffs, these are the folks who go out and risk their lives and then 
they see appellate judges, people on appeals courts, making decisions 
that turn these criminals loose. And they say what is this all about? I 
am risking my life, I am out there getting shot at, trying to bring 
somebody in, and an appellate court judge misuses the law to set him 
free. Our police officers, our law enforcement officers today 
understand the constitutional rights. They know. They have to abide by 
the standard. They have to respect the rights of all citizens. But when 
they do that, when they go through all of the steps and do it right and 
then a criminal is turned loose, they, who have risked their lives, 
know how important these judges are.
  My Democratic colleagues complain that we are taking time. Well, I 
have been waiting to get on the floor because this is something we need 
to talk about. We have listened to them all year long delay, 
filibuster. They bragged about they finally passed the Healthy Forests 
bill to stop the wildfires that have burned in California and threaten 
many States, and do my colleagues know what they are doing? They are 
filibustering the ability to take that bill to the conference so we can 
get it passed. They are filibustering that.
  My colleague from Illinois was talking about how long it took us to 
get to the VA-HUD bill, a bill I am responsible for. Well, something 
may have interfered with taking up that bill when the minority whip 
spent 8\1/2\ hours on the Senate floor on Monday complaining about 
filibusters. Excuse me, but what is that when he will not release the 
floor beginning at 1:30? I gave up. I heard he went 8\1/2\ hours, maybe 
it was 9\1/2\ hours. I decided to turn on the ball game about then. But 
we were blocked from doing anything. We were blocked by the same 
Democrats who complained, after they filibustered all year long, that 
we are talking too much.
  There is a lot to be said, but the most important thing I can say is 
that the

[[Page 28834]]

President has nominated 46 people to serve on the Federal circuit 
court, and the Senate has confirmed only 63 percent. This is what we 
are talking about, unprecedented. The President has made four 
nominations to the Court of Appeals for the DC Circuit, the second 
highest court in the land, and only one has been confirmed.
  Despite the self-congratulations of the Democrats who say they have 
confirmed 168, they have not confirmed 37 percent of the circuit 
judges. What nominee has withdrawn his name? One of the most qualified 
people ever nominated for the judiciary. Three remain filibustered. 
Three more are being threatened with that fate. Numerous others are 
being blocked or delayed by the minority. The reason most cited is that 
these nominees are out of the mainstream.
  The mainstream, it appears, is defined by a few of my colleagues and 
some of the most liberal interest groups in the country. I know the 
liberal interest groups, the Hollywood group, put in a lot of money, 
and they have strange ideas of what the mainstream is. When you talk 
about some of their mainstream Hollywood people or People for the 
American Way ideas, I tell my colleagues, that dog does not hunt in 
Missouri. I imagine it does not hunt in South Carolina, Georgia, and 
Pennsylvania either.
  If that is the litmus test, let us talk about who is in the 
mainstream. For the Ninth Circuit, Judge Carolyn Kuhl, the American Bar 
Association says she is well qualified for the position. Oh, earlier 
on, that was going to be the gold standard. The Democrats said: We 
cannot appoint anybody who is not rated at least qualified by the 
American Bar Association.
  She is rated well qualified, a distinguished career as an attorney 
with the Department of Justice, U.S. Solicitor General, a clerk for the 
United States Supreme Court. Twenty-three women judges on the Superior 
Court of Los Angeles, and nearly 100 judges who serve with her have 
spoken out on her outstanding abilities and professionalism. The 
litigation section of the L.A. County bar has also. Are those people 
out of the mainstream? Are they somehow different? Are they somehow 
unworthy?
  Then Judge Janice Rogers Brown, she is the first African-American 
woman to serve on the State's highest court. She was retained by the 
support of 76 percent of the voters in her last election. That is in 
California. Is 76 percent of the California voters out of the 
mainstream? Academics from colleges across the State have written in to 
speak about her professionalism and evenhandedness. Sounds like 
mainstream to me.
  They like to think that the panel of the Ninth Circuit, which is the 
most liberal, most overruled, most out of touch circuit court in the 
Nation, is mainstream, but this panel of Ninth Circuit judges tried to 
stay the recall election in California. The Ninth Circuit judges 
declared that the words ``under God'' in the Pledge of Allegiance are 
unconstitutional. Is that the mainstream? Two Democrats appointed to 
the Ninth Circuit ruled that convicted felons serving a life sentence 
have a fundamental right to procreate by artificial insemination. Are 
they in the mainstream? Where is that in the Constitution?
  Mr. President, I have many colleagues who need to speak. I have a 
whole lot more to say. I will be sharing it with you. But most of all, 
I am hearing from the people in Missouri who know their lives could be 
affected by what the nominees of the appellate courts in the Nation can 
provide.
  After 9/11, a Jordanian named Osama Awadallah was apprehended after 
material linking him to some of the hijackers was found in a car parked 
at Dulles by one of the hijackers. It was established that Awadallah 
knew two of the hijackers and had met with one of them up to forty 
times. But Clinton appointee Judge Shira Scheindlin dismissed his 
charges and in the process struck down a federal material witness 
statute long used by the Department of Justice to detain witnesses who 
are a flight risk. The fact that this was well-settled law used by the 
prosecution was no deterrent to the judge. Fortunately, she was 
overruled by the court of appeals.
  Yesterday, we also heard about Clinton appointee Judge Jed Rakoff, 
who ruled that the federal death penalty is unconstitutional, again 
disregarding well established precedent. In his opinion, the judge 
likened the statute to murder. The judge seemed to have total disregard 
for the fact that the arguments he made were those that should be made 
in a legislative body, but that would require one to be responsive to 
the will of the voters--what an old fashioned notion! Even the 
Washington Post--which opposes the death penalty--condemned this 
blatant overreaching decision as entirely inappropriate for a judge.
  Another recent Clinton appointee has ruled it necessary for the 
government to permit criminal illegal immigrants bail, rather than 
holding them for deportation--A very useful tool for our immigration 
services to ensure that criminal aliens are sent back to their native 
countries.
  President Clinton nominated a New Jersey federal judge to the court 
of appeals who once ruled that a homeless man, despite the disturbance 
he was causing the patrons, had a right not to be removed from a public 
library. Of course, he was supported unanimously by the Democrats. On 
the circuit court, he went on to rule that prisoners had a 
constitutional right protecting their mail from searches and argued 
that the government could not go after the proceeds of drug 
forfeitures--fortunately for the war on drugs, he was unsuccessful.
  Speaking of prisoner cases, one of the decisions issued by Judge 
Pickering that the Democrats have been critical of was a prisoner's 
rights case. A prisoner was dissatisfied with the prison issue 
typewriter because it was lacking a memory system--Judge Pickering 
ruled that this prisoner's typewriter was adequate and he did not have 
the right to one with memory. What a cruel decision. Is that what this 
debate has come down too? This hardly puts Judge Pickering out of the 
mainstream, in fact I would bet just about everyone listening to this 
debate would agree this decision is mainstream--It makes common sense.
  I could stand here all morning reading decision after decision handed 
down by Democrat appointed judges that simply defy reason and bear no 
resemblance to what most people in this chamber or in their states 
would consider to be the ``mainstream''. Yet a few of our colleagues 
have taken it upon themselves to make this critical determination. By 
their history, they have no credibility on this question. In fact, all 
the nominees who have been labeled as such actually enjoy the majority 
support in this body and have the support of Republicans and Democrats 
alike.
  Mr. President, it is time to give these extremely well-qualified, 
high-respected individuals an up or down vote. It is time for the 
minority to quit hiding behind this flimsy argument about being in the 
mainstream.
  It is too late for Miguel Estrada, his nomination was withdrawn after 
848 days and 7 cloture votes, unanimous rating of well qualified by the 
ABA, but it is time to give Justice Priscilla Owen a vote, her 
nomination has been pending for 917 days and there has been three 
cloture votes, unanimous rating of well qualified by the ABA, it is 
time to give Judge Charles Pickering a vote, his nomination has been 
pending for 901 days and he has an ABA rating of well qualified, it is 
time to give Attorney General William Pryor a vote, his nomination has 
been pending for 217 days and he received a qualified rating, it is 
time to give Judge Carolyn Kuhl a vote, her nomination has been pending 
for 873 days and the ABA has give her a well qualified rating, it is 
time to give Justice Janice Brown a vote, her nomination has been 
pending for 110 days, and it is time to give Judge Henry Saad a vote, 
his nomination has been pending for 743 days.
  Mr. President, it is time for the body to give these candidates an 
up-or-down vote.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Just like the Senator from Missouri, I want to talk 
for

[[Page 28835]]

just a second about who cares about these judicial nominations because 
obviously the folks on the other side of the aisle who have been 
obstructionists in not allowing circuit court judges to come to a vote 
think the American public does not care about our Federal judicial 
system. Sure, our supporters understands it and they care. Sure, every 
Rotary Club I go to understands it and they care because they ask me 
about it. Every church where I go to speak, they care, they understand 
it, because they ask me about it. I have been walking down the street 
in my hometown and some stranger will come up to me. He understands it 
and he cares.
  Obviously, the Senator from Illinois is totally insensitive to these 
kinds of people.
  Let me tell you who else cares. That criminal defendant who is 
sitting in jail and who is having to wait longer than he ought to wait 
because we do not have Federal judges on the bench, he or she cares. 
That plaintiff or defendant in a civil lawsuit who is having to sit and 
wait and wait for justice, whatever that justice may be, on either side 
of the appellate case, he cares because he is not getting his case 
served.
  Obviously, the folks on the other side of the aisle who are 
complaining about and conducting this filibuster think those people are 
OK and they do not care. They care.
  I guess one of the major other differences between the Senator from 
Illinois and this Senator is that I don't go to the Washington Post to 
get my anecdotes. I don't go to any conservative newspaper to get my 
anecdotes.
  Yesterday I drove to my office over in the Russell Senate Office 
Building, and as I pulled my car up to the gate, just like all of us--
we stop, the Capitol Police have to come around and run the mirror 
under your car--the Capitol policeman came over to me and he knew I had 
been up except for an hour the night before, and I could tell he was 
dead tired, and he looked at me and he said: Senator how are you doing? 
And I said: I am tired. He said: Senator, you guys are doing the right 
thing. Make your point.
  You know that guy cares because he is like every other law 
enforcement officer in America. They depend on us to make sure we 
provide them with good judges to take the bad guys off the street which 
makes their job easier.
  There is one other point I want to make because I have heard this 
comment off and on for the last 38 hours. And that is, the fact that 
the score of 98 percent is a pretty good score. I don't care whether it 
is a math, English, or a reading test. They keep bringing this point up 
that we have confirmed 98 percent of the President's judicial nominees.
  First of all, the numbers are not right, but I will not get into 
that. I want to talk about the 98 percent. On its face, that might 
sound fine. When you come to messing with the Constitution of the 
United States, when it comes to the confirmation of judges, 98 percent 
is not good enough. The reason is that every other President in the 
history of the United States of America--and we have had 43 of them 
now--every single one of the other 42 Presidents of the United States 
has had a score of 100 percent when it comes to the issue of not having 
their judges filibustered.
  For these folks to stand up on the other side of the aisle and say 98 
percent is pretty good, they don't care about the fact that they are 
the first in the history of the United States of America to filibuster 
a judge.
  I repeat, if 98 percent is OK and they are smiling and happy about 
it, I would like to hear how many of them go home this afternoon and 
think they would get a good reception from their spouse if they said: 
You know, honey, I have been faithful to you 98 percent of the time. Or 
I wonder how many of them would feel good as they get on an airplane 
this afternoon and head home smiling and thinking, boy, we have done 
great work defending our judges and defending our filibuster of these 
judges but that airplane had a safety record of landing 98 percent of 
the time.
  There is a difference. We live under this document that has served us 
so well for so many years and 100 percent of the judges who are 
nominated have been confirmed by every other Senate for every other 
President prior to this one as per the language of this great document.
  I close by reading some comments out of a book written by a man of 
which I am a big fan. The Democrats in this Senate are not particularly 
a fan of his right now, but let me tell you, he is a great American. He 
is a great American who speaks the truth, and he is speaking the truth 
about what is going on in this body right now. ``The National Party No 
More, the Conscience of a Conservative Democrat.'' It is written by my 
colleague, my good friend from the State of Georgia, Senator Zell 
Miller.
  I ask unanimous consent that the entire chapter, chapter 8, entitled 
``41 Beats 59--That Strange Senate Math,'' be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 41 Beats 59--That Strange Senate Math

       The United States Senate is the only place on the planet 
     where 59 votes out of 100 cannot pass anything because 41 
     votes out of 100 can defeat it. Try explaining that at your 
     local Rotary Club or to someone in the Wal-Mart parking lot 
     or, for that matter, to the college freshman in Political 
     Science 101. You can't, because this strange Senate math 
     stands democracy on its head.
       By name, this incongruous, obstructionist procedure is 
     known as a filibuster. The word filibuster comes from a 
     Spanish word for ``pirate,'' and that is exactly what this 
     procedure does. It hijacks the democratic process. 
     Filibusters first caught the fancy of the nation after James 
     Stewart, in Frank Capra's classic movie Mr. Smith Goes to 
     Washington, made Mr. Smith a hero standing up to the Senate 
     bosses on behalf of the people. But now, however, most 
     Americans understand vaguely that in the Senate any member 
     can stand up and talk endless drivel for hours in order to 
     prevent legislation he or she opposes from coming to a vote. 
     The process is so ridiculous that the filibuster, like that 
     old comics-page blowhard Senator Claghorn, has unfortunately 
     become, in the minds of many, just another caricature of the 
     Senate, just another thing to laugh at, just more hot air 
     from the Cave of the Winds.
       Realizing that with the scrutiny of television, the people 
     would not stand for such nonsense, the ``Old Bulls'' of the 
     Senate fuzzed it up. They made it subtler. These verbal 
     gunslingers can now be forced to shut up, and the process and 
     the Senate move along toward a vote if sixty members remove 
     the cotton from their ears and vote for cloture. A cloture 
     shuts off what is called a debate but isn't because it takes 
     two sides talking to constitute a debate. If this sounds 
     confusing, it is meant to be. That is precisely the 
     objective.
       The short version of this debacle is that the way 
     filibuster is being used in the Senate gives the minority an 
     absolute veto on just about everything. In fact, the U.S. 
     Senate has become similar to the Security Council of the 
     United Nations where one country can veto the will of a clear 
     majority and castrate the entire process.
       Winston Churchill once said, ``Democracy is based on reason 
     and fair play.'' Well, there's nothing reasonable or fair 
     about what's been happening in this august body. It's not 
     just that it's an expensive waste of time and taxpayer money, 
     but it's also a flagrant abuse or majority rule, the 
     principle that democracy operates on everywhere. Everywhere, 
     that is, except in the U.S. Senate.
       Rule XXII of the Senate is the reason for all this. It was 
     adopted in 1917 and was meant to move things along. President 
     Woodrow Wilson had lashed out at what he called a ``little 
     group of willful men'' who had blocked his proposal to arm 
     our merchant ships against German submarines. Sixteen 
     senators could file a petition against a bill or an amendment 
     and if two-thirds approved it within two days, debate was to 
     be limited to one hour per member or one hundred hours. Later 
     it was modified to sixty votes, not two-thirds, necessary to 
     halt a filibuster. And in 2003, for the first time, it was 
     used to prevent a vote on the presidential judicial nominees.
       The longest filibuster in congressional history was waged 
     against the Civil Rights Act in August 1957 by Senator Strom 
     Thurmond of South Carolina, when he held the floor for 
     twenty-four hours and eighteen minutes. Wayne Morse of Oregon 
     comes in a close second with twenty-two hours and twenty-six 
     minutes. Probably the most entertaining was the Kingfish, 
     Huey P. Long of Louisiana, who in 1935 only went on for 
     fifteen hours, thirty minutes against one of President 
     Roosevelt's New Deal proposals. When asked how he kept from 
     answering the call of nature for that long he answered, ``Why 
     do you think I wore a navy blue suit?'' Strom Thurmond had 
     dehydrated himself in a sauna before taking the floor for his 
     record-setter and didn't worry about that problem.

[[Page 28836]]

       James Madison, the Father of the Constitution, feared some 
     future political leaders would pervert the legislative 
     process in just this way. He warned in Federalist Paper #58 
     that when it happened, ``The Fundamental principle of free 
     government would be reversed. It would be no longer the 
     majority that would rule. The power would be transformed to 
     the minority.'' I'm sure the man who wrote the Constitution 
     is spinning in his grave.
       Alexander Hamilton may be taking a couple of revolutions as 
     well, because he agreed with Madison. He pointed out in his 
     Federalist Paper #68 that the vice president was given a tie-
     breaking vote for ``securing at all times the possibility of 
     a definite resolution of that body.'' A ``definite 
     resolution''; how well put. But no one has said it better 
     than Senator Henry Cabot Lodge in 1893, when obstructionism 
     was not nearly as bad as it is today: ``To vote without 
     debating is perilous, but to debate and never vote is 
     imbecile.''
       Years ago, when I was teaching freshman political science 
     at Young Harris College, I always repeated the old story 
     about the origin of the Senate. Thomas Jefferson was in 
     France when the Constitutional Convention was being held. 
     Later, he asked his friend George Washington, who presided 
     over the convention, about the purpose of this upper chamber, 
     the Senate. Washington, so the anecdote goes, then asked 
     Jefferson, ``Why do you pour coffee into your saucer?'' To 
     cool it,'' Jefferson replied. Washington responded, ``Even 
     so, we pour legislation into the senatorial saucer to cool 
     it.''
       Cool it, yes. but not freeze it into an ice cube. Truth is, 
     there is nothing at all said in the Constitution about 
     protecting Senate minorities. Our Founding Fathers, I 
     believe, thought the smaller size, longer and staggered 
     terms, as well as state legislation on the selection of 
     senators, would provide more wisdom.
       Some constitutional lawyers have argued that any kind of 
     super-majority vote is unconstitutional, other than for the 
     five areas specified in the Constitution: treaty 
     ratification, impeachment, override of a presidential vote, 
     constitutional amendments, and expelling a member of 
     Congress. As I write this, Judicial Watch is doing just that. 
     They have filed a lawsuit arguing that confirmation of judges 
     is not specified in the Constitution and, hence, does not 
     require a super majority.
       That's one possible remedy. There are others. We could 
     abolish Rule XXII that protects this travesty and let the 
     U.S. Senate operate under rules like every other democratic 
     legislative body in the world where a simple majority rules. 
     That's about as likely as a day dawning in Washington without 
     ten fund-raisers.
       Or we could modify what I call the ``two-track trick'' or 
     filibuster by stealth adopted a few years ago, where another 
     piece of legislation is considered at the same time a 
     filibuster goes its windy way. I call it ``filibuster-lite.'' 
     It's a way to avoid the inconvenience and pain of a real 
     filibuster as if we are using powder-puff, 16-ounce gloves 
     instead of bare knuckles. I'd much rather just duke it out in 
     a real debate and get it over than try to deceive the public 
     that no blood is being spilled. Many veterans of the senate--
     not a newcomer like myself--have expressed dismay wit the 
     process. Henry Clay, generally recognized as one of our 
     greatest senators, condemned the first organized filibuster 
     when it occurred in 1837. Even back then, he though there 
     needed to be some workable limitation for endless debate. If 
     only he could see what happened late in the twentieth 
     century, Clay would be another grave-spinner. In the 
     nineteenth century, there were twenty-there filibusters. In 
     the last thirty years of the twentieth century, there were 
     more than two hundred.
       Two pieces of crucial legislation that filibusters have 
     stymied over the years include the anti-lynching bill of the 
     1920s and abolishing the poll tax that was held up for 
     twenty-two years from 1942-1964. The Civil Rights Act of 1964 
     was filibustered for ninety-three calendar days.
       With Georgia's Senator Richard Russell as their leader and 
     unlimited debate as their weapon of choice, a small band of 
     Southern senators for years had managed to defeat or 
     drastically weaken any civil rights legislation that came 
     before the Senate. But it was different in 1964. The Senate 
     membership had changed and President Johnson was pushing it 
     with all his considerable power. He told the nation that 
     passing the legislation would be the most fitting memorial 
     that recently assassinated John F. Kennedy could be given. He 
     also managed to peel off Minority Leader Everett Dirksen who 
     often sided with Russell. In the end cloture was invoked 71-
     29 and the bill went on to pass by an overwhelming margin.
       Obviously, both parties have used filibusters time and time 
     again, one just as guilty at the other. In 1996, Democrats 
     blocked a vote on a constitutional amendment on term limits 
     and the Republicans blocked a vote to reform campaign 
     finance. Many conservatives would disagree with me, but I 
     happen to think the political process would have been 
     improved if both those measures had passed. Certainly, it 
     would have greatly weakened the current death-grip of the 
     well-heeled special interest groups because electing their 
     pet incumbents over and over with little or no opposition is 
     what gives both the tremendous power they have. I call it 
     ``the dance,'' and it's nothing like that Garth Brooks song 
     by the same name. After the music of election year stops, 
     it's the public that gets screwed.
       In the mid-1990s there was a bipartisan group of 
     distinguished citizens called ``Action, Not Gridlock'' that 
     came together with great ballyhoo, intent on reform and 
     majority rule. Republican Barry Goldwater was among them. 
     Then in 1995, Democratic Senators Tom Harkin and Joe 
     Lieberman introduced a rule change that I believe is the best 
     that's been proposed.
       Two years earlier, Harkin had let a committee hearing have 
     it with both barrels: ``There comes a time when tradition has 
     to meet the realities of the modern age. The minority's 
     rights must be protected. The majority should not be able to 
     run roughshod over them, but neither should a vexatious 
     minority be able to thwart the will of the majority and not 
     even permit legislation to come up for a meaningful vote.''
       The Harkin-Lieberman plan called for a four-step process 
     that kept sixty votes on the initial cloture vote, but 
     decreased it by three votes with each of the next three 
     cloture attempts until finally it got down to the majority of 
     fifty-one. They argued, logically, that this would preserve 
     the Senate tradition while giving the minority plenty of time 
     to plead its case without blocking the majority forever. I 
     liked this idea so well that in March 2003, I introduced an 
     identical bill. In May I joined with Majority Leader Bill 
     Frist in a modified version applying the process only to 
     judicial nominees. That seems to have the best chance for any 
     kind of change and I'm afraid that's not much. Both Harkin 
     and Lieberman now oppose what they so eloquently promoted a 
     few years earlier.
       As far as the fate of the Harkin-Lieberman rule change, the 
     New York Times celebrated New Year's Day 1995 with a lengthy 
     editorial beginning, ``The U.S. Senate likes to call itself 
     the world's greatest deliberative body. The greatest 
     obstructive body is more like it.'' The article continued, 
     ``Once a rarely-used tactic reserved for issues on which 
     senators help passionate convictions, the filibuster has 
     become the tool of the sore loser, dooming any measure that 
     cannot command the sixty required votes.''
       All of this came to naught, however, after the Republicans 
     solidly opposed the amendment and Democratic Senator Robert 
     Byrd who, like that mythical, hell-guarding, ferocious three-
     headed dog Cerberus, punctuated his opposition with the story 
     of how Cato the Younger, in 60 BC, got the floor in the Roman 
     Senate at midday and valiantly spoke until sundown, the time 
     of adjournment, in order to thwart one of Julius Caesar's 
     proposals. That story marked the end of the Harkin-Lieberman 
     filibuster reform bill. Never mind that Byrd didn't tell the 
     rest of the story, that Caesar was not thwarted and fourteen 
     years later Cato committed suicide while Caesar was at the 
     height of his power and still going strong.
       Now, I must admit I greatly admire and respect this man, 
     Cato the Younger. He was one of Rome's greatest statesmen, 
     not at all like his great grandfather Cato the Elder, who 
     exemplified the corruption and hypocrisy that later 
     undermined the traditions of republican liberty. Cato the 
     Younger was different. He was a moral man and a great 
     defender of the Constitution and the dominant role of the 
     Senate. That was his role and he always played it to the 
     hilt. His reputation was such that our Founding Fathers 
     admired him as a symbol of opposition to tyranny. In fact, 
     George Washington ordered a play about Cato performed to 
     inspire his soldiers at Valley Forge.
       But, truth be told, Cato met an ignoble end. His reputation 
     was greater than his ability. After he was defeated by Caesar 
     at the Battle of Thapsus, rather than accept the generous 
     offer of clemency from his old antagonist, he committed 
     suicide. And he botched that; he didn't fall directly on his 
     sword and it didn't kill him swiftly so he tore out his own 
     intestines with his bare hands. It gave ``spilling your 
     guts'' a new meaning and was a messy end for the First 
     Filibusterer. While today we can find many good books on 
     Caesar, I have yet to find one on Cato. So, you lovers of the 
     filibuster, I say that is a history lesson worth thinking 
     about.
       For all the good stories that have come down through the 
     centuries inspired by the filibuster, in the end, it has 
     nothing to do with ancient history.
       The filibuster has nothing to do with the British 
     Parliament.
       The filibuster has nothing to do with coffee cooling in a 
     saucer.
       The filibuster has nothing to do with freedom of speech.
       The filibuster has nothing to do with tradition.
       The filibuster has nothing to do with the Constitution.
       The filibuster has nothing to do with protecting minority 
     rights.
       The filibuster has everything to do with personal political 
     power. It's about Alpha dogs defending their turf in that 
     great big kennel under the dome.


[[Page 28837]]

  Mr. CHAMBLISS. Here is what he says:

       The United States Senate is the only place on the planet 
     where 59 votes out of 100 cannot pass anything because 41 
     votes out of 100 can defeat it. Try explaining that at your 
     local Rotary Club or to someone in the Wal-Mart parking lot 
     or, for that matter, to the college freshman in Political 
     Science 101. You can't, because the strange Senate math 
     stands democracy on its head.

  He then talks about ``Mr. Smith Goes To Washington'' and the 
perception about a filibuster. And he continues:

       Realizing that with the scrutiny of television, the people 
     would not stand for such nonsense, the ``Old Bulls'' of the 
     Senate fuzzed it up. They made it subtler. These verbal 
     gunslingers can now be forced to shut up, and the process and 
     the Senate move along toward a vote if sixty members remove 
     the cotton from their ears and vote for cloture. A cloture 
     shuts off what is called a debate but isn't because it takes 
     two sides talking to constitute a debate. If this sounds 
     confusing, it is meant to be. That is precisely the 
     objective.
       The short version of this debacle is that the way 
     filibuster is being used in the Senate gives the minority an 
     absolute veto on just about everything. In fact, the U.S. 
     Senate has become similar to the Security Council of the 
     United Nations where one country can veto the will of a clear 
     majority and castrate the entire process.

  He goes on and gives several anecdotes about the Constitution and 
what a great document it has been and cites Jefferson's comment to 
Washington about the function of the Senate and Washington's statement 
that has been mentioned several times about the function of the upper 
Chamber, the Senate. The story is told with Washington asking: Why do 
you pour coffee into your saucer? To cool it, Jefferson replied. And 
Washington said: Even as we pour legislation into the senatorial cup to 
cool it.
  Here is what Senator Miller says about that: Cool it, yes. But not 
freeze it into an ice cube.
  There is a significant difference.
  Again, he goes on talking about the history of the filibuster. In the 
history of Democratic Senators, Democratic Senators who are serving in 
this body today who in recent years have asked that this filibuster 
rule be changed so that we would not go through the process that we are 
experiencing today. All of a sudden those Democratic Senators have 
amnesia and are voting not to invoke cloture.
  This is the way Senator Miller winds up:

       For all the good stories that have come down through the 
     centuries inspired by the filibuster, in the end, it has 
     nothing to do with ancient history.
       The filibuster has nothing to do with the British 
     Parliament.
       The filibuster has nothing to do with coffee cooling in a 
     saucer.
       The filibuster has nothing to do with freedom of speech.
       The filibuster has nothing to do with tradition.
       The filibuster has nothing to do with the Constitution.
       The filibuster has nothing to do with protecting minority 
     rights.
       The filibuster has everything to do with personal political 
     power. It's about Alpha dogs defending their turf in that 
     great big kennel under the dome.

  I agree with Senator Miller.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Louisiana.
  Mr. BREAUX. Good morning, Mr. President and colleagues.
  I was very interested in listening to the distinguished Senator from 
Georgia and the Senator from Pennsylvania. I am trying to keep track of 
what he was quoting from. We decided he was quoting from Miller, 
chapter 1, verses 6 through 12. I am sure it is considered a holy 
document. And of course, as most documents, there are two sides to 
every story. Indeed, on that I imagine you have at least two sides to 
Miller, chapter 1, verses 6 through 12.
  I arrived in this institution over 30 years ago and remember quite 
well driving up from Washington 35 years ago in a U-Haul with two small 
children and my wife. I was in absolute awe of the Capitol. In fact, 
the first time I had ever had an opportunity to visit Washington was 
when I came here to work as a very young aide to a then-sitting Member 
of Congress on the House side.
  Over those 35 years, I have come to love and respect and appreciate 
all of the good things that this institution, including the other body, 
as well as the Senate, stands for. It is a wonderful opportunity to 
engage in serious debate about the important issues of the day and to 
address the important issues and problems facing the people of this 
Nation. That is what this institution does best.
  Unfortunately, every now and then the institution tends to break down 
and we spend an inordinate amount of time doing things that do not 
address the great issues of the day or contribute anything to solving 
the great problems of the day. This is one of those times. I have not 
lost my respect for this institution, and particularly the Senate, even 
though as in most things in the real world, sometimes things did not 
run quite as they should. We have now engaged in a couple of days of 
exhibiting how this institution does not work very well, although on 
very rare occasions. I still have the utmost respect for this 
institution and will continue to have that respect for as long as I 
live despite the fact that every now and then it breaks down.
  The issue it has broken down on--I imagine most people in this 
country are probably watching the morning news show; some are probably 
watching cartoons with their children. I doubt very well most are 
watching what some would consider a cartoon-type of atmosphere in this 
debate which has been on longer than it should. The issue is quite 
simple: Are Democrats stopping Republicans from getting their judges 
approved? And are we doing it in a way that is somehow unconstitutional 
or outside the rules of the Senate?
  If you look at the record of the judges, our side has pointed out we 
have approved 168 judges while only 4 have stopped. I was trying to 
say, how does that relate to the average American? If the Washington 
Redskins had a 98 percent win-loss record, people would think that is 
absolutely astounding, and Spurrier would be given a big raise if they 
had 98 percent win-loss. If Tiger Woods won 98 percent of the 
tournaments he entered, people would be writing in amazement about that 
incredible person capable of winning 98 percent of the time. I happen 
to play tennis, and if Andre Agassi won 98 percent of his matches, I 
would imagine people would say this is truly incredible, someone would 
be capable of winning 98 percent of the time. I guess I should throw in 
the New Orleans Saints because if they won 98 percent of the time, I 
cannot imagine what the State of Louisiana would do.
  But that is, in fact, the record the President of the United States, 
President Bush, has established with regard to the judges he has 
submitted for confirmation. It is truly a remarkable record of having 
almost every person he has submitted to the Congress be considered by 
appropriate committees and considered on the floor and approved. A 98 
percent record is truly a remarkable achievement by any measure, 
whether it is a sports metaphor or whether it is any other type of 
metaphor we can imagine.
  I will bring it closer to home. Imagine any Member of this body 
getting 98 percent of the vote. Maybe the distinguished Senator from 
Georgia who is in the Chamber is capable of that, but I don't know if 
any of us would ever get 98 percent of the vote. Some have been 
fortunate to get over 50 percent every now and then, but no one ever 
gets 98 percent of the vote. Teams do not win 98 percent of their 
games, golfers do not win 98 percent of the tournaments, and neither do 
tennis players. It is unheard of.
  If the average person starts looking at a record where 98 percent of 
the nominees have, in fact, been approved and are sitting on the bench 
and doing their duty, by any measure of any standard of operation in 
this country, people would say that is a pretty outstanding record. Yet 
the Senate has spent the last several days complaining about a 98 
percent achievement record by the President of the United States, 
saying somehow that is not enough; somehow it should be 100 percent 
every time with every nominee.
  Most American people would say: What are they talking about? Why are 
they spending so much time saying 98 percent achievement is not enough?

[[Page 28838]]

That is where we are. That is what we are talking about.
  Enough said about that. After 2 days of talking 24 hours a day, we 
have heard enough about the 98 percent record. Some I voted for cloture 
and some I decided not. But the record speaks for itself. It is an 
outstanding record.
  Let me talk about one of the things we ought to be doing if we are 
going to be the greatest deliberative body in the history of the world, 
which I think the Senate truly is, something I have been working on for 
over 5 years as former chairman of the National Commission on Medicare 
Reform and now a member of the Senate Finance Committee working with 
our colleagues, trying, in a bipartisan fashion, to address one of the 
really important issues of this Nation.
  We are at a health care crisis in America. We have literally millions 
and millions of Americans with no health insurance at all. They have to 
go to emergency rooms. They are in the poorhouse and get services under 
the State Medicaid Program. Many of these people work hard every day. 
Yet the companies they work for no longer provide health insurance. It 
is truly a national problem of monumental proportions, yet we are not 
talking about that in the Senate today.
  Another issue is the fact that we have something over 40 million 
American citizens who have a health insurance plan that is inadequate, 
outdated, and in desperate need of reform in terms of how much money we 
spend on the program. The current program we have for seniors is 
unsustainable in terms of the money we spend and where it will come 
from.
  All of the Members in this Chamber and all of our employees have 
health insurance that is significantly better than every single one of 
the 40 million Americans who do not have health insurance. Our health 
insurance covers hospitalization, our health insurance covers doctors, 
our health insurance covers emergencies, and our health insurance 
covers prescription drugs. Yet we have not been able to do for seniors 
what we have done for ourselves. That is something that challenges this 
institution and something to which this institution has to pay 
attention.
  The simple fact is that Medicare today does not cover 47 percent of 
an average senior's health care costs. It is embarrassing that we, 
arguably the strongest Nation in the history of the world, have a 
system where the seniors of this country who have worked, earned, and 
paid into a fund to provide health insurance when they are old, now are 
covered by a policy that only covers 53 percent of the average senior's 
medical costs, and leaving 47 percent somewhere else.
  We have been working very hard for a long period of time to reform 
Medicare. The groups that have been working together have reached an 
agreement that is a tentative agreement, and no one is bound by it 
until we see the final product, and that includes me.
  The interesting thing about this is that if anything should not be 
political, it is health care. But I can think of no subject that has 
become more political than health care, and no subject that has become 
more political in health care than how we treat the Nation's seniors.
  Republicans continue to talk about why Democrats will not do what is 
needed and necessary to pass a reform bill. And Democrats continue to 
say Republicans want to privatize it and end Medicare as we know it.
  There are Republican political pundits in this city who have said we 
should pass a Republican-only bill in the House of Representatives and 
send it to the Senate so the Senate Democrats can kill it; it will be a 
terrific political issue for us. On the other hand, there are 
Democratic political pundits in this city who will say there is no way 
we can support and pass a Medicare bill. Why? Because it would give 
President Bush an opportunity to sign a bill in the Rose Garden and he 
might get credit doing so.
  So we continue to play what I would call the political blame game. We 
are more concerned about ourselves and our political parties than we 
are about the 40 million seniors who desperately need the help in order 
to get prescription drugs under a reformed Medicare plan.
  If we go along those lines, what we will have done is to say, once 
again: It is their fault it did not get done. And they will say: No, it 
is your fault it did not get done. But once again what we will give to 
America's seniors is a basket of excuses. And I have suggested many 
times that seniors cannot take an excuse to the drugstore and get their 
prescriptions filled. It is not possible.
  What they need is both sides to act like grownups and both parties 
not just to look at their political base but to look at what is good 
for America, and join forces and say: Yes, it is going to be a 
compromise. No, it is not going to be everything I would like if I had 
an opportunity to write the bill, but we do not. Each of us is part of 
a larger body, and each of us is part of a body that is almost evenly 
politically divided.
  So that is a challenge that is facing us. What we have tentatively 
agreed to is an insurance program under Medicare, for the first time 
since 1965, which will cover prescription drugs for America's seniors. 
They will pay a premium and have a small deductible and have some 
copayments, but every Member of the Senate has that type of a drug 
plan. The Federal Government will pay 75 percent of it, and the senior 
beneficiary will pay 25 percent.
  We will spend $400 billion over the next 10 years trying to make that 
happen. We see seniors every day going to Mexico and going to Canada to 
buy drugs from foreign countries. Why? Because they do not have 
insurance that covers it. Hospitalization in Canada is cheaper than it 
is here. Doctor treatments and doctor visits are cheaper in Canada than 
they are here. Why do seniors not complain about that and say: ``I am 
going to have my doctor visit in Canada. I am going to go to a hospital 
in Canada''? It is a very simple reason. Because they have an insurance 
policy in this country that covers doctors, and it covers 
hospitalization. But it does not cover prescription drugs. There is no 
insurance. So they have to bear the burden of 100 percent of the costs 
of prescription drugs.
  This legislation will be designed to say: All right, we are going to 
solve that problem. We are going to give you a prescription drug plan. 
We are going to take seniors who are now under the Medicaid Program for 
the poor and put all of them into the Medicare Program for all 40 
million American seniors. I think that is good, solid, public policy. 
We are going to make sure all low-income seniors get a special rate by 
reduced premiums or no premiums at all to make sure we take care of the 
most vulnerable among us as far as the senior population is concerned.
  It is important, as I conclude, when we look back on this session, 
that we will be able to say we have done more than create more excuses. 
The seniors can no longer live on political excuses coming out of 
Washington as to why we have not completed the job. There will be 
things in this bill that both sides will be able to pick and find and 
say, I can't be for it because of this. But I would just ask my 
colleagues to look at the broader picture, to look at the total package 
and say: When we have an opportunity, perhaps once in several decades, 
or once in a lifetime, to truly get something done to put in place a 
system that can be improved upon in the future, we will seize that 
unique opportunity and come together in a bipartisan fashion. And the 
American people will be able to say: Yes, they did it, and they did a 
good job.
  I think that is what this body should be dealing with. That is one of 
the critical, important issues of this day. And I would suggest we get 
on to it just as soon as we possibly can.
  With that, Mr. President, I yield to the distinguished Senator from 
New Mexico.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. BINGAMAN. Thank you very much, Mr. President.
  Let me, first of all, commend my colleague from Louisiana, Senator 
Breaux, for the hard work he has been doing to try to get us to a 
prescription drug bill for Medicare beneficiaries

[[Page 28839]]

that will, in fact, preserve the Medicare system but will also meet 
this very real need that most seniors and all of us have, to be able to 
afford prescription drugs.
  Let me say a few words about the issue of judicial appointments 
before I then talk about a couple of other issues I want to briefly 
visit as well.
  As I approach this whole question about judicial nominations, I guess 
my starting point is to ask, how is the system supposed to work? How is 
this system of choosing and nominating and confirming of judges 
supposed to work when it involves Federal judges?
  I think it is supposed to work the way it generally has worked with 
this President; and that is, it is supposed to work the way it has 
worked with regard to these 168 judges who have been confirmed. The 
truth is, these judges who were confirmed, they were nominated by the 
President, were confirmed by the Senate These are judges who are 
conservative in their political philosophy, in their legal philosophy. 
That is sort of a given with this President. We understand that. 
Everyone understands that. Democrats understand it. Republicans 
understand it. I have no problem with that.
  This President was elected as our President. He has the right to 
choose judges who have a conservative perspective, and clearly that is 
what he has done, and clearly that is the way the system is supposed to 
work. But as I think about how the process should work, it seems to me 
the very first step the President should take--and the President and 
his assistants, his general counsel have taken with regard to most of 
those 168 judges, maybe all of them, at least the ones I am familiar 
with--the first step is to go to the Senators from the State involved 
and ask those Senators if these are acceptable persons to be nominated.
  That is exactly what has a happened in the case of judicial 
nominations from my home State of New Mexico. And I am very 
appreciative of the President and his counsel for including me in that 
discussion and in that decisionmaking. Essentially, what has happened 
is that my colleague, Senator Domenici, and the White House have 
identified a person--in the case of each vacancy we have had in New 
Mexico--they have identified a person who they thought should be 
nominated for that position, and they have asked me to talk to that 
person and give them a response as to whether that was someone I would 
support as well.
  In each case, I had been very pleased to support those nominees. In 
each case, I have had the chance to sit with those people, talk to 
them, acquaint myself with their qualifications. And, as I say, I have 
been very pleased to support those nominations.
  That is the way the system, in my opinion, is supposed to work. But 
once the President has determined that the Senators from a particular 
State--at least one of the Senators, but preferably both Senators from 
a particular State--will support the nomination of a judge or judicial 
candidate from that State, then, of course, it is much easier to get 
the full Senate to go along with that. Frankly, that is the way the 
system ought to work.
  I have had circumstances where individual Senators have come to me, 
Democratic Senators have come to me and asked: Are you sure you want us 
to support this nominee for a judicial position in your State? because 
my staff tells me there are questions--and this and that. I am pleased 
at that point to be able to respond, yes, that I have checked out these 
nominees, I have determined that they are people I support, and I urge 
that the full Senate support them.
  Now, we have two judicial nominations coming before us today that are 
coming up for a vote on cloture that have not come up before, but in 
both cases my understanding is they are being presented as nominees 
over the strenuous objection of both Senators from the State from which 
the judges come.
  I have difficulty understanding why I should want to support a 
judicial nominee from a State if the Senators from that State oppose 
that nominee. I try to think of how I would feel if I were opposed to a 
nomination from my State and the President and a majority here in the 
Senate were trying to confirm that nomination over my strenuous 
objection.
  I think we have some obligation to our colleagues to defer to their 
own understanding and their own knowledge and their own opinion on 
these issues, particularly as it affects their State. Now, not 
exclusively; we do not have to defer. But I am just saying that as a 
precondition for going forward and considering a judicial nominee, we 
ought to begin by asking: Do the Senators from the State the judge 
comes from support the nomination? That seems to me to be a threshold 
question.
  In the case of Carolyn Kuhl, on whom we are having a cloture vote 
later today, as I understand it, and in the case of Janice Rogers 
Brown, about whom we are also having a cloture vote later today, I am 
informed that the Senators from California have determined they do not 
support these nominations. They are urging that the Senate not go 
forward with these nominations. They urge that the Judiciary Committee 
not report these nominations. And in spite of all of that, the 
President says we are going to do it any way.
  We are doing this over the objection of the Senators from California. 
That, to me, is a cause for concern. We are talking about a breakdown 
in the traditions and a breakdown in the system that is supposed to be 
functioning. To me, that is a clear breakdown in the system for 
choosing and nominating and confirming Federal judges.
  So I hope we can get back to a policy with regard to all the 
nominations that come from the White House and this President that is 
consistent with the experience I have had in my home State of New 
Mexico; and that is, that before a nomination is sent to the Senate for 
confirmation, Senators will be asked to give their opinion as to the 
appropriateness of the nominee.
  One good thing about this country--it is certainly true in my State; 
I am sure it is true in every State in this country--we have a wealth 
of very capable, honest, hard-working members of the bar who would love 
to serve on the Federal courts. There is no shortage of good people for 
these positions. Accordingly, it is not difficult to find a person to 
serve in these key positions who has the strong support of Senators, 
Congressmen, and public officials in these States.
  The list of organizations and public officials, and both California 
organizations and national organizations, that oppose the two nominees 
I have referred to here is extensive, and I have been given that list.
  Twenty-two members of the California congressional delegation have 
indicated their opposition to our going forward with the nomination of 
Janice Rogers Brown. We have members of the Judiciary Committee of the 
California Assembly who have come out in opposition to our going 
forward with Carolyn Kuhl's nomination to the Ninth Circuit Court of 
Appeals. There is a very long list of individuals and organizations.
  I know neither of these nominees personally myself, but, clearly, I 
have to give deference and some consideration to the opinions of those 
who have worked with them.
  Mr. LEAHY. Will the Senator yield for a question?
  Mr. BINGAMAN. I am very pleased to yield to my colleague.
  Mr. LEAHY. Mr. President, the distinguished Senator from New Mexico 
had an exemplary career as attorney general of New Mexico and, 
obviously, is in a position probably to know more about the bar of New 
Mexico than anyone else in his State; and his service replicates that 
of other Senators on both sides of the aisle from their representing 
their States.
  My question is this: The traditions of the Senate mean so much, and 
most of them are there for a reason. The tradition of having to get 
clearance from home State Senators--and, of course, every State is 
equal in the Senate. But Federal judges have an enormous impact on the 
States. The tradition has always been that the home State Senators have 
the best idea who the Federal judge is who is going to be making 
decisions that affect the men and

[[Page 28840]]

women of that State. This has not always been perfect, but has it been 
the experience--I ask this of my friend and former attorney general of 
his State, a Senator of great respect and competence--has it been his 
experience that in the main, very much in the main, this has worked 
extremely well?
  Mr. BINGAMAN. Mr. President, in response to the question, I certainly 
would say it has been my experience that this does work. In fact, when 
the name of someone is being considered for appointment to a Federal 
judgeship in my State of New Mexico, I have been getting calls. I get 
calls from lawyers who have worked with these individuals. I get calls 
from people who have tried cases against these individuals. Some of 
them, frankly, are favorable and some may not be as favorable.
  I get a great deal of feedback on these individuals who are being 
considered by us for nomination. And, of course, I have the ability, as 
a Senator from New Mexico, to call people whose opinions I respect and 
to say: You have spent your lifetime practicing law in the courts in 
New Mexico. What do you think about the qualifications and the 
temperament and the appropriateness of this person for this kind of a 
judicial position? Based on that kind of feedback, then I am in a 
position to advise the President, advise my colleagues, advise anyone 
in the Senate that, in my opinion, this person would be well qualified.
  I am sure that same process occurs with every Senator in every State, 
and it should. I think that is exactly what the Framers of the 
Constitution had in mind when they talked about advice and consent. I 
think they were talking about Senators being able to give their advice 
before the President made a final determination as to who would be 
elevated to a judicial position, and Senators being able to either give 
their consent or withhold their consent.
  It is far preferable, in my view, if that advice and consent is 
requested and provided at an early stage in the process, not once the 
nominee has been sent up here, not once the President has had a press 
conference at the White House with the nominee in attendance. I think 
it is in many ways unfair to the people being nominated to have them 
pushed to that stage without the necessary advice and consent having 
been sought from the Senators in question.
  I think that is the unfortunate circumstance we find ourselves in 
this morning, that there are individuals being pushed upon us as 
appropriate members to be elevated to court of appeals positions, and 
the nominations are being strongly opposed by the Senators from the 
States from which those individuals come.
  So I think it would be unfortunate in the extreme if the Senate were 
to disregard the views of the Senators from those States and say: 
Regardless of their views, we are going to go forward here, regardless 
of the feedback they have provided; regardless of the numerous groups 
and individuals who have come forward to state objections here, we are 
going to push this nomination through the Senate.
  I do think there is a very valuable purpose the Senate serves; and 
that is, to slow things down. That is what we have done here as to some 
of these nominees. These are nominees who, in my view, should have been 
better vetted with the Senators from the States involved.
  If those Senators had been given an opportunity to make their case to 
the President and to his counsel at an early stage, perhaps we could 
have avoided some of the votes we are going to have to cast this 
morning. I think that would certainly be preferable.
  Has my time expired, Mr. President?
  The PRESIDING OFFICER. The Senator has 4 seconds.
  Mr. BINGAMAN. I will yield back my time, Mr. President.
  The PRESIDING OFFICER (Mr. Chambliss). The Senator from Minnesota.
  Mr. COLEMAN. Mr. President, I have great respect for the Senator from 
New Mexico and the principles he just talked about: his deep concern of 
the breakdown of the system, of the tradition of the Senate. It is 
important. This is a very special place. This is the greatest 
deliberative body in the world. I believe that. That is really what we 
are talking about today--the tradition of the Senate. That is part of 
why this debate is important.
  This is not a game. This is not a charade. This is important. The 
past 11 Presidents' judicial nominees confirmed v. filibustered: 2,372 
confirmed, 0 successfully filibustered until now--the traditions of the 
Senate, the traditions of this great institution.
  We have been up all night. We have had a lot of conversation, a lot 
of debate. My colleagues across the aisle said it is absolutely, 
patently false to say we haven't successfully filibustered circuit 
court nominees. Read my charts. They are real. Here is the list. 
Judicial nominees subjected to cloture attempts 1968 to 2003 time after 
time: No. 1, Abe Fortas, rejected. The Senator from Michigan, who was 
part of that process had a letter saying, by the way, that was a 
bipartisan effort. The Republican leader supported cloture on that. Of 
all these, not a single partisan effort where the nomination was 
successfully blocked.
  The folks involved in making those decisions who predated me reflect 
what the Senator from New Mexico talked about--a reverence for the 
tradition of this body, a tradition I believe that is reflected in the 
Constitution that says decisions about judges are done essentially by a 
majority--two-thirds for treaties.
  As I listened, I understood what was happening here. Part of this 
tradition is any single Senator can stand up and say: I object. That is 
who we are. That is a great power for an individual Senator.
  We talk about advice and consent. I think perhaps the concept now in 
people's minds is that we all should be part of this advice and consent 
process; we all should be heard. But the reality is, in the end, and 
again according to the Constitution, the decision is going to be made 
by a majority. It is not about the President being successful 98 
percent of the time. It is about 100 percent of the time giving an 
opportunity for an up-or-down vote. That is what this is about, 100 
percent of the time giving an up-or-down vote and then let the vote be 
what it may.
  In fact, nominees may be rejected. It is not about guaranteeing the 
outcome, but it is following the Constitution to give people a right to 
a vote. That is the process, that is the tradition, and that is the 
history. We run such a terrible risk when we cast that aside.
  This has been a very sharp debate. There has been a lot of discussion 
about all sorts of other issues about which we should be talking. I 
reiterate again, I am deeply concerned about jobs. I am deeply 
concerned about the economy. Some folks say it is hard, but we can 
actually multitask around here. We can absolutely uphold our 
constitutional responsibility to advise and consent and give a vote and 
do other business.
  We passed the third largest tax cut in the history of the country, 
and we are seeing the impact of that now. The economy is moving 
forward. GDP is up 7.2 percent in the last report. There are over 
250,000 jobs over the last couple of months. There is more to be done, 
but we can do more than one thing.
  For those of my colleagues who protest, oh, we are spending all this 
time, we spent 10 or 11 hours on Monday talking about Searchlight, NV, 
talking about rabbits eating cactus and rocks. That is part of the 
process. People get frustrated. I understand that.
  The bottom line is, we stand here after 30 hours of debate, now 
almost 38 hours, and what do we get out of that? What do we understand? 
We understand that the history of the Senate is one in which this body 
up to now has not used a partisan filibuster to block judicial 
nominees. We see that happening today. We see the record of that.
  They talk about 168 to 4 and talk about all the judges. Clearly, when 
we talk about appellate judges, we have 29 confirmed and 6 who have 
been blocked and 6 who are threatened to be blocked. Now we are talking 
about 29 and 12. That is 30 percent. Not only is that nothing to be 
proud of, but it is in contravention to the constitutional direction 
the Framers and the Founders gave us.

[[Page 28841]]

  The consequences of this are ones about which we should all be 
concerned. We are talking about our judicial system. This is not a 
game. This is one of the fundamental underpinnings of this 
constitutional democracy, and we have a solemn obligation and 
responsibility to choose men and women of good judgment and good 
character who bring a willingness to apply the law to the table and to 
make judgments.
  The reality is that those candidates before us are folks their own 
peers have said are of the highest quality. The American Bar 
Association, the gold standard that my colleagues on the other side 
talked about so many times, say they are highly qualified. In some 
cases, the voters, those who have run for office--Priscilla Owen, 
Janice Rogers Brown--have received overwhelming shows of support. That 
tells you something about the mainstream, the bipartisan nature of the 
support.
  Judge Carolyn Kuhl: A bipartisan group of nearly 100 of her 
colleagues said:

       We believe her elevation to the Ninth Circuit Court of 
     Appeals will bring credit to all of us and the Senate that 
     confirms her. As appellate judge, she will serve the people 
     of our country with distinction, as she has done as a trial 
     judge.

  A bipartisan group of 23 women judges of the superior court who 
served with Judge Kuhl wrote:

       As sitting judges, we, more than anyone, appreciate the 
     importance of an independent, fairminded, and principled 
     judiciary. We believe Carolyn Kuhl represents the best values 
     of such a judiciary.

  The fact is, these judges hold strong opinions, there is no question 
about that, but to a person they said they will do what a judge needs 
to do and put those personal opinions aside and apply the law. Their 
colleagues who know them have raised their hands and said: Yes, that is 
what they have done; that is what they will do. The voters who know 
them reaffirmed their positions by reelecting them by overwhelming 
majorities. That is what we should be looking at. That is mainstream. 
That is not extreme.
  In the end, we are grasping for something simple: for every Senator 
on this floor to do what every Senator has the right to do--to be 
heard, to give your advice to the President of the United States, and 
if you don't agree with his nominees, do what has been done through the 
entire history of this country, for 214 years: Give your advice, give a 
vote; vote them up, vote them down, but give them a vote. It is what 
the Constitution requires. It is what I believe the future of this 
institution requires.
  Let's get beyond the partisan politics. Let's put it aside. Let's do 
the right thing. Let's come together. Let's focus on getting things 
done. That is our opportunity, and I hope we don't squander it.
  I yield to my colleague from South Carolina.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM of South Carolina. Mr. President, I thank the Senator for 
yielding. It has been a real pleasure to talk with him throughout the 
night. It has been a great debate. For something considered a waste of 
time, so many Senators have participated. It has not been a waste of 
your time or the country's time. We have a good record the people can 
look upon and make a decision about what we are doing here in this 
Senate.
  If I had to boil it down to what all this means to me, which I have 
to do between now and a quarter after, here is what I think is the down 
side of what we are doing in the Senate: Special interest politics is 
being given a green light to go after people they may disagree with 
because they think the nominee doesn't share their philosophy or 
political persuasion.
  You are giving them a green light to manufacture controversies, to go 
after people in a personal way, and we are going to rue the day we did 
that. The left is doing it today. The right will do it tomorrow. We are 
unleashing special interest forces. We should be deterring them. Right 
now we are emboldening them, and the country will be worse for the 
wear.
  There are people at the end of the process. We are talking about 
individuals. Miguel Estrada has claimed to be outside the mainstream. 
All I can tell you is that the Washington Post on February 5, 2003, not 
exactly a right-wing rag, said:

       Estrada is well qualified for the bench. This should not be 
     a tough case for confirmation. Democrats who disagree should 
     vote against him.

  I think that pretty well sums up the idea that he can't be that far 
out of the mainstream or the Washington Post would not have said that 
about him.
  If you disagree with me and think he is out of the mainstream, vote 
against him. Please don't continue the process of filibustering people 
because we are going to change the Senate forever, for the worst, and 
the future nominees to come, whatever they said in law school, whatever 
letter they may have written to their wife, whatever decision they made 
about going on a trip, if they said something that offends the left or 
offends the right, people are going to come after them like 
gangbusters, knock their heads off, and you are going to keep good men 
and women from wanting to serve. That is going to happen, sure as I am 
standing here. It will be a great tragedy. Please let's turn this 
around.
  Judge Brown will be No. 5. She sits on the Supreme Court of 
California. She is objected to. She is out of the mainstream allegedly. 
I would argue that 76 percent of the voters in California are not 
right-wing zealots, and that anybody who can get 76 percent of the vote 
in California has to have some sort of moderation about them. She has 
written the majority of the court's opinions. She is respected by her 
peers. You wouldn't get 76 percent of the vote in California if you 
were out of the mainstream in any real way.
  Justice Owen from Texas, No. 1 in everything. She serves on the State 
supreme court. She received 84 percent of the vote. The only people 
left who didn't vote for her are probably the extreme people. I would 
argue that 84 percent of the people who chose to vote in Texas is 
probably our best evidence about who she is and the way she conducts 
herself.
  Pryor: If you read in the paper today, the attorney general of 
Alabama has just successfully removed the chief justice of Alabama. It 
was his job to bring the case to the grievance committee in the State 
of Alabama, and the reason the chief justice was removed was that he 
defied a Federal court order to remove the Ten Commandments out of a 
courtroom in Alabama.
  Whatever you want to say about Attorney General Pryor being out of 
the mainstream, let me tell you that the Ten Commandments are popular 
in Alabama. He chose the less traveled route for a politician. He chose 
to enforce the law against a rogue judge who is pandering to the 
political moment. He followed his constitutional duty, and I bet you he 
agrees the Ten Commandments have a right to be displayed, but he said: 
It is not about me; it is about the law.
  Mr. SESSIONS. Mr. President, will the Senator yield?
  Mr. GRAHAM of South Carolina. Yes.
  Mr. SESSIONS. With regard to that matter, Attorney General Pryor did 
file a brief on behalf of Judge Moore and argued that the Ten 
Commandments were legitimate because there are three depictions of the 
Ten Commandments in the Supreme Court. And right on this wall are the 
words ``In God We Trust.'' He defended that.
  When the case was lost, the judicial inquiry commission brought a 
charge against the chief justice because he did not comply with the 
court order, and it was the duty of the attorney general to bring that 
case under Alabama law. So he was required to present the case that had 
been brought by something akin to a grand jury.
  Mr. SANTORUM. Will the Senator from Alabama say that is following the 
law?
  Mr. SESSIONS. It is absolutely following the law. There are a host of 
other examples to a degree I have never seen before in America. Bill 
Pryor always does what he believes the law compels him to do. Many 
times it is something he does not personally like to do.
  Mr. GRAHAM of South Carolina. Senator Leahy said in 1998:


[[Page 28842]]

       [I]f we don't like somebody the President nominates, vote 
     him or her down or up.

  He was right then. I am very afraid that we are opening the darkest 
chapter in the history of the Senate when it comes to judges. I don't 
want to be a part of it. I reject the past. I embrace a better future. 
Please, for God's sake, let's not continue to do this because we will 
all regret it.
  The PRESIDING OFFICER. The majority has 30 seconds remaining.
  Mr. SANTORUM. Maybe what we are finding out here is the minority 
doesn't want someone who is going to follow the law. I think what they 
really want is someone who is going to make the law, make the law 
politically, exactly maybe as the Senator from Vermont would like it to 
be made. Maybe there are things he or other Members on his side can't 
accomplish in the legislative chamber, so they want judges who will 
make the law they want. That is why the litmus test. They want activist 
judges on the court not to follow the law but to make it the way they 
really want it. That is what is at issue here.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, I am glad to see my friend from South 
Carolina used a tiny part of a quote of mine. I am always glad when 
somebody quotes me, even when they don't do it accurately.
  What I was referring to, if you look at the quote, was the one-person 
filibusters of 63 of President Clinton's nominees, where one person, 
one Republican, usually anonymously, would object to President 
Clinton's nominees and then those nominees would never get a vote at 
all. Those were filibusters by one person done anonymously, not in the 
open.
  Here, of course, unlike what was done to President Clinton, the 
Democrats have cooperated to make sure that 168 of President Bush's 
nominees to the Federal judiciary have gone through and only 4 have 
not. We can see only 4 have been blocked. We have confirmed 168 and 
only blocked 4. That contrasts to the 63 anonymous filibusters done by 
the Republicans--63 done by the Republicans when they were in charge.
  As I walked over this morning, I thought: Finally, the Republican 
leadership is bringing to a conclusion three really ``Alice in 
Wonderland'' kind of days, really wasted days in the history of the 
Senate. During those days, as much as the Republican leadership wanted 
to waste the Senate's time, at a cost of hundreds of thousands of tax 
dollars, I am proud of our Democratic Senators who had to endure 
endless criticism for objecting to a handful of the President's most 
extreme, controversial, and divisive nominees.
  What they have tried to do is get the Senate's attention back on the 
unfinished legislative business of this session that is of such concern 
to the lives of so many Americans. As I said, we have cooperated in the 
confirmation of 168 of this President's judicial nominees. We confirmed 
100 in the 17 months I was chairman and confirmed another 68 in the 17 
months my distinguished colleague from Utah was chairman. I am not 
going to criticize him that he didn't get as many confirmed as I did, 
but there are the numbers, 168 to 4. That is more judges than President 
Reagan, the ``all-time champ,'' appointed his entire first term in 
office when he had a Republican majority. So in less than three years, 
we have already eclipsed President Reagan's four year total.
  Among the 168 confirmations are more circuit court confirmations than 
for any of the last three Presidents at this stage in their first 
terms. The scorecard is 168 to 4.
  After this week, the total of those blocked could increase by two, 
but the number of confirmations will not have been increased. Rather 
than work with all Senators to confirm those nominees who can be 
confirmed after a vote or who may be confirmed after a reasonable 
debate and a vote, the Republican leadership has remained fixated on 
the most controversial and most divisive nominees.
  During this 40-hour talkathon, the Republican leadership of the 
Senate has taken what could have been productive days at the end of 
this year's legislative session and decided to abandon work on the real 
priorities of the American people. I understand that the reason they 
have been spending so much of the taxpayers' dollars in doing this 
talkathon is that some of the Republican campaign committees have tried 
to use this to raise money. If they are, instead of charging the 
taxpayers for this, I wish they would do it themselves.
  But what we have are our friends on the other side engaging in 
repetitive speeches about promoting a small handful of controversial 
nominees to lifetime positions as Federal judges. These are people who 
already have good well-paying jobs. They do not want to talk about the 
legislation that might help the more than 3 million Americans who have 
lost their jobs since President Bush assumed office.
  Unlike President Clinton's term, where a million new jobs were 
created every year, in the 3 years of President Bush's term, 3 million 
jobs have been lost, but they do not want to talk about that.
  The Republican leadership has already overshot the Senate's 
adjournment date by more than a month. We have already had to enact 
three continuing resolutions just to keep the Federal Government going 
because we have not passed our appropriations bills. The law says we 
have to enact our 13 appropriations bills by the end of September. The 
Republican Congress has enacted only 5 of the total 13. They ignore the 
law on that, but then they waste this time and hundreds of thousands of 
taxpayer dollars to have a campaign talkathon.
  They do not want to vote on the appropriations bills and, instead, 
they want to waste time on this? They want to waste time giving 
lifetime jobs to three or four people but they do not want to do 
anything about the 3 million Americans who are out of jobs.
  Here is what they are not talking about, here are the issues that are 
not being voted on, here are the bills that the Republican leadership 
will not bring up: Funds that go to improve our schools. Funds that NIH 
uses to advance our medical knowledge in fighting disease and illness. 
The resources used by EPA to enforce our clean air and water laws. They 
do not want to bring up appropriations for our veterans and for law 
enforcement. These are things that all people should be able to agree 
on, Republicans and Democrats, but we are told there is no time to 
bring up money for our law enforcement or for our veterans.
  In fact, during the first evening of this exercise in the wind 
chambers, the senior Senator from West Virginia was trying to get the 
Senate to do its work. Senator Byrd, as the ranking Democrat on the 
Appropriations Committee, urged the Senate to complete its work on the 
appropriations bills that fund services for our military veterans. He 
said, Why do we not finish this? This administration has cut money for 
veterans benefits. It has cut money for veterans hospitals. It has cut 
money for disabled veterans. He said, Can we not at least take a couple 
of hours more--if you are going to spend 40 or so hours talking about 
four judges, can we do something, can we take 2 more hours to finish 
the bill that will affect millions of America's veterans?
  He said we could do it in 2 hours. The Republican leadership 
objected. Those few minutes at the beginning of this debate may be the 
most telling of this entire so-called debate. Republicans chose to 
sacrifice the work of the Senate, the priorities of the American people 
and the interests of American veterans so they could pull a partisan 
political stunt.
  In one of their many press conferences on this diversion, on November 
6, the Republican leader committed to ``complete the appropriations 
process'' before beginning this charade. Even the junior Senator from 
Pennsylvania agreed with him and said: ``The leader's right. What we 
are about to embark in next week, after the appropriations process has 
run its course, is to enter into a debate. . . .'' Well, when given the 
chance to honor that commitment, the Republican caucus chose partisan 
theater over the work of the Senate.

[[Page 28843]]

  We said can you not take 2 hours out of these 40 hours to at least do 
the appropriations bill for our veterans? I mean, you are not going to 
do the appropriations bills for our law enforcement. You are not going 
to do it for medical research. You are not going to do it for anything 
else. If you could just take 2 hours out of this, at a time when we are 
creating a lot more veterans, many of them horribly disabled and 
disfigured from the war in Iraq, we are told, no. We do not have 2 
hours for that.
  There is the unfinished business of the Nation's unemployment and 
lack of job opportunities that confound so many American families. With 
millions of Americans having lost their jobs in the last three years, 
the Republican Senate has, instead, insisting on spending these final 
days of this session on a handful of highly controversial judicial 
nominations that divide the Senate and the American people and ignoring 
the needs of the almost 10 million Americans who are out of work, 
including those more than three million Americans who have lost their 
jobs since President Bush took office.
  Instead of working together on such important matters, we are being 
forced to repeat another cloture vote on the nomination of Priscilla 
Owen. The Senate has voted three times on this nomination, and three 
times, the Senate has decided against granting consent. Her nomination 
had been fairly and thoroughly considered by the Judiciary Committee 
last year, and her nomination was rejected on the merits. Never before 
has a President renominated a judicial nominee who was rejected on the 
merits by the Judiciary Committee.
  She has shown herself to be a judicial activist and an extremist even 
on the very conservative Texas Supreme Court where her conservative 
colleagues have criticized her judging. All that has occurred since the 
cloture votes during the spring and summer is that Republican partisans 
have ratcheted up their name calling and Justice Owen has been made to 
serve as a political prop for the White House.
  In fact, I commend to my colleagues an insightful article by David 
Margolick that appeared recently in Vanity Fair magazine entitled 
``Bush Scored Advantage.''
  The second in this series of votes is to be on Judge Carolyn Kuhl. 
This nomination to the 9th Circuit has been opposed by both the home-
state Senators from California and for good reason. From her days 
seeking to change federal policy and provide tax breaks to Bob Jones 
University, to her efforts to overturn Roe v. Wade, to her recent 
decisions seeking to excuse the invasions of the privacy of Ms. 
Sanchez-Scott, a breast cancer survivor, Carolyn Kuhl has been extreme.
  Finally, the Senate will be required to vote in relation to a 
nomination that has been whisked through the Judiciary Committee in the 
last several days, that of Janice R. Brown. This controversial 
nomination is opposed by the Congressional Black Caucus, the National 
Bar Association, the California Association of Black Lawyers and a long 
list of African-American and civil rights leaders and organizations. 
Former Senator and former ambassador Carol Moseley Braun has recently 
written to us opposing this nomination. I ask that her November 12 
letter be made part of the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

      Women's Organizations Opposing Nomination of Priscilla Owen

     National Organization for Women
     National Organization for Women, Texas Chapter
     NOW Legal Defense & Education Fund
     Religious Coalition for Reproductive Rights
     National Abortion Federation
     National Women's Law Center
     NARAL Pro-Choice America
     National Council of Jewish Women
     National Council of Jewish Women, Texas
     American Association of University Women
     American Association of University Women of Texas
     National Family Planning and Reproductive Health Association
     National Women's Political Caucus
     Texas Women's Political Caucus
     Texas Freedom Network
     Women's Issues Network--Dallas
     Women's Health and Family Planning Association of Texas
     Republican Pro-Choice Coalition
     Gender Justice Action Group
     Feminist Majority
     National Partnership for Women & Families
     Greater Dallas Coalition for Reproductive Freedom
     Texas Abortion and Reproductive Rights Action League
     Planned Parenthood Federation of America
     Planned Parenthood Association of Hidalgo County
     Planned Parenthood Association of Lubbock
     Planned Parenthood of Cameron and Willacy Counties
     Planned Parenthood of Houston and Southeast Texas
     Planned Parenthood of North Texas
     Planned Parenthood of San Antonio & South Central Texas
     Planned Parenthood of South Texas
     Planned Parenthood of the Texas Capital Region
     Planned Parenthood of West Texas
                                  ____


   Women's Organizations Opposing Nomination of Janice Rodgers Brown

     National Organization for Women
     California National Organization for Women
     NOW Legal Defense & Education Fund
     Religious Coalition for Reproductive Rights
     National Abortion Federation
     National Women's Law Center
     NARAL Pro-Choice America
     National Council of Jewish Women
     National Council of Jewish Women, California
     National Council of Jewish Women, Los Angeles
     American Association of University Women
     National Family Planning and Reproductive Health Association
     National Partnership for Women and Families
     Feminist Majority
     Planned Parenthood Federation of America
     Planned Parenthood of Golden Gate
     Planned Parenthood of Los Angeles
     Women Lawyers Association of Los Angeles
     Women's Reproductive Rights Assistance Project
     Pacifica Institute for Women's Health
     Black Women Lawyers of Los Angeles
     California Abortion and Reproductive Rights Action League
     California Women's Law Center
                                  ____


       Women's Organizations Opposing Nomination of Carolyn Kuhl

     American Association of University Women
     Breast Cancer Action
     Breast Cancer Fund
     California Abortion and Reproductive Rights Action League
     California National Organization for Women
     California Women Lawyers
     California Women's Law Center
     Center for Reproductive Law and Policy
     Coalition of Labor Union Women (CLUW)
     Feminist Majority
     Los Angeles African-American Women's Political Action 
         Committee
     NARAL Pro-Choice America
     National Abortion Federation
     National Council of Jewish Women
     National Organization for Women
     National Partnership for Women and Families
     National Women's Law Center
     National Women's Political Caucus--California
     Pacific Institute for Women's Health
     Planned Parenthood Federation of America
     Planned Parenthood Affiliates of California
     San Diego County National Organization for Women
     Women's Committee, Labor Committee for Latin American 
         Advancement
     Women's Leadership Alliance Women's Political Committee
     Women's International League for Peace and Freedom
     Women's Reproductive Rights Assistance Project.
                                  ____

                                                November 12, 2003.
     Hon. Bill Frist,
     Majority Leader, U.S. Senate, Russell Senate Office Building, 
         Washington, DC.
     Hon. Tom Daschle,
     Minority Leader, U.S. Senate, Hart Senate Office Building, 
         Washington, DC.
       Gentlemen: Respect for the rule of law, and the 
     impartiality of the judiciary are almost synonymous concepts. 
     It is out of concern for both that I want to convey my most 
     serious concern about the State's consideration of the 
     nomination of Justice Janice Rogers Brown for the United 
     States Court of Appeals for the District of Columbia Circuit.
       Justice Brown has not demonstrated the balance and judicial 
     temperament and prudence that are central to a respected 
     judiciary. Indeed, she has spoken to an organization of my 
     own alma mater, the University of Chicago Federalist Society, 
     in terms so radical as to bring into question her own regard 
     for the position she currently occupies. The extremism of her 
     views has been publicly demonstrated time and time again, 
     particularly concerning matters of settled law regarding the 
     national government's responsibility to protect civil and 
     political rights of women and minorities. Such extremism 
     undermines the confidence any citizen might have in the 
     capacity of this nominee to fairly interpret and administer 
     the law.

[[Page 28844]]

       I am the only African American woman to have served in the 
     United States Senate, or on its Judiciary committee. As such 
     I have not only an appreciation for the gravity of the 
     Senate's role and responsibility in regards to the 
     appointment process, but I also have a keen appreciation for 
     the diversity of opinion among African Americans. Not all 
     black people think alike, and I have no doubt that there is a 
     constituency that would be happy to see an African American 
     of any political persuasion confirmed for such an important 
     position as the D.C. Circuit Court of Appeals. However, it 
     does both the black community as well as the courts a great 
     disservice to confirm to such a position an individual who 
     has so clearly demonstrated a disregard for the balance and 
     impartiality required of the members of the bench.
       I appeal to our President to exercise greater respect for 
     the traditions of the judiciary in making future nominations. 
     Justice Brown should be given an opportunity to mature in her 
     demeanor and her judicial conduct, but not as a member of the 
     Circuit Court. As such, I urge the members of the Committee 
     to reject this nomination.
           Sincerely,
                                              Carol Moseley-Braun.

  Mr. LEAHY. The San Francisco Chronicle and the Washington Post 
editorialize against her as an example of the Bush Administration's 
efforts to pack the circuit courts with ideologues. In her decisions 
and her writings and speeches she has shown herself to be a consummate 
judicial activist who will disregard precedent when convenient to her 
ends. Her view of government is not consistent with the work of the 
D.C. Circuit in reviewing the environmental protections, workplace 
protections, consumer protections and other government regulations 
authorized by Congress to protect all Americans.
  The obvious intent of these stacked votes is a partisan effort to 
paint opposition Senators as anti-woman. Women know better. Women 
leaders, women's rights organizations have opposed these nominations. I 
know the Republican partisan public relations machine will be cranking 
overtime to say we are anti-woman. Given that we are being led by 
Senator Barbara Mikulski, Senator Dianne Feinstein, Senator Barbara 
Boxer, Senator Patty Murray, Senator Mary Landrieu, Senator Blanche 
Lincoln, Senator Maria Cantwell, Senator Hillary Clinton, and Senator 
Debbie Stabenow, it is hard to see how Democrats can be subjected to 
such allegations with a straight face. I mean, tell them that they are 
anti-woman. These are all women who have the finest records of 
defending, upholding, and advancing women's rights. It is crazy.
  When we were in charge, the Senate confirmed 100 of President Bush's 
judicial nominees, including 21 women, in just 17 months. They included 
4 women to our Courts of Appeal. During the 107th Congress, President 
Bush nominated only 18 women to district court seats out of 98 district 
court nominees, or 18 percent, and only 8 women to circuit courts out 
of 32 circuit court nominees, or 25 percent. Well, this year, Democrats 
have supported the confirmation of 12 additional women nominated to the 
Federal bench, including 3 more to our Courts of Appeal. The thirty-
three women judges confirmed represent 20 percent of the 168 judges 
confirmed so far.
  Perhaps, though, they are a little bit nervous about this. President 
Bush has nominated far fewer women to the Federal bench than President 
Clinton did. This President's nominees have included only one woman in 
each five judicial nominees. By contrast, nearly one of every three of 
President Clinton's judges are women. Of course, the Republicans who 
controlled the Senate and the Judiciary Committee during the Clinton 
administration also blocked 18 women nominated to Federal judgeships by 
President Clinton. They did it by their one-person anonymous 
filibuster. Do not give me this baloney that, oh, it is so terrible 
that we are standing out here in open session blocking four judges. 
They blocked 63 by anonymous filibuster, 18 of them women. The women 
who were blocked from getting Senate action on their judicial 
nominations by the Republicans include Kathleen McCree Lewis, Elena 
Kagan, Elizabeth Gibson, Helene White, Christine Arguello, Bonnie 
Campbell--all of whom were nominated to the circuit courts. Now, these 
six outstanding women lawyers and judges were not extreme or 
ideologues. They were blocked anonymously by Republican Senators. This 
was done without any explanation. This was done without a vote of any 
kind. We never had a debate on them.
  These other judges, the 4 out of 168 of President Bush's who have 
been confirmed, at least there was a debate on them. We discussed the 
merits of their nominations. The 63 of President Clinton's nominees who 
were blocked by the Republican majority would have liked to have at 
least had a hearing or debate on the merits of their nominations. There 
was no debate. Nobody wanted to come to the floor and talk about them, 
not when they could do a one-person filibuster, and do it anonymously 
so the press in their hometown would never know who was holding them 
up, including some of the Senators from the States where they were 
nominated. They could do this anonymously, and they could do it in a 
way that they would never have their fingerprints on it.
  Now, I have heard more crocodile tears shed on this Senate floor this 
week than I have heard in my 29 years. Why? Because 4 judges of 
President Bush's were stopped, out of 168 who were confirmed. He has 
had less nominees stopped than any President I can remember since I 
have served in the Senate.
  I yield the floor.
  (At the request of Mr. Dashle, the following statement was ordered to 
be printed in the Record.)
 Mr. EDWARDS. Mr. President, my Republican colleagues are 
calling this 30-plus-hour marathon ``Justice for Judges.'' Now, I'm all 
for justice for judges. And that's exactly what every single one of 
President Bush's judicial nominees has gotten.
  But I ask my colleagues, where is Justice for the American people? 
They seem more concerned about Justice for a handful of judges--the 2 
percent of those Bush's nominee who haven't been confirmed--than 
justice, fair play and opportunity for the American people.
  The Republican majority claims that we're facing a vacancy crisis in 
our Federal courts. Ninety eight percent of Bush's judges have been 
confirmed and this is a crisis? Two percent of Bush's judges have not 
been given lifetime appointments and we're in a crisis?
  Under George W. Bush, the unemployment has risen to 6 percent the 
poverty rate has increased to 12.1 percent the percentage of Americans 
with no health insurance has gone up to 15.2 percent. And, during this 
time, the vacancy rate on the Federal courts has gone down to 4.5 
percent its lowest point in over 13 years. In fact, there are more 
full-time Federal judges on the bench today than at any other time in 
U.S. history. The vacancy rate is now below the number that Senator 
Hatch called ``full-employment'' in the Federal judiciary during the 
Clinton administration.
  Where is the concern for the 6 percent of the American people who 
can't find jobs? The same people who claim that 4.5 percent vacancy is 
a crisis think that 6 percent unemployment is great news, that a 
``jobless recovery'' is a good thing. Why aren't they at least as 
concerned about Justice for the Jobless, Justice for Working People, 
Justice for the Poor, Justice for Families?
  So, what does this marathon debate tell us about the priorities of 
the Republican majority? What does it tell us when they are more 
concerned about securing lifetime jobs for three sitting judges and a 
State attorney general than in securing jobs for the 9 million 
Americans who are out of work?
  Why are they more interested in fighting for three judges and an 
attorney general--all of whom have received full and fair 
consideration--than fighting to bring hope back to the American people?
  Why aren't we spending 30 hours debating how to help the 9 million 
Americans who no longer have the dignity and self-respect that comes 
from completing a hard day's work? Why doesn't the Republican majority 
schedule 30 hours of debate to figure out how to provide health care to 
the American people and prescription drug benefits to the elderly?
  We should be figuring out how to bring back the 3 million jobs we've 
lost

[[Page 28845]]

on George Bush's watch--two jobs lost for every minute he has been in 
office.
  We should be addressing the anxiety of families who fear that by 
sundown they will be without a safe home. We should be working to find 
a way to lift the tax burdens on working families and provide real 
economic opportunities so they can provide food, clothing, and shelter 
for their families.
  We should be debating about the best way to close the education gap 
and support and fund our public schools.
  We should be working together to lift Americans out of poverty.
  And we should be coming together, not to fight for justice for judges 
but to fight to end the injustice that still tugs on the soul of 
America.
  In other words, we should be fighting for Justice for the American 
People.
  But instead, my Republican colleagues have virtually shut down the 
Senate to force lifetime appointments for three judges and an attorney 
general.
  This political stunt is getting lots of coverage, but it's not doing 
a thing to improve the life of one single American--except three 
sitting judges and an attorney general.
  We have confirmed 168 of President Bush's nominees. I voted for the 
vast majority of these judges, even though many of these judges have 
held conservative views with which I strongly differ, because I 
believed they would ultimately enforce the Constitution and the law.
  But I cannot and will not vote for these four nominees, for good 
reason. These nominees not only do not represent the mainstream, but 
they have demonstrated an unwillingness to set aside their personal 
views to uphold the law and protect civil rights. We have good reason 
to oppose these nominees. And we not only have the right, we have a 
constitutional obligation to stand up to the President when he makes 
unacceptable nominations to the bench.
  Our Founding Fathers did not give the President unilateral or 
unfettered power to select Article III judges. They wanted to ensure 
that the people--through their elected representatives--have a say in 
who will be appointed to the Federal bench.
  Every President--whether Republican or Democrat--must consult in a 
meaningful way with the Senate to appoint highly qualified judges to 
the Federal bench.
  Meaningful consultation does not mean that the White House just sends 
us who they want and we rubberstamp them, without careful examination 
and consideration. Meaningful consultation often involves compromise 
and consensus.
  This approach has worked reasonably well--with some exceptions--over 
the years. But now we find ourselves dealing with a White House that 
disdains this longstanding principle of advice and consent. Instead, 
the President is appointing judges who are far out of the mainstream. 
Judges who are hostile to civil rights and equal justice. Judges who 
are not only willing but eager to put their personal views above the 
law. Judges he certainly knows are unacceptable to us and our 
constituents. We have tried to work with the White House to find common 
ground, but most of our attempts to reach consensus with the 
administration have been dismissed. In some instances, our commitment 
to fairness and diversity has been attacked. This is not the way this 
process should work. It is wrong. It would be wrong, regardless what 
party the President belongs to.
  Previous administrations of both parties attempted in good faith to 
work with the Senate in its appointments process. President Clinton put 
up numerous highly qualified mainstream nominees for Federal 
judgeships, only to have them blocked, denied hearings and denied votes 
by a Republican Senate. Twenty percent of Bill Clinton's judges were 
blocked by a Republican Senate. We heard nothing about justice for 
judges then.
  This had a particular impact on my home State of North Carolina, 
which is part of the Fourth Circuit. North Carolina--the largest State 
in the circuit--until this year had not been represented on the court 
since 1994. President Clinton tried four times to put a North 
Carolinian on the court, only to have his nominees blocked for reasons 
other than their qualifications. In fact, during his last 6 years in 
office, President Clinton had eight nominees--four of them African 
American--blocked in the Fourth Circuit alone. These were well-
qualified men and women, none of whom could be labeled ideologues, 
whose views were well within the mainstream of legal thought and 
practice. Nevertheless, they were blocked.
  We've seen what happens when the President meets us halfway. He's 
done it before--rarely, but he's done it. He reached out to us on 
Allyson Duncan, an outstanding North Carolinian who just last month was 
formally installed as a judge on the Fourth Circuit Court of Appeals, 
breaking a logjam that had held our State back for a decade.
  In that case, President Bush did more than just pay lipservice to our 
constitutional obligation to a advise and consent. He reached out to us 
before he made his decision--he consulted with us--he sought our 
advice. And in making his decision, the President selected a nominee 
who represents the mainstream of our State.
  Throughout Judge Duncan's confirmation process, I commended the 
President for consulting with us and making an excellent nomination. 
And I told him that if he takes this approach to future judicial 
nominations we have a real opportunity to find common ground in the 
search for excellence on the Federal bench. When we work together, we 
find outstanding nominees like Allyson Duncan, who represents the best 
of North Carolina and America.
  That's one of the reasons puzzled and troubled that Republicans are 
calling us anti-black, anti-Hispanic, anti-Southern, anti-Catholic. 
They're running attack ads against us that represent the worst forms of 
religious and racial McCarthyism. They're doing this even though the 
record shows that Democrats have voted to confirm 13 of President 
Bush's African-American nominees while Republicans blocked 12 of 
Clinton's African-American nominees. We have confirmed 33 of Bush's 
woman nominees. Nearly 40 percent of the Bush judges confirmed have 
been from southern States. These accusations of bias flat-out wrong and 
they are outrageous and I must speak out against such demagoguery and 
race baiting.
  We have gone the extra mile. We have demonstrated that we are willing 
to work with the White House to move forward on nominees who provide 
balance to the courts. We have confirmed 168 of President Bush's 
judicial nominees--98 percent. We have been more than cooperative.
  It's really a shame that the Senate doesn't spend a fraction of the 
time they've spent on the full employment program for judges on finding 
ways to improve the lives of the American people.
  The American people deserve better than this. We owe it to them to 
call a halt to this marathon madness and get down to work to address 
the problems they sent us here to solve. It is time to fight for 
justice, jobs and opportunity for the American people.
  Mr. DODD. Mr. President, the majority has indicated that as part of 
this debate to invoke cloture on these three nominees to the Federal 
judiciary, they may move to consider S. Res. 138, a resolution 
introduced by the majority leader, Senator Frist, which would amend the 
Senate rules to treat debate on Executive Calendar items differently 
than matters on the Legislative Calendar.
  Nothing is more fundamental to the ability of the Senate to fully 
exercise its constitutional responsibility to provide advice and 
consent to the President's executive nominees than to subject such 
nominees to full and deliberative debate. And any move to amend the 
Senate rules to place additional limitations on that debate is 
tantamount to a ceding of legislative branch powers to the executive. I 
appreciate the opportunity to speak on the issue of proposed changes to 
Senate rule XXII.
  The filibuster is widely viewed as one of the Senate's most 
characteristic procedural rules. I believe we can all

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agree that the best way to consider a change to Senate rules is to do 
so in accordance with existing Senate rules. I believe this 30-hour 
debate will follow Senate rules and precedent.
  Any attempt to change Senate rules, particularly cloture rule XXII, 
should be in keeping with the deliberative rules, precedents and 
practices that have been the hallmark of this institution since it was 
conceived during a steamy summer in Philadelphia over 217 years ago.
  Senate rules have endured the age-old test of time, people, places, 
and events. Senate rules delineate the constitutional responsibilities 
of the body and define the character of the institution. Making changes 
to the rules and the precedent of the Senate is not an action that 
should be taken lightly or for partisan purposes.
  In the history of the institution, the rules of the Senate have been 
through general revision just seven times: 1806, 1820, 1828, 1868, 
1877, 1884, and 1979. The architecture of our Senate rules and 
precedents is built on the foundation of the right to debate and amend, 
the two basic principles that make the Senate the upper House in all of 
the legislative bodies of the world. If you chip and change this 
keystone, then you chip and change the Senate as an institution.
  Herein lies the central paradox and towering majesty of the Senate. 
What makes this institution so revered and unique is what can 
simultaneously gall us the most: the practice of extended debate.
  But the Founders insulated the Senate from sanction for debate and 
explicitly left it to ``determine the rules of its proceedings.''
  The rules of the Senate reflect the intent of the Framers that the 
Senate be the ``saucer into which the nation's passions may be poured 
to cool.'' The ability to fully examine and debate any matter of 
national importance is the hallmark of the Senate. Nowhere more than in 
the advice and consent responsibility of the Senate do we see the 
Framer's intent to balance the fear of a resulting tyranny of a 
majority against the principle of majority rule.
  As Alexis de Tocqueville observed: ``. . . the main evil of the 
present democratic institutions of the United States . . . [arises 
from] the very inadequate securities against tyranny . . . if ever the 
free institutions of America are destroyed, that event may be 
attributed to the unlimited authority of the majorities, which at some 
future time may urge the minorities to desperation. . . .''
  The President nominates, but his power is balanced, and checked, by 
the power of the Senate to provide advice and consent. Neither can act 
alone. And in the case of the judiciary, the creation of the third, 
separate and equal, branch of Government, the powers are deliberately 
counterposed.
  This is not the first controversy over Senate rules, precedents and 
practices of the right to extended debate. Through our history, the 
right of extended debate has never been seriously questioned as other 
than a vital foundation of our Republic. This right has been a catalyst 
for achieving the most remarkable feature of our civilization: the 
degree to which we have been able to provide our citizens with, at one 
and the same time, both great freedom and great stability.
  As Robert Caro, author of ``The Master of the Senate,'' for which he 
was awarded his second Pulitzer prize, has observed, and I quote him, 
``in creating the new nation, its founding fathers, the framers of its 
constitution, gave its legislature not only its own powers specified 
and sweeping, but also powers designed to make the Congress independent 
of the President, and to restrain and to act as a check on his 
authority, including power to approve his appointments, even the 
appointments he made within his own administration. And the most potent 
of these restraining powers the framers gave to the Senate.''
  The power to approve Presidential appointments was given to the 
Senate alone. A President could nominate and appoint Ambassadors, 
Supreme Court justices, and other officers of the United States, but 
only with the advice and consent of the United States Senate. This is 
the American way and it must remain the American way. While the 
Founding Fathers recognized the inherent dangers in granting a minority 
of Senators a veto over the will of the majority, the Constitution did 
just that.
  But proposals to limit debate would change that.
  S. Res. 138, a proposal by Majority Leader Frist, would amend Senate 
rule XXII to provide for a declining number of votes required to invoke 
cloture on Executive Calendar items, such as judicial nominations.
  I have deep reservations about Majority Leader Frist's resolution to 
amend Senate rule XXII. I fully appreciate the majority leader's desire 
to expedite the business of the Senate. I fully understand the 
frustration with respect to the deep desire to invoke cloture on 
Executive Calendar items, including executive nominations such as 
judicial nominations.
  But there is simply no crisis facing our judiciary today that 
necessitates the damage to the very fiber of this institution that such 
a rules change would render. The vacancy for the Federal judiciary is 
at its lowest level in 13 years.
  Since President Bush came into office, the Senate has confirmed 168 
of his nominees and has decided not to proceed with only 4. That is a 
98 percent success rate for the President. In my view, this is a great 
success rate.
  The Senate must not act to change its rules. To do so now would 
amount to a ``hijacking'' of the Senate's constitutional duty to 
provide advice and consent to the President's nomination authority. The 
supermajority requirement is consistent with the intent, spirit and 
language of the Constitution.
  S. Res. 138 presents the question of whether rule XXII should be 
revised to accommodate a targeted remedy for filibusters of judicial 
nominations. The real question should be whether S. Res. 138 strikes 
the most appropriate balance between existing Senate rules and the 
advice and consent duties of the Senate. In the view of this Senator, 
it does not.
  The cloture rule exists by virtue of the longstanding rules of the 
Senate enacted pursuant to authority under the Constitution, article I, 
section 5.
  The Constitution expressly authorizes such procedural rules and sets 
no standard to limit the Senate's discretion in formulating such rules. 
Further, the Constitution does not compel the Senate to take any 
action, much less a final vote, on any matter, legislative or 
executive.
  There is no argument to the fact that the Senate has plenary 
authority to devise its own rules. Nor is there any argument to the 
fact that there is no right to mandatory majority rule. Most 
importantly, the Senate tradition on filibuster offends no 
constitutional edict. In the words of Chief Justice Burger, ``there is 
nothing in the language of the Constitution or history or our cases 
that require a majority always prevail on every issue.''
  At its most fundamental core, the Senate is a testament to the 
coexisting rights of the majority and the minority. Small states have 
an equal say in the Senate's tradition, and rules protect debate no 
matter whether it is a principled stand of one Senator or a chorus of 
the convinced. The Senate rules balance majority rule with minority 
right.
  As a Senator in this body, I recall watching the Senate as a very 
determined minority insisted on their right to be heard on the issue of 
civil rights. Their position on civil rights was unfair, unpopular, and 
illegal. Yet the majority of Senators did not question the right of the 
minority Senators to assert their right under Senate rules and 
precedent to debate, delay, diminish or defeat civil rights 
legislation. And, the minority did so for years.
  Ultimately, both the noble principles of racial equality and extended 
debate prevailed in the Senate. But the Senate rule that had been long 
thwarted was left essentially unchanged.
  Prior to 1917, there was only a century old rule that required 
unanimous consent to cut off debate. This means that for 111 years, the 
Senate practice of extended debate was absolute in its

[[Page 28847]]

scope. All Senators had to consent in order to bring consideration of a 
matter to a close. For the subsequent period of 58 years, two-thirds of 
the Senate were required to end debate. Currently, three-fifths are 
required. Until 1949, there was no procedure for limiting debate on 
nominations in the Senate. For the past 212 years, there has never been 
a Senate rule that permits a simple majority to force a vote on any 
matter up for consideration, including judicial nominations.
  In this historical context, S. Res. 138 would be without precedent to 
require a simple majority to invoke cloture, in my view. S. Res. 138 
would reduce to a majority vote that Senate procedural rule which girds 
the independence of the coequal judicial branch.
  There is an irony to S. Res. 138 that cannot go unstated or 
unexamined. It would reform the cloture process only for nominations 
and leave cloture for the remainder of the Senate debate as it is. 
Arguably, it is precisely in the area of nominations, particularly 
judicial nominations, that the Framers intended these powers to be 
utilized.
  S. Res. 138 would fundamentally alter the nature of the Senate and 
the balance of powers created by the Framers of the Constitution. It 
would undermine the Senate's role in our constitutional democracy, cede 
enormous power to the Executive and upset the deliberate system of 
checks and balances intended by the Framers.
  S. Res. 138 would fundamentally diminish the Senate's power in 
relation to that of the Executive. And if the Senate cedes such power 
to the Executive, then I do not think the Senate will ever get that 
power back. Of all the issues that the Senate faces now and in future 
Congresses--such as war, the economy, health, education, election 
reform, jobs--none is more important than this one on Senate rule 
changes. Why? Because how we resolve this issue will, in many respects, 
determine how we resolve all others.
  S. Res. 138 proffers change that is historically significant. 
However, S. Res. 138 does not proffer filibuster reform that will 
permit ample debate while rejecting delay in perpetuity. Nor does S. 
Res. 138 fit squarely within Senate tradition of balancing the right to 
debate with the responsibility to conclude the people's business.
  Instead, S. Res. 138 would shift the balance of power on advise and 
consent to the executive branch. To accommodate this proposal means a 
profound change in the Senate as an institution and the character of 
the Senate as a body itself.
  It reduces the constitutional advice and consent authority, indeed 
duty, to a mere rubber stamp of the President's prerogatives. We must 
always attempt to find the right checks and balances between a rubber 
stamp and a deliberative body on both legislation and nominations. This 
is what makes the Senate, as an institution, so powerful, so special, 
so unique.
  We must remember that during the Constitutional Convention, only 
after lengthy debate, was the power to appoint judges committed to the 
President as well as to the Senate. Why? John Rutledge of South 
Carolina said it best: ``the people will think we are leaning too much 
toward monarchy'' if the President is given free rein to appoint 
judges.
  The final compromise was characterized by Governor Morris of 
Pennsylvania as giving the Senate the power to appoint judges nominated 
to them by the President. In Federalist 76, Hamilton explained, ``the 
Senate's review would prevent the President from appointing justices to 
be the obsequious instruments of his pleasure.''
  Against this backdrop, I find it quite troubling that Majority Leader 
Frist now suggests that we narrow deliberation, debate, and the rights 
of the minority with respect to the nomination process and thereby 
enhance the ability of the majority to turn the Senate into a rubber 
stamp of a President's nominee.
  What is at stake in this debate is nothing less than the integrity of 
the Senate and the independence of the judicial branch--the deliberate 
intention of the Framers to ensure against the excess of the Executive.
  In describing the role of the Senate to provide advice and consent to 
executive nominations, Roger Sherman noted: ``the Convention, who 
formed this Constitution, thought it would tend to secure the liberties 
of the people, if they prohibited the President from the sole 
appointment of all officers. They knew that the crown of Great Britain, 
by having that prerogative has been enabled to swallow up the whole 
administration . . . but this government is different, and intended by 
the people to be different.''
  The real problem here is not constitutional, but rather it is 
institutional. Senators must think of themselves as part of an 
institution, held together by a common respect for its rules and 
traditions. We have a responsibility to the President, the people, and 
to the institution.
  This is a moment for Senators, as Senators, to stand up for the 
Senate.
  Those of us fortunate to serve in this body are but its temporary 
custodians. We are stewards of an institution governed by rules and 
practices that have withstood the test of more than two centuries of 
time. Now is not the time to retool the rules to achieve goals that 
are, in essence, transient and partisan in nature, no matter how deeply 
felt.
  When in history has the will of a minority--through extended debate 
been able to stop anything that this Nation desired or that had the 
broad support of its people? The Senate works its will, extended debate 
and all, as it was intended to work--in the words of James Madison--`` 
. . . to consist in its proceedings with more coolness, with more 
system, and with more wisdom, than the popular branch.''
  The disagreements that we have over judicial appointments, and over 
some legislation, will likely be long forgotten, and of limited 
consequence, in years to come. But to change the rules and practices of 
the U.S. Senate in the manner that is here proposed, in my view, would 
do permanent and lasting damage, not only to this institution but to 
our democracy that has served us so long and so well.
  I hope that cooler heads will prevail and that the majority leader 
will not bring up S. Res. 138 to amend the rules of the Senate.
  But if that happens, I urge my colleagues, as Senators, to uphold the 
unique authority of the Senate to give equal voice to all States, 
indeed to all people, and to forego the political expedience of the 
moment in order to ensure the integrity of the Senate, and the 
functioning of this Republic, for generations to come.
  Mr. LIEBERMAN. Mr. President, in the course of this debate, I have 
been deeply disturbed to hear the characterization my Republican 
colleagues have given to a filibuster reform proposal Senator Harkin 
and I offered nearly a decade ago. They have referred to our proposal, 
and our statements in support of it, as precedent for their efforts 
here today. As I have said in the past, I believe that is deeply wrong. 
To make clear both what our proposal did, and why my Republican 
colleagues' characterizations of it are wrong, I thought it would be 
worthwhile to make sure the record included testimony I offered to the 
Senate Rules Committee this past June. I ask unanimous consent that the 
full text of that testimony be reprinted in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Statement of Senator Joe Lieberman, Senate Rules and Administration 
                        Committee, June 5, 2003

       Chairman Lott, Senator Dodd and Members of the Committee. I 
     greatly appreciate the opportunity to submit this statement 
     for your hearing record, so that I can share with the 
     Committee my thoughts on filibuster reform and my previous 
     efforts on the topic.
       In late 1994, I joined Senator Harkin in launching an 
     effort to encourage Senate discussion of reforming the 
     Senate's cloture rule. Like Senator Harkin, I had become 
     increasingly frustrated at the way the Senate's cloture rule 
     repeatedly allowed a minority of Members to prevent the 
     Senate's majority from enacting legislation. I felt--and 
     continue to feel--that the Senate rules should be changed to 
     prevent a small minority of Senators from bringing 
     legislation to a halt simply by saying that they will never 
     end debate. Senator Harkin and I therefore offered a proposal 
     under which an initial cloture

[[Page 28848]]

     vote would require 60 votes, but the requisite number to 
     reach cloture would decline by three with each of the next 
     three cloture attempts on the same matter. As of the fourth 
     cloture vote, 51 votes--a simple majority--would suffice to 
     invoke cloture.
       This was not a partisan effort on our part. Indeed, Senator 
     Harkin and I offered our proposal after the Democrats lost 
     their majority status and at a time we therefore fully 
     understood that our proposal would more often than not--in 
     the short term, at least--inure to our party's detriment. Let 
     me say that again: our proposal was not an effort to push 
     through our own agenda or help our own party. Nor was it a 
     proposal aimed at carving out special rules for one type of 
     legislation or Senate action in order to ease enactment or 
     Senate approval of one particular agenda.
       In early January 1995, we offered our proposal on the 
     Senate floor. After a good debate, the Senate voted on it 
     and, unfortunately, we lost by a landslide. 76-19. Among 
     those voting against our proposal were every Member of this 
     Committee who was in the Senate at the time, including the 
     current Majority Leader, whose proposal the Committee is 
     considering today. I considered that an unfortunate result 
     then, and I continue to consider it so today. Despite the 
     often troubling ways in which the current Majority has sought 
     to run the Senate, I still believe the filibuster rule should 
     be changed so that once Members have had an opportunity to 
     fully debate and seek to amend measures, the majority can 
     have its say.
       But that is unfortunately not what the Majority Leader's 
     proposal seeks to do. Indeed, although I expect some will 
     seek to characterize the proposal the Committee is 
     considering as akin to the Harkin-Lieberman one, it most 
     assuredly is not. Our proposal applied across the board--to 
     legislation and nominations alike. As I already mentioned, it 
     was the legislative gridlock that motivated us back then, and 
     that continues to be the real problem caused by the cloture 
     rules. But my Republican colleagues don't want an across-the-
     board reform. As they would have no choice but to 
     acknowledge, they don't want to give up their own ability to 
     filibuster legislation, even while they are in the Majority. 
     That's because, whether it's the patients' bill of rights, 
     campaign finance reform or a plethora of other issues, they 
     have launched their own filibusters while in the Majority, 
     and they just don't want to give up their ability to continue 
     to do so. Majority rule apparently should only go so far in 
     their view.
       What the Majority Leader's proposal amounts to is a demand 
     for unilateral disarmament. It is an effort to force the 
     current minority party to swallow a rules change that allows 
     this President and his party to carve an exception from the 
     Senate rules for their out-of-the-mainstream judicial 
     nominees, while keeping the parts of the cloture rule that 
     they want to continue taking advantage of. But the issue of 
     how the Senate operates should not be subjected to such one-
     sided demands. We all must work with the rules we have and 
     seek to apply them fairly and impartially. That's why, as I 
     said at the time I first made this proposal with Senator 
     Harkin, even though I support filibuster reform, as long as 
     the rules are what they are, I'm not going to be the only one 
     to abandon them. I will continue, as a representative of the 
     interests of the voters of my state, to live within them and 
     support filibusters where I think it appropriate.
       In short, in contrast to the serious reform effort we made, 
     this proposal amounts to one party's effort to turn a Senate 
     rule into a partisan tool--to cherry pick its favored issue 
     in the name of democracy, while leaving themselves free to 
     filibuster away on legislative proposals they don't like. I 
     would welcome more company in the effort to engage in serious 
     reform of the cloture rules so that we all--Republicans, 
     Democrats and Independents alike--can make the Senate work 
     better for the American people. But this unfortunately is not 
     that effort.

  Mr. SANTORUM. Mr. President, this is a very historic time for our 
country. Until this Congress there had never been a filibuster of a 
circuit court nominee in the history of this country. Thus far we have 
had four filibusters of highly qualified judicial nominees this year 
and may have two more by the end of this week. It is not the intent of 
the Constitution to confirm a nominee with 60 votes but to confirm with 
a simple majority. Whether we vote a nominee up or we vote them down, 
it is our duty to bring them for a vote and to represent the will of 
the majority in the advice and consent role of the Senate in relation 
to the President's nominees. If the minority would like to create a 60-
vote requirement, then they should respect the Constitution and 
introduce a constitutional amendment to do so--and build the necessary 
support for it around the Nation--rather than through this backdoor 
assault. The precedent that is being set through this abuse of the 
filibuster is a dangerous and destructive one for future Presidents, 
future nominees, and most importantly the future of the Judiciary.
  As we look at the nominees that have faced obstruction, I ask what 
makes these nominees ripe for such unprecedented obstruction in our 
country's history? The most recent judicial nominee to experience this 
assault is California Supreme Court Justice Janice Rogers Brown. I 
spoke on the floor a few weeks ago of the cruel treatment that Justice 
Brown has had to endure. Ms. Brown was recently degraded by a 
stereotypical cartoon on blackcommentator.com. The cartoon has 
President Bush and Justice Brown walking into a room and the President 
saying, ``Welcome to the Federal bench, Ms. Clarence--I mean Ms. Rogers 
Brown, you'll fit right in.'' In the background are Justice Thomas, 
Colin Powell, and Condoleeza Rice. The bottom says, ``News item: Bush 
nominates Clarence-like conservative to the bench.'' Left oriented 
groups opposing the President's nominees did not condemn this 
distortion.
  In Justice Brown's Judiciary Committee hearing, she responded to this 
cartoon saying, ``But while I've been having those meetings, people 
have said to me: `Well, you know, it's not personal, it's just 
politics, it's not personal.' And I just want to say to you that it is 
personal, it's very personal--to the nominees, and to the people who 
care about them.'' It doesn't get more personal than this. Brown is a 
very intelligent woman who is a Supreme Court Justice in our Nation's 
largest State, was re-elected to her seat with 76 percent of the public 
vote, possesses a stellar educational record and has a great judicial 
reputation. However, in order to fulfill her dream and the President's 
wishes, she must subject herself to unfair personal attacks and 
embarrassing degradation.
  Carolyn Kuhl, another female judicial nominee, also faces harsh and 
unwarranted criticism in her nomination for the Ninth Circuit Court of 
Appeals, a circuit court that even Senator Schumer admits is way too 
liberal and is the most overturned circuit of the 13 circuits. The 
Judicial Conference of the United States has declared this vacant seat 
a ``judicial emergency.'' But this is not even the main crisis for this 
court. This court gave us the notorious Pledge of Allegiance decision 
that Democrats joined Republicans in disavowing. Our friends on the 
other side of the aisle stress the importance of appropriate balance on 
the court. This court has 17 judges appointed by a Democratic President 
and 8 appointed by a Republican President. It seems apparent that Judge 
Kuhl would be a perfect candidate to better balance a court tipped 
extremely to the left. Judge Kuhl, like the overwhelming majority of 
President Bush's nominees, has received a ``Well Qualified'' rating 
from the ABA, the ``Gold Standard,'' previously deferred to by 
Democrats in the Judiciary Committee. However, Judge Kuhl has been 
receiving unfair treatment from leftist special interest groups seeking 
to control the nominations process through the historically 
unprecedented misuse of the filibuster. They criticize Kuhl's role in a 
1986 case in which the Government filed a brief stating President 
Reagan's position that Roe v. Wade was wrongly decided.
  Rather than be criticized, Judge Kuhl should be praised for 
fulfilling her ethical duty to her client. Her job was to represent the 
President's position before the Supreme Court. Rule 1.2b of the Model 
Rules of Professional Conduct state that ``[a] lawyer's representation 
of a client, including representation by appointment does not 
constitute an endorsement of the political, social, or moral views or 
activities.'' The hypocrisy of those opposing her nomination lies in 
the fact that they have not objected to past nominees who were 
attorneys on the same government brief. Furthermore, Judge Kuhl is 
supported by a wide range of pro-choice supporters who strongly believe 
that she will uphold the law. So, as I have asked before, what makes 
Judge Kuhl so special that warrants obstruction as a judicial 
appointee?
  Then, there is Priscilla Owen. Justice Owen was nominated for the 
Fifth Circuit Court of Appeals by President Bush in May of 2001. 
Justice Owen was

[[Page 28849]]

elected by 84 percent of the voters of Texas to the Texas Supreme 
Court. This vacancy has been declared a ``judicial emergency'' by the 
Judicial Conference of the United States. She has yet to have an up-or-
down vote. She has significant bipartisan support, including from three 
former Democrat judges on the Texas Supreme Court and a bipartisan 
group of 15 past Presidents of the State Bar of Texas. Owen is yet 
another nominee who has received a unanimous ``Well Qualified Rating'' 
from the ABA. Critics argue that she has strong views on abortion, but 
she has always interpreted the law faithfully by applying statutes 
enacted by the Texas Legislature.
  Abortion-rights activists claim that Owen's decision to uphold a new 
statute that requires girls under the age of 18 to notify their parents 
of an abortion is an example of judicial activism. Never mentioned by 
these organizations is that not only was Owen upholding a statute 
enacted by the Texas Legislature, the U.S. Supreme Court has long held 
that parental notification is permissible under the constitutional 
right of abortion as dictated by Roe v. Wade. The claims that Owen is a 
judge who has and will continue to practice judicial activism are not 
true and unwarranted. As of today it will be 917 days since President 
Bush nominated Justice Owen. You will not find a more qualified 
candidate.
  Another nominee who has been waiting more than two years is Charles 
Pickering. A nominee for the Fifth Circuit of Appeals, another vacant 
seat declared a ``judicial emergency,'' Judge Pickering has been 
labeled by some of those across the aisle as ``racially insensitive'', 
and that his ``poor'' judicial record reflects this. How is it then 
that Pickering has received a ``Well Qualified'' rating by the ABA, the 
``Gold Standard'' according to Democrats on the Judiciary Committee, to 
serve on the Fifth Circuit Court of Appeals? Many of Pickering's 
colleagues, civil rights leaders, and Democratic leaders from his own 
State attest to Pickering's remarkable record on race. James Charles 
Evers, brother of slain civil rights leader Medgar Evers, has endorsed 
Pickering by saying ``As someone who has spent all my adult life 
fighting for equal treatment of African Americans, I can tell you with 
certainty that Charles Pickering has an admirable record on civil 
rights issues. He has taken tough stands at tough times in the past, 
and the treatment he and his record are receiving at the hands of 
certain interest groups is shameful.'' Along with the false accusations 
of racial insensitivity, activists also accuse Pickering as not being 
fit to hear abortion cases. Pickering has testified that he is 
committed to following Supreme Court Precedent in Roe v. Wade and 
Planned Parenthood v. Casey.
  Abortion rights activists in their assault on some of the President's 
nominees have especially focused their attacks on Alabama Attorney 
General William Pryor, nominee for the 11th Circuit Court of Appeals. 
General Pryor has been criticized by these organizations as well as 
from colleagues across the aisle for what they term ``deeply held 
beliefs.'' Earlier this year, I spoke on the floor about General 
Pryor's ``deeply held beliefs.'' Criticism of Pryor's beliefs stem from 
his views on abortion. These views are, in large part, due to his 
background as a devoted Catholic. Being a devoted Catholic requires one 
to oppose the practice of abortion, and General Pryor is indeed a 
devoted Catholic. As a practicing Catholic myself, I am disturbed at 
what is being conceived here. If the Catholic philosophy of having no 
leeway on the concept of abortion is preventing General Pryor from an 
up or down vote, then we have a constitutional crisis on our hands 
which would eliminate tens of millions of Americans from being 
considered for Federal judgeships. General Pryor's record speaks for 
itself. Though he has criticized the Supreme Court's decisions on 
abortion, which is well within his rights as an American citizen, he 
has demonstrated a commitment over the years to enforce and uphold the 
law as one of the longest serving attorneys general in the Nation.
  I fear for the future of the judicial nomination process. Good, 
decent people who have outstanding records of upholding the law are 
being put through unfair, unjust and unnecessary attacks by people do 
not agree with their conservative values. One must ask my colleagues, 
why they think the politicization of the Judiciary is in anyone's 
interests. At what price do we continue this unfair degradation of 
judicial nominees?
  We all know the sad ending of Miguel Estrada's nomination. His 
qualifications remain outstanding. He came to the United States at age 
17 after being born and raised in Honduras. He graduated magna cum 
laude from Harvard Law School where he was editor of Harvard Law 
Review. He is a former assistant to the Solicitor General and argued 15 
cases before the U.S. Supreme Court. He clerked for Supreme Court 
Justice Anthony Kennedy, a Justice who does not share Estrada's 
conservative philosophies. He received strong support from prominent 
members of the Clinton administration whom he worked for.
  Are we to believe that documents the administration is unwilling to 
share from the Solicitor General's Office are what blocked his 
nomination, when all previous living Solicitors General, Republican and 
Democrat, signed a letter saying such work products should not be 
required to be provided? To do so would only undermine the ability of 
the office to represent the Federal Government and the President and 
would negatively impact the ability to attract quality lawyers to the 
office. We have also discussed time and again the appropriateness of 
Estrada's reluctance to prejudge cases at committee hearings. Opponents 
knew that they had no basis to oppose his nomination so they chose to 
place the burden on the nominee to prove a negative or else to have the 
Office of the Solicitor General undermine its independence and 
effectiveness.
  So what is the answer to why these nominees are receiving 
unprecedented unfair treatment? Why are we spending time here arguing 
for these candidates that are so well qualified for judgeships? I have 
voted for dozens of judicial nominees whose philosophies I do not share 
in deference to the President and to the Constitution. I fear the 
answer is the belief by a minority of Senators that there is short-term 
political gain in filibustering these nominees because some special 
interest groups are demanding this. But the long-term cost of this 
short-term thinking is tremendous. This unfair obstruction is setting a 
dangerous precedent and direction for the future of the Judiciary. The 
Constitution has given the Senate the responsibility to defend the 
judiciary there is no one else.
  Mr. INOUYE. Mr. President, it is most unfortunate that we in the 
Senate found ourselves embroiled in a lengthy and costly debate over 
four of President George W. Bush's judicial nominations--and make no 
mistake: this debate will cost more than is readily apparent.
  On a simple level, the preparation for 30 hours of debate on the 
Senate floor will translate into hundreds--possibly thousands of man 
hours of preparation. My fellow Senators, their staffs, and the myriad 
interested civic groups will toil ceaselessly to ensure that both 
Democrats and Republicans will be able to get their messages across to 
the American people. The media coverage and analysis are likely to be 
comprehensive and focused intensely down to the most minute details. 
Like a ravenous beast, this spectacle will devour our time, attention, 
and energy, until eventually, it consumes itself.
  My Democratic colleagues and I are acutely aware of another cost of 
this debate: the cost of opportunities lost to the Senate and to the 
Nation. Thirty hours of sustained attention could have addressed the 
needs of the 3 million citizens who have lost their jobs since the 
President took the oath of office. Thirty hours of continuous inquiry 
could have finished our constitutionally mandated duty of providing 
funds for the Federal Government. Thirty hours of debate could have 
broken the logjam on Medicare and Medicaid reform. Any of these goals 
would have been worthy of America's time,

[[Page 28850]]

but regrettably, our 30 hours of debate will purchase for us none of 
these noble ends.
  Instead, our colleagues from across the aisle will have spent this 
time on four men and women--four men and women who have jobs. Four men 
and women who collectively make a million dollars every year. Four men 
and women who have already been the subject of countless hours of 
debate in the Senate, and whose records have already been displayed 
amply before the American people. Four prosperous men and women against 
the millions of American citizens who are unemployed.
  By far the highest price of these 30 hours of debate, however, will 
be its contribution to the growing rift between people of different 
ideological bents. The Senate has always been a place where Senators--a 
group as diverse and varied as the people they represent--have been 
able to put aside their differences and work for the good of the 
country as a whole. As one Senator who has had the privilege of 
participating in the life of this institution for over 40 years, I 
cannot understand why the majority leadership has brought us to this 
point.
  My grave concern is tempered only by my hope and confidence that we 
will rise above the divisive spirit that provoked today's debate, and 
begin to do the work of the Nation and its people.
  The PRESIDING OFFICER. Under the previous order, the hour of 8:30 
a.m. having arrived, the Senate will begin an hour of debate equally 
divided prior to the first cloture vote. Under the previous order, the 
last 20 minutes will be equally divided with the first 10 minutes under 
the control of the Democratic leader or his designee, and the last 10 
minutes under the control of the majority leader or his designee.
  Who seeks time?
  The Senator from Utah.
  Mr. HATCH. Mr. President, let me personally express gratitude and 
thanks to Senator Santorum of Pennsylvania, Senator Norman Coleman of 
Minnesota, Senator Lindsey Graham of South Carolina, and Senator Jeff 
Sessions of Alabama, all of whom stayed here all night last night to 
make the points they have made. I personally appreciate it.
  Senator Graham asked me to take time to read the full quote of 
Senator Leahy that he was not given the benefit of. Senator Leahy said 
he was misquoted, so I will read the full quote: This is Senator Leahy 
in the Congressional Record of June 18, 1998, regarding delays in 
Senate action on judicial nominations:

       I have stated over and over again on this floor that I 
     would refuse to put an anonymous hold on any judge; that I 
     would object and fight against any filibuster on a judge, 
     whether it is somebody I opposed or supported; that I felt 
     the Senate should do its duty. If we don't like somebody the 
     President nominates, vote him or her down.

  Now, that is the correct full statement by the distinguished ranking 
member of the committee. Senator Graham wanted me to make sure that the 
full statement was put in.
  What is involved here is whether or not we are going to abide by the 
Constitution because the Constitution is pretty clear on this subject 
of advice and consent. This little book right here contains the 
Constitution of the United States. In article II, section 2, clause 2, 
speaking of the President, it says this:

       He shall have Power, by and with the Advice and Consent of 
     the Senate, to make Treaties, provided two thirds of the 
     Senators present concur, and he shall nominate, and by and 
     with the Advice and Consent of the Senate--

  It goes on to say appoint judges. Now, that is what the Constitution 
says. The Founding Fathers knew what a supermajority vote was. They put 
that requirement in here, where it was necessary for treaties. It is 
very clear to anybody who reads it, and I think any constitutional 
scholar, that advice and consent means a vote up or down, a majority 
vote up or down.
  During the Clinton years, when Democrats were afraid the Republicans 
were going to filibuster their nominees, Democrat after Democrat got up 
and said we should not filibuster, vote up or down one way or another. 
If my colleagues do not like a judge, vote against him or her. A lot of 
those quotes have been put in the record during this 40-hour debate. 
The fact is, when push comes to shove, when it becomes to their 
political advantage to stop people on the floor of the Senate, they 
start filibustering.
  This business of one-man filibusters, that is pure bunk. The fact is, 
everybody who came to the floor got a vote up or down. Now, there were 
a few on our side who wanted to filibuster some of those judges because 
they were so liberal, but I personally stood up in our conference and 
in our caucuses, as did Senator Lott, who was then the majority leader, 
and said that is not going to happen because that is constitutionally 
unsound. Plus, it is not right.
  But it has happened, as our colleagues on the other side have not 
been able to stop themselves from taking political advantage.
  Why are they doing this against these six people? I get a kick out of 
the use of 168 to 4. Today it is 6. What will it be tomorrow? I can 
tell my colleagues the number is going to go up continuously because 
they do not want anybody on these circuit courts of appeals who may be 
pro-life. That is what this is all about. It is about abortion. 
Otherwise, how could anyone find one fault with Priscilla Owen? I do 
not even know what her position is on abortion. I know that question is 
not asked by the White House or by us. I do not know what her position 
is.
  What fault can my colleagues find with a woman who was No. 1 on the 
bar exam in that State and who broke through the glass ceiling for 
women? Now, women are partners in law firms, where before they could 
not get secretarial jobs half the time. It was terrible what women went 
through. She was one of the people who broke through that problem. She 
won 84 percent of the vote in Texas, which is not particularly a 
Republican State, although it is fast becoming one looking at what is 
going on up here, just like Alabama is becoming a Republican State when 
they see the injustice and unfairness going on here.
  Priscilla Owen won 84 percent of the vote; every newspaper in that 
State ran editorials supporting her, and yet she is being treated like 
dirt here. Why? Because in a dissent she would have upheld the rights 
of a parent to have notification that those parents' child was about to 
have an abortion. Eighty-two percent of the American people believe 
that is the right thing to do. She was merely evaluating whether the 
lower court finder of fact in that parental notification case had made 
an error, and he hadn't, so she thought that the factfinding judge 
ought to be upheld. What is wrong with that?
  Going to Janice Rogers Brown, Janice Rogers Brown won 76 percent of 
the vote in her reelection, more than the leading liberal then on the 
California Supreme Court, Stanley Mosk. Mosk was a liberal voice on the 
court. He got 68 percent. Janice Brown got 76 percent. Now, I know if 
this was reversed and Mosk was the one who was nominated by a Democrat 
President, the Democrats would be arguing that he got 68 percent of the 
vote and that we should just confirm him. And we, as Republicans, 
probably would if we concluded that he was competent, had a good 
temperament, was intelligent enough to do the job, was honest and a 
person of integrity, even though we disagree with him on many issues.
  My contention is that the fact that a person may be pro-life is 
irrelevant, or the fact that a person is pro-choice is irrelevant if 
that person is otherwise qualified for these Federal judgeships. If we 
get to the point where we stop people because of one litmus test issue, 
Katie bar the door, it is going to politicize the Federal judiciary in 
a way that never should happen.
  Janice Rogers Brown is the justice who wrote a majority of the 
majority opinions last year in the California Supreme Court. She also 
joined in unanimous opinions, I think around 73 times. There is no 
question she is in the mainstream. That just has become a bad 
redefining of terms by our friends on the other side. Since they do not 
have any real arguments against these people, they will say, well, they 
are outside the mainstream of American jurisprudence. Well, that is 
just pure bunk and everybody knows it.
  What about Carolyn Kuhl? Carolyn Kuhl has 100 of her fellow judges on 
the

[[Page 28851]]

California Superior Court, Democrats and Republicans, vociferously 
supporting her as somebody who would make an excellent judge on the 
Ninth Circuit Court of Appeals, which has a tremendous imbalance. 
Senator Schumer is constantly talking about imbalance, that we should 
balance up the courts, liberals and conservatives being equal. Well, 
there are 17 Clinton and Carter nominees and judges on the ninth 
Circuit Court of Appeals. I believe there may be eight judges on that 
court nominated by Republican Presidents.
  If that is the case, if they really want balance, why oppose even 
voting on Carolyn Kuhl, one of the leading scholars in America? What do 
they hold against her? When she was a 28-year-old, a junior lawyer in 
the Department of Justice, doing the bidding of the then-President, 
Ronald Reagan, she actually helped write some of the briefs which she 
would do in the normal course of events--anyone would do, even if you 
do not agree, because that is your job--on some issues that our friends 
on the other side do not appreciate. Again, it comes down to abortion.
  I was talking to one of the leading civil rights ministers who during 
the 1960s was threatened every day. He was head of the ACLU in 
Mississippi, a liberal Democrat who has been in some of the Democrats' 
meetings, during which they've plotted their mistreatment of the 
President's nominees. He said to me: Senator Hatch, you are absolutely 
right--he is pro-choice, by the way, but he sees the injustice of this 
as he came out in support of the judge. He said: Senator Hatch, you are 
absolutely right, this is all about abortion.
  We do not know where these nominees stand on abortion, at least I 
don't. I have had discussions with all three of them and never asked 
the question. Whether pro-choice or pro-life is irrelevant if they are 
otherwise qualified to serve on the courts.
  What is being done to these three women we are going to vote on 
today? We are not voting on their right to be a judge, we are voting on 
cloture, on the right to go forward and have a vote up and down on 
these judges. For the first time in history, the absolute first time in 
history, we now have filibusters against six incredibly qualified, well 
qualified candidates.
  During the 8 years of the Clinton administration, time after time, 
the Democrats would say: We have a person who is qualified by the 
American Bar Association. That is the gold standard, the American gold 
standard. The imprimatur of the American Bar Association, that is all 
it takes. 377 Clinton nominees got through; one was rejected by a 
majority vote on the Senate floor. 377. Amazing how the statistics are 
distorting. This talk about 168--that was a hard fought battle on most 
of them. It was not at all simple to get them through. Democrats have 
politicized everything around here with regard to the judiciary. I 
would like to end that by having votes up and down on all judicial 
nominees.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. How much time is available to the Senator from Vermont?
  The PRESIDING OFFICER. The Senator from Vermont has 30 minutes, and 
that includes time for the Democratic leader.
  Mr. LEAHY. I obviously will not take that time.
  Again, in 29 years here, I have been accustomed to some hyperbole and 
some interesting changes of statistics and even quotes. I have great 
respect for my dear friend from Utah, but, man, he has hit the trifecta 
of the hyperbole in the out-of-context quotes.
  Of course, what he does not point out, when I spoke of filibusters on 
this floor, I was talking about the one-person anonymous hold 
filibuster on Sonia Sotomayor. It was only after a public outcry that 
she was allowed a vote and she had overwhelming support in this body--
not somebody who was almost 50-50 or 52-48, she had overwhelming 
support. But she was not allowed to get a vote. And even that took 2 
years of putting her life on hold. Editorial writers from the right to 
the left said: Give this woman a vote. This was a consensus candidate.
  We hear about all the ones who got votes. For some reason, there 
seems to be a reluctance by my friends on the other side to talk about 
the 63 who were never allowed votes. They were blocked because one 
Republican would anonymously say no.
  I don't find the record of cooperation during the Clinton years to be 
anything to brag about. Sixty-three fine men and women were blocked and 
never given a vote. In fact, when President Bush took office, there was 
an unprecedented number of vacancies in a lot of the circuits. Why? As 
testimony before our committee showed, because the nominees were told 
by Republican Senators: We think you are great. We think you would make 
a good judge. But we have been told we are not allowed to move you 
forward, we are not allowed to give you a vote. We are not allowed to 
give you a hearing because someday there will be a Republican President 
and he will want to fill those vacancies.
  Notwithstanding that, when I was chairman, even though it pained me 
to do it, I allowed those vacancies to be filled by President Reagan's 
nominees, by President Bush's nominees, even though in testimony before 
our committee the nominees said they were told by Republicans they 
would never be allowed to have a vote.
  I don't hear the other side talk about the 63 who were given a one-
person filibuster, anonymously, whether they were judges from 
Pennsylvania, Ohio, Missouri, Michigan, or elsewhere. They were blocked 
by these one-person anonymous holds. Sometimes it was not too difficult 
to realize who the hold was because it was usually from their own 
State.
  Of course, there were many others. As the distinguished Senator from 
Utah has said in his own writings, the Democratic President would 
consult with him on different people and he would tell them no, do not 
even send this one up, they will not get a vote. So they never came 
forward. I guess on inaugural day that consultation stopped.
  We have confirmed 168 and held back 4. Is anyone going to tell me 
with a straight face that in the Bush administration, with all the 
promises they have made to the far right, there are not a whole lot of 
pro-life judges in here? Of course there are. Many have been very 
clear, saying they were pro-life, but I voted for them because I 
believed they could be fair, they would be judicious, they would follow 
the law, they would follow the precedence and not their personal 
inclinations.
  When I hear of the crocodile tears about Ms. Kuhl, saying she was a 
young person writing a memo for the Reagan administration, do not hold 
that against her--come on. She was not only writing a memo, she was a 
spear carrier for Bob Jones University.
  Now I know Bob Jones University is kind of a pet of the other side, 
but this is a university where the founder and philosophies are anti-
Catholic, anti-Mormon, anti-Black. Yet we are supposed to say, forget 
the fact she was anti-Catholic, anti-Mormon, anti-Black in her support 
of this, she was only doing her job. She was only doing her job.
  A lawyer has a right to follow their conscience. If a lawyer has a 
client and says: Go out there and take a position that really should 
not be sustained--in this case, a position on Bob Jones University--you 
ought to say: No, I quit. I quit. We have seen many instances of that 
in the past.
  Not counting the time for the leader, how much time remains to the 
Senator from Vermont?
  The PRESIDING OFFICER. Thirteen minutes.
  Mr. LEAHY. I yield 10 minutes to the distinguished Senator from 
California.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I thank Senator Leahy for so many things. 
He has been so strong on this whole issue of making sure we do not put 
on the bench folks who are so outside the mainstream that they would 
set us back. Because you have a very strong position as a top Democrat, 
you have allowed to be approved 168 of George Bush's nominees.
  He has talked to us in depth, as well as other Members of the 
Judiciary

[[Page 28852]]

Committee, about the four, up to now, who the Senator believes are far 
outside that mainstream. In order to protect the rights of our people, 
this is not some argument about a football game, that you are beating 
us 168 to 4. It is about protecting the people we represent, protecting 
their rights, protecting their health, making sure they are treated 
equally before the law. All the things that we as a great country, the 
greatest in the world, have given to our citizenry, could be overturned 
if we wind up having a court system that is radical and that moves away 
from those freedoms.
  So if nothing else, I hope people in America understand that the 
Republicans in the Senate are complaining because they did not get all 
of their President's nominees. So we have made the point over and over.
  Today, we are going to add two more, I believe, to this list and it 
will be 168 to 6, for a 97 percent success rate. Why are we doing that? 
Why do we think we are going to stop two of these candidates today--
actually, we have stopped a third before and we will do that again. 
Because they do not reflect the values of this country in their 
decisions. I could go over them one by one; I don't have the time to do 
that. And they would be dangerous.
  Here is the interesting thing. We have sitting in the committee two 
nominees who cleared the committee, Mark Filip and Gary Sharp, one from 
Illinois, one from New York, and all you have to do is bring those out. 
They have full support. You will be back up to 98 percent before the 
day's end.
  I say to my friends, I do not deserve to be a Senator if I do not 
exercise the power our Founders gave us explicitly in the Constitution, 
the power of advice and consent. It does not say sometimes advice and 
consent. It does not say maybe advice and consent. It does not say if 
you feel like it. It does not say if there is a Democrat in power or 
Republican. It says the Senate has the power to advise and consent. 
This does not mean rolling over for any Member.
  That is the key point. Do the people of America want a rubberstamp 
Senate or do they really want Senators who take their responsibility 
seriously and look at each nominee seriously?
  The power we were given is a very important power. I will explain 
that to the people of my State. If they want a Senator who will be a 
rubberstamp for a President of either party, they need to think long 
and hard about Senator Boxer because I am not their girl. I am not 
going to do that. That is not why I am here.
  So anyone reading the Constitution knows that Senator Leahy and 
members of the Judiciary Committee--and I see the Senator from Illinois 
here--they are just doing their job.
  The Republicans have spoken almost 40 hours. I lost track after 30 
hours. They are telling us essentially: Don't do your job; be a 
rubberstamp. We are not going down that path.
  I am happy to yield.
  Mr. DURBIN. I know we are coming to the breathless close of this 
wonderful marathon, this made-for-TV filibuster.
  I ask the Senator through the Chair the following question: Is the 
Senator aware in the early hours this morning Republican Senators from 
Kansas and Pennsylvania came before the Senate and raised the question 
of whether the Constitution includes the right to privacy? According to 
the Senator from Kansas, he referred to it as the discovered right of 
privacy in the Constitution.
  I would like to ask through the Chair if the Senator from California 
could reflect on the right to privacy, particularly as it relates to 
one anomaly from her State, Carolyn Kuhl.
  Mrs. BOXER. Absolutely. I will show the number of women's 
organizations who oppose Carolyn Kuhl. I am glad the Senator raised 
this question.
  It is particularly interesting that today we have three women before 
the Senate. I say to my colleagues from both sides of the aisle, as a 
woman who has been in public life, actually elected to my first office 
in 1976, making sure that women have an equal opportunity, making sure 
that women move into positions of leadership has been one of the 
hallmarks of my career.
  Now we hear people on the other side saying anyone who votes against 
these women is not in favor of women.
  Let me state from the bottom of my heart--and I will get to that 
issue of privacy--the worst thing that can happen to the women of this 
country--to your daughters, to your nieces, to your aunts, to your 
grandmothers, for that matter, to your moms--the worst thing is to have 
a woman in power who rules against the interests of women. Carolyn Kuhl 
is one such woman. Janice Brown is one such woman. And Priscilla Owen. 
And those are the three who come before the Senate today in a package. 
Each of them, if you look at their decisions, has been hostile to 
women.
  I will talk about the Carolyn Kuhl case. Before Carolyn Kuhl, as a 
sitting State judge, comes a case in which a woman is explaining that 
she went to a physician for a followup mastectomy examination, a very 
humiliating, difficult, painful moment for that woman. That woman has 
written us and her story is in the Record. I have placed it in the 
Record.
  The woman simply said to Judge Kuhl: My privacy was violated because 
I went to my doctor and the doctor allowed in the room a drug salesman. 
The doctor did not ask me, the doctor never told me.
  This drug salesman was leaning over the table, was fanning this woman 
with a fan, was involved in this intimate exam.
  Every woman in this country knows that if that happened to them, they 
would be humiliated beyond belief. This woman had the courage to sue. 
Carolyn Kuhl ruled against the woman, and the excuse is, she allowed 
the case against the doctor to go forward. Untrue. That particular case 
never was before her. The issue was breach of privacy. She ruled 
against the woman. Carolyn Kuhl had to write an apology to the 
committee for misstating what actually had happened.
  Mr. LEAHY. Will the Senator yield?
  Mrs. BOXER. Yes.
  Mr. LEAHY. In other words, under this ruling, if the doctor had 
invited his auto mechanic because he might like to watch breast exams, 
put him in a white coat, it would be the patient's fault for saying: By 
the way, is this another doctor? Is this your auto mechanic?
  Mrs. BOXER. My friend is right.
  Mr. LEAHY. Frankly, I would hope I could say to my wife or my 
daughters, there would be a right of privacy issue here. For those who 
say there is no privacy in a case such as this, they have never been in 
a doctor's office for an examination.
  I yield back to the Senator from California.
  Mrs. BOXER. Let me say that, fortunately, her decision was overruled 
unanimously by the State appellate court. This is the State appellate 
court. There are lots of Republicans on that court. They saw this was a 
terrible decision.
  Here is the list of women's groups against the nomination of Carolyn 
Kuhl. It includes Breast Cancer Action, Breast Cancer Fund--on and on--
Women's Leadership Alliance. And the same list--actually a few 
different names, for Janice Brown and for Priscilla Owen. These women 
do not care about women advancing. They have not cared about the equal 
rights of women.
  Let's have some backbone here and stand up when we think these 
nominees are good for the people and oppose them when we know they have 
been bad for the people and they will do worse yet.
  The PRESIDING OFFICER (Mr. Smith). The Senator's time has expired.
  Who seeks time?
  Mr. LEAHY. Mr. President, what is the time remaining?
  The PRESIDING OFFICER. The Senator from Vermont has 2 minutes 13 
seconds; the Senator from Utah has 8 minutes 12 seconds.
  Mr. LEAHY. Well, and there is time reserved for the two leaders?
  The PRESIDING OFFICER. There are 10 minutes each for the majority 
leader and the minority leader.
  Mr. LEAHY. Mr. President, over these past 24 hours, the American 
public has heard a lot of what one could

[[Page 28853]]

generously describe as wishful thinking from the other side of the 
aisle about the history of the Senate in considering nominations, 
especially recent history of Republican obstruction when a Democrat was 
in the White House. Their efforts to re-write American history and the 
history of this Senate remind me of the old Soviet Union, re-writing 
its history books to suit the ruling party and erasing photos that 
would reveal inconvenient facts. Their misleading and wrong assertions 
have been made over and over and over again, perhaps in the hope that 
repetition would turn those falsehoods into fact. I think it is 
important for posterity to set the record straight.
  Last night, echoing Republican press conference, Republicans took to 
the floor to claim that no judicial nominee had ever been filibustered 
or blocked from getting a confirmation vote in the history of the 
Senate. They made these assertions repeatedly while pointing to signs 
with the number zero printed on them. They refused to acknowledge that 
any judicial nominee has ever been filibustered, that any has ever been 
denied a confirmation vote, that any nominee for even a short-term 
position has ever been filibustered on the floor or filibustered in 
Committee. The repeated the party line from GOPUSA that ``no federal 
judicial nominee by the past 42 presidents has been filibustered in the 
history of the U.S. Senate dating back to 1784.'' I ask unanimous 
consent to place the following excerpt from the New York Times from 
1968 into the Record about the filibuster in the Senate over the 
nomination of Justice Abe Fortas to be Chief Justice of the Supreme 
Court, a letter signed by more than 60 law professors from across the 
country in support of the use of the filibuster of judicial nominees, 
and an important and outstanding letter from Professor Michael Gerhardt 
which thoroughly addresses the specious arguments being made about the 
use of the filibuster under our Constitution. I hope that this evidence 
would cause some of my colleagues to reconsider some of the false and 
misleading statements made by my colleagues on the other side of the 
aisle. One can always hope.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the New York Times, Sept. 25, 1968]

                   Precedent for Judicial Filibusters

        Critics of Fortas Begin Filibuster, Citing ``Propriety''


   Griffin Attack Lasts 3 Hours--Mansfield Backs Justice, but Scores 
Lecture Fee.
                                  ____


                                                     May 16, 2003.
     Hon. Bill Frist and Tom Daschle,
     U.S. Capitol,
     Washington, DC.
       Dear Senators Frist and Daschle: As law professors, we 
     write to express our opinion that the Senate's use of the 
     filibuster with respect to both legislation and nominations 
     is constitutional. Both the text of the Constitution and 
     historical practices strongly support the constitutionality 
     of the filibuster. Article I, Section 5 expressly provides, 
     ``Each House may determine the Rules of its Proceedings.'' 
     Article I, Section 5 plainly authorizes the Senate to make 
     procedural rules. It empowers the Senate as well to delegate 
     what is sometimes final authority over the fate of 
     legislation and nominations to committees and their chairs. 
     The textual authority for the filibuster is precisely the 
     same as those for these other measures. If these measures are 
     constitutional, then so too is the filibuster.
       The Supreme Court has repeatedly emphasized the relevance 
     of historical practices for determining constitutionality. 
     The filibuster, understood as protracted debate precluding 
     final Senate consideration of a legislative matter, began 
     early in the history of the Republic. It has been used 
     frequently by senators from both parties with respect to 
     nominations as well as legislation. In fact, it has been used 
     effectively to defeat presidential nominations, including the 
     nominations of Abe Fortas to be Chief Justice of the United 
     States in 1968, Sam Brown to be Ambassador in 1994, and Henry 
     Foster to be Surgeon General in 1995. This longstanding 
     historical practice weighs heavily in support of the 
     filibuster's constitutionality.
       The filibuster reflects the Senate's longstanding respect 
     for minority views and underscores the unique role of the 
     Senate as a part of American democracy. It has the salutary 
     effect of giving an incentive to all sides to seek compromise 
     on issues where points of view are sharply divided. With 
     regard to nominations to an independent branch of government 
     such as the judiciary, the filibuster encourages the 
     President to find common ground with the Senate by nominating 
     individuals who can garner consensus.
       For these and other reasons, we conclude the filibuster is 
     constitutional.
           Very truly yours,
           (Signed by 60 Law Professors).
                                  ____

                                      University of North Carolina


                                                School of Law,

                                                November 10, 2003.
     Hon. Patrick Leahy,
     Dirksen Senate Office Building,
     Washington, DC.
       Dear Senator Leahy: I understand that this week the 
     Republican leadership will be coordinating thirty hours of 
     debate about the legitimacy of the recent filibusters against 
     three of President Bush's judicial nominees. To assist you 
     (and the Senate) in this debate, I have taken the liberty of 
     providing below a revised version of my testimony earlier 
     this summer on behalf of the filibuster. The revised 
     testimony reflects my thinking and research on the subject 
     since my testimony in May and June. My continued thinking and 
     research on the filibuster have clarified further the solid 
     constitutional foundations for filibustering judicial 
     nominations. My hope is that this revised testimony may help 
     to set the record straight on the Senate's longstanding 
     commitments to allowing the filibuster (against all kinds of 
     nominations) and to amending its rules in accordance with its 
     rules.


                           executive summary

       The filibuster derives its authority from the Senate's 
     express power to design its own procedural rules to govern 
     its internal affairs and the Senate's consistent support for 
     its legitimacy. It is also one of many counter-majoritarian 
     features of the Senate, including the committee system and 
     unanimous consent requirements. If these practices are 
     constitutional, then so too is the filibuster.
       While there have been many criticisms directed against the 
     filibuster in recent months, none has merit, in my opinion. 
     First, the most popular arguments against the filibuster are 
     circular, i.e., they simply assume their conclusion. The 
     arguments presume that some constitutional principle, such as 
     majority rule or anti-entrenchment, trumps the filibuster. 
     Then, operating from this premise, they set out to 
     demonstrate flaws in the arguments of the defenders of the 
     filibuster. Yet, exposing flaws in the other side's arguments 
     does not make an affirmative case for a constitutional 
     principle of majority rule or anti-entrenchment; it merely 
     shows imperfections in the defense of the filibuster. The 
     absence of support for the other side does not establish the 
     legitimacy of the case against the filibuster. Those 
     maintaining that the filibuster is illegitimate must show the 
     constitutional foundations for the principles on which they 
     are relying. Second, the arguments against the filibuster--
     e.g., it violates majority rule--cannot be squared with the 
     constitutional structure as it was designed or has evolved. 
     Third, Article I of the Constitution contains no explicit or 
     implicit anti-entrenchment principle that would preclude the 
     Senate from adopting, for the sake of institutional stability 
     and order, certain procedural rules that carry over from one 
     session to the next and may only be altered with super-
     majority approval. In fact, entrenchment is far more 
     consistent with our constitutional structure than anti-
     entrenchment is. Entrenchment is much more the rule rather 
     than the exception in the legislative process. Even 
     legislative bodies such as the House that formally 
     reconstitute themselves as the outset of each new session 
     have pre-set agendas in place prior to any vote as to how 
     they should proceed to reconstitute themselves, what they 
     should do once they have formally reconstituted themselves, 
     the committees to which members need to be assigned, how 
     those assignments may take place, the jurisdictions of those 
     committees, and even the rules they may select under which to 
     operate. Moreover, given that only a third of the Senate is 
     up for re-election at any one time, there is no ``new'' 
     majority that comes into power at the outset of a session who 
     can credibly claim any entitlement to vote on the rules under 
     which it would be operating throughout the session.
       The filibuster is best understood as a classic example of a 
     non-reviewable, legislative constitutional judgment. It is a 
     practice that has the same claim to legitimacy as many 
     countermajoritarian practices within the Senate, including 
     the committee structure and unanimous consent requirements. 
     The Constitution permits all of these practices, but it does 
     not mandate any of them. These practices define the Senate's 
     uniqueness as a political institution, particularly its 
     historic commitments to various objectives--respecting the 
     equality of its membership and to minority viewpoints; 
     encouraging compromise on especially divisive matters; and 
     facilitating stability, order, and collegiality in the long 
     run. The principal checks on these practices, including the 
     filibuster, are political. They include the Senate Rules, the 
     need to maintain collegiality within the institution, and the 
     political accountability of senators for their support for, 
     or opposition to, filibusters.

[[Page 28854]]




                                   I.

       Neither the Constitution nor the Senate Rules expressly 
     mention, or mandate, the filibuster. Nevertheless, the best 
     starting place for understanding the authority for the 
     filibuster is Article I of the Constitution, which governs 
     and defines the powers of the Congress. In Article I, section 
     5, the Constitution provides, ``Each House [of the Congress] 
     may determine the Rules of its Proceedings.'' This section 
     plainly authorizes the Senate to make procedural rules, 
     including but not limited to the length of debate in the 
     Senate. This section further authorizes the Senate to 
     delegate official responsibility to smaller units (and even 
     individual members) within the Senate. Many of these 
     delegations allow committees and their Chairs to have what is 
     sometimes final say over the fates of legislation and 
     nominations. This same authority provides the support for 
     many informal senatorial practices such as senatorial 
     courtesy--in which individual senators may make 
     recommendations to the President on the people whom he should 
     nominate to federal offices in their respective states--as 
     well as the blue-slip process that has traditionally allowed 
     individual senators with the means by which to nullify 
     nominations to judgeships within their respective states. In 
     addition, a single senator may place a ``hold'' on 
     legislation or a nomination, postponing consideration to a 
     later date. The filibuster derives its legitimacy from the 
     same authority that allows for each of these other 
     legislative practices--Article I, Section 5, which empowers 
     the Senate to implement procedural rules, including the 
     specific rule governing the procedure for cloture, Rule XXII. 
     If these practices are constitutional, then so too is the 
     filibuster.
       The other, possible authority for the filibuster is 
     historical practices. The filibuster has been employed, in 
     one form or another, as extended debate in the Senate 
     throughout the history of the Senate. In fact, ``the 
     strategic use of delay in debate is as old as the Senate 
     itself. The first recorded episode of dilatory debate 
     occurred in 1790, when senators from Virginia and South 
     Carolina filibustered to prevent the location of the first 
     Congress in Philadelphia.'' While the First Congress allowed 
     a so-called motion for the previous question which could not 
     be debated, its name was misleading. In practice, ``the 
     previous question motion was seldom used before the Senate 
     abolished it in 1806;'' and it rarely succeeded in silencing 
     those senators determined to continue the debate. Instead, 
     the motion tended, once made, to end debate by requiring the 
     removal of the matter being debated from the Senate agenda. 
     Thus, it did not force a vote but rather forced the Senate to 
     move onto other business. Moreover, the availability of this 
     motion did not prevent the Senate from continuing to permit 
     protracted debate to delay floor votes. The eminent 
     biographer Robert Caro explains the history of the filibuster 
     subsequent to the abolition of the previous question motion:
       ``For many years after 1806--for 111 years, to be precise--
     the only way a senator could be made to stop talking so that 
     a vote could be taken on a proposed measure was if there were 
     unanimous consent that he do so, an obvious impossibility. 
     And there took place therefore so many `extended discussions' 
     of measures to keep them from coming to a vote that the 
     device got a name, `filibuster,' from the Dutch vrijbuiter, 
     which means `freebooter' or `pirate,' and which passed into 
     the Spanish as filibustero, because the sleek, swift ship 
     used by the Caribbean pirates was called filibote, and into 
     legislative parlance because the device was, after all, a 
     pirating, or highjacking, of the very heart of the 
     legislative process.''
       In other words, the practice in the Senate from 1806 until 
     1917 allowed the smallest minority possible with the Senate--
     a single senator--to bar a floor vote on any legislative 
     matter by engaging in an extended speech. During this period, 
     every floor vote required unanimous consent.
       The Senate first, formally curbed the practice of endless 
     debate in 1917, after eleven senators had successfully 
     filibustered President Woodrow Wilson's proposal to arm 
     American merchantmen against German submarine attacks. At 
     President Wilson's urging, the Senate passed Rule XXII, which 
     allows debate upon a ``pending'' matter to be terminated 
     when, after a petition for such ``cloture'' was presented by 
     sixteen senators and approved by two-thirds of the senators 
     present and voting. In subsequent years, senators from both 
     parties have used the filibuster to block a floor vote on a 
     wide range of legislation. From 1917 until 2000, cloture was 
     invoked 193 times out of the 545 times it was attempted. 
     During the period from 1927 through 1962, the Senate did not 
     invoke cloture once. In this period, conservative senators 
     repeatedly used the filibuster to block civil rights 
     legislation, provoking liberal senators to denounce the 
     filibuster as illegitimate and conservative senators to 
     defend it. In the late 1960s and early 1970s, conservatives 
     and liberals switched positions on the filibuster: Liberal 
     senators used the filibuster to block centerpieces of 
     President Nixon's social and economic agenda while many 
     conservative senators questioned its legitimacy. After Bill 
     Clinton became president, a series of Republican filibusters 
     blocked by aspects of his legislative agenda, including a 
     comprehensive bill providing for national health care reform. 
     Nevertheless, the filibuster has endured, with the most 
     recent reform occurring in 985 when a super-majority within 
     the Senate approved an amendment to Rule XXII requiring only 
     three-fifths, rather than two-thirds, of the Senate as the 
     requisite number to invoke cloture.
       Throughout the long history of its deployment in the 
     Senate, the filibuster has not been restricted to delaying 
     floor votes only on legislation. It has been often used to 
     thwart presidential nominations. The first, recorded instance 
     in which it was clearly and unambiguously employed to defeat 
     a judicial nomination occurred in 1881. At the time, 
     Republicans held a majority of the seats in the Senate but 
     were unable to end the filibuster, which had been employed 
     near the end of the legislative session, the preclude a floor 
     vote on President Rutherford B. Hayes' nomination of Stanley 
     Matthews to the Supreme Court. Though Matthews eventually 
     served as an Associate Justice, it was only because Hayes' 
     Republican successor, President James Garfield, re-nominated 
     Matthews in the next legislative session. (There were also 
     nine other occasions in the nineteenth century when the 
     Senate held no floor votes on Supreme Court nominations.) A 
     recent Congressional Research Service study shows that from 
     1949 through 2002, senators have employed the filibuster 
     against 35 presidential nominations, on 21 of which senators 
     had sought and invoked cloture. 17 of the 35 nominations 
     filibustered were to Article III courts. All 21 nominations 
     on which cloture was invoked were eventually confirmed. Of 
     the 14 nominations on which cloture was sought but not 
     invoked, 11 were eventually confirmed. For instance, 
     Republican senators filibustered President Clinton's 
     nominations of Walter Dellinger to head the Office of Legal 
     Counsel in the Justice Department and Janet Napolitano to be 
     U.S. Attorney for Arizona, but eventually the Senate 
     confirmed both nominees--Dellinger after Republican senators 
     relinquished their opposition to his nomination and 
     Napolitano after the Senate voted 72-26 on a cloture motion 
     to end the filibuster against her nomination. Four of the 35 
     filibustered nominations failed altogether--then-Associate 
     Justice Abe Fortas to be Chief Justice and Judge Homer 
     Thornberry to be an Associate Justice in 1968, Sam Brown to 
     be Ambassador in 1994, and Dr. Henry Foster to be Surgeon 
     General in 1995. Other nominations have failed without having 
     been formally filibustered, as Senator Jesse Helms' threat of 
     a filibuster nullified President Clinton's intention to 
     nominate then-Assistant Attorney General Walter Dellinger as 
     Solicitor General. Another dramatic use of the filibuster 
     occurred when Republican senators filibustered five of 
     President Clinton's nominations to the State Department in 
     order to gain leverage in a dispute over whether the State 
     Department adequately investigated allegations that a former 
     Clinton campaign worker who later served in the department 
     had improperly searched the records of 160 former political 
     appointees and publicly disclosed the contents of two of the 
     files. As John McGinnis and Michael Rappaport concluded in 
     their extended study of the Constitution's super-majority 
     voting requirements, ``the continuous use of filibusters 
     since the early Republic provides compelling support for 
     their constitutionality.

  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. LEAHY. I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I am highly offended, and I think anybody 
who is fairminded would be highly offended by this one-sided, partisan 
attack on Judge Kuhl, and bringing up that particular case because 
everybody knows that case was settled by the woman's doctor, the one 
who was at fault. And, frankly, that was hitting below the belt.
  Carolyn Kuhl, she is a pioneer for women: cum laude graduate of 
Princeton University; Duke University Law School: Order of the Coif; 
law clerk to then-Judge Anthony Kennedy of the Ninth Circuit.
  She worked at the Department of Justice: Special assistant to the 
Attorney General; Deputy Assistant Attorney General; Deputy Solicitor 
General.
  She was 28 years old when she was asked to work on the Bob Jones 
case. I think it is slanderous to say that Republicans support Bob 
Jones University's attitudes about race. Give me a break. Nobody on 
this side does, and neither did she. The case she worked on was a tax 
issue, and she had an obligation to work with her senior people in the 
Department. She was very junior at the time. And, frankly, they had a 
reasonable argument about a certain IRS tax exemption relevant to 
private universities.

[[Page 28855]]

  She was a partner in the Los Angeles firm of Munger, Tolles & Olson, 
one of the best law firms in the country. She is the first female 
supervising judge of the Civil Department of the Los Angeles County 
Superior Court.
  This is a woman of tremendous abilities. They pick one case out of 
the hundreds or thousands she has heard and tried, and then distort 
that case. It drives you nuts around here.
  ``Both Democrats and Republicans . . . step up to the plate to 
support [Judge] Kuhl.'' This is Vilma Martinez--not known for 
conservative politics, by the way--who is one of the top leaders in the 
Mexican American Legal Defense and Education Foundation, if I recall it 
correctly. In the Daily Journal this is what Vilma Martinez had to say:

       [Judge Kuhl] stepped up to the plate. She wrote letters, 
     made phone calls and exhorted her fellow Republicans to 
     confirm [Judge] Paez and other Clinton nominees.

  Judge Paez was a very controversial nominee. I know. I had to work it 
through to even give him a chance. But he got a vote up and down. And, 
unfortunately, some of my colleagues who were against him were right. 
He has become a very activist judge on the Ninth Circuit Court of 
Appeals, just stepping right in and becoming a member of the leftist 
majority on that court.
  Vilma Martinez, this Hispanic-American leader, says:

       [Judge Kuhl's efforts are] characteristic of her sense of 
     fairness and respect for an independent judiciary.

  She goes on to say:

       [M]any of the groups that support Judge Paez, ironically, 
     have turned their fire on Judge Kuhl, apparently to exact 
     payback against Senate Republicans.

  If you listen to those arguments, it is easy to conclude that.
  Then, in the bottom paragraph, Vilma Martinez says this--and Vilma 
Martinez is a Democrat, not a Republican--she says:

       This turnabout is not fair play. It is the continuation of 
     a vicious cycle that punishes worthy judicial candidates in a 
     misguided effort to use the judiciary to further narrow 
     political ends.

  That is the type of stuff we are dealing with around here: 
distortions, distortions of the facts, maligning absolutely qualified 
people. Look at this. Carolyn Kuhl has the support of pro-choice women. 
Anne Egerton, judge on the LA Superior Court:

       I understand that some have raised concerns about Judge 
     Kuhl's commitment to gender equality and reproductive rights. 
     I do not share those concerns. . . . I have been a registered 
     Democrat for thirty years, and I have supported--financially 
     and otherwise--[Senator Feinstein], Senator Boxer, and other 
     Democratic legislators and candidates. I have no reservations 
     in recommending Judge Carolyn Kuhl . . . for appointment to 
     the Ninth Circuit Court of Appeals.

  Take Gretchen Nelson, pro-choice Democrat, plaintiff's attorney. On 
February 14 she had this to say:

       I am opposed to the appointment of any judicial nominee who 
     is incapable of ruling based upon a considered and impartial 
     analysis of all of the facts and legal issues presented in 
     any manner. Judge Kuhl is not such a nominee and she is well-
     deserving of appointment to the Ninth Circuit.

  Let's quit slandering these people. Let's quit distorting the facts. 
All because you think they might be pro-life.
  My gosh, look at the women judges who support Judge Kuhl's 
confirmation. A bipartisan group of 23 women judges at the Los Angeles 
Superior Court, on February 22, said this:

       Judge Kuhl approaches her job with respect for the law and 
     not a political agenda. Judge Kuhl has been a mentor to new 
     women judges. . . . She has helped promote the careers of 
     women, both Republican and Democrat. . . . As sitting Judges, 
     we more than anyone appreciate the importance of an 
     independent, fair-minded and principled judiciary. We believe 
     that Carolyn Kuhl represents the best values of such a 
     judiciary.

  Let's get this out of this totally slanderous political debate and 
start talking about the real facts.
  Democrats on this Floor have tried to confuse the issue, to pretend 
that what they are doing is no different than what happened to some of 
President Clinton's nominees. But they are dead wrong. They are 
comparing apples to oranges. They are different. We did not filibuster 
a single Clinton nominee who had majority support. Once on the floor, 
all of them received up or down votes. 377 confirmed for Clinton. 
Despite the Democrats, not because of them, we have confirmed 168 Bush 
nominees.
  One Senator went so far as to call the four filibustered nominees, as 
of yesterday, lemons, if you can believe it, when all of them have well 
qualified ratings from the American Bar Association.
  Look at the facts. President Bush has had 29 circuit court of appeals 
nominees confirmed, but another 12 of them, at least, are facing 
filibusters. I believe that number is really higher, about 17. It is an 
amazing, unprecedented series of filibusters of appellate nominees, 
what we are going through, and there are more to come.
  Let me get the last chart up there. The real facts are that since we 
have had the filibuster rule, since the administration of Franklin 
Delano Roosevelt, we have had 2,372 judges confirmed and zero 
filibustered--until now.
  Now, it is one thing to filibuster, it is another thing to slander 
these people. I have seen so much of that over the last 2 or 3 years 
that I am just sick of it. I am just sick of it.
  Let's give these people votes up and down. The reason they will not 
is they know there are enough good-thinking people in this Senate on 
both sides who would--for all of these six people who are being 
filibustered--confirm them on a bipartisan majority.
  So a tyrannical minority--which is in so many ways slandering these 
people, these honest, decent, good people--is preventing votes up and 
down on judicial nominees for the first time in the history of this 
country.
  Mr. President, how much time do I have left?
  The PRESIDING OFFICER. The Senator has 1 minute 15 seconds.
  Mr. HATCH. I yield it to the distinguished Senator from Pennsylvania.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I plead with the Members on the other 
side of the aisle to stop this. I have folks on our side of the aisle 
saying: Don't plead with them. Don't plead with them. Let them do it. 
Because we will have our opportunity someday, and we will make sure 
there is not another liberal judge ever, ever, to get on that--no more 
Richard Paezes, no more Ruth Bader Ginsburgs--never, because what is 
good for the goose is good for the gander. Let them up the ante. We 
will take all those activist judges they send up and we will shoot them 
down.
  Is that what they want? Anybody who gives a political opinion in 
America no longer will be eligible for the judiciary. We are going to 
sanitize the judiciary? We are going to send it to ``Mediocrityville''? 
Is that what we really want here?
  Because let me assure you, as I live and breathe, that is what will 
happen. If we keep this up--it is 4 today; it will be 6--in 2 hours it 
will be 6. The Senator from Utah said pretty soon it will be 12. Why it 
is only 4? Because you just started. You always start with 1.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SANTORUM. Stop now. You have a chance to save this country and 
this judiciary. Stop now.
  The PRESIDING OFFICER. The Democrat leader is recognized.
  Mr. DASCHLE. Mr. President, as I understand it, I have 10 minutes.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. DASCHLE. I would ask the Presiding Officer if he could notify me 
when I have used all but 3 minutes.
  Mr. President, I find it remarkable that our colleagues can continue 
to come to the floor these past 40 hours and lament the fact that we 
have had votes on 172 judicial nominees and 4 of them have not been 
confirmed because they have not attained cloture. With passion and with 
emotion they scream out. Where is the fairness for those four nominees, 
they ask. Where is the fairness?
  I find it remarkable that some of the very people who lament not 
getting a vote for those 4 nominees were participants in the effort to 
deny even a hearing to 63 nominees for the bench during the Clinton 
administration. Don't talk to me about the unfairness of a cloture

[[Page 28856]]

vote on the Senate floor. Don't talk to me about cloture. Don't talk to 
me until you talk about those 63 who waited, in some cases 4 years, and 
never got a hearing--or a committee vote.
  Denying consideration of judicial nominees is an ongoing practice 
that our Republican colleagues have been involved in for as long as 
they have been in the Senate. So this extraordinary outcry, this 
emotional fervor that we hear so often on the other side, with their 
misleading charts, does not bear up to the facts.
  You tell those 63 people who have not had even a chance for a vote, 
who should have been confirmed, how it is right for them now not to 
have the jobs for which they work were nominated--you tell them about 
the fairness of those four votes.
  We have done all we can to work with our colleagues to accommodate 
all nominees. We have now spent 40 hours talking about this matter. And 
we have actually spent over 20 days debating judicial nominations since 
the Bush administration has come to office, 20 days debating and 
largely confirming the nominees sent to us from the White House.
  From the beginning of these last 40 hours, our message was really 
very simple: We have confirmed 168 of the 172 nominees to date. We have 
worked with our colleagues on the other side to do as much as we can to 
ensure that they get a fair debate and ultimately an opportunity to be 
voted on, whether it is a cloture vote or an up-or-down vote on this 
Senate floor--unlike what they did on 63 occasions during the Clinton 
administration.
  What we have said over the course of these 40 hours, though, is that 
it is very unfortunate that while we are debating these four jobs, we 
are not debating what the American people care most about. We are not 
debating the fact that 3 million people have lost their jobs, or what 
to do about it. We are not debating the fact that we are not working on 
the things the American people care most about.
  Several times we spoke about the need to pass the highway bill, and 
our Republican colleagues ignored our concerns. Several times we spoke 
about the need to pass the manufacturing jobs credit bill; our 
Republican colleagues ignored our concerns. These are bills that could 
truly provide the opportunity for the unemployed in this country to 
actually acquire a good job and be a little more confident that they 
will have a brighter future.
  Several times we have asked for an increase in the minimum wage by 
unanimous consent so those who are working would get the pay they 
deserve.
  Republicans objected.
  We could have been spending our time a lot more effectively, a lot 
more in concert with the expectations of the American people, but that 
has not been the case.
  We will continue to work with our colleagues, and in those cases 
where we can find agreement, we will continue to confirm most of the 
Bush nominees. But that will not be the case this morning.
  We are now debating three justices who continue to insist on putting 
their own views above the law, to interpret law on their own and 
without regard to judicial precedent.
  As a result, virtually every single women's organization and every 
single civil rights organization in the country has urged the Senate, 
pleaded with all 100 Senators to reject these nominations.
  I am very grateful for the effort made by our Democratic colleagues 
on the Judiciary Committee who have put the time and effort they have 
into analyzing the record of these nominees and have concluded, as I 
have, that they do not warrant confirmation.
  Mr. President, there will come a day, once again, when we can find 
nominees for whom there can be agreement. But until that happens, until 
we have the confidence that we can look upon them with an expectation 
that they will uphold the law, interpret law and not write the law, we 
have no other recourse but to oppose their nominations, as we will this 
morning.
  I yield such time as he may require to the distinguished Senator from 
New York.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Thank you.
  Mr. President, I thank my colleague from South Dakota for once again 
being our leader in every way. We are grateful to him, and I think I 
speak for every Member on this side of the aisle.
  Mr. President, this debate ends as it began, with this one immutable 
fact: 168 to 4; 168 judges confirmed, 4 rejected.
  The other side has spent 39 hours trying to come up with other signs, 
trying to come up with other ways. In reality, this debate has actually 
helped our side because this fact stands out above all others.
  Are we being obstructionist when we approve 168 and reject 4? 
Everyone but the most extreme of Americans say absolutely not. Are we 
violating what the Founding Fathers wanted when they talked about 
advise and consent when we merely blocked 4, 2 percent of the 100 
percent of the judges brought up? Every seventh grader who studies 
constitutional law knows that 168 to 4 is not obstructionist.
  The bottom line is the other side has spent hours on sophistry, 
successful filibusters are wrong, but unsuccessful filibusters are OK 
because they engaged in filibusters on judicial candidates in 2000 and 
1994 and previously. Filibusters of judges are unconstitutional, but 
filibusters of statutes, of laws, of bills are perfectly OK. What 
sophistry.
  The bottom line is that the other side comes up first with the result 
and then tries to make the argument backward. I understand why. The 
small hard-right minority has a scorched earth policy in America. They 
have to get everything their way and then are pushing, pushing, pushing 
the other side. They are saying: Do something. But, frankly, because of 
the wisdom of the Founding Fathers, the Senate still is the cooling 
saucer, and there is nothing they can do.
  This debate has degenerated. To try and get this to be 172 to 0, 
there is name-calling: anti-Hispanic, anti-Black, anti-Catholic. We 
know what low and cheap shots those are. We are opposing judges based 
on their being out of the mainstream, judges who would make law, not 
interpret law. I don't like judges far left or far right who do that.
  Then last night we got from my good friend from Utah, whom I love, he 
says calling for rollcall votes was obstructionist. That is how absurd 
and how frustrated and how piqued the other side has been. Calling for 
rollcall votes on judges is obstructionist? I say to my colleagues, we 
on this side would have rather spent the time debating how to bring 
jobs back to America, how to bring health care to America, how to raise 
the minimum wage.
  But at the end of the day, this exercise, come up in the mind of a 
few, has ended up benefiting us, and there is one solution, I say to my 
good friend from Pennsylvania, who pleads earnestly----
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SCHUMER. To stop this, and that is come talk to us, work with us 
in a bipartisan way, nominate judges both sides can support. Don't say 
my way or the highway and this will stop. But that is the only way to 
stop it.
  Thank you, Mr. President.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, over the past 2 days, the Senate has 
sustained what has truly been an extraordinary, all-hours debate, a 
debate on judicial confirmations and on the very nature of each 
Senator's duty and right to give advice and consent on the nominations 
sent to us by the President of the United States, just as the 
Constitution requires.
  We have placed our differences over the last 39 hours, to paraphrase 
Justice Brandeis, in the disinfectant sunshine of public opinion. This 
continuous debate has been framed by the bipartisan effort on a very 
simple principle; and that is, give us an opportunity for an up vote or 
a down vote, just give us that right to vote.
  We have been focused on the Fifth Circuit Court nominee, Justice 
Priscilla Owen of Texas, who has already

[[Page 28857]]

been denied that simple up-or-down vote on three previous occasions. It 
has been focused on two new circuit court nominees from California, 
Judge Carolyn Kuhl, nominated to the Ninth Circuit Court of Appeals, 
and Janice Rogers Brown nominated to the DC Circuit Court of Appeals.
  We also debated the bipartisan proposal cosponsored by Democrat 
Senator Zell Miller of Georgia to limit the use of the filibuster as to 
all nominations, a proposal that I believe will change the all too 
rancorous way that Washington does business. Indeed, this proposal, 
although more narrow, was based on one previously supported by Senators 
Kennedy, Lieberman, Kerry, and other Democrats.
  The minority has suggested again and again--we heard it just a few 
minutes ago--that we should not have spent this time on this issue of 
the Constitution of the United States of America; that we should not 
have spent this time discussing the unfair treatment of the President's 
nominees. They argue that we should not have spent this time on these 
new judicial nominees that we will be voting on in cloture in just a 
few minutes.
  We simply don't believe that the Senate stewardship, our 
responsibility, that stewardship for the third branch of Government is 
the least of our duties, as is suggested that we should not be spending 
time focused on these issues.
  It is almost as if the other side of the aisle said these issues are 
not important. On the contrary, the Senate stewardship of the 
independent judiciary is perhaps the Senate's most important task. Why? 
Because it is our responsibility. It is not the responsibility of the 
House of Representatives.
  George Washington understood this. He believed the judiciary was the 
most important of the three branches because the courts would protect 
our liberties. But America's courts do much more than that.
  We heard a lot about the economy. We heard a lot about jobs. It is 
our independent judiciary that provides the anchor for America's 
economic strength. It is the stability, and it is the confidence that 
our courts provide that make the United States of America the safest 
location, the best location for domestic investment, for foreign 
investment, whether in industry or commerce, and for the overall 
economy. Why? Because the courts protect those liberties. That means, 
what? More jobs. It means more prosperity for all Americans.
  Our courts guard the rule of law, and to the extent they are free of 
results-oriented politics and other forms of corruption, they are the 
foundation stones that have allowed America's history to unfold 
differently than our sister republics to the south.
  In this past year, Americans have come to understand the influence of 
the courts over our everyday lives, over our daily lives, over our 
national culture in ways that our Founding Fathers would have never 
imagined.
  Of course, the Democrats' complaint that we are spending too much 
time on these issues is a little bit strained in that it is they who 
are filibustering, continuing to debate, denying that opportunity to 
vote yes or no on these nominees. The filibuster rule, when not abused, 
is intended to give the minority more time, to allow more time for 
debate.
  Despite the complaints and the charges back and forth, I do give my 
Democratic colleagues real credit for collegially joining in this 
debate over the last 39 hours. I am enormously proud of my Republican 
colleagues. I believe that both sides should feel a certain degree of 
satisfaction as to how this historic debate has been conducted.
  In the past 2 days, we have debated three nominees who the American 
Bar Association considers qualified to serve on the appellate court but 
who a Democrat minority considers out of the American mainstream. How 
many times have we heard that over the last 39 hours--``out of the 
mainstream.''
  I can tell you I don't think the minority has argued effectively or 
persuasively how Justice Owen, who was elected to the Texas Supreme 
Court by 83 percent of Texas voters, is out of the mainstream. Out of 
the mainstream, Justice Brown. Out of the mainstream when she was 
retained to serve by 76 percent of California voters? Is that out of 
the mainstream?
  They have certainly not convinced any fairminded person how it is 
that Judge Carolyn Kuhl--who has the support of over 100 California 
judges and labor unions across the political spectrum, and yes, even 
trial lawyers--cannot serve on that Ninth Circuit, that really 
worrisome Ninth Circuit Court that declared the Pledge of Allegiance 
unconstitutional.
  What we have seen, and the reason this debate is historic is that it 
underscores and it lets the American people know, as well as restates 
the importance of the issue, that over the past year, the minority has 
used the filibuster to deny a bipartisan majority the opportunity to 
vote up or down, to give advice and consent. Let me say that again.
  A minority, for the first time in history--it happened this year--for 
the first time in history, a minority in this body is using the 
filibuster to deny a bipartisan majority the opportunity to vote yes or 
no.
  It has come up that while majorities have delayed judges in the past 
through the majority's delegation to the Judiciary Committee, votes on 
judges have never before been blocked by a minority. Of course, this 
debate has been more than about Senate procedure. In effect, what we 
have seen over the last year is the minority is, in effect, amending 
the people's Constitution without the people's assent. The reason for 
this is now well know.
  Senate liberals have sought with increasing intensity to politicize 
not just the confirmation process, but the courts themselves. In 
pursuing this course, they are threatening the legitimacy of America's 
courts. That legitimacy comes from much more than just black robes or a 
high bench. It comes from the people's belief that judges will apply 
the law or the Constitution without regard to personal politics.
  Rather than seeking to determine the judiciousness of a nominee and 
whether a nominee will be able to rule without bias, liberal Democrats 
are out to guarantee that our judges are, in fact, biased against some 
and in favor of others. In America, with that result, citizens will 
have to worry about the personal politics of the judge before whom they 
come for justice. I say judiciousness, why?
  Like other Senators this year faced with the question of what is 
required by the Constitution's mandate that the Senate give the 
President advice and consent, I have turned for guidance to the 
Founding Fathers and especially to the father of the independent 
judiciary, John Adams, to find that correct standard by which we give 
advice and consent on a judicial nominee.
  President Adams, the father of our independent judiciary, 
memorialized for us what the standards should be for confirming our 
judges. He wrote that they should be ``men [and women] of experience on 
the laws, of exemplary morals, invincible patience, unruffled calmness, 
and indefatigable application who will be appointed for life and 
subservient to none.''
  President Adams understood well enough the challenge of being 
judicious despite one's opinions and even in the face of unpopular 
opinion. Few people remember it was John Adams who defended the British 
soldiers who, on March 5, 1770, shot into a crowd on the streets of 
Boston. Our children study this episode today as the Boston massacre. 
It is a history lesson we can learn from in our work and on judicial 
nominations.
  John Adams defended the British soldiers before a Boston court with 
angry mobs in the street.
  I will close in a second. I will speak on leader time for the next 
minute.
  I have to wonder, Mr. President, if today John Adams would be 
obstructed by filibuster because an out-of-touch minority, urged on by 
special interest groups, questions John Adams' qualifications based on 
his past advocacy simply for being a good lawyer defending a client, 
however politically unpopular.

[[Page 28858]]

  In a few minutes, the filibustering minority will have another 
opportunity to stand in the light of the Senate floor and do the right 
thing. I say to the minority: Give these nominees a vote. Vote them up 
or vote them down, but just give them an honest up-or-down vote.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. DASCHLE. Mr. President, I will use leader time first to engage in 
a brief colloquy with the distinguished majority leader with regard to 
the schedule for the remainder of the day. I wonder if he can inform us 
as to what his intentions are with regard to schedule.
  Mr. FRIST. Mr. President, I will be happy to talk during the votes 
with the leadership on the other side. My intent would be to have these 
three consecutive cloture votes and then after that have no other votes 
today. Before saying that with definitiveness, I would like to have a 
discussion with the minority leader, if there is other business he 
would like to bring to the floor as well.
  We likely will have other business following that. Again, I expect no 
rollcall votes after these three votes.
  Mr. DASCHLE. I thank the majority leader.
  Mr. President, I also note at the end of this period of time, we have 
been here now for about 40 hours. It is probably not accurate to say we 
have all been here for 40 hours. Some of us had the luxury of coming 
and going, but there have been a lot of staff on the Senate floor, in 
our cloakrooms, in the Sergeant at Arms Office, our Capitol Police, all 
of our clerks--the extraordinary effort that they have made in these 
last 40 hours should be recognized.
  I know I speak for all of our colleagues on both sides of the aisle 
in expressing our heartfelt gratitude to all of them. Once again, they 
have exceeded our expectations, and we are grateful for their 
dedication and professionalism during these difficult days.
  I yield the floor.

                          ____________________




NOMINATION OF PRISCILLA RICHMAN OWEN, TO BE UNITED STATES CIRCUIT JUDGE 
                         FOR THE FIFTH CIRCUIT


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, pursuant to rule 
XXII, the Chair lays before the Senate the pending cloture motion, 
which the clerk will report.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 86, the nomination of Priscilla Richman Owen, of 
     Texas, to be United States Circuit Judge for the Fifth 
     Circuit.
         Bill Frist, Orrin Hatch, Lindsey Graham, Mike Crapo, Jeff 
           Sessions, Conrad Burns, Larry E. Craig, Saxby 
           Chambliss, Mitch McConnell, Jim Bunning, Judd Gregg, 
           John Cornyn, Jon Kyl, Trent Lott, Mike DeWine, Craig 
           Thomas, Kay Bailey Hutchison.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call is waived.
  The question is, Is it the sense of the Senate that debate on 
Executive Calendar No. 86, the nomination of Priscilla Richman Owen, of 
Texas, to be United States Circuit Judge for the Fifth Circuit, shall 
be brought to a close? The yeas and nays are mandatory under the rule. 
The clerk will call the roll.
  Mr. REID. I announce that the Senator from Delaware (Mr. Carper), the 
Senator from North Carolina (Mr. Edwards), the Senator from Hawaii (Mr. 
Inouye), the Senator from Massachusetts (Mr. Kerry), and the Senator 
from Florida (Mr. Nelson) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Delaware (Mr. Carper) and the Senator from Massachusetts (Mr. Kerry) 
would each vote ``nay.''
  The PRESIDING OFFICER (Mr. Chafee). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 53, nays 42, as follows:
  The result was announced--yeas 53, nays 42, as follows:

                      [Rollcall Vote No. 450 Ex.]

                                YEAS--53

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--42

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Jeffords
     Johnson
     Kennedy
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--5

     Carper
     Edwards
     Inouye
     Kerry
     Nelson (FL)
  The PRESIDING OFFICER. On this vote, the ayes are 53, the nays are 
42. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is not agreed to.

                          ____________________




NOMINATION OF CAROLYN B. KUHL TO BE UNITED STATES CIRCUIT JUDGE FOR THE 
                             NINTH CIRCUIT


                             cloture motion

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture.
  The legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 169, the nomination of Carolyn B. Kuhl, of 
     California, to be United States Circuit Judge for the Ninth 
     Circuit.
         Bill Frist, Orrin G. Hatch, Lindsey Graham, Mike Crapo, 
           Jeff Sessions, Conrad Burns, Larry E. Craig, Saxby 
           Chambliss, Mitch McConnell, Jim Bunning, Judd Gregg, 
           John Cornyn, Jon Kyl, Trent Lott, Mike DeWine, Craig 
           Thomas, Kay Bailey Hutchison.

  Mr. LEAHY. Mr. President, I want to commend the Senators from 
California for their leadership in connection with this matter.
  Today, the Senate is considering the nomination of California Judge 
Carolyn Kuhl to the U.S. Court of Appeals for the Ninth Circuit. In 
accordance with Republican practices during the period 1995-2000, this 
nominee would have never come to the Judiciary Committee for a hearing 
in the first place and would never have been voted upon by the 
Judiciary Committee. This consideration on the Senate floor today 
underscores the President's refusal effectively to consult with the 
home-State Senators from California, both of whom oppose this 
nomination. In fact, this vote is the culmination of a year in which 
the President's disregard for home-State Senators and the Republican 
majority's disregard of past practices to achieve their partisan 
political objectives could not be more calculated.
  Judge Kuhl's appearance before the Judiciary Committee, despite the 
clearly stated opposition of Senator Boxer, was only one in a string of 
transparently partisan actions taken by the Senate's Republican 
majority since the beginning of this Congress. In each of these 
actions, Republicans have done something they never did while in the 
majority from 1995 to 2000. Throughout the course of this year, they 
have continued to ratchet up their unprecedented partisanship and the 
use of judicial nominees for partisan political purposes.
  The Republican majority took a step on the nomination of Judge Kuhl 
that was unprecedented for this Chairman. They scheduled a hearing for 
a nominee who did not have approval from

[[Page 28859]]

both of her home-State Senators, a nominee for whom both blue slips 
were not returned positively. There is not a single example from 1995 
through 2000, when the President was a Democratic President, and when 
Republican Senators were objecting, when the Judiciary Committee held a 
hearing on a judicial nominee over the objection of a home-state 
Senator.
  Senate Republicans should remember that when the nomination of Ronnie 
White of Missouri was finally voted upon in 1999, all Republicans, in 
an unprecedented party-line vote, defeated that nomination. Several 
Republican Senators who had voted in favor of Justice White when he was 
considered by the Committee changed their positions and voted against 
his confirmation. The facts are that, at the time of his hearing, the 
senior Senator from Missouri supported the nomination and endorsed him 
at his hearing, and the junior Senator did not object to the hearing. 
Senator Ashcroft then chose to vote against the nomination. On the eve 
of the vote on the nomination, Senator Bond changed his position and 
decided to join Senator Ashcroft in opposing the nomination.
  In connection with that vote, Senator Hatch said that if both home-
State Senators had opposed the nomination earlier, it would never have 
proceeded. He told the Senate: ``[H]ad both home-State Senators been 
opposed to Judge White in committee, Judge White would never have come 
to the floor under our rules. I have to say, that would be true whether 
they are Democrat Senators or Republican Senators. That has just been 
the way the Judiciary Committee has been.''
  The Ronnie White nomination is not an example of a previous time that 
the Committee and the Senate proceeded over the objections of home-
state Senators. To the contrary, it is precisely the opposition, a 
clear precedent the other way.
  While it is true that various Chairmen of the Judiciary Committee 
have used the blue-slip in different ways, some to maintain unfairness, 
and others to attempt to remedy it, it is also true that each of those 
Chairmen was consistent in his application of his own policy--that is, 
until the Kuhl hearing. That was the first time that this Chairman ever 
convened a hearing for a judicial nominee who did not have two blue 
slips acceding to a hearing.
  This Republican President's choice of Carolyn Kuhl for a vacancy on 
the Ninth Circuit is a divisive and political choice. As a lawyer in 
the Reagan Administration, a lawyer in private practice, and as a state 
court judge, Judge Kuhl has demonstrated an extreme philosophy that 
threatens the rights and interests of Americans, particularly women's 
rights, other civil rights, and access to justice. Among other 
significant cases, Judge Kuhl spearheaded an effort to reverse the 
Reagan Administration's policy on tax-exempt status for racially 
discriminatory private schools, including Bob Jones University. She has 
also consistently advocated against women's rights and reproductive 
rights--from aggressively pushing the Justice Department to argue for a 
reversal of Roe v. Wade, to arguing for limits on the reach of sexual 
harassment laws, to rulings as a judge which raise concerns about her 
commitment to privacy rights.
  This nomination has generated widespread opposition and requests that 
the Senate not consent to her confirmation. Among the many membership 
organizations that have written in opposition are: Seven members of the 
California Assembly Committee on the Judiciary, California Women 
Lawyers, the Japanese American Citizens League, the Leadership 
Conference on Civil Rights, People for the American Way, Planned 
Parenthood Federation of America, Taxpayers Against Fraud and many, 
many more.
  I suspect we will hear these groups, and the others who oppose the 
President's nomination of Judge Kuhl, vilified as members of some left-
wing conspiracy, intent on sinking each and every nominee, no matter 
what their views. But I would like to remind those who would raise that 
argument, as I have before, that these organizations represent millions 
of citizens with legitimate concerns about the direction of the 
judiciary in this country. I appreciate their willingness to 
participate in the process and their refusal to be intimidated into 
silence. The Washington Times has conceded that ``President Bush has 
seen more of his appeals court nominees confirmed by the Senate at this 
point in his term than any other president since at least the 1970s.'' 
When I was Chairman of the Judiciary Committee during the 107th 
Congress, the Senate confirmed 100 of this President's nominees. So far 
this year, the Senate has confirmed 68 additional judges nominated by 
President Bush. The Senate has now confirmed 168 of the Bush judicial 
nominees. That is more confirmations than in all of President Reagan's 
first term and more judges in one year than were confirmed during all 
of 2000, 1999, 1998, 1997, 1996 or 1995.
  Among those 168 confirmations are 29 circuit judges. That is more 
circuit judges at this point in his presidency than were confirmed for 
President Reagan, President Bush or President Clinton. So far this year 
the Senate has confirmed 12 circuit court judges. In the comparable 
year of 1999, Republicans allowed only 7 circuit court judges to be 
confirmed all year.
  Four of President Bush's nominees to the Ninth Circuit Court of 
Appeals have already been confirmed. Richard Clifton was given a 
hearing and confirmed under Democratic leadership. Just this year, the 
Senate has confirmed two additional Ninth Circuit nominees, one of 
whom, Jay Bybee, was quite controversial. Just before the Memorial Day 
recess, Democratic Senators expedited and encouraged the Majority 
Leader to allow a vote on the nomination of Judge Consuelo Maria 
Callahan, a consensus nominee with support from both home-State 
Senators. And, in September, Democratic Senators supported the 
nomination of Judge Carlos Bea, another nominee with support from both 
home-State Senators.
  Unlike the divisive nomination of Judge Kuhl, both home-state 
Senators supported the nominations of Judge Callahan and Judge Bea. 
Rather than disregarding time-honored rules and Senate practices, my 
friends on the other side of the aisle should help us fill more 
judicial vacancies more quickly by bringing those nominations that have 
bipartisan support to the front of the line for Committee hearings and 
floor votes.
  Republican Senators have been claiming that there have never been 
filibusters of nominees before and arguing that every nominee always 
gets a Senate up or down vote. That was certainly not the case for 63 
of President Clinton's judicial nominees and for hundreds of his 
Executive Branch nominees. Such a claim is so contrary to history it is 
breathtaking in its boldness. On a single day in 2000, the Senate had 
to invoke cloture to stop Republican filibusters of the nominations of 
Judge Richard Paez and Marsha Berzon. Republicans also unsuccessfully 
filibustered Judge Rosemary Barkett and Judge H. Lee Sarokin in 1994. 
They successfully filibustered Executive Branch nominees such as 
ambassadorial nominees and the nomination of a Surgeon General, and the 
list goes on and on. I have spoken about them before.
  This White House has been the most aggressive in recent history in 
its efforts to pack the federal courts and tilt it sharply toward a 
narrow ideology. The most extreme of the Administration's nominees are 
not being approved. We are seeking to maintain the independence of the 
Federal judiciary and to protect the rights of Americans in so doing. 
The Administration and its supporters have taken to using these 
nominations as partisan matters and to drive wedges between Americans. 
I have urged that the President be a uniter rather than a divider on 
this important lifetime nominations, but my voice has been ignored.
  The provocative steps taken by the White House and Senate Republicans 
have broken new grounds in politicizing the Federal judiciary. The 
Republican majority has shown a corrosive and raw-edged willingness to 
change, bend and even break the very same rules that they took 
advantage of

[[Page 28860]]

when the judicial nominees involved were a Democratic President's 
choices.
  One of Carolyn Kuhl's most notorious decisions as a lawyer in the 
Reagan Justice Department is among her most troubling. As a political 
appointee serving directly under the Attorney General of the United 
States, she spearheaded an effort in the Reagan Administration to 
reverse position in the Bob Jones University case. This was the case 
challenging IRS rules denying tax-exempt status to schools that 
racially discriminate.
  In 1981, the IRS rules were challenged by Bob Jones University, which 
wanted to keep avoiding their tax responsibilities despite a policy 
prohibited interracial dating. When the school took this issue to the 
Supreme Court in 1981, the Reagan Justice Department was prepared to 
defend the rules, as is its duty. But in January 1982, the government 
suddenly changed its position, and argued that the IRS had no legal 
authority to deny tax-exempt status and agreed to give Bob Jones, 
despite its blatant policies of racial discrimination, the tax 
exemption.
  Then-Congressman Trent Lott, supported by Senator Strom Thurmond, was 
pivotal in the lobbying effort to change the government's position, and 
then-Special Assistant to the Attorney General Carolyn Kuhl concurred. 
This decision was so outrageous that more than 200 career lawyers in 
the Justice Department's Civil Rights Division objected to the change 
of position in a letter to their Assistant Attorney General.
  According to records of Congressional hearings on the topic and a New 
York Times article written at the time, Carolyn Kuhl was one of three 
people characterized as ``a band of young zealots'' at work as 
political appointees at the Department of Justice, and part of the 
``Bob Jones team'' who opposed the overwhelming sentiment and ``pressed 
for the legal switch to give Bob Jones its tax exemption.'' Indeed, 
Carolyn Kuhl and Charles Cooper, then-Special Assistant to Attorney 
General William French Smith, co-authored a 40-page memorandum to Civil 
Rights Division Head William Bradford Reynolds strenuously arguing that 
``the [IRS] Commissioner's Ruling denying tax-exempt status to racially 
discriminatory private educational institutions is supported by neither 
the language nor the legislative history of Section 501(c)(3)'' and 
that the IRS should therefore ``reverse its position'' in the case and 
``accord tax-exempt status'' to Bob Jones.
  The Supreme Court, in an 8-1 ruling, repudiated Carolyn Kuhl's 
position and denied the school tax-exempt status. Chief Justice Warren 
Burger wrote for the majority, ``[a]n unbroken line of cases following 
Brown v. Board of Education establishes beyond doubt this Court's view 
that racial discrimination in education violates a most fundamental 
national public policy, as well as rights of individuals.''
  It is interesting to note that the reason we know so much about Judge 
Kuhl's advocacy on behalf of schools like Bob Jones is because of 
internal Justice Department documents turned over to the Senate Finance 
Committee in February of 1982. At that time, in the wake of the Reagan 
Administration's switch in position, the Committee held a hearing to 
consider a legislative fix to the problem. A number of Justice 
Department memoranda as well as communications between high-level 
officials were turned over to the Committee in connection with the 
hearing, just months after the documents were first written. The House 
Ways and Means Committee held a similar hearing on February 4, 1982. 
Among the documents turned over to these Congressional committees was a 
memo written by Carolyn Kuhl on December 8, 1981 to Ken Starr noting 
Reagan/Bush campaign statements on private schools and a memorandum 
written by Carolyn Kuhl and Charles Cooper, one of the other members of 
the ``Bob Jones team,'' to Civil Rights Division Head Reynolds 
regarding the Bob Jones case.
  At her hearing, Judge Kuhl conveniently told us that she regretted 
having taken the position she did at the time. Although it was the 
first time she had ever said so publicly, at her hearing, she claimed 
that in 1982 she had been concerned about the implications the Bob 
Jones policy would have on all-girls' schools. This concern was not 
reflected in her memos at the time, and has not been heard in any other 
context. But, taking her at her word that this was truly a concern, the 
explanation she gave at her hearing is still very interesting. She 
said, and I'll quote her, ``I had attended an all-girls' school and I 
did not want to see a precedent created that would have meant that tax 
exemptions could be taken away from all-girls' schools because they 
discriminated against men.'' In other words, she advocated helping a 
school that was racially discriminatory because of her personal 
affinity for her alma mater. Either way, whether or not you believe her 
newly articulated explanation, her responses on this issue raise as 
many questions as they answer.
  Judge Kuhl also contended at her hearing that her advocacy on behalf 
of Bob Jones University should be excused because of her relative youth 
and inexperience. This too seems a convenient explanation. She 
describes herself as someone two and a half, maybe three years out of 
law school with no decision making authority, painting the picture of a 
naive young attorney with no influence over such important decisions. 
But this was 1982, five years after her graduation from law school, and 
she had proven herself enough to have landed one of the most prized 
jobs for a political appointee with a law degree: Special Assistant to 
the Attorney General of the United States. She doubtless had daily 
personal contact with the nation's highest law enforcement officer, and 
as his protege represented his position to the very influential people 
serving under him, including Solicitor General Charles Fried and Head 
of the Civil Rights Division William Bradford Reynolds. While I accept 
the contention that she was not the final decision maker on the Bob 
Jones matter, the facts lead me to believe that her arguments were 
taken seriously and held more than a little weight. I think Judge Kuhl 
underestimated the esteem in which her legal abilities were held. 
Indeed, only a few years later, she became the Deputy Assistant 
Attorney General in the Civil Rights Division, with managerial 
responsibilities for hundreds of attorneys.
  I would argue that Judge Kuhl's participation in this case exceeded 
an attorney's obligation to be a zealous advocate. Rather, her 
aggressive involvement surely helped build momentum behind the drastic 
change in position the Justice Department would take. But the 
substantive weakness of her argument in the face of legal precedent 
only underscores how political and results-oriented it was. So thin was 
her case that it caused the New York Times to wonder ``How could any 
president be given such incompetent legal advice? How could lawyers for 
the U.S. Government stray so far from the mainstream of the Country's 
understanding on the racial issue? How could a president at this stage 
in our history play with the issue for political reasons?'' Judge Kuhl 
cannot so easily explain this away.
  When she was Deputy Solicitor General in the Reagan Justice 
Department, Carolyn Kuhl tried to persuade the U.S. Supreme Court to 
eliminate its ``associational standing'' doctrine in United Automobile 
Workers Union v. Brock, 477 U.S. 274 (1986). In this case, the 
International Union, United Automobile, Aerospace and Agricultural 
Implement Workers of America (UAW) challenged the Secretary of Labor's 
interpretation of provisions of the Trade Act which would have deprived 
the union members of certain benefits--benefits available to assist 
workers laid off because of competition from imports. The issue on 
appeal to the U.S. Supreme Court was whether the UAW had standing to 
sue in federal court on behalf of its affected members.
  Although Judge Kuhl stated at her hearing that she was not on the 
brief in this case, she later revised her testimony in written answers, 
saying that she had confused this case with another. Although she was 
still not completely forthcoming in her responses, I

[[Page 28861]]

discovered that she was in fact one of five high level officials on the 
brief and that she argued the case before the U.S. Supreme Court in 
March 1986.
  In her arguments, she urged the Supreme Court to eliminate the 
doctrine of representative standing in favor of requiring organizations 
to meet the requirements for class certification under Rule 23 of the 
Federal Rules of Civil Procedure. But, she then also admitted that the 
government would oppose a request for class certification in this case. 
She stated in her brief that the Supreme Court should ``reconsider the 
doctrine in light of the practical and analytical difficulties it 
presents'', and that the doctrine was not of that ``longstanding 
effect.'' A significant portion of her brief was devoted to the more 
far-reaching arguments of why the doctrine of representative standing 
should ``not be recognized'' and why the class action provisions should 
be applied instead.
  The majority of the Supreme Court rejected her arguments and 
concluded that the government's presentation ``has fallen far short of 
meeting the heavy burden of persuading us to abandon settled principles 
of associational standing.'' Id. at 290.
  The doctrine of representative standing allows unions, environmental 
organizations, business groups, and others to protect the interests of 
their members in court. Elimination of the doctrine would greatly 
impede the ability of organizations to represent their members. For 
this reason, a diverse group of organizations, including the U.S. 
Chamber of Commerce and the AFL-CIO filed an amicus brief opposing 
Kuhl's position in the case.
  Judge Kuhl's arguments in this case raise concerns about whether she 
would protect the rights of working men and women or curtail access to 
the courts for such individuals. In addition to this case, as a judge 
on the state court, she has issued troubling decisions with regard to 
the rights of working Americans and access to justice, such as a case 
in which she found that a woman target of a SLAPP (Strategic Lawsuit 
Against Public Participation) suit was not entitled to recover 
attorneys' fees for successfully defending against the suit--a decision 
which was unanimously reversed by the appellate court.
  Other cases in which Judge Kuhl was involved with while at Justice 
demonstrate that on issues related to privacy and women's rights she 
clearly has an ideological agenda. As Deputy Solicitor General, Kuhl 
co-authored the Reagan Administration's amicus brief in Thornburgh v. 
American College of Obstetricians and Gynecologists, urging the Supreme 
Court to uphold Pennsylvania's severe restrictions on abortion, 
including prosecution of doctors. Her view on the matter is documented 
not only in the brief, but also by her boss at the time, Charles Fried, 
then-Solicitor General, who recounts in his memoirs that, ``[t]he most 
aggressive memo [about Roe v. Wade] came from my friends Richard 
Willard and Carolyn Kuhl, who recommended that we urge outright 
reversal of Roe.''
  In that brief, Kuhl argued that the courts below placed too much 
emphasis on the woman's right to privacy. Moreover, the brief discusses 
issues beyond the merits of the particular case and urged the Supreme 
Court to abandon its principles of stare decisis and overturn settled 
law. In a 6-3 decision, the Supreme Court also rejected that call.
  As Deputy Solicitor General, Carolyn Kuhl argued for an extremely 
narrow legal definition of sexual harassment in the landmark case of 
Meritor Savings Bank v. Vinson. A female employee, Mechelle Vinson, 
filed suit against her supervisor and the bank that employed her, 
alleging that the supervisor had sexually harassed her and that she had 
been terminated when she refused him, violating her rights under Title 
VII of the Civil Rights Act. Kuhl's brief for the Reagan Administration 
argued that Ms. Vinson's claim should be dismissed because her conduct 
had been found by the trial court to be voluntary. The Supreme Court 
found the opposite, and held that the claim could go forward no matter 
the characterization of Ms. Vinson's conduct, as long as the sexual 
attention she was getting, described by the court as ``appalling'' and 
``especially egregious,'' was unwelcome.
  It would have been bad enough that Judge Kuhl had taken this position 
as a political lawyer at the Justice Department, trying to narrow the 
rights of victims of sexual harassment as part of the Reagan agenda, 
but even worse and more puzzling, was her explanation of the case at 
her hearing.
  Just as she articulated a never-before heard explanation for her 
position in the Bob Jones case, Judge Kuhl told us at her hearing that 
she was ``very happy'' with the decision, and that the Supreme Court's 
reasoning ``tracked'' the brief she wrote. She dismissed Senator 
Feinstein's concerns that the Justice Department had declined to accept 
the unwelcomeness standard adopted by the Supreme Court, brushing her 
off with a vague mention of the question of the voluntary nature of Ms. 
Vinson's behavior. This explanation is mystifying, and sounds to me 
like an attempt to put a positive spin on an issue she knew Democratic 
Senators would view with suspicion. She knew that those of us concerned 
with allowing victims of discrimination an opportunity for redress 
would have problems with her brief in Meritor Savings, and she fudged 
an answer to try to look like she agreed with us. Such obfuscation 
should not be allowed to succeed. I would have preferred it if she had 
been up front with us about her brief and its relationship to the 
Court's decision.
  Judge Kuhl's record on the state bench offers another example of her 
troubling views on privacy. In the recent case of Sanchez-Scott v. Alza 
Pharmaceuticals, et al., Judge Kuhl's decision to dismiss a claim for 
invasion of privacy brought by a cancer patient against her doctor and 
a pharmaceutical company was reversed by the appellate court. The 
plaintiff, a patient undergoing chemotherapy for breast cancer, was 
examined by her oncologist, Dr. Monty Polonsky, in the presence of an 
unidentified man who turned out to be a representative of a 
pharmaceutical company.
  The complaint stated that the doctor introduced the man, a Mr. 
Martinez, as, ``a person . . . who was looking at Dr. Polonsky's 
work,'' but no further details about his identity were provided. During 
the course of the physical, Ms. Sanchez-Scott felt warm and began to 
use a pocket fan to cool herself. The doctor took the fan from the 
plaintiff and gave it to Mr. Martinez so he could fan the plaintiff 
because, as he told her, ``[i]t would give him something to do.'' Then, 
the doctor and Mr. Martinez began to laugh at the plaintiff, who became 
very uncomfortable and asked for the fan back, saying she could fan 
herself. Mr. Martinez refused and continued to fan her. Dr. Polonsky 
examined Ms. Sanchez-Scott while she was undressed from the waist up, 
while Mr. Martinez sat beside the examining table and watched. Only 
when she went to the reception desk after her exam was over did Ms. 
Sanchez-Scott learn that Mr. Martinez was a drug salesman, and not a 
trained medical professional. Ms. Sanchez-Scott explained that she felt 
uncomfortable and embarrassed and cried from shame and anger once she 
left the doctor's office.
  Judge Kuhl found that the plaintiff could not sustain an action for 
an invasion of privacy against the doctor because what happened to her 
did not meet the test of being ``highly offensive to a reasonable 
person.'' She reasoned that Ms. Sanchez-Scott had been introduced to 
Mr. Martinez, knew he was there and could have made further inquiry 
about who he was or object to his presence. She also found relevant 
that there was no touching, and that nobody else found out about the 
presence of the drug salesman in the exam room. She also explained that 
because the patient would not have a reasonable expectation that a 
medical procedure would only be observed by a doctor, there could be no 
expectation of privacy. The appellate court ridiculed her reasoning and 
allowed the plaintiff to continue with her invasion of privacy claims 
against her doctor.
  Again, at her hearing, Judge Kuhl's answers were misleading. When 
questioned about this case by Senator Durbin, Judge Kuhl tried to make 
herself

[[Page 28862]]

seem sympathetic to Ms. Sanchez-Scott's plight. She told Senator Durbin 
that she could understand why the plaintiff was upset, that she had 
good reason to be upset. But Judge Kuhl misstated crucial facts about 
the case that would have shed a clearer light on her legal ruling. She 
told Senator Durbin that the plaintiff's claim for invasion of privacy 
against the doctor was permitted to go forward, an assertion that is 
simply not true. Later, in a letter to Senator Hatch, she did correct 
herself, but the impression she tried to leave at the hearing was 
contrary to the facts. If her ruling in the Sanchez-Scott case had been 
allowed to stand, the case against the doctor for an invasion of 
privacy would not have been able to go forward. I know this sounds like 
nitpicking about a minor procedural issue, but it is more than that. It 
is about her sensitivity to privacy issues, her ability to follow the 
law, and her pattern of trying to spin her negative positions to her 
benefit at her hearing.
  Ms. Sanchez-Scott does not see it as nitpicking either. In a letter 
she wrote to the Committee about her experience in Judge Kuhl's court, 
she expresses her opposition to rewarding the judge with a promotion to 
the federal court. She tells us that, ``[a]s a cancer survivor, I 
trusted that my doctor would make decisions in my best interest . . . I 
was . . . shocked and dismayed that Judge Kuhl determined that I, not 
the doctor, had the obligation to protect my privacy in his exam 
room.''
  This President talked about being a uniter, not a divider, yet he has 
failed to work with all home-State Senators to identify qualified 
candidates who can be supported by both sides. A recent opinion piece 
in the Washington Post had it right when it said that rather than 
promoting ``bipartisanship,'' which this President said he wanted, he 
has instead promoted ``hyper-partisanship.'' I hope--for the sake of 
our country and the independence of the judiciary--that the White House 
and the Senate majority decide to work with Democratic Senators to 
identify qualified, mainstream nominees who can be supported by all 
sides and to abandon their quest to pack the circuit courts with 
activists and ideologues.
  I ask unanimous consent that several letters in opposition be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       California Legislature,

                                Sacramento, CA, February 11, 2003.
     Re Oppose the nomination of Carolyn Kuhl to the Ninth Circuit 
         Court of Appeals.

     Hon. Dianne Feinstein,
     U.S. Senate, Hart Office Building, Washington, DC.
       Dear Senator Feinstein: We are writing as members of the 
     Judiciary Committee of the California Assembly to urge you to 
     oppose the nomination of Judge Carolyn Kuhl to serve on the 
     Ninth Circuit Court of Appeals. We believe that Judge Kuhl's 
     record indicates that her opinions would potentially threaten 
     laws protecting California's environment and civil rights, 
     and the rights of our citizens to privacy and reproductive 
     choice. As part of President Bush's effort to nominate 
     numerous ultra conservative judges to lifetime positions on 
     the federal bench, this nomination represents an unacceptable 
     risk to our state and the nation.
       Judge Kuhl's nomination is opposed by more than 40 
     organizations representing civil rights, religious, 
     environmental, reproductive rights and labor organizations, 
     including the Sierra Club, National Organization for Women, 
     California Abortion Rights Action League, National Women's 
     Law Center, People for the American Way, and the Alliance for 
     Justice among others. Their concerns run the gamut from Judge 
     Kuhl attempting to close off access to the courts by 
     overturning the doctrine of associational standing (the right 
     of organizations to file suit on behalf of their members), to 
     convincing the Reagan administration during her tenure with 
     the Justice Department of attempt overturning Roe v. Wade. As 
     a private attorney she argued in support of regulations 
     prohibiting doctors and health care professionals at 
     federally-funded clinics from counseling women about 
     abortion, or even informing them that abortion was a legal 
     medical option.
       Still other of Judge Kuhl's positions show just how far she 
     is from the mainstream of legal thought on issues of concern 
     to most Californians. For example, Judge Kuhl was one of two 
     Justice Department officials who convinced the Attorney 
     General to reinstate the tax exempt status for the 
     segregationist Bob Jones University. This position was 
     opposed--in writing by more than 200 lawyers in the Justice 
     Department's civil rights division, and was even opposed by 
     President Reagan's Solicitor General, Ted Olson.
       As a California state trial court judge, Judge Kuhl has not 
     generally written published decisions. However, several 
     published cases cause us concern about her willingness to 
     protect the basic rights of individuals. For example, in one 
     case Judge Kuhl dismissed a breast cancer patient's claim of 
     invasion of privacy after her doctor brought drug company 
     representative into the room during a breast exam. This 
     ruling was reversed on appeal. In still another controversial 
     decision, Judge Kuhl dismissed a case brought under 
     California law enacted to prevent suits against 
     whistleblowers and others acting in the public interest. The 
     California appellate court again reversed Judge Kuhl's 
     decision calling it ``a nullification of an important part of 
     California's anti (abusive lawsuit) legislation.''
       Finally, in her career Judge Kuhl has been aligned with 
     some of the most ideologically intransigent and far-right 
     elements of the Republican Party. She is a member of the 
     Federalist Society, which seeks to establish an ultra-
     conservative federal bench. We believe that placing Judge 
     Kuhl on the Ninth Circuit Court of Appeals would be a grave 
     error that would threaten California law and place a 
     relatively young and ultra-conservative jurist in a lifetime 
     position on one of the most important courts (after the 
     Supreme Court) for our state. We urge you to oppose her 
     nomination as forcefully as possible.
       I thank you for considering our views.
           Sincerely yours,

                                                Ellen Corbett,

                                         Chair, Assembly Committee
     on Judiciary.
                                  ____



                                     California Women Lawyers,

                                   Sacramento, CA, March 26, 2003.
     Re opposition--Carolyn Kuhl appointment.

     Senator Dianne Feinstein,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Feinstein: I am writing on behalf of 
     California Women Lawyers (CWL) to inform you of CWL's 
     opposition to the confirmation of the nomination of Los 
     Angeles Superior Court Judge Carolyn Kuhl to the Ninth 
     Circuit Court of Appeals. As you may know, CWL is a statewide 
     organization of women attorneys dedicated to advancing the 
     interests of women, both in the legal profession, and in 
     society, through education, legislation and advocacy. CWL 
     supports a fair and balanced judicial nominating process and 
     process and opposes an extreme right-wing federal bench 
     engaged in ultra-conservative judicial activism.
       CWL supports the appointment of federal judges who are 
     open-minded, view the constitution as a living document and 
     who are committed to the role of federal courts in protecting 
     civil rights and individual liberties, and in guaranteeing 
     due process, equal protection of the law, the right of 
     privacy and access to justice. We believe that Judge Kuhl's 
     record indicates she is unsuited for a position on the Ninth 
     Circuit bench.
       Judge Kuhl is a longtime member of The Federalist Society 
     and adheres to the ultraconservative philosophy espoused by 
     that group. While working at the Department of Justice, Ms. 
     Kuhl vigorously supported tax-exempt status for Bob Jones 
     University, despite its history of racial discrimination. Ms. 
     Kuhl has also argued in favor of overturning Roe v. Wade, as 
     well as onerous regulations burdening abortion rights. While 
     on the Superior Court bench, her decisions have been reversed 
     by the California Courts of Appeal for restricting the rights 
     of individuals to sue to protect their privacy and to protect 
     themselves from harassment suits under California law 
     decisions which she based on her narrow interpretation of 
     statutes which clearly favor such individual rights.
       Ms. Kuhl's record reveals that she is wedded to an 
     extremist philosophy that is far removed from the beliefs of 
     most Americans. Our nation deserves a federal court pledged 
     to upholding constitutional rights secured through Supreme 
     Court precedents and embodied in civil rights statutes. CWL 
     therefore urges you to not support Ms. Kuhl's nomination.
           Sincerely,
                                                   Andrea Carlise,
     CWL President.
                                  ____

                                             Leadership Conference


                                              on Civil Rights,

                                      Washington, DC, May 7, 2003.
     Re Oppose the confirmation of Carolyn Kuhl.

     Hon. Orrin G. Hatch,
     Chair, Senate Judiciary Committee, Hart Senate Office 
         Building, Washington, DC.
       Dear Senator Hatch: On behalf of the Leadership Conference 
     on Civil Rights (LCCR), the nation's oldest, largest, and 
     most diverse civil and human rights coalition, we write to 
     express our opposition to the confirmation of Carolyn Kuhl to 
     the United States Court of Appeals for the Ninth Circuit. Our 
     review of Judge Kuhl's record indicates that her positions, 
     opinions, and legal activities in the areas of civil rights 
     and equal opportunity, and the rights of women, workers, and 
     consumers, are troublesome and raise serious questions about 
     her commitment to equal justice and civil rights for all 
     Americans.

[[Page 28863]]

       First, we are very concerned about Judge Kuhl's record on 
     civil rights and equal opportunity, particularly on the issue 
     of whether the federal government should subsidize 
     institutions that practice racial discrimination. Judge Kuhl 
     was one of three Reagan Justice Department officials who 
     persuaded the Attorney General to reverse prior policy and 
     support the granting of tax-exempt status to Bob Jones 
     University, despite its racially discriminatory policies, in 
     its brief in Bob Jones University v. United States, 461 U.S. 
     574 (1983). More than 200 Justice Department lawyers, the 
     solicitor general, and the Treasury Department general 
     counsel objected to the change of position that Kuhl 
     advocated. According to the New York Times (May 1983), Kuhl 
     was one of three characterized as a ``band of young zealots'' 
     who urged the change in policy. By an 8-1 vote, the Supreme 
     Court rejected Kuhl's position and upheld the IRS denial of 
     tax exempt status to Bob Jones University.
       In addition, we are troubled by Judge Kuhl's work urging 
     the Supreme Court to overrule its precedent on 
     ``associational standing.'' In International Union, United 
     Automobile, Aerospace and Agricultural Implement Workers of 
     America v. Brock, 477 U.S. 274 (1986), Kuhl not only argued 
     that the requirement for associational standing had not been 
     met in the particular case, but went on to urge the Supreme 
     Court to overturn the doctrine of associational standing 
     altogether, except in the most extraordinary circumstances. 
     This view, if adopted, would have had a catastrophic affect 
     on the ability of civil rights and other groups to file 
     lawsuits on behalf of their members in order to vindicate 
     their legal rights.
       While at the Justice Department, Kuhl was also involved in 
     a troubling effort to limit the reach of sexual harassment 
     doctrine. As Deputy Solicitor General, she co-authored an 
     amicus curiae brief in the landmark sexual harassment case of 
     Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), asserting 
     a position on sexual harassment which, had it been adopted, 
     would have made it more difficult for women to prove sexual 
     harassment in the workplace. In a unanimous opinion authored 
     by then-Justice William Rehnquist, the Court rejected as 
     incorrect the focus in Kuhl's brief of the ``voluntariness'' 
     of the alleged sexual conduct, instead making clear that the 
     test is whether the sexual conduct was ``unwelcome.'' Kuhl 
     was also part of the Reagan Administration's effort to 
     restrict the remedies that courts can order in the case of 
     employment-related discrimination in violation of Title VII. 
     In Local 28 of the Sheet Metal Workers' International Ass'n 
     v. EEOC, 478 U.S. 421 (1986), Kuhl co-authored a brief on 
     behalf of the EEOC advocating the extreme theory that relief 
     in Title VII cases can be granted only to identifiable 
     victims of discrimination. This theory, rejected by the 
     Supreme Court, would have significantly limited the ability 
     of the courts to provide effective remedies for past and 
     persistent discrimination.
       Kuhl's record also reveals a troubling tendency to favor 
     corporate interests, at the expense of workers and consumers. 
     As a lawyer in private practice, Kuhl argued on behalf of two 
     major defense contractors that the qui tam provision of the 
     False Claims Act, which allows private individuals to sue 
     corporations that committed fraud against federal government 
     programs, was unconstitutional. See United States ex rel. 
     Rohan v. Litton Industries, Inc., No. 92-55546 (9th Cir.). As 
     a judge, she dismissed a case brought under a California law 
     enacted to prevent suits against whistleblowers and others 
     acting in the public interest. The California appellate court 
     reversed Kuhl's decision in unusually strong terms, calling 
     it ``a nullification of an important part of California's 
     anti-[abusive lawsuit] legislation.'' Liu v. Moore, 69 Cal. 
     App. 4th 745, 748 (1999). Kuhl also dismissed a claim brought 
     by a breast cancer patient whose privacy was invaded when a 
     drug salesman who misrepresented his identity participated in 
     her doctor's examination of her breasts. On appeal, the Court 
     of Appeals unanimously found in favor of the plaintiff, 
     reversing Kuhl's decision. See Sanchez-Scott v. Alza 
     Pharmaceuticals, 86 Cal. App. 4th 365 (2001).
       In sum, Judge Carolyn Kuhl's views on important civil 
     rights issues, particularly with regard to equal opportunity 
     and the rights of workers and consumers, are outside the 
     mainstream. Her work as a Justice Department official, in 
     private practice, and as a California judge reflects a lack 
     of commitment to core constitutional values and to upholding 
     equal rights for all Americans. Therefore, we urge the 
     Judiciary Committee to reject the confirmation of Carolyn 
     Kuhl to the Ninth Circuit Court of Appeals. If you have any 
     questions or need further information, please contact Nancy 
     Zirkin, LCCR Deputy Director/Director of Public Policy at 
     (202) 263-2880, or Julie Fernandes, LCCR Senior Policy 
     Analyst, at (202) 263-2856.
           Sincerely,
     Wade Henderson.
     Dr. Dorothy L. Height.
                                  ____


   Planned Parenthood Federation of America--Statement Regarding the 
    Nomination of Carolyn Kuhl to the Ninth Circuit Court of Appeals

       The Planned Parenthood Federation of America (PPFA), the 
     world's largest and most trusted voluntary family planning 
     organization, has a long-standing history of working to 
     ensure the protection of reproductive rights as well as 
     working to advance the social, economic, and political rights 
     of women. Because lower federal courts exercise enormous 
     power in deciding cases involving women's rights, the right 
     to privacy, reproductive freedoms, and other basic civil 
     rights, PPFA believes that judges appointed to these courts 
     must demonstrate a commitment to safeguarding these 
     fundamental rights. PPFA will oppose confirmation of nominees 
     who fail to do so.
       We believe that California Superior Court Judge Carolyn 
     Kuhl's record demonstrates that she is not committed to 
     protecting these rights. Therefore, PPFA opposes her 
     nomination to the United States Court of Appeals for the 
     Ninth Circuit.
       Judge Kuhl held various positions in the U.S. Department of 
     Justice during the Reagan administration. From 1982 to 1985, 
     Kuhl held the appointment of Deputy Assistant Attorney 
     General for the Civil Division. During her tenure in that 
     position, the Supreme Court agreed to hear Thornburgh v. 
     American College of Obstetricians and Gynecologists, 476 U.S. 
     747 (1986), a challenge to several Pennsylvania abortion 
     restrictions. The Reagan administration filed a brief in 
     Thornburgh that not only supported the Pennsylvania 
     restrictions, but also called for an outright reversal of Roe 
     v. Wade: ``Indeed, the textual, doctrinal and historical 
     basis for Roe v. Wade is so far flawed, and . . . is a source 
     of such instability in the law that this Court should 
     reconsider that decision and on reconsideration abandon it.''
       The Acting Solicitor General at the time the Thornburgh 
     brief was filed, Charles Fried, wrote, in his book, Order and 
     Law, that when he was considering what position to take in 
     the case, ``[t]he most aggressive memo came from my friends 
     Richard Willard and Carolyn Kuhl in Civil, who recommended 
     that we urge outright reversal of Roe.''
       In addition, when in private practice, Kuhl chose to serve 
     as counsel for the American Academy of Medical Ethics in Rust 
     v. Sullivan, 500 U.S. 173 (1991), the case challenging the 
     ``gag rule''--federal regulations promulgated by the Bush I 
     administration that prohibited health care professionals at 
     family planning clinics that receive funding from the Title X 
     program from counseling women about abortion--or even 
     providing non-directive counseling that informed them of 
     abortion as an option. Kuhl's brief argued that this 
     prohibition did not violate the rights of the health care 
     providers and their patients.
       Given Kuhl's record demonstrating animosity towards 
     reproductive rights, PPFA joins other organizations concerned 
     with women's rights and civil rights in opposing her 
     nomination to the Ninth Circuit Court of Appeals.
                                  ____

                                          Taxpayers Against Fraud,


                            The False Claims Act Legal Center,

                                    Washington, DC, April 3, 2003.
     Re Judge Carolyn Kuhl.

     Chairman Orrin G. Hatch,
     Committee on the Judiciary, U.S. Senate, Dirksen Senate 
         Office Building, Washington, DC
     Senator Patrick J. Leahy,
     Committee on the Judiciary, U.S. Senate, Dirksen Senate 
         Office Building, Washington, DC
       Dear Chairman Hatch and Senator Leahy: Taxpayers Against 
     Fraud, the False Claims Act Legal Center (``TAF''), opposes 
     the appointment of Judge Carolyn Kuhl to a position on the 
     United States Court of Appeals for the Ninth Circuit. TAF's 
     opposition is based on Judge Kuhl's apparent effort to 
     deceive the Ninth Circuit in U.S. ex rel. Rohan v. Newbert 
     (No. 92-55546). Judge Kuhl is effect represented to the Court 
     that the Justice Department had questioned the 
     constitutionality of the whistleblower (``qui tam'') 
     provisions of the False Claims Act (``FCA''), when in fact 
     this was untrue.
       In 1989, a memorandum was prepared in the Office of Legal 
     Counsel of the Department of Justice questioning the 
     constitutionality of the FCA. However, the views are set 
     forth in that memorandum (``OLC Memo'') were not adopted by 
     the Department or advanced by the Department in FCA cases.
       Despite the fact that the OLC Memo did not represent the 
     views of the Justice Department, Kuhl, in her capacity as 
     counsel for Litton Systems, Inc., submitted it to the Ninth 
     Circuit, citing it in support of her arguments that the qui 
     tam provisions of the FCA are unconstitutional and implied 
     that the OLC Memo set forth the views of the Justice 
     Department. The Department was not a party in the case, but 
     learned of the misrepresentation of its views and submitted a 
     letter to the Clerk of the Ninth Circuit setting the record 
     straight.
       We at TAF are deeply disturbed that Judge Kuhl would 
     attempt to mislead the Ninth Circuit, the court to which she 
     now aspires, about the views of the Department of Justice, 
     regarding the constitutionality of an act of Congress. TAF 
     believes her stunning lack of candor disqualifies her from 
     service on that court.
                                                 James W. Moorman,
                                                        President.

  Mr. FRIST. Mr. President, I ask unanimous consent that the next two 
votes be 10-minute votes.

[[Page 28864]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  By unanimous consent, the mandatory quorum call has been waived.
  The question is, Is it the sense of the Senate that debate on 
Executive Calendar No. 169, the nomination of Carolyn B. Kuhl, of 
California, to be United States Circuit Judge for the Ninth Circuit, 
shall be brought to a close.
  The yeas and nays are required under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards), the Senator from Hawaii (Mr. Inouye), the Senator from 
Massachusetts (Mr. Kerry), and the Senator from Florida (Mr. Nelson) 
are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 53, nays 43, as follows:

                      [Rollcall Vote No. 451 Ex.]

                                YEAS--53

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--43

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Jeffords
     Johnson
     Kennedy
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--4

     Edwards
     Inouye
     Kerry
     Nelson (FL)
  The PRESIDING OFFICER. On this vote, the yeas are 53, the nays are 
43. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.

                          ____________________




   NOMINATION OF JANICE R. BROWN, OF CALIFORNIA, TO BE UNITED STATES 
           CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 455, the nomination of Janice R. Brown, of 
     California, to be United States Circuit Judge for the 
     District of Columbia Circuit.
         Bill Frist, Orrin G. Hatch, Lindsey Graham, Mike Crapo, 
           Jeff Sessions, Conrad R. Burns, Larry E. Craig, Saxby 
           Chambliss, Mitch McConnell, Jim Bunning, Judd Gregg, 
           John Cornyn, Jon Kyl, Trent Lott, Mike DeWine, Craig 
           Thomas, Kay Bailey Hutchison.

  Mr. LEAHY. Mr. President, the opposition to Justice Brown for a 
lifetime position on the D.C. Circuit is deep and wide and is based on 
her record, both on and off the bench. As anyone who was watching C-
SPAN last night and the night before would know, the Republicans are 
using the judicial nomination process in a manner that divides rather 
than unites. As the San Francisco Chronicle wrote, ``Presidents 
typically shape the judiciary to reflect their own views. But with 
Charles Pickering, Priscilla Owens, William Pryor, Miguel Estrada and 
now Brown, Bush seems bent on stacking the bench with ideologues.''
  For this particular nominee, Janice Rogers Brown, the White House 
political operatives and ideologically driven selection staff reached 
out 3,000 miles to find a nominee who has repeatedly received negative 
ratings, who has been criticized by her Republican colleagues on the 
bench, and who has emerged from the Senate Judiciary Committee on a 
party-line vote. As Justice Brown's home State newspaper, the San 
Francisco Chronicle, wrote: ``naming Janice Rogers Brown to the U.S. 
Circuit Court of Appeals for the D.C. Circuit, President Bush has again 
chosen a contrarian with a judicial philosophy that lies well outside 
the bounds of the mainstream.'' Even the Washington Post, which has 
been very sympathetic to this Administration and, in particular, to its 
court-packing efforts on the D.C. Circuit, has written that Janice 
Rogers Brown ``is one of the most unapologetically ideological 
nominees'' in many years.
  As the nominee herself conceded at the end of her confirmation 
hearing, she was ``treated with great courtesy'' by the Members of the 
Judiciary Committee. Thereafter, this was a nomination rushed out of 
the Committee last week before the ink was dry on nonresponsive answers 
to Senators' questions, and during Senate floor debate on another 
highly divisive judicial nominee, before a full Committee debate could 
be held. The District of Columbia Circuit is too important to the 
rights of all Americans to be left to judges whose ideological bias 
would lead them to gut the environmental protections, workplace 
protections, consumer protections and other government regulations 
authorized by Congress to protect all Americans.
  In my statement at the outset of her confirmation hearing less than 
one month ago, I urged partisans to end the ugly game of contending 
that any criticism of the record of a Bush judicial nominee had to be 
motivated by bigotry. I asked that the right-wing tactic of smears and 
name calling subside and that we not see the race card dealt from the 
shameful deck of unfounded charges that stalwarts of this President's 
most extreme nominees have come to rely upon as they further inject 
partisanship and politics into the appointment of Federal judges. I 
noted that I expected that those who ultimately decided to support 
Justice Brown, even though they oppose affirmative action, would do so 
because they believed she would be a fair Federal judge. I suggested 
that those who opposed her because they retained serious doubt about 
her nomination and are concerned that she was selected on ideological 
grounds, could oppose her nomination for principled reasons having 
nothing to do with race. I urged that we focus on substance at the 
hearing and in this process.
  My plea went unheeded, so that, first, I must, again, briefly respond 
to the partisan smears and name-calling that I have been hearing from 
the other side of the aisle. We have heard the ridiculous charges that 
we are opposing Justice Brown because of her gender or her race. My 
opposition to this nominee has nothing to do with her race; it is has 
nothing to do with her gender. It is about what kind of a lifetime 
appointment to the District of Columbia Circuit I fear she would be.
  If Democrats were making decisions based on the gender of the 
nominee, would we have confirmed 33 judges nominated by President Bush 
who are women, including seven to the Courts of Appeal? Would we have 
worked so hard during the Clinton years to increase gender diversity on 
the bench and fight for votes for Bonnie Campbell, Elena Kagan and the 
scores of women nominees who were blocked and delayed by anonymous 
Republican holds? Would we be urging President Bush to work with us to 
find outstanding women judges and lawyers to increase gender diversity 
on the Federal bench? Do our critics really contend that Senators 
Mikulski, Feinstein, Boxer, Murray, Landrieu, Lincoln, Cantwell, 
Clinton, and

[[Page 28865]]

Stabenow are anti-woman, or that Senators Kennedy, Biden, Harkin, Reid 
or any other Democratic Senators would discriminate against women? This 
is a smokescreen, intended to obscure this nominee's stark record.
  If Democrats were making decisions based on the race of the nominee, 
why would we have voted to confirm 13 African-American judges nominated 
by President Bush, including all four of the other African Americans 
nominated by President Bush to the appellate courts? Would we have 
confirmed Lavenski Smith to the 8th Circuit? Would we have fought so 
hard for two Congresses to confirm Roger Gregory and integrate the 4th 
Circuit? Would we have worked with Senator Edwards to confirm Allyson 
Duncan to the 4th Circuit? For that matter, would we have been so 
outraged at the Republicans' treatment of Justice Ronnie White, Judge 
Beatty, Judge Wynn, Kathleen McCree Lewis and so many outstanding 
African-American judges and lawyers who the Republicans blocked from 
confirmation during the Clinton years? These claims of racism are 
irresponsible and false. These ploys are wrong, and they should stop.
  In fact, the list of the African-American organizations and 
individuals who oppose Justice Rogers Brown's nomination is one of the 
most troubling indications that this is another divisive, ideologically 
driven nomination. Are we to believe that the 39 members of the 
Congressional Black Caucus are racist? Members of the Congressional 
Black Caucus include the respected congressional delegate from the 
District of Columbia Eleanor Holmes Norton, the chair of the 
Congressional Black Caucus, the Honorable Elijah Cummings, and such 
distinguished Americans as Representatives Charles Rangel and John 
Conyers. In addition the Nation's oldest and largest association of 
predominantly African-American lawyers and judges, the National Bar 
Association, and its State counterpart, the California Association of 
Black Lawyers both oppose this nomination.
  The foremost national civil rights organization, the Leadership 
Conference on Civil Rights opposes this nomination. The women of Delta 
Sigma Theta oppose this nomination. Dr. Dorothy Height, Dr. Joseph 
Lowery and Julian Bond have spoken out against this nomination.
  Justice Brown has a lengthy record, of opinions, of speeches and of 
writings. She has very strong opinions, and there is little mystery 
about her views, even though she sought to moderate them when she 
appeared before the Judiciary Committee.
  I come to my decision after reviewing Justice Brown's record--her 
judicial opinions, her speeches and writings--and considering her 
testimony and oral and written answers provided to the Senate Judiciary 
Committee.
  Now, Justice Brown's supporters will say we are opposing Justice 
Brown because her viewpoint is different than ours on social issues. 
But my opposition is not about whether Justice Brown would vote like me 
if she were a member of the United States Senate on issues of 
importance. This is not about her position on choice. This is not about 
one dissent or one speech. This is about Justice Brown's approach to 
the law--an approach which she has consistently used to promote her own 
ideological agenda, an extreme agenda that is out of the mainstream. 
Her approach does not entitle her to a lifetime appointment to this 
very important appellate court.
  Janice Rogers Brown's approach to the law can be best described as a 
``jurisprudence of convenience.'' What do I mean by that? Justice Brown 
has proven herself to be a results-oriented, agenda-driven judge whose 
respect for precedent and rules of judicial interpretation change 
depending on the subject matter before her and the results she wants to 
reach.
  While Justice Brown's approach to the law has been inconsistent--she 
has taken whatever approach she needs to in order to get to a result 
she desires-- the results which she has worked toward have been very 
consistent--throughout her public record. Some of Brown's supporters, 
and in fact Justice Brown herself, have tried to detract attention from 
the ideas she has expressed in speeches--while she was a member of the 
bench--claiming they are ``just speeches.'' Well, that is a hard 
distinction to follow when Justice Brown's comments to groups across 
the country over the last 10 years repeated the same themes--in fact, 
sometimes even the same words--as she has written in her opinions.
  In Santa Monica Beach v. Superior Court of L.A. County, Justice Brown 
wrote of the demise of the Lochner era, claiming ``the `revolution of 
1937' ended the era of economic substantive due process but it did not 
dampen the court's penchant for rewriting the Constitution.'' 
Similarly, in a speech to the Federalist Society, she said of the year 
1937--it ``marks the triumph of our own socialist revolution.''
  In San Remo Hotel v. City and County of San Francisco, Justice Brown 
wrote, ``(t)urning a democracy into a kleptocracy does not enhance the 
stature of the thieves; it only diminishes the legitimacy of the 
government.'' Similarly, two years earlier, she told an audience at the 
Institute for Justice, ``If we can invoke no ultimate limits on the 
power of government, a democracy is inevitably transformed into a 
kleptocracy--a license to steal, a warrant for oppression.''
  As Berkeley Law School Professor Stephen Barnett pointed out about 
Justice Brown's ``apparent claim that these are `just speeches' that 
exist in an entirely different world from her judicial opinions,'' 
``that defense not only is implausible but trivializes the judicial 
role.'' I agree with Professor Barnett on this and understand his 
determination to oppose her nomination. Justice Brown's provocative 
speeches are disturbing in their own right, and they are made more so 
by their reprise in her opinions.
  Justice Brown now says that she will ``follow the law.'' However, in 
a judicial dissent, she wrote, ``We cannot simply cloak ourselves in 
the doctrine of stare decisis.''
  One of the examples of Justice Brown's results-oriented jurisprudence 
can be seen in the way she has disregarded precedent in her opinions in 
order to expand the rights of corporations and property owners, at the 
expense of workers and individuals who have been the victims of 
discrimination. In several dissents, Justice Brown called for 
overturning an exception to at-will employment, long recognized by the 
California Supreme Court, that was created to protect workers from 
discrimination. She has repeatedly argued for overturning precedent to 
provide more leeway for corporations against attempts to stop the sale 
of cigarettes to minors, prevent consumer fraud, and prevent the 
exclusion of women and homosexuals.
  Justice Brown has also been inconsistent in the application of rules 
of judicial interpretation--again depending on the result that she 
wants to reach in order to fulfill her extremist ideological agenda.
  These legal trends--her disregard for precedent, her inconsistency in 
judicial interpretation, and her tendency to inject her personal 
opinions into her judicial opinions--lead to no other conclusion but 
that Janice Rogers Brown is--in the true sense of the words--a judicial 
activist.
  When it is needed to reach a conclusion that meets her own 
ideological beliefs, Justice Brown stresses the need for deference to 
the legislature and the electorate. However, when the laws--as passed 
by legislators and voters--are different than laws she believes are 
necessary, she has advocated for judicial activism.
  One stark example springs to mind: In order to support her view that 
judges should be able to limit damages in employment discrimination 
cases, she concluded that ``creativity'' was a permissible judicial 
practice and that all judges ``make law.''
  Justice Brown's approach to the law has led to many opinions which 
are very disturbing. She has repeatedly and consistently advocated 
turning back the clock 100 years to return to an era where worker 
protection laws were found unconstitutional. She has attacked the New 
Deal, an era which

[[Page 28866]]

created Social Security and labor standards, by saying it ``inoculated 
the Federal Constitution with a kind of underground collectivist 
mentality.''
  And she has repeatedly opposed protections against discrimination of 
individuals--in their jobs and in their homes. Justice Brown's recent 
claims that her words do not mean what they say are simply 
unconvincing.
  There is one more aspect of Justice Brown's nomination which is 
extremely disturbing. That has to do with the court for which she was 
nominated. She is being considered for a position on the premier 
administrative law court in the Nation--a court that is charged with 
overseeing the actions of Federal agencies that are responsible for 
worker protections, environmental protections, consumer safeguards, and 
civil rights protections.
  I am concerned about her ability to be a fair arbitrator on this 
court. Justice Brown has made no secret of her disdain for government. 
She has said, ``where government moves in, community retreats, civil 
society disintegrates, and our ability to control our own destiny 
atrophies.''
  How can someone who believes it is not the ``job of government to 
take care of'' the American people be entrusted to make fair and 
neutral decisions when faced with the responsibility of interpreting 
the powers of the Federal Government and the breadth of regulatory 
statutes? Justice Brown responded to this question at her hearing by 
calling on us to review her record as a judge to see that she does not 
``hate Government.'' Well, I did review her record. And, what I found 
was disturbing: She has used her position on and off the bench to argue 
for the dismantling of government from the inside out.
  It is no small irony that this President, who spoke of being a uniter 
but has used his position to send judicial nominations that divide the 
Senate and the country, and who spoke with disdain of ``judicial 
activism,'' has nominated several of the most consummate judicial 
activists ever chosen by any President. None of the President's 
nominees is more in the mold of judicial activist than this nominee, 
Janice Rogers Brown.
  I am voting against Justice Borwn's nomination today because the 
American people deserve judges who will interpret the law fairly and 
objectively. Janice Rogers Brown is a confirmed and committed judicial 
activist who has a consistent record of using her position as a member 
of the court to advocate for her personal belief. We must not enable 
her to bring her ``jurisprudence of convenience'' to one of the most 
important courts in the Nation.
  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Janice R. Brown, of California, to be United States 
Circuit Judge for the District of Columbia Circuit, shall be brought to 
a close?
  The yeas and nays are mandatory under the rule. The clerk will call 
the roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards), the Senator from Hawaii (Mr. Inouye), the Senator from 
Massachusetts (Mr. Kerry), and the Senator from Florida (Mr. Nelson) 
are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 53, nays 43, as follows:

                      [Rollcall Vote No. 452 Ex.]

                                YEAS--53

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--43

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Jeffords
     Johnson
     Kennedy
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--4

     Edwards
     Inouye
     Kerry
     Nelson (FL)
  The motion was rejected.
  The PRESIDING OFFICER. On this vote, the yeas are 53, the nays are 
43. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.
  Mr. STEVENS. Mr. President, I move to reconsider the vote.
  Mr. BOND. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________




                          LEGISLATIVE SESSION

  Mr. STEVENS. Mr. President, I ask unanimous consent the Senate return 
to legislative session.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________




                            MORNING BUSINESS

  Mr. STEVENS. Mr. President, I ask unanimous consent we proceed to a 
period for morning business with Senators permitted to speak therein 
for up to 10 minutes.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  The PRESIDING OFFICER. The Senator from Washington.

                          ____________________




                  THE UNEMPLOYMENT PROBLEM IN AMERICA

  Ms. CANTWELL. Mr. President, we just completed 30 hours of debate on 
judicial nominees, an obviously important debate for all Members who 
participated. But it is time for us to address the unemployment problem 
in America, and the fact that this body cannot adjourn for the year 
without passing an unemployment benefit extension.
  Many of my colleagues will remember last year we were at this same 
point, when unemployment benefits were going to expire in December. We 
had a debate about whether that was necessary to do by the time we 
adjourned. I can tell you that not a lot has changed in Washington 
State. We still have 7.6-percent unemployment and a very high level at 
the national level, at 6 percent. Americans want to know whether they 
are going to have an extension of those benefits.
  During the Bush and Clinton administrations we extended unemployment 
benefits for an extension of over 30 weeks during that time period 
because we thought it was important to make sure people were covered. 
During the economic downturn, unemployment benefits are a stimulus. For 
every dollar spent on unemployment benefits it generates $2.15 as far 
as the economy--that is mortgage payments that can be made, health care 
benefits that can be extended.
  While my colleagues think last year's solution of coming back in 
January and fixing this unemployment benefit problem was a solution, I 
guarantee it was not. Adjourning from here without expanding 
unemployment benefits is like putting a lump of coal in the stockings 
of Americans at Christmastime.
  There were individuals in my State who, because of the failure of us 
acting, really did make economic choices about their future. I had a 
constituent who took a big chunk out of her pension program at a 30-
percent penalty, basically trading her long-term economic future off 
for short-term returns because we hadn't given her a commitment on 
unemployment benefits.

[[Page 28867]]




                   Unanimous Consent Request--S. 1853

  I ask unanimous consent the Senate proceed to legislative session and 
the Finance Committee be discharged from further consideration of S. 
1853, a bill to extend unemployment benefit insurance for displaced 
workers, and that the Senate proceed to its immediate consideration, 
that the bill be read a third time and passed, and the motion to 
reconsider be laid on the table.
  The PRESIDING OFFICER. Is there objection? The Senator from Nevada.
  Mr. ENSIGN. Reserving the right to object, I ask unanimous consent 
that I may ask the Senator from Washington a question while reserving 
my right to object.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ENSIGN. Mr. President, in asking this question, is the Senator 
from Washington aware, back in 1993 when the Democrats controlled the 
House, the Senate, and the White House the rate of unemployment was 
higher than it is today and that every Democrat in the House and the 
Senate and the President signed a bill to terminate the program when 
the unemployment rate was higher? Is the Senator from Washington aware 
of that fact?
  Ms. CANTWELL. I am not aware to what the Senator from Nevada is 
referring. I know during the Bush and Clinton administrations, with a 
richer package of 20 weeks after a Federal program on extension, richer 
than the 13 weeks that we have now, we extended that over a 30-month 
period of time.
  So far this administration has only done that over a 22-month period 
of time. While we all want the economy to recover, and we all want to 
put Americans back to work--I guarantee these individuals would rather 
have a paycheck than an unemployment check--we need to do a better job 
making sure that we are making a commitment to unemployment benefits 
before we adjourn for the session.
  We just spent all this time debating judicial nominees. I think it 
was a hardy debate on both sides. But let's give the American people 
and those who are suffering from unemployment the benefit of knowing 
that they will get this benefit extension before we adjourn.
  Mr. ENSIGN. Mr. President, the fact is, when the Democrats were in 
control of all three bodies, the Democrats terminated the program of 
extending unemployment benefits at the Federal level. They terminated 
the program.
  More people were unemployed at that time when they terminated the 
program. It is good enough today. The economy is recovering. It is 
producing jobs. Therefore, I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Pennsylvania.

                          ____________________




                          JUDICIAL NOMINATIONS

  Mr. SANTORUM. Mr. President, I just want to thank all of the Members, 
particularly on this side of the aisle, for the terrific level of 
debate we have seen over the past 40 hours. I was amazed, yesterday, 
sitting both here and in my office, and seeing Member after Member come 
to the Senate floor. I have never seen a debate where more of our 
Members came to the floor to let their views be known to the American 
public, of how important this issue is to the future of our country, 
the issue we just voted on, the issue of judicial nominations.
  I was stunned. I thought we would have to scurry around and have sort 
of a core of people who were willing to come to the floor and fill up 
the time. But for 40 hours, 39-plus hours, we had no problem. In fact, 
at 5 o'clock in the morning, Senator Chambliss and I were arguing over 
5 minutes, who was going to get the extra 5 minutes because there was 
such enthusiasm for a cause that we felt was just. It was not a small 
group.
  Some in the media suggested that there was some division over here as 
to whether to take on this strategy. I would say, just look at the 
response of our membership. They came to the floor. They came with 
passion. They came with a conviction that what we were arguing for was 
the right thing for the country. Maybe it was not the right thing for 
us politically. We had that debate about having a higher standard for 
judges, higher than a simple majority, a three-fifths majority, which 
is now the rule. I think this debate and the votes today have cemented 
that.
  Now the standard will be that you have to have 60 percent of the 
Senate in order to be a Federal judge. We have made that the rule. So 
the 214-year history is now gone.
  We had a great debate about it. The rule has changed. I thank all who 
participated on both sides. I thank the staff, the pages, the staff 
here on the floor--the floor staff, which has been rotating, but even 
rotating these jobs were not made for three shifts. We don't have 
three-shift jobs. This is a one-shift operation and they had to work 
three shifts. They did a great job--the folks in the cloakroom, the 
Judiciary Committee, all the leadership staff. I particularly thank the 
staff of the Republican conference--Mark Rogers and Barbara Leeden and 
Elizabeth Keys, Robert Traynham, Melissa Seckora--all the staff who 
have worked so hard, holding press conferences in the middle of the 
night.
  Gosh, we had press conferences, 1:30, 2:30, 3:30, 4:30, 5:30, 6:30 in 
the morning, every hour.
  All the outside groups who were concerned about the future of our 
country and concerned about the future of the judiciary came to 
Washington. I remember walking in late in the evening on Wednesday 
evening, and in the rain, in the wind, people lined up outside the 
Capitol to get into the Capitol to be here on Wednesday night because 
they knew this was a debate that had real significance because they 
knew this was a debate that is going to have a place in history.
  By affirming what has happened four times before today, now five, now 
six--that 168-to-4 chart, that 98 percent chart--that is now history; 
168 to 6. That is not even accurate because there are 6 more they have 
said they will filibuster.
  Obviously, when the minority leader says there is going to be a 
filibuster, you get the ducks in a row. They have been able to do that 
and do it successfully.
  So it is now 168 to 12. Of course, we just started that this year. 
There have only been four, they say. This is the first time it has been 
done.
  It is like a little ball, like dropping a pebble at the top of a 
large mountain. It shakes lose a couple of other pebbles. Pretty soon, 
over time this gets to be a boulder, an avalanche that is coming down 
and is going to hit the judicial branch of our Government.
  I predict, if nothing is done to change the rule, the number will be 
in the hundreds within a couple of years, in the thousands and the tens 
of thousands as this country goes forward. Why? Because we have changed 
the way we consider nominations.
  I am going to repeat what I said at the close of the debate because I 
still hope there is a chance that some Members will reconsider. There 
are Members on our side who have smiles on their faces, Members who 
care deeply about issues that are before the court today who have 
smiles on their faces because they say: Now we have the tool to stop 
activist judges. Now we have the tools we didn't have before. Now they 
have to get 60 percent of the vote for the judges, the Richard Paezes 
of this world and the Marsha Berzons of this world, and those who could 
come on and replace the document I hold in my hand, the Constitution, 
with their own view of the world.
  What an activist judge is, is a little James Madison, just someone 
who thinks they can write their own Constitution. Madison didn't have 
the privilege of having all the knowledge that we have today about what 
is right and wrong. He didn't have the understanding that so many of 
our learned jurists have in doing what is right for the American 
people. So this guy, Madison--it was a pretty good first draft. There 
are many activist judges who think they can write a better 
Constitution, and they do so on a regular basis. What Madison thought 
would change the Constitution is something that is actually in the 
Constitution, and that is a procedure for amending

[[Page 28868]]

the Constitution. But a lot of Members on the other side of the aisle 
don't believe we should have to bother with that rather cumbersome 
process in this fast-changing world in which we live. It just takes too 
much time. It is far too much effort. It involves having to convince 
the American public. Why should we bother with such folly?
  We, the enlightened, the intellectuals, those who have reached the 
pinnacles of our professional occupations, we in the judiciary, we are 
the ones who should be able to lay out for future generations what 
should have been done for them.
  So this elitist, activist corps--elitist in the most pejorative sense 
of the word ``elitist''--are activist judges who take this document, 
light a match to it, and throw it away and say: We are a country of 
people, we are a country of people, not of laws.
  That is what we are going to get more of. So what my colleagues 
believe we can do now is apply the same standard they have applied to 
Janice Rogers Brown, elected by 76 percent of the vote in the State of 
California; Priscilla Owen, elected by 84 percent of the people of the 
State of Texas; Carolyn Kuhl, William Pryor, Charles Pickering, Miguel 
Estrada--the list goes on and will go on. It will go on.
  This is a huge tragedy, what happened here today. The point is, as 
the Senator from Iowa, Mr. Harkin, when we came in the Chamber just 40-
some hours ago had a sign held up: ``I am going to watch 'The 
Bachelor'.'' That was funny. I chuckled. But true humor, good humor, 
really good and biting humor, always has an element of truth to it, 
doesn't it? It always has an element of truth. The element of truth 
here is that the other side does not want you to hear what is going on. 
They want you to go and watch ``The Bachelor,'' tending to your 
business. We will take care of the business here. You need not mind 
what we do here. No, don't bother with us; we'll handle it. You could 
watch ``The Bachelor.'' We will take care of the people's business here 
and don't bother with us.
  Hopefully, some Americans paid attention. Hopefully, some Americans 
heard the debate that went on here in the Senate Chamber for the past 
40 hours and heard very clearly that we have changed, potentially 
forever, the standard by which we will confirm judicial nominees. In so 
doing we eliminate those, not just from the right.
  Let me assure you, my colleagues on the other side of the aisle, let 
me assure you we are not just eliminating those on the right, because 
what is good for the goose is good for the gander. When you twist and 
contort the law, it becomes the law for everybody. It is twisted and 
contorted in its ugliest sense, but it is there for all to see and 
there for all to use. Rest assured, it will be used. Whether it is by 
the Senator from Pennsylvania--I hope not because I hope never to be in 
the minority, and I hope never to have to serve under a Democrat 
President. That is obviously my objective. I hope I don't have the 
opportunity or the desire to ever use it. But I suspect someday, 
someone--either myself or someone who shares my philosophy and ideas of 
how this Government should be run and how the judiciary should behave--
will take this tortured process that has been cemented today and use it 
against the very people you believe are mainstream, who the Democrats 
of the left believe represent the deep and wide channel that is the 
mainstream of American thought; people who believe that ``under God'' 
should not be in the Pledge of Allegiance, that deep, wide mainstream; 
people who believe this is a living document.
  Let me interpret what that means. That is what you will hear a lot 
from those on the other side, that this is a living, breathing 
document. A living, breathing document? Yes. It is living and 
breathing, but it is not a document. It is a judge. When you hear 
``living and breathing,'' documents don't live and breathe. They say 
exactly what they mean. Documents written 214 years ago don't change by 
themselves. They don't breathe. They do not live. They were put there 
and put on paper for a reason--to provide stability to this country and 
certainty for those here in America who know their rights and who 
understand those rights throughout time. If we are to change these 
words, we do so through the process where the people of America--not 
some unelected few--have input into that process. It is called the 
amendment process to the Constitution which requires the Congress to 
act and three-quarters of States to affirm and ratify. That is how we 
change this document--not by appointing and confirming living, 
breathing judges to make it their own. That is what they have done.
  They think now that they have a sufficient number of these folks on 
the court that they don't want any conservative judges. What is a 
conservative judge? A conservative judge is not someone who changes 
this document to reflect their ideology. I would not call that a 
conservative judge. I would not call that a judge for whom I would 
vote. That is not a conservative judge. I don't want a judge who is 
going to come in and contort the Constitution to my thinking. I want a 
judge who is going to live by what this Constitution says. It reflects 
the will of the people. That is what a conservative judge is. A 
conservative judge is someone who abides by the Constitution--not 
someone who sees it as a living, breathing document. Judges who are 
conservative are called ``strict constructionists''--to strictly and 
narrowly construe controversies that are before them and decide cases 
in the narrowest sense--not to use a dispute between parties as an 
opportunity to legislate.
  The Senator from Kansas, Mr. Brownback, said at about 4:15 in the 
morning that what is really happening here is this new test is being 
introduced by Senators on the other side of the aisle--this ideological 
test.
  Your job as a judge is to look at the disputes between parties, see 
the applicable law that has been passed by Congress, the State 
legislatures, or provisions in the Constitution and apply those to the 
factual circumstances before you. That is your job. If that is your 
job, then why should we be concerned about your ideology? That is a 
pretty fair question. If all you are supposed to do is look at the 
statutes and use the rules and the statutory constructions which are 
laid out, or look at the Constitution and refer to the interpretations 
of the Supreme Court with respect to that area of the law, then why at 
the district court or on the appellate court level should we be 
concerned about your ideology? It should not be a factor because you 
are simply applying the law. A liberal can apply the law just as easily 
as a conservative can apply the law and look at ideology.
  Why should your political ideology have anything to do with it if 
that is all your job is? I don't mean to demean by saying ``if that is 
all your job is.'' It is a very important job. It is an adjudicatory 
process. It is a very important process in our country. It is one of 
the three branches of Government. It is their responsibility to do 
that. It is not the responsibility of the Senator from Arkansas or 
Nevada to settle disputes and make decisions. We give that to people 
who study the law, understand it, and then make the decisions based 
upon it. We are the ones who create the law. We are the ones who have 
the great debates on what the law should be that they apply.
  The President is the one who executes the law, and in the case of the 
judiciary appoints those who prosecute it.
  I will say in conclusion that what is happening now with this 
political test is a recognition by the other side--an admission by the 
other side--that no longer are judges just there to try facts and apply 
the law, but they are there--in fact, the other side wants them to be 
there to change the law--not to apply the law but to change the law to 
reflect the ideology that is dominant on their side of the aisle. They 
do not want judges who will apply the law. They want judges who will 
make the law. You would think they would not want to give up their 
legislative prerogative. That is our prerogative. It is our job to make 
the law.
  What they have found over the years is that the public will not buy a 
lot of stuff they want to sell. They can't get

[[Page 28869]]

it done. What they have figured out is a way to avoid having to go 
through this cumbersome process of writing the laws, getting the public 
to go along with it, and having to stand for things that are unpopular, 
which is to just find people who will do it for them and they don't 
have to stand for election. We can get them in there and they are there 
for life. They can do our bidding because we can't get it done.
  A very dangerous thing happened here today. It will not serve this 
country well. It will politicize the branch of the Government that 
heretofore has stayed fairly apolitical. It is a mistake.
  I hope and pray that Americans will write and talk to their Members 
of the Senate, ask them, plead with them to stop this. Put this genie 
back in the bottle and put it away--throw it away. It is not good for 
America. It is not right for America. It has never been America. For 
214 years we have kept politics out of the judiciary. Let us not 
politicize it. People are so tired of politics. They complain and rail 
about it all the time. What have we done here today? We have now 
injected a healthy dose of it into the judicial system.
  May God help this country for what we have done today.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Ensign). The Senator from Arkansas is 
recognized.

                          ____________________




                      NOMINATION OF J. LEON HOLMES

  Mr. PRYOR. Mr. President, I want to again remind this Senate and my 
colleagues on both sides of the aisle about one of the judicial 
nominees who happens to be from my State of Arkansas, Mr. Leon Holmes.
  Leon and I practiced law together in Little Rock for a few years in 
the late 1980s or early 1990s. He is a very fine person, a very fine 
man, and a very fine lawyer. I am proud to count him as a friend.
  Let me emphasis that Leon Holmes and I don't agree on every single 
issue. There is no doubt that there are some things he and I disagree 
on. But I am very respectful of his views because I know that he has 
arrived at those views through long consideration. He is a man of great 
integrity and great judgment. President Bush nominated him in January 
of this year to be a district judge for the Eastern District of 
Arkansas.
  Mr. Holmes is a practicing lawyer in Little Rock, and has been with a 
number of very prestigious law firms in his legal career. He is 
considered probably by most people one of the best lawyers in Arkansas, 
and certainly on certain types of cases would be considered among the 
best, if not the best. But at any rate, President Bush nominated him in 
January--if my memory is correct, January 25--and his nomination went 
to the Judiciary Committee. He came out of the Judiciary Committee on 
May 1.
  For over 6 months now, Mr. Holmes has been languishing on the 
Executive Calendar. I am troubled as to why he has been languishing 
like that. I have talked to the Republican leader many times, to the 
Republican chairman of the Judiciary many times, and I have talked to 
my colleagues many times. Both Senators from Arkansas are quite puzzled 
as to why. We have had 30-plus hours of filibuster led by the 
Republican Party on some of these judicial nominations, and here we 
have a nomination that we want to proceed on. We want to move forward 
on that today. To date, there has not been anything scheduled.


                       Unanimous Consent Request

  With that in mind, I would like to ask unanimous consent--I know that 
we will need a moment to allow someone to come out on the Senate 
floor--that at a time to be determined by the two leaders, the Senate 
proceed to executive session to consider Executive Calendar No. 165, 
the nomination of J. Leon Holmes of Arkansas to be U.S. district judge, 
that it be considered under the following time limitation: 5 hours for 
debate equally divided between the chairman and the ranking member, or 
their designees; that when the time is used or yielded, the Senate 
without any intervening action or debate vote on confirmation of the 
nomination; that the President be immediately notified of the Senate's 
action, and the Senate return to legislative session.
  The PRESIDING OFFICER. The Chair informs the Senator from Arkansas 
that the leaders are trying to work out an agreement to bring this 
nominee to the floor, and at the current time, unfortunately, I will 
have to object in my capacity as a Senator from Nevada.
  Mr. PRYOR. Thank you, Mr. President.
  I have worked for months on this nomination.
  Let me emphasis that Mr. Holmes was not my nomination. He is 
President Bush's nomination. I wasn't consulted in any form or fashion 
before the nomination was put forward. I wasn't brought into the loop 
at all. The nomination was handed to me. Unfortunately, I continue to 
work on this and for whatever reason my efforts seem to be falling on 
deaf ears on the Republican side.
  Mr. DASCHLE. Mr. President, will the Senator from Arkansas yield for 
just a moment?
  Mr. PRYOR. Absolutely.
  Mr. DASCHLE. Mr. President, I appreciate the request made by the 
distinguished Senator from Arkansas. This is a matter that he and his 
colleague from Arkansas, Senator Lincoln, have been involved in and 
supported for a long period of time. He and I have had a number of 
conversations.
  I want to make sure that the record is clear there will be no 
objection on this side to having votes on the nomination. We have had 
now 40 hours of debate where one Republican after another has come to 
the floor in an outcry that we haven't been able to have a vote on a 
judge, that we are denied the opportunity to have an up-or-down vote on 
a judge.
  As we have said on 168 occasions, let us have the up-or-down vote. 
This one would be the 169th.
  We are prepared this afternoon within the next hour to have a vote on 
the judge referenced by the distinguished Senator from Arkansas.
  I appreciate very much his request. I certainly understand his 
frustration after all of the outcry that we have heard from our 
colleagues on the other side. It is amazingly ironic after all of that 
on a nominee for which there is absolutely no objection to moving to. I 
will oppose the nominee. I will vote against the nominee when it is 
presented to the Senate, but there is certainly no opposition within 
our caucus.
  I want the record to be clear with regard to that point. Again, as I 
have on other occasions, I want to work with the majority leader for a 
very short time and have a vote. Let us have the vote. After all of 
this, you would think that the Republican caucus and the majority 
leader and others responsible for these decisions would jump at the 
chance of having a vote on the Holmes nomination.
  We are ready. We will certainly not object to a time limit or to 
ultimately have an up-or-down vote, as the Senator from Arkansas has 
proposed.
  Mr. PRYOR. Mr. President, I would like to reiterate what the minority 
leader has just said. There is no hold on the Democratic side on this 
nomination. All systems are go on this side. I have talked to my 
Democratic colleagues and we are ready to vote Mr. Holmes up or down.
  Quite frankly, I know on a personal level that Mr. Holmes is ready to 
be voted up or down.
  Again, thank you, Mr. President, for the time. I yield the remainder 
of my time. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, we have had a good 39 hours, I guess, of 
debate. It is great to see my friend from Texas here, Senator Cornyn, 
who served on the Texas Supreme Court and understands these issues and 
chairs the constitutional law subcommittee of the Judiciary Committee. 
I say it is good

[[Page 28870]]

because we have had a very bad and very historic change in the 
procedures of the Senate.
  After all this debate, I think it is doubtful anyone could maintain 
today that in previous years we did not have filibusters. And I don't 
think anyone could doubt that we now have sustained filibusters as an 
organized, systematic way to change the number of votes necessary to 
confirm a President's nomination from a majority of 51 to 60 votes. 
This is a big deal. It is not a good deal. It is not good for the 
Senate. It changes the historic balance of power. It enhances of power 
of the Senate.
  Now the Senate can block a nomination with only 40 votes. It weakens 
the President, and it weakens the courts. It is a classical alteration 
of the balance of power established by our Founders when this country 
was created. It is not good. It was driven by politics. It is a further 
decline in civility and debate, and it is a greater increase in the 
influence of politics in the confirmation process. This Senate is not 
and should not be proud of what has occurred to date.
  I am glad it was brought about with some pain. I am glad it just 
didn't slide in a banal way without any thought. I am glad there are 
Senators who stayed here all night last night. I was here past 
midnight. Some stayed here all night because they wanted to be sure 
they were on record and Americans understood what we have done. I think 
it ought to be seared on our souls what occurred here. Every Member of 
this body needs to think about it. We need to realize that this was not 
lightly done. There is no doubt that in the spring after the election 
of President Bush, Democratic Senators met in retreat and they had a 
conference with some liberal law professors. And as the New York Times 
reported on that retreat, the Senators decided to change the ground 
rules for confirmation. We have absolutely seen that.
  We had nominees blocked in committee on a party-line vote in the 
Judiciary Committee when the Democrats had their brief period of 
majority. Jim Jeffords switched parties. We had nominees not brought up 
for hearing in committee. And we had filibusters on the floor to a 
remarkable degree.
  I will just say that this is unhealthy. One of the things we had in 
the Judiciary Committee, in the courts subcommittee that I chaired and 
then Senator Schumer chaired after Jim Jeffords switched parties, and 
he began to have hearings on a number of things. He said the burden of 
proof should be on the nominee. That has not been the issue. So we had 
a hearing on the fact that the burden of proof should be on the 
nominee. We had a hearing that the Supreme Court was an extremist, 
activist, conservative court, which is so far from the truth, it is 
hard to believe it. That was the agenda of that.
  The third thing most threatening to us and to our classical 
understanding of law was a hearing to say: Well, politics is involved 
in everything. We ought to ask judges all about their ideology, their 
politics. That should be openly a part of the confirmation process.
  I felt so strongly against that. Lloyd Cutler, the White House 
counsel under President Carter and President Clinton, clearly and 
unequivocally rejected that. He said it would lead to the 
politicization of the courts. I practiced before Federal judges for 
nearly 15 years as a Federal prosecutor. I will just say that we have 
to believe--criminal defenders, civil litigants, prosecutors have to 
believe--that the judge who sits on their case will be able to set 
aside his or her personal political biases and ideas and beliefs, 
faithful beliefs, whatever; he will set them aside. When they go to 
that court, there will be a fair and objective trial, and they will be 
judged on the merits of the law and the facts and not what the judge 
thinks, not the politics of the judge.
  Lloyd Cutler was correct, as every other witness was who testified at 
that hearing. We do not need to politicize the courts. We are heading 
in that way.
  Senators are so political. They are driven so much by the special 
interest groups that they think and believe everything can be settled 
by political deal. They think courts operate that way. That is not the 
way they do. I practiced in court. You go to court. You offer to put 
evidence. Somebody objects. The judge reads the law, and he decides, 
well, if it meets the standard to come in or it is excluded. You don't 
admit half of it. It is either admitted or it is not admitted, as Judge 
Cornyn so ably knew, both as attorney general and as a member of the 
Texas Supreme Court. Those are things that go to the core of the 
heritage of law we have been given.
  The whole world knows that America and the British have a magnificent 
legal system. The average citizen can borrow $100,000, buy a house, a 
$200,000 house, pay it back at 6 percent interest over 30 years. The 
money, the guy who loaned them $100,000 can believe he is going to 
collect it. If he doesn't pay it, he can foreclose, and there are 
procedures, and he pays off the debts and gets out and gets himself 
paid off. That is why he can afford to loan the man the money at this 
incredibly low rate.
  You go to undeveloped countries around the world, and you see houses 
half built and you say: Why? They say, well, they saved up enough money 
to put up the walls and roof, but not enough for the insides. There is 
no way for them to borrow money. They don't have a legal system that 
works like ours. We need to cherish and protect the system.
  Investors come from all over the world to America because they 
believe if they have to go to court, they will get a fair shake even 
though they are a company from Japan or South Korea or Singapore or 
China or Germany or France. That is something we need to protect. We do 
not need to allow it to be politicized. We need judges who follow the 
law as written, who will not impose their personal agendas in the 
decisionmaking process.
  All of these things are matters that President Bush talked about in 
his election campaign. He believes them deeply. The American people 
share those beliefs by a substantial number. But they are not shared to 
the degree they should be by others in this Chamber who are blocking 
these nominations.
  I hope that somehow, some way, this filibuster procedure can end. I 
hope that somehow, some way, we can avoid the collision we are engaged 
in now, the obstruction and the delay we are facing today, and get on 
with the classical way we have always handled judicial nominations in 
America. It is just unfortunate.
  So it has been good that we have had a painful, tough 39 hours. A lot 
of things have been said. I hope that as we go forward, we can work our 
way through it. It may take litigation. It may take rules changes. It 
may take other things. I hope we will continue to back an independent 
judiciary of men and women of quality and integrity.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I express my gratitude to the Senator from 
Alabama for his leadership on these issues. He and I share an 
experience in common, having been attorneys general of our respective 
States, I in Texas and he in Alabama. I guess that experience, together 
with the fundamental values we have all come to believe in, ensconced 
in the Constitution, that elevate the rule of law over the political 
maneuverings of men and women, is something about which we feel very 
strongly. I know he does, and I appreciate his eloquence and his 
passion and his commitment to those values and that ideal.
  I know after this lengthy debate there will be those who will want to 
make a judgment on who won and who lost. That is what I want to talk 
about for a few minutes because, frankly, I think the battle is not 
over. With the failure to achieve the necessary votes for cloture of 
these three nominees this morning, three highly qualified and 
distinguished individuals who, frankly, don't deserve the shabby 
treatment they have received during this confirmation process, there 
will be some who will say: Well, the majority was unable to get the 
minority to change their mind and so the majority must have lost. The 
stubborn, recalcitrant minority must have won.

[[Page 28871]]

  I would say this is a case of perhaps having lost the battle but the 
war is still raging. The war is still going on. Frankly, it is a war, a 
battle, a metaphor for a war that has been going on since the inception 
of this country. It is a debate about what kind of country this is, 
what kind of country America is.
  Indeed, it is also a question of what kind of country we will become. 
I believe that if our judicial confirmation process becomes so 
politicized, as it appears to have become, and the test for 
confirmation is political correctness and licking your finger and 
putting it in the wind to test which way public opinion is going, and 
to make sure that if you are a lawyer or a judge or an attorney general 
you have made decisions in a way that is consistent with public opinion 
polls rather than the law, I think we will risk losing that war because 
it is fundamentally a war of words, of ideas, about what kind of Nation 
we are and what kind of Nation we will become, whether we will become 
one ruled by politics and polls and special interest groups or whether 
we are a nation of laws and not men and women.
  There is more to be said. There is more to be done in this ongoing 
war. Of course, we all know those who have followed this debate are 
aware that the majority leader and Senator Zell Miller from Georgia, a 
Democrat colleague of ours, have filed a rule change proposal which 
would allow for sufficient debate in the Chamber on nominees but 
ultimately allow what the Constitution itself commands, and that is 
that majorities ultimately rule. This is about a fundamental precept of 
our democratic form of government which says that after the debate, 
after everybody has had their say, after we have learned from each 
other in the give and take, ultimately there has to be a vote, and that 
when those votes are counted, majorities will rule and they will 
determine the outcome.
  Of course, that is the rule everywhere where democracy is respected 
and practiced except, I am sad to say, in the Senate, when it comes to 
these judicial nominees, because what we have experienced here with 
this unprecedented obstruction is a tyranny of the minority. It is, 
frankly, a shame. I think we are poorer for it.
  We could talk about this ongoing war of ideas and debate. We can talk 
about the battle we fought here this last day and a half and how it is 
just one battle in this ongoing conflict of ideas and really debate 
about the nature of our country that we have had since the beginning of 
this country. But there is a judgment day. There is a judgment day 
under our form of government, and that is when ordinary citizens 
exercise their right to go to the polls and to say whether they approve 
or disapprove of what we are doing here in this Chamber.
  Whether you are a city councilman, county commissioner, Governor, 
Senator, Congressman, President of the United States, we are subject to 
the ultimate judgment of those voters, of those citizens, because we 
are a country that believes in the sovereignty of the people. And it is 
the people who will have the last word.
  I believe our friends on the other side of the aisle who have 
exercised this tyranny of the minority have made a very dangerous 
gamble. Their gamble is, what they are betting is, that not enough 
people are really paying attention. Of course, that is part of what we 
have been trying to do, to make sure that people who are interested 
have an opportunity to understand what is going on here and what is at 
stake.
  But ultimately, under our form of government, there can be no 
division in this body or anywhere else in this country about the fact 
that, ultimately, the American people will exercise the final judgment 
and determine who wins and who loses. That has not been decided today 
on this issue.
  This is just one battle in that ongoing war leading up to that day of 
judgment. Ultimately, for those of us who run for public office, that 
is what determines whether we will continue to serve here in this body 
or in any other elected office in this Nation or not; whether we 
maintain the confidence of the people; whether the people believe that 
what we are doing here represents their interests as opposed to special 
interests. And if, in fact, they have confidence in our judgment, our 
honesty, integrity, and what it is we are trying to accomplish here, 
then they will say so by returning us to this place, or any other 
office of public service. So, ultimately, this battle has really been a 
skirmish in this ongoing conflict.
  There is an important difference between those who would obstruct a 
bipartisan majority who want to confirm these fine nominees, and that 
is really the nature of the judicial branch of our Government.
  I have had the honor for 13 years to serve my State in the judiciary 
before I was attorney general, and now in the Senate. I believe 
fervently that what the Framers intended by creating the judicial 
branch was not one where we had ideologues on the bench, or even 
politicians who were trying to advance a political or personal agenda. 
What they conceived and what has helped maintain the rule of law by 
determining the independence of the judiciary is that we will have 
rules that will govern all of us, and there will be disputes about 
those rules and the facts will be decided by independent judges, not 
ideologues, not those politicians on the bench, not somebody who has 
run for a particular platform to be nominated and confirmed to lifetime 
tenure.
  The Framers' genius really was that that is a role they left to the 
representative branches of Government, the Congress and the executive 
branch, represented by the President. They conceived of a judiciary 
that would interpret the law and not make the law; that would interpret 
what the legislature's intent was, not promulgate public policy from 
the bench, or legislate from the bench. The legislation, they said, 
should come from the Congress. Once the Congress has determined the 
laws, then the President has a responsibility to execute the law.
  It is a judiciary that serves as the impartial ``umpire.'' We all 
know that, in any sporting activity, an umpire who takes sides before 
the contest is inconsistent with the whole idea of fair play. We are 
talking about more than fair play here. We are talking about what kind 
of nation America is and what kind of nation America will become, 
whether we preserve this concept of an independent judiciary, 
unaffected by politics, that determines the law, not makes the law.
  I believe James Madison, Alexander Hamilton, and others of the 
Founding Fathers, who so wisely conceived of this form of government, 
would literally roll in their graves if they heard some of the 
suggestions we have heard during this debate and elsewhere--that judges 
can, and perhaps should, be ideologues; and really what we are trying 
to do is achieve some sort of mythical balance to make sure we have 
enough conservatives and liberals and moderates on a multijudge bench, 
and somehow in this ``witch's brew'' we are going to come out with 
justice, with fairness; that people will know what the rules are ahead 
of time and be able to conform our conduct to what the rules are, so 
they can go about their business unafraid of being interfered with, 
molested, or sued.
  Indeed, that is what we depend on, the knowledge of what the rules 
are, and that they will be administered by those who do not have a 
stake in the outcome, or have an ax to grind, or have a political or 
personal agenda. That is what our judges are supposed to be, not those 
who participate in a game of political football.
  We do not want, as this process has seemed to degenerate into, judges 
who will precommit to the outcome of cases that may come before them 
before they have even heard the facts. In the Judiciary Committee, on 
which I serve, I have heard judicial nominees questioned about: How 
would you rule if such and so happened? What is your view of the 14th 
amendment or the 5th amendment? Assuming this given set of facts, how 
would you rule in that case?
  Those questions are entirely inappropriate. We don't want judges, and 
we should not confirm judges, who would prejudge a hypothetical set of 
facts. We want judges who have an open mind and a commitment to the 
rule of law,

[[Page 28872]]

and who will enforce that law impartially, without regard to who wins 
or loses.
  If what we are doing here jeopardizes the rule of law, we will have 
done great damage not only to this body but to our country.
  Mr. President, I thank my colleagues for patiently listening after 
this long debate. But I believed it was important to make some of these 
points.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ENSIGN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
                                 ______
                                 

                                 prayer

  The PRESIDENT pro tempore. The hour of 12 noon having arrived and the 
Senate having been in continuous session since Wednesday, pursuant to 
the order of the Senate on February 29, 1960, the Senate will suspend 
while the Chaplain offers a prayer.
  Today's prayer will be offered by our guest Chaplain, Rev. Leroy 
Gilbert, Pastor of Mount Gilead Baptist Church in Washington, DC.
  The guest Chaplain offered the following prayer:
  Eternal God, the God of grace and glory, the God whose giving knows 
no ending, the God who stretched the spangled heavens and made us 
speechless at the sight of His magnificent handiworks, we pause to 
invoke Your blessing upon our Nation, our Senators, and all those who 
serve them.
  Lord, we pray that the work of this Body will equip every household 
in America with the resources to build strong and stable families. We 
pray that the Senators' tireless efforts will enable the people of 
America to stand strong for the principles that undergird our rights, 
liberties, and the pursuit of happiness. We pray, when citizens observe 
how this Senate conducts the business of our Nation, they will be 
inspired by how those from different political parties can work 
together to achieve a common purpose for the good of America.
  As one Nation under God, may we always be protected by Your divine 
promises as recorded in Chapter 54 of Isaiah, which declares: ``This is 
the heritage of the servants of God . . . no weapon formed against you 
shall prosper . . . tyranny and terror will be far from you . . . 
whoever attacks you will surrender to you.'' To You, Almighty God who 
assures the faithful, ``I will make your way prosperous and you shall 
have good success,'' we pray. Amen.
  The PRESIDENT pro tempore. In my capacity as the Senator from Alaska, 
I suggest the absence of a quorum.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________




                    ANIMAL DRUG USER FEE ACT OF 2003

  Mr. GREGG. Mr. President, on November 7, 2003, the Senate passed the 
Animal Drug User Fee Act of 2003 which authorizes animal drug user 
fees.
  Performance goals, existing outside of the statute, accompany the 
authorization of animal drug user fees. These goals represent a 
realistic projection of what the Food and Drug Administration's Center 
for Veterinary Medicine can accomplish with industry cooperation. The 
Secretary of Health and Human Services forwarded these goals to the 
chairmen of the Senate Committee on Health, Education, Labor, and 
Pensions, and the House Committee on Energy and Commerce, in a document 
entitled ``Animal Drug User Fee Act Performance Goals and Procedures.'' 
According to Section 2 of ADUFA, ``The fees authorized by this Act will 
be dedicated toward expediting the animal drug development process and 
the review of new and supplemental animal drug applications and 
investigational animal drug submissions . . . as set forth in the 
Congressional Record.''
  Today, I am submitting for the Record this document, which was 
forwarded to the Committee on Health, Education, Labor, and Pensions on 
November 13, 2003, as well as the letter from Secretary Thompson that 
accompanied the transmittal of this document.
  I ask unanimous consent they be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                           The Secretary of Health


                                           and Human Services,

                                Washington, DC, November 13, 2003.
     Hon. Judd Gregg,
     Chairman, Committee on Health, Education, Labor and Pension,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: As you are aware, the Food and Drug 
     Administration has been working with representatives of the 
     veterinary pharmaceutical industry and staff of your 
     Committee to design a new animal drug ``user fee'' proposal. 
     Under this proposal, the additional revenues generated from 
     fees paid by this industry would be dedicated for use in 
     expediting the process for the review of animal drug 
     applications, in accordance with performance goals that have 
     been developed by FDA in consultation with the industry. S. 
     313, the ``Animal Drug User Fee Act of 2003'' reflects the 
     fee mechanisms developed in these discussions. The 
     performance goals are specific in the enclosure to this 
     letter entitled, ``Animal Drug Under Fee Act Performance 
     Goals and Procedures.'' I believe they represent a realistic 
     projection of what FDA can accomplish with industry 
     cooperation and the additional resources that would be 
     provided by the bill and annual FDA appropriations that fully 
     cover the costs of pay and inflation increases for the animal 
     drug review process each year.
       I appreciate the support of you and your staffs, and the 
     assistance of other Members of the Committee.
           Sincerely,
     Tommy G. Thompson.
                                  ____


       Animal Drug User Fee Act Performance Goals and Procedures

       The goals and procedures of the FDA Center for Veterinary 
     Medicine (CVM) as agreed to under the ``Animal Drug User Fee 
     Act of 2003'' are summarized as follows:


       Five-Year Goals (to be implemented by September 30, 2008)

       1. Review and act on 90 percent of complete animal drug 
     applications (NADAs) and reactivations of such applications 
     within 180 days after submission date.
       2. Review and act on 90 percent of non-manufacturing 
     supplemental animal drug applications (i.e., supplemental 
     animal drug applications for which safety or effectiveness 
     data are required) and reactivations of such supplemental 
     applications within 180 days after submission date.
       3. Review and act on 90 percent of manufacturing 
     supplemental animal drug applications and reactivations of 
     such supplemental applications within 120 days after 
     submission date.
       4. Review and act on 90 percent of investigational animal 
     drug study submissions within 180 days after submission date.
       5. Review and act on 90 percent of investigational animal 
     drug submissions consisting of protocols, that the Agency and 
     the sponsor consider to be an essential part of the basis for 
     making the decision to approve or not approve an animal drug 
     application or supplemental animal drug application, without 
     substantial data within 50 days after submission date.
       6. Review and act on 90 percent of administrative animal 
     drug applications (NADAs submitted after all scientific 
     decisions have been made in the investigational animal drug 
     process, i.e., prior to submission of the NADA) within 60 
     days after submission date.
       The term ``review and act on'' is understood to mean the 
     issuance of a complete action letter after the complete 
     review of an animal drug application, supplemental animal 
     drug application, or investigational animal drug submission 
     which either (1) approves an animal drug application or 
     supplemental animal drug application or notifies a sponsor 
     that an investigational new animal drug submission is 
     complete or (2) sets forth in detail the specific 
     deficiencies in such animal drug application, supplemental 
     animal drug application, or investigational animal drug 
     submission and, where appropriate, the actions necessary to 
     place such an application, supplemental application, or 
     submission in condition for approval. Within 30 days of 
     submission, FDA shall refuse to file an animal drug 
     application, supplemental animal drug application, or their 
     reactivation, which is determined to be insufficient on its 
     face or otherwise of unacceptable quality for review upon 
     initial inspection as per 21 CFR 514.110. Thus, the agency 
     will refuse to file an application containing numbers or 
     types of errors, or flaws in the development plan, sufficient 
     to cause the quality of the entire submission to be 
     questioned to the extent that it cannot reasonably be 
     reviewed.

[[Page 28873]]

     Within 60 days of submission, FDA will refuse to review an 
     investigational animal drug submission which is determined to 
     be insufficient on its face or otherwise of unacceptable 
     quality upon initial inspection using criteria and procedures 
     similar to those found in 21 CFR 514.110. A decision to 
     refuse to file an application or to refuse to review a 
     submission as described above will result in the application 
     or submission not being entered into the cohort upon which 
     the relevant user fee goal is based. The Agency will keep a 
     record of the numbers and types of such refusals and include 
     them in its annual performance report.
       FDA may request minor amendments to animal drug 
     applications, supplemental animal drug applications, and 
     investigational animal drug submissions. At its discretion, 
     the Agency may extend an internal due date (but not a user 
     fee goal) to allow for the complete review of an application 
     or submission for which a minor amendment is requested. If a 
     pending application is amended with significant changes, the 
     amended application may be considered resubmitted, thereby 
     effectively resetting the clock to the date FDA received the 
     amendment. The Agency intends to establish the same policy 
     for investigational animal drug submissions.
       Sponsors are not required to submit study protocols for 
     review. However, for each voluntarily submitted protocol for 
     a study that the Agency and the sponsor consider to be an 
     essential part of the basis for making the decision to 
     approve or not approve an animal drug application or 
     supplemental animal drug application, the Agency will issue 
     an acknowledgement letter providing comments resulting from a 
     complete review of the protocol. The acknowledgment letter 
     will be as detailed as possible considering the quality and 
     level of detail of the protocol submission, will include a 
     succinct assessment of the protocol; and will state whether 
     the Agency agrees, disagrees, or lacks sufficient information 
     to reach a decision that the protocol design, execution plans 
     and data analyses are adequate to achieve the objectives of 
     the study. If the Agency determines that a protocol is 
     acceptable, this represents an agreement that the data 
     generated by the protocol can be used to support a safety or 
     effectiveness decision regarding the subject animal drug. The 
     fundamental agreement is that having agreed to the design, 
     execution, or analyses proposed in protocols reviewed under 
     this process, the Agency will not later alter its 
     perspectives on the issues of design, execution or analyses 
     unless public or animal health concerns unrecognized at the 
     time of protocol assessment under this process are evident.


                         interim backlog goals

       1. Review and act on pending animal drug applications, 
     supplemental animal drug applications, and investigational 
     animal drug submissions within 24 months of initiation of 
     user fee payments.


                        additional interim goals

       1. Fifty percent of FDA incremental review staff recruited 
     and on-board by first quarter of FY 2006. Total staff 
     increment on-board by end of FY 2008.
       2. FDA will review all submissions in accordance with 
     procedures for working within a queue. An application/
     submission that is not reviewed within the applicable Interim 
     Application/Submission Goal time frame (noted below) will be 
     reviewed with the highest possible priority among those 
     pending.


                  interim Application/Submission Goals

     FY 04--90 percent of:
       Animal drug applications (NADAs) and reactivations of such 
     applications received during FY 2003 are reviewed within 259 
     days.
       Non-manufacturing supplemental animal drug applications and 
     reactivations of such supplemental applications received 
     during FY 2004 are reviewed within 320 days.
       Manufacturing supplemental animal drug applications and 
     reactivations of such supplemental applications received 
     during FY 2004 are reviewed within 225 days.
       Investigational animal study submissions received during FY 
     2004 are reviewed within 320 days.
       Investigational animal drug submissions of protocols, that 
     the Agency and the sponsor consider to be an essential part 
     of the basis for making the decision to approve or not 
     approve an animal drug application or supplemental animal 
     drug application, without substantial data received during FY 
     2004 are reviewed within 125 days.
       Administrative animal drug applications (administrative 
     NADAs) received during FY 2004 are reviewed within 90 days.
     FY 05--90 percent of:
       NADAs and reactivations of NADAs received during FY 2005 
     are reviewed within 270 days.
       Non-manufacturing supplemental animal drug applications and 
     reactivations of such supplemental applications received 
     during FY 2005 are reviewed within 285 days.
       Manufacturing supplemental animal drug applications and 
     reactivations of such supplemental application received 
     during FY 2005 are reviewed within 190 days.
       Investigational animal drug study submissions received 
     during FY 2005 are reviewed within 285 days.
       Investigational animal drug submissions consisting of 
     protocols, that the Agency and the sponsor consider to be an 
     essential part of the basis for making the decision to 
     approve or not approve an animal drug application or 
     supplemental animal drug application, without substantial 
     data submissions received during FY 2005 are reviewed within 
     100 days.
       Administrative NADAs received during FY 2005 are reviewed 
     within 85 days.
     FY 06--90 percent of :
       NADAs and reactivations of NADAs received during FY 2006 
     are reviewed within 230 days.
       Non-manufacturing supplemental animal drug applications and 
     reactivations of such supplemental applications received 
     during FY 2006 are reviewed within 235 days.
       Manufacturing supplemental animal drug applications and 
     reactivations of such supplemental applications received 
     during FY 2006 are reviewed within 140 days.
       Investigational animal drug study submissions received 
     during FY 2006 are reviewed within 235 days.
       Investigational animal drug submissions consisting of 
     protocols, that the Agency and the sponsor consider to be an 
     essential part of the basis for making the decision to 
     approve or not approve an animal drug application or 
     supplemental animal drug application, without substantial 
     data submissions received during FY 2006 are reviewed within 
     80 days.
       Adminstrative NADAs received during FY 2006 are reviewed 
     within 80 days.
     FY 07--90 percent of:
       NADAs and reactivations of NADAs received during FY 2007 
     are reviewed within 200 days.
       Non-manufacturing supplemental animal drug applications and 
     reactivations of such supplemental application received 
     during FY 2007 are reviewed within 200 days.
       Manufacturing supplemental animal drug applications and 
     reactivations of such supplemental applications received 
     during FY 2007 are reviewed within 120 days.
       Investigational animal drug study submissions received 
     during FY 2007 are reviewed within 200 days.
       Investigational animal drug submissions consisting of 
     protocols, that the Agency and the sponsor consider to be an 
     essential part of the basis for making the decision to 
     approve or not approve an animal drug application or 
     supplemental animal drug application, without substantial 
     data submissions received during FY 2007 are reviewed within 
     60 days.
       Administrative NADAs received during FY 2007 are reviewed 
     within 70 days.
     FY 08--90 percent of:
       NADAs and reactivations of NADAs received during FY 2008 
     are reviewed within 120 days.
       Non-manufacturing supplemental animal drug applications and 
     reactivations of such supplemental applications received 
     during FY 2008 are reviewed within 180 days.
       Manufacturing supplemental animal drug applications and 
     reactivations of such supplemental applications received 
     during FY 2008 are reviewed within 120 days.
       Investigational animal drug study submissions received 
     during FY 2008 are reviewed within 180 days.
       Investigational animal drug submissions consisting of 
     protocols, that the Agency and the sponsor consider to be an 
     essential part of the basis for making the decision to 
     approve or not approve an animal drug application or 
     supplemental animal drug application, without substantial 
     data submissions received during FY 2008 are reviewed within 
     50 days.
       Administrative NADAs received during FY 2008 are reviewed 
     within 60 days.


                          workload adjustment

       The Animal Drug User Fee Act of 2003, requires FDA to 
     annually adjust fee revenues after FY 2004 to reflect changes 
     in review workload utilizing a weighted average of animal 
     drug applications, supplemental animal drug applications for 
     which data with respect to safety or effectiveness are 
     required, manufacturing supplemental animal drug 
     applications, investigational animal drug study submissions, 
     and investigational animal drug protocol submissions. The 
     Agency currently intends to utilize the method detailed below 
     to calculate the workload adjustment, and the percent 
     increase in fees will be the amount of the sum of the output 
     from the workload adjuster that is greater than one (1.0). 
     However, the weighting of the specific factors may change in 
     light of discussions with the animal drug industry and the 
     results of ongoing activity based costing analyses within the 
     Center for Veterinary Medicine.
       The term ``workload adjuster'' applicable to a fiscal year 
     consists of the sum of the following 5 components:
       (A) The percent of change in the total number of original 
     and reactivated animal drug applications submitted (comparing 
     the three-year average number of such submissions for fiscal 
     year 2001-2003 to the three-year average for the most recent 
     three year period ending June 30 before the start of the 
     fiscal year) times 3 percent.
       (B) The percent of change in the total number of original 
     and reactivated supplemental animal drug applications for 
     which

[[Page 28874]]

     data with respect to safety or effectiveness are required 
     (comparing the three-year average number of such submissions 
     for fiscal year 2001-2003 to the three-year average for the 
     most recent three year period ending June 30 before the start 
     of the fiscal year) times 12 percent.
       (C) The percent of change in the total number of original 
     and reactivated manufacturing supplemental animal drug 
     applications (comparing the three-year average number of such 
     submissions for fiscal year 2001-2003 to the three-year 
     average for the most recent three year period ending June 30 
     before the start of the fiscal year) times 25 percent.
       (D) The percent of change in the total number of 
     investigational animal drug study submissions (comparing the 
     three-year average number of such submissions for fiscal year 
     2001-2003 to the three-year average for the most recent three 
     year period ending June 30 before the start of the fiscal 
     year) times 46 percent.
       (E) The percent of change in the total number of reviewed 
     investigational animal drug protocol submissions (comparing 
     the three-year average number of such submissions for fiscal 
     year 2001-2003 to the three-year average for the most recent 
     three year period ending June 30 before the start of the 
     fiscal year) times 14 percent.

                          ____________________




THE VA-HUD APPROPRIATIONS BILL AND THE DEFENSE AUTHORIZATION CONFERENCE 
                                 REPORT

  Mr. JEFFORDS. Mr. President, hardly a day goes by without an 
announcement of new casualties in Iraq, a news story about the family 
of a fallen service member, or the profile of a heroic soldier learning 
to cope with the aftermath of wounds suffered in Iraq. While the 
conflict is Iraq prompts quick approval of the defense spending bills, 
there is less appreciation for mounting costs to the Department of 
Veterans Affairs.
  I was most distressed at last month's refusal by the White House to 
support the Senate's addition to the Iraq-Afghanistan emergency 
supplemental of $1.3 billion in funding for veterans' health care. Most 
Senators understand that military activities in Iraq are significantly 
increasing the burden on the VA, and supported the addition of $1.3 
billion to the Iraq supplemental. Seeing that this amendment was poised 
for inclusion in the final bill, the White House sent notice to 
Congress that it would veto the entire package if money for the VA were 
included. Sadly, Congress gave in to administration pressure and 
removed this critical funding.
  I am pleased that the Senate leadership finally saw fit to bring the 
VA-HUD appropriations bill to the Senate floor this week. This critical 
legislation, setting funding levels for fiscal year 2004, which 
actually began 6 weeks ago, is long overdue. This legislation provides 
$62 billion for the Veterans Administration, $27 billion of which goes 
to the Veterans Health Administration, an increase of $3.9 billion over 
last year's spending level and $1.3 billion over the President's 
request. Because of budget constraints and the unwillingness of the 
administration to endorse additional funding for the VA, the Senate 
Appropriations Committee designated the additional $1.3 billion as 
emergency spending so as not to count against the annual spending caps. 
However, this also made the increase subject to the President's 
approval, and it risked meeting the same fate as other increases 
rejected by President Bush.
  I am very pleased that during debate on the VA-HUD appropriations 
bill, the managers successfully offered an amendment to remove the 
emergency designation and incorporate the $1.3 billion into the bill, 
thereby greatly increasing the chances that this money will actually 
get to veterans this year. It seems that a majority of Senators have 
been listening to the few of us who have been decrying the state of VA 
funding for some time, and they are now coming to understand that even 
these modest increases do not make up for the continual shortfall 
experienced by the VA in recent years. It's long past time that this 
trend be reversed.
  The Senate VA-HUD appropriations bill also supports the Rural Health 
Initiative, RHI, a successful examination of innovative methods of 
delivering health care to veterans in rural areas. The VA must become 
more adept at spreading its health care dollars further across rural 
America. I am encouraged that the RHI will help improve the VA's 
performance in this area.
  After making significant progress on this legislation, I was 
discouraged that the Senate leadership decided to pull this VA-HUD bill 
off the floor prior to its completion in order to begin a 30-hour 
discussion of the status of judicial nominations. While I agree that 
judicial nominations are important, I was most disappointed that a 
largely partisan political debate took precedence over the completion 
of much needed funding for veterans. I urge the leadership to quickly 
bring us back to the people's business--the work we were sent here to 
accomplish.
  I would like to mention another issue of concern to veterans that 
came before the Senate this week. For years I have been a primary 
promoter of concurrent receipt--the payment to disabled veterans of the 
full disability and retirement benefits to which they are entitled. For 
many years, disabled military retirees have been forced to choose 
between receiving their full retirement pay or their disability 
benefits. This injustice has finally been recognized by a majority of 
the Congress, in large part due to the unflagging commitment of Senator 
Harry Reid. In recent years, Congress has moved to partially restore 
these benefits. The fiscal year 2004 Defense authorization conference 
report contains legislation allowing combat disabled veterans with a 
disability greater than 10 percent to receive their full disability and 
retirement benefits. It also provides for a 10-year phase-in of full 
disability and retirement benefits for those with a noncombat related 
disability rating of over 50 percent.
  While I am pleased to see this important improvement in benefit 
payments, I am concerned that some might view this as the end of the 
road for this issue. I intend to work closely with Senator Reid to 
continue to press the administration and the Congress to fully fund 
concurrent receipt for all disabled veterans. This is a basic principle 
of fairness that is not rectified by halfway measures.
  I regret that, for a number of reasons, I was unable to support 
passage of the Defense authorization conference report, despite its 
progress on concurrent receipt. Unfortunately, the legislation included 
unacceptable environmental provisions. As a former Navy Officer and 30-
year reservist. I understand the need for the best possible military 
training. As the ranking member of the Environment and Public Works, 
EPW, Committee, I was quite concerned by a request from the Bush 
administration to exempt the Department of Defense, DoD, from five of 
our Nation's most important and effective environmental laws. After 
careful review by the EPW Committee, I was convinced that the waivers 
contained in current law are quite sufficient to provide flexibility 
for DoD if it needs greater leeway to conduct military readiness 
exercises.
  In an effort to forge a reasonable compromise between DoD's request 
and sound environmental policy, Senator Lautenberg and I authorzed as 
amendment to the defense authorization bill that was supported by a 
majority of Senators. While this amendment carefully balanced the 
Defense Department's need for training with the Interior Department's 
mandate to protect endangered species, it was dropped in conference 
with the House of Representatives. In its place, the conferees added 
language providing DoD with broad authority to sidestep the Endangered 
Species Act and the Marine Mammal Protection Act, even dropping 
requirements that any waivers be related to military readiness. I 
cannot in good conscience support legislation that undermines such 
critical environmental legislation. Therefore, I had no choice but to 
vote against the defense authorization conference agreement in spite of 
its improvement on concurrent receipt.
  Mr. President, we have a long way to go before our veterans health 
system is fully funded and before veterans receive the full 
compensation they deserve for their years of service to the Nation. I 
hope that the daily stories of herosim coming out of Iraq will compel

[[Page 28875]]

more Members of Congress to stand with the veterans and not to rest 
until justice is done.

                          ____________________




                         INTELLIGENCE FAILURES

  Mr. JOHNSON. Mr. President, I rise today to discuss an article 
entitled ``The Stovepipe'' by Seymour Hersh that appeared in a recent 
edition of The New Yorker magazine.
  The article outlines a series of disturbing intelligence failures 
within the Bush administration leading up to the war in Iraq. From 
ignoring career intelligence analysts to relying on unreliable raw 
data, the article makes the case that senior members of the Bush 
administration often ignored information that did not fit their 
preconceived view of the situation in Iraq and pushed the intelligence 
community to come up with information that would support their 
position, regardless of its accuracy. In particular, the article 
outlines the practice of ``stovepiping'' information in which 
intelligence was passed up through the administration without 
subjecting it to a thorough review by intelligence professionals.
  The bad intelligence that resulted from this process was then used to 
convince our Nation of the need to engage in a near-unilateral, pre-
emptive war in Iraq to protect the American people from what was 
described as an imminent threat from Iraq's weapons of mass 
destruction.
  As a result of this go it alone approach in Iraq, the Bush 
administration has alienated much of the world, told U.S. taxpayers 
that they are financially responsible for rebuilding Iraq, and ordered 
more than a hundred thousand U.S. troops to stay in Iraq for the 
foreseeable future--yet no evidence of Iraq's weapons of mass 
destruction have been found.
  Mr. President, there is no doubt that at one time Iraq possessed 
chemical weapons. We know that Saddam Hussein used these weapons during 
the Iran-Iraq war and on his own people. There is also no doubt that at 
one point Saddam Hussein pursued a nuclear weapons program. However, 
the Iraq Survey Group--the group charged with finding Iraqi weapons of 
mass destruction--has yet to turn up any proof of the huge WMD 
stockpiles and nuclear weapons program of which the Bush administration 
repeatedly told us they had evidence.
  It is clear that the world and the Iraqi people are better off 
without Saddam Hussein. He was a brutal dictator who terrorized his own 
people and destabilized the entire Middle East. I am extremely proud of 
the men and women of our Armed Forces for their actions during the war 
and the ongoing efforts to stabilize the country. Now that we are 
there, we cannot ``cut and run'' and we must provide our troops with 
the resources they need to complete their mission and to return home as 
soon as possible.
  However, I am deeply concerned that we sent our sons and daughters to 
war based largely on what turns out to be faulty intelligence. The ends 
of the war do not justify the means by which the Bush administration 
convinced the American people that this war was necessary. That is why 
I believe we need to have an independent investigation into the 
acquisition and use of intelligence leading up to the decision to go to 
war in Iraq, not as a political attack, but as a way to make sure that 
future decisions about whether or not our country goes to war based on 
the best possible intelligence.
  Mr. President, I encourage all of my colleagues to read this 
important Hersh article from The New Yorker of October 21, 2003.

                          ____________________




         21ST CENTURY NANOTECHNOLOGY RESEARCH & DEVELOPMENT ACT

  Mr. ALLEN. Mr. President, I rise today to thank my colleagues for 
their support of S. 189, the 21st Century Nanotechnology Research and 
Development Act.
  Especially I want to thank my colleague from Oregon, Senator Ron 
Wyden, for his leadership. I have enjoyed working with Senator Wyden on 
nanotechnology for the past several years on this important issue for 
America's future. I would also like to thank the other cosponsors on 
this legislation: Commerce Committee Chairman and Commodore John 
McCain, the senior Senator from Virginia, Mr. Warner, and Senators 
Lieberman, Mikulski, Hollings, Landrieu, Clinton, Levin, and Bayh.
  I have made America's competitiveness in nanotechnology a priority, 
and working with Senator Wyden and the chairman of the Commerce, 
Science, and Transportation Committee, Senator McCain, we held the 
first hearings in Congress on this emerging science, a field that 
promises to forever change the way we approach scientific and 
engineering challenges. Nanotechnology is a ``bottom-up'' approach much 
like building a sculpture atom by atom and molecule by molecule instead 
of cutting it from a larger rock. Nanotechnology on the dimensional 
scale is one nanometer; that is, one-billionth of a meter or 100,000 
times smaller than the width of a human hair.
  Far-reaching outcomes for the 21st century are envisioned in both 
scientific knowledge and technological advancement for nanotechnology. 
The potential for nanotechnology and the exciting work taking place in 
nanoscience are by all accounts revolutionary, and as the technology 
matures it will undoubtedly have a tremendous impact on our daily 
lives.
  S. 189 is a truly historic piece of legislation, because, for the 
first time, it creates a comprehensive national plan to advance and 
develop the field of nanoscience, nanoengineering, and nanotechnology. 
This field of science is quickly transforming almost every aspect of 
our modern world and is already significantly improving our quality of 
life. Nanotechnology is also showing promise of new applications that 
we can only imagine at this time. Let me highlight several important 
examples, such as the use of iron nanoparticles in the cleanup of 
Superfund sites; nanometer-size minerals in the efficient production of 
gasoline from crude oil; nanoscale designer molecules to create bone 
structure for bone repair; nanolasers for super-precision surgery; and 
gold nanoshells with attached antibodies introduced to targeted cancer 
tumor sites to destroy tumor growth while leaving healthy tissue 
unharmed.
  As a Senator, my top priority is to advocate and support policies 
that create jobs, investment, and improvement of America's ability to 
compete in the global marketplace.
  I earnestly believe there is a link between research and development 
and job creation, which ultimately leads to prosperity for all 
Americans. Therefore, I believe one of our most important goals should 
be to create the conditions precedent to positioning researchers and 
innovators to compete, contribute, and succeed both domestically and 
internationally. From materials to electronic devices, computers, 
biotechnology, healthcare systems, pharmaceuticals, environmental 
improvement, agriculture, efficient energy conversion and storage, 
space exploration, economical transportation, and national defense, 
nanotechnology will be the foundation of many of the revolutionary 
advances and discoveries in the decades to come and will soon occupy a 
major portion of the technology economy. The annual global impact of 
products where nanotechnology will play a key role has been estimated 
to exceed $1 trillion a year by 2015, requiring about 2 million 
nanotechnology workers.
  To remain competitive in this global market we must commit ourselves 
to ensuring that the United States keeps its edge in this field. This 
Nation has been the leader of virtually every important and 
transformative technology since the Industrial Revolution, and this 
legislation assures that the United States will continue to lead the 
world at the new frontier of the nanotechnology revolution.
  Specifically, the legislation authorizes a total of $3.63 billion in 
appropriations over 4 years from fiscal year 2005 through fiscal year 
2008.
  The goals of the legislation are to provide support for fundamental 
research and to catalyze synergistic interdisciplinary science and 
engineering research and education in emerging

[[Page 28876]]

areas of nanoscience by: providing research grants to individuals and 
interdisciplinary teams of investigators; establishing a network of 
advanced technology user facilities and collaborative research centers; 
accelerating nanotechnology research and development in the private 
sector including startup companies; encouraging participation of 
colleges and universities; and guaranteeing United States international 
leadership in the development and application of nanotechnology.
  This historic legislation not only helps ensure America's economic 
competitiveness in the global marketplace, but spurs innovation and 
research in a field of science and technology that can touch every 
human life. I thank my colleagues for working with Senator Wyden and me 
to pass this truly vital legislation for America's future.

                          ____________________




                       HONORING OUR ARMED FORCES

  Mr. LIEBERMAN. Mr. President, I rise today to pay tribute to Private 
First Class Anthony D. D'Agostino, U.S. Army, of Waterbury, CT. It is 
with great sadness of heart that rather than celebrating his birthday, 
which would have been November 6, we are instead mourning his death. He 
is the sixth member of the military from Connecticut to die in Iraq.
  Even as we mourn his passing, however, we can celebrate his life. His 
father served in the military, and PFC D'Agostino continue that great 
tradition. He lived as a true patriot and defender of our great 
Nation's principles of freedom and justice. He was a member of the 
313th Signal Company, 3rd Signal Brigade, Fort Hood, TX. No doubt, PFC 
D'Agostino was looking forward to some well-deserved rest and 
recuperation as the CH-47 helicopter he was traveling in was shot down 
by a shoulder-type missile, forcing it to crash land. He was killed 
along with 15 others on what has been characterized as one of the 
bloodiest days in Iraq.
  PFC D'Agostino's mission was clear, as was his resolve. He served as 
a messenger of high justice and idealism in the best tradition of 
American principles and patriotism. I am both proud and grateful that 
we have the kind of fighting force he so exemplified.
  Our Nation extends its heartfelt condolences to his family. We extend 
our appreciation for sharing this outstanding soldier with us, and we 
offer our prayers and support. You may be justifiably proud of his 
contributions.

                          ____________________




                   LOCAL LAW ENFORCEMENT ACT OF 2003

  Mr. SMITH. Mr. President, I rise today to speak about the need for 
hate crimes legislation. On May 1, 2003, Senator Kennedy and I 
introduced the Local Law Enforcement Enhancement Act, a bill that would 
add new categories to current hate crimes law, sending a signal that 
violence of any kind is unacceptable in our society.
  I would like to describe one such crime today. At a well-known 
Atlanta college, Aaron Price left a dormitory bathroom after suspecting 
that one of his classmates had made an unwanted sexually suggestive 
gesture toward him. Mr. Price returned to the bathroom, with a baseball 
bat from his bedroom closet, and proceeded to beat his classmate in the 
head. Mr. Price did not stop until he had fractured the student's 
skull, chipped many of his teeth, and caused a life-threatening blood 
clot to develop in his classmate's brain.
  Also, I would like to recall two crimes that occurred in a 90-minute 
span on September 2, 1998, in Huntington, WV. There, two men were 
berated with anti-gay slurs, then beaten by the same trio of attackers. 
The first of the two anti-gay attacks occurred as a 31-year-old New 
Jersey man, who was headed to the PATH train from a local bar, was 
attacked by three men. The man was kicked and punched, then thrown down 
a flight of stairs.
  The victim of the second attack was a 48-year-old man who left a 
different bar. He was grabbed from behind and thrown to the ground by 
three men fitting the description given by the first victim. The men 
made anti-gay remarks, then took his wallet. One of the men pulled out 
a knife, and the victim suffered a cut on his arm and a broken wrist 
during the fight. Police believe the two victims were targeted because 
they are gay.
  In conclusion, I would like to describe a terrible crime today. Guinn 
``Richie'' Phillips of Rineyville, KY, disappeared on June 17, 2003. 
His body was found one week later. Josh Cottrell, the man accused of 
the murder, is believed to have killed the victim because he dislikes 
homosexuals. Mr. Cottrell had earlier told his aunt and cousin that he 
planned to kill Mr. Phillips after Mr. Phillips made an unwanted 
advance in a local hotel. Mr. Cottrell allegedly strangled Mr. Phillips 
and stuffed his body into a suitcase, later dropping it in a lake.
  I believe that Government's first duty is to defend its citizens, to 
defend them against the harms that come out of hate. The Local Law 
Enforcement Enhancement Act is a symbol that can become substance. I 
believe that by passing this legislation and changing current law, we 
can change hearts and minds as well.

                          ____________________




                        CBO ESTIMATE ON S. 1248

  Mr. GREGG. Mr. President, on November 3, 2003, I filed Report 108-185 
to accompany S. 1248, a bill to reauthorize the Individuals with 
Disabilities Education Act, and for other purposes. At the time the 
report was filed, the estimates by the Congressional Budget Office were 
not available. I ask unanimous consent that a complete copy of the CBO 
estimate be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                    U.S. Congress,


                                  Congressional Budget Office,

                                    Washington, DC, July 11, 2003.
     Hon. Judd Gregg,
     Chairman, Committee on Health, Education, Labor, and 
         Pensions, U.S. Senate, Washington, DC.
       Dear Mr. Chairman: The Congressional Budget Office has 
     prepared the enclosed cost estimate for S. 1248, the 
     Individuals with Disabilities Education Improvement Act of 
     2003.
       If you wish further details on this estimate, we will be 
     pleased to provide them. The CBO staff contact is Donna Wong.
           Sincerely,
                                              Douglas Holtz-Eakin,
                                                         Director.
       Enclosure.
     S. 1248--Individuals with Disabilities Education Improvement 
         Act of 2003
       Summary: S. 1248 would reauthorize the Individuals with 
     Disabilities Education Act (IDEA) through 2009. The bill also 
     would amend two programs that are permanently authorized by 
     IDEA, create four new programs, and amend the Rehabilitation 
     Act of 1973.
       CBO estimates that the bill would authorize additional 
     appropriations of $841 million in 2004, for a total of about 
     $10.2 billion in that year (including the two programs that 
     are permanently authorized). CBO estimates that the new 
     authorizations under S. 1248 would total about $5.3 billion 
     over the 2004-2009 period, assuming that annual levels are 
     adjusted for inflation. CBO estimates that appropriations of 
     those authorized levels would result in additional outlays of 
     $4.0 billion over the 2004-2009 period.
       Enacting S. 1248 would affect direct spending. CBO 
     estimates that the new state grants for rehabilitation 
     services for students with disabilities would increase 
     mandatory outlays by $139 million in 2004 and $1.8 billion 
     over the 2004-2013 period.
       S. 1248 contains no intergovernmental or private-sector 
     mandates as defined by the Unfunded Mandates Reform Act 
     (UMRA). Any requirements on states or educational 
     institutions would be conditions for receiving federal 
     grants; the bill would authorize more than $4 billion over 
     the 2004-2009 period in additional funding for such grants.
       Estimated cost to the Federal Government: The estimated 
     budgetary impact of S. 1248 is shown in Table 1. The costs of 
     this legislation fall within budget function 500 (education, 
     training, employment, and social services).

[[Page 28877]]



                  TABLE 1.--ESTIMATED BUDGETARY EFFECTS OF S. 1248, THE INDIVIDUALS WITH DISABILITIES EDUCATION IMPROVEMENT ACT OF 2003
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        By fiscal year, in millions of dollars--
                                                              ------------------------------------------------------------------------------------------
                                                                   2003         2004         2005         2006         2007         2008         2009
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            SPENDING SUBJECT TO APPROPRIATION
 
Baseline Spending Under Current Law:
    Estimated Authorization Level\1\.........................        9,434        9,323        9,506        9,708        9,910       10,130       10,350
    Estimated Outlays........................................        8,152        9,484        9,580        9,595        9,755        9,963       10,180
Proposed Changes:
    Estimated Authorization Level............................            0          841          857          875          893          913          933
    Estimated Outlays........................................            0           17          547          809          868          886          905
Spending Under S. 1248:
    Estimated Authorization Level............................        9,434       10,164       10,364       10,583       10,803       11,042       11,282
    Estimated Outlays........................................        8,152        9,501       10,127       10,404        10623       10,849       11,086
 
                                                                     DIRECT SPENDING
 
Baseline Spending Under Current Law:\2\
    Estimated Budget Authority...............................        2,533        2,587        2,645        2,706        2,772        2,840        2,911
    Estimated Outlays........................................        2,515        2,569        2,626        2,686        2,750        2,818        2,888
Proposed Changes:
    Estimated Budget Authority...............................            0          198          205          212          220          228          236
    Estimated Outlays........................................            0          139          197          210          218          225          233
Spending Under S. 1248:
    Estimated Budget Authority...............................        2,533        2,785        2,850        2,918        2,992        3,068        3,147
    Estimated Outlays........................................        2,515        2,708        2,823        2,896        2,968        3,043        3,121
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\The 2003 level is the amount appropriated for that year for all IDEA programs. The 2004-2009 levels are the baseline amounts for the Grants to States
  and the Preschool state grants programs, which are permanently authorized under IDEA. The 2004 level includes an advance appropriation of $5.7 billion
  in the Grants to States program.
\2\Projected spending is CBO's baseline for state grants for rehabilitation services and handicapped research.
 
Note.--Components may not sum to totals because of rounding.

       Basis of estimate: S. 1248 would reauthorize the 
     Individuals with Disabilities Education Act through 2009. All 
     IDEA programs were authorized in 2003 by the General 
     Education Provisions Act (GEPA), and the two largest 
     programs--Grants to States and Preschool state grants--are 
     permanently authorized. S. 1248 would amend those two 
     programs, create four new programs, and amend the 
     Rehabilitation Act of 1973.
       Most programs authorized under IDEA would be reauthorized 
     at such sums as may be necessary for 2004 through 2009. For 
     existing programs, the estimated authorization level is the 
     2003 appropriated amount inflated (i.e., a baseline 
     projection). For new programs, if amounts are not specified, 
     the estimated authorization level is CBO's projection of what 
     it would cost to implement the new program. If funding is 
     specified, CBO's estimate for authorized levels is the 
     authorized amount for 2004 with that amount inflated in later 
     years. As noted above, funding for the Grants to States and 
     Preschool state grants programs is already permanently 
     authorized at such sums as may be necessary, so the estimate 
     assumes that funding would continue at the baseline level.
       State grants for rehabilitation services are classified as 
     mandatory or direct spending under the Budget Enforcement Act 
     of 1990. Although the specific authorization for the grants 
     expired in 2002, automatic one-year extensions under the 
     Rehabilitation Act of 1973 and GEPA authorize the grants 
     through 2004. Under section 257 of the Balanced Budget and 
     Emergency Deficit Control Act, CBO is required to assume a 
     permanent continuation of the program for baseline purposes. 
     The estimated costs for the bill's authorization of state 
     grants for students with disabilities are projected to 
     increase with inflation and with the number of students with 
     disabilities ages 14 to 21.
       The current-law levels for 2003 shown in tables 1 and 2 are 
     the amounts appropriated that year for all programs. Amounts 
     authorized under current law for years 2004 through 2009 are 
     CBO's baseline projections for the two programs that are 
     permanently authorized and include an advance appropriation 
     of $5.7 billion in 2004 for the Grants to States program.
       CBO estimates that S. 1248 would authorize additional 
     appropriations of $841 million in 2004 and additional funding 
     of $5.3 billion over the 2004-2009 period assuming that 
     ``such sums'' amounts are adjusted for inflation. If the 
     authorized amounts are appropriated, outlays would increase 
     by $17 million in the first year and by $4.0 billion over the 
     six-year period. In addition, if S. 1248 were enacted, CBO 
     estimates that direct spending (for the new state grants for 
     rehabilitation services) would increase by $139 million in 
     2004 and by $1.8 billion over the 2004-2013 period.
     Spending subject to appropriation
       Table 2 presents CBO's estimates of spending subject to 
     appropriation with inflation adjustments for the various 
     components of each title under S. 1248. The estimated outlays 
     reflect historical rates of spending for the affected 
     programs or for similar programs.

       TABLE 2.--DETAILED EFFECTS OF S. 1248, THE INDIVIDUALS WITH DISABILITIES EDUCATION IMPROVEMENT ACT OF 2003, WITH ADJUSTMENTS FOR INFLATION
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        By fiscal year, in millions of dollars--
                                                              ------------------------------------------------------------------------------------------
                                                                   2003         2004         2005         2006         2007         2008         2009
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            SPENDING SUBJECT TO APPROPRIATION
 
IDEA Spending Under Current Law:
    Budget Authority/Authorization Level\1\..................        9,434        9,323        9,506        9,708        9,910       10,130       10,350
    Estimated Outlays........................................        8,152        9,484        9,580        9,595        9,755        9,963       10,180
Proposed Changes:
    Title I: Amendments to the Individuals with Disabilities
     Education Act:
        Infants and Toddlers State Grants:
            Estimated Authorization Level....................            0          442          450          460          469          480          490
            Estimated Outlays................................            0            9          287          425          456          466          476
        State Professional Development Grants and Personnel
         Preparation:
            Estimated Authorization Level....................            0           52           53           54           56           57           58
            Estimated Outlays................................            0            1           34           50           54           55           56
        Personnel Development:
            Estimated Authorization Level....................            0           93           95           97           99          102          104
            Estimated Outlays................................            0            2           61           90           97           99          101
        Technology Development, Demonstration and
         Utilization; Media Services:
            Estimated Authorization Level....................            0           39           39           40           41           42           43
            Estimated Outlays................................            0            1           25           37           40           41           42
        Access of Instructional Materials:
            Estimated Authorization Level....................            0            5            5            5            5            5            6
            Estimated Outlays................................            0            *            3            5            5            5            5
        Parent Training and Information Centers, Community
         Parent Resource Centers, and other activities:
            Estimated Authorization Level....................            0           81           82           84           86           88           90
            Estimated Outlays................................            0            2           53           78           83           85           87
        Interim Alternative Education Settings, Behavioral
         Supports and Whole School Interventions:
            Estimated Authorization Level....................            0           50           51           52           53           54           56
            Estimated Outlays................................            0            1           33           48           52           53           54
    Title III: National Center for Special Education
     Research:
        Estimated Authorization Level........................            0           79           80           82           83           85           87
        Estimated Outlays....................................            0            2           51           76           81           83           85
    Title IV: Commission on Universal Design and the
     Accessibility of Curriculum and Instructional Materials:
        Estimated Authorization Level........................            0            1            1            0            0            0            0
        Estimated Outlays....................................            0            1            1            *            0            0            0
Total Proposed Changes:
    Estimated Authorization Level............................            0          841          857          875          893          913          933

[[Page 28878]]

 
    Estimated Outlays........................................            0           17          547          809          868          886          905
Total Discretionary Spending Under S. 1248:
    Estimated Authorization Level............................        9,434       10,164       10,364       10,583       10,803       11,042       11,282
    Estimated Outlays........................................        8,152        9,501       10,127       10,404       10,623       10,849       11,086
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\The 2003 level is the amount appropriated for that year for all IDEA programs. The 2004 through 2009 levels are the baseline amounts for the Grants
  to States and the Preschool state grants programs which are permanently authorized under IDEA. The 2004 level includes an advance appropriation of
  $5.7 billion for the Grants to States program.
 
Notes. Components may not sum to totals because of rounding. *= Less than $500,000.

       Title I: Amendments to the Individuals with Disabilities 
     Education Act. Title I of the bill would amend programs 
     authorized under the IDEA. CBO estimates that this title's 
     additional IDEA authorizations would total $762 million in 
     2004 and $4.8 billion over the 2004-2009 period. We estimate 
     that the resulting outlays would be about $15 million in 2004 
     and $3.7 billion over the 2004-2009 period.
       Grants to States. S. 1248 would authorize such sums as may 
     be necessary for the Grants to States program. Because the 
     program is already permanently authorized at such sums, we 
     assume that funding would continue to be authorized at the 
     current baseline level.
       The state grant program provides formula grants to states 
     to assist them in covering the excess costs of providing 
     special education services to children with disabilities. 
     Funding for this program currently is provided on an 
     academic-year basis through appropriations in two separate 
     fiscal years: a forward-funded appropriation which is 
     available July 1 of the current fiscal year, and an advance 
     appropriation available October 1 of the next fiscal year. 
     Although the program has been funded by two separate 
     appropriations since 2001, funding does not need to be 
     authorized separately because all of the funds for an 
     academic year could be provided in one appropriation. The 
     program is funded at just under $8.9 billion in academic year 
     2003-2004 ($3.2 billion in 2003 and $5.7 billion in 2004).
       Preschool State Grants. S. 1248 would authorize such sums 
     as may be necessary for the Preschool grants program. The 
     Preschool state grants program is already permanently 
     authorized at such sums as may be necessary so the bill would 
     not change current authorizations for this program. The 
     Preschool program provides additional grants to states for 
     providing special education services to children with ages 3 
     through 5. The program is funded at 4387 million in 2003.
       Infants and Toddlers with Disabilities. S. 1248 would 
     reauthorize the infants and toddlers state grant program at 
     such sums as may be necessary in years 2004 through 2009. The 
     infants and toddlers program provides funds to states for 
     early intervention and identification activities. The program 
     is funded at $434 million in 2003 and CBO estimates that the 
     authorization for 2004 would be about $442 million under S. 
     1248. Assuming annual adjustments for inflation, we estimate 
     a six-year total authorization of $2.8 billion.
       State Professional Development Grants. The bill would 
     authorize such sums as may be necessary for years 2004 
     through 2009 for state professional development grants. The 
     state professional development grant program provides grants 
     to states to help them improve their systems for professional 
     development and providing special education services. Funds 
     can be used for personnel preparation, in-service training, 
     and other activities. Grants are distributed on a competitive 
     basis in years that the appropriation is less than $100 
     million and would be distributed partly based on a formula if 
     the appropriation exceeds that amount. The current state 
     improvement program is funded at $51 million in 2003 and CBO 
     estimates that the bill would authorize the appropriation of 
     $52 million for 2004 and $330 million over the next six 
     years.
       Personnel Development to Improve Services and Results for 
     Children with Disabilities. The bill would authorize such 
     sums as may be necessary in years 2004 through 2009 for 
     competitive awards to institutions of higher education and 
     other organizations to fund programs that help address needs 
     for highly qualified personnel in special education, and 
     other activities. Comparable activities are funded at $92 
     million in 2003 and CBO estimates that the bill would 
     authorize funding of $93 million for 2004 and $590 million 
     over the 2004-2009 period.
       Technology Development, Demonstration and Utilization, and 
     Media Services. S. 1248 would authorize such sums as may be 
     necessary for programs that provide funds for activities that 
     increase access to the classroom for children with 
     disabilities. These programs focus on services for 
     individuals who are deaf or blind such as video and closed 
     captioned television. Comparable activities are funded at $38 
     million in 2003 and CBO estimates that the authorization 
     would be $39 million of 2004 and $244 million over the 2004-
     2009 period.
       Access of Instructional Materials. S. 1248 would create a 
     National Instructional Materials Access center to coordinate 
     the acquisition and distribution of materials for the blind. 
     The center would collect electronic files by book publishers 
     and catalogue, store and distribute the electronic files to 
     authorized entities free of charge. The department would 
     award a contract to a nonprofit organization to administer 
     the center. The bill would permanently authorize funding at 
     such sums as may be necessary and based on discussions with 
     Congressional staff and the Department of Education on the 
     intent and scope of the center, CBO estimates that the annual 
     cost to create and operate the center would be between $5 
     million and $6 million over the next six years.
       Parent Training and Information Centers, Community Parent 
     Resource Centers, Technical Assistance for Parent Training 
     and Information Centers, Technical Assistance and 
     Demonstration, Dissemination of Information, and 
     Implementation of Scientifically Based Research. The bill 
     would authorize such sums as may be necessary in years 2004 
     through 2009 for parent training and information centers, 
     community parent resource centers, technical assistance, and 
     activities that support scientifically based research. The 
     regional centers provide information, training, and referral 
     services to parents of children with disabilities. Comparable 
     activities are funded at $79 million in 2003 and CBO 
     estimates that the bill would authorize funding of $81 
     million for 2004 and $511 million over the 2004-2009 period.
       Interim Alternative Educational Settings, Behavioral 
     Support, and Whole School Interventions. S. 1248 would create 
     a new competitive grant program to provide grants to 
     organizations to establish practices related to student 
     behavior. Practices could include early screening efforts, 
     training for school staff on positive behavioral 
     interventions, and on-site counseling services. The bill 
     would authorize $50 million in 2004 and such sums as may be 
     necessary for the next five years. Assuming adjustments for 
     inflation, we estimate that the bill would authorize the 
     appropriation of $316 million for this purpose over the 2004-
     2009 period.
       Title III: National Center for Special Education Research. 
     Title III of the bill would create a National Center for 
     Special Education Research within the Institute of Education 
     Sciences and authorize such sums as may be necessary for each 
     of the fiscal years 2004 through 2009. The new center would 
     replace the current special education research and innovation 
     program and would conduct research and evaluation related to 
     the needs of children with disabilities. The current research 
     program is funded at $77 million in 2003 and CBO estimates 
     that the authorization would be about $79 million in 2004 and 
     $496 million over the 2004-2009 period. Resulting outlays 
     would be about $2 million in 2004 and $377 million over the 
     2004-2009 period.
       Title IV: Commission on Universal Design and the 
     Accessibility of Curriculum and Instructional Materials. 
     Title IV of the bill would establish a commission to study, 
     evaluate, and make recommendations to the Congress and the 
     Secretary of Education on design and accessibility of 
     curriculum for children with disabilities. The bill would 
     authorize $750,000 for 2004 and such sums as may be necessary 
     for 2005 for the Commission. CBO estimates that the resulting 
     outlays would be less than $1 million in 2004 and about $1.5 
     million over the 2004-2009 period.
     Direct spending
       Table 3 displays the changes in direct spending over the 
     2003-2013 period. S. 1248 would have no impact on 
     governmental receipts (i.e., revenues).

                                           TABLE 3.--ESTIMATED DIRECT SPENDING AND REVENUE EFFECTS OF S. 1248
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                    By fiscal year, in millions of dollars--
                                                      --------------------------------------------------------------------------------------------------
                                                         2003     2004     2005     2006     2007     2008     2009     2010     2011     2012     2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
Changes in outlays...................................        0      139      197      210      218      225      233      241      249       75        8

[[Page 28879]]

 
Changes in receipts..................................                                            Not applicable
--------------------------------------------------------------------------------------------------------------------------------------------------------

       Title II of the bill expands the scope of the 
     Rehabilitation Act of 1973 to cover certain services provided 
     to students with disabilities for ages 14 through 21 designed 
     to prepare the students for post-secondary education or 
     employment. These services may include but are not limited to 
     needs assessment, counseling, and training. The bill would 
     directly authorize these grants through 2009, but automatic 
     one-year extensions under the Rehabilitation Act and under 
     the General Education Provisions Act would authorize the 
     grants through 2011.
       State grants for vocational rehabilitation services have 
     been classified as direct spending under the Budget 
     Enforcement Act of 1990. S. 1248 creates separate funding for 
     services to be provided to students with disabilities, but 
     there are strong linkages between the delivery of services 
     under the two authorizations. In CBO's view, the delivery of 
     services to the students and nonstudents constitutes a single 
     program for which the funding is mandatory.
       CBO estimates that the services authorized by title II 
     would cost about $1.8 billion over the 2004-2013 period. The 
     potential costs of the expansions could be significantly 
     higher or lower than CBO currently estimates, as caseloads 
     and types of services that would be delivered are highly 
     uncertain at this time.
       CBO's estimate assumes that 2.0 million to 2.2 million 
     disabled students per year would be in the age range 
     recovered by S. 1248. CBO assumes that, as under the existing 
     program, the students would be screened to determine as to 
     whether they are likely to benefit from receiving the 
     proposed services. This screening would mean that a 
     significant portion--perhaps 25 percent to 30 percent--would 
     receive few or no services. Of those deemed likely to 
     benefit, CBO assumes an annual cost of $171 per student in 
     2004 rising to around $200 by 2009. This average cost figure 
     is based on program data for 1999, and reflects the 
     assumption that many students would not need services each 
     year and that, for a significant portion of the services, the 
     services would be largely needs assessment including advice 
     about postsecondary educational opportunities. For the 
     purposes of this estimate, CBO assumes that states will 
     supply the necessary matching funds (21.3 percent of the 
     total spending) costing them $54 million in 2004 rising to 
     $64 million in 2009.
       Intergovernmental and private-sector impact: The provisions 
     of IDEA apply to states and educational institutions as 
     recipients of federal grants. Consequently, any requirements 
     that would be created or extended by S. 1248, would be 
     conditions of federal aid and not intergovernmental or 
     private-sector mandates as defined by UMRA. (Any mandate for 
     the provision of special education results from other federal 
     statutes). Under current law, states are receiving about $8.9 
     billion in academic year 2003 from IDEA, which CBO estimates 
     equals about 18 percent of the average per pupil expenditure 
     for all children. Title I would authorize $3 billion for 
     state professional development grants and infant and toddler 
     programs over the 2004-2009 period. Over the same time 
     period, title II would make available an additional $1 
     billion to states for programs directed at 14 to 21-year-
     olds. Other sections of the bill would authorize additional 
     grants--some of which would be available to state and local 
     entities. Any costs to match such funds or administer 
     programs would be voluntary.
       Previous CBO estimate: On April 28, 2003, CBO transmitted a 
     cost estimate for H.R. 1350, the Improving Results for 
     Children with Disabilities Act of 2003, as ordered reported 
     by the House Committee on Education and the Workforce on 
     April 10, 2003. H.R. 1350 would authorize different amounts 
     of funding for most programs, would not create new programs, 
     and would not amend the Rehabilitation Act of 1973.
       Estimate prepared by: Federal Costs: Titles I, II, and IV: 
     Donna Wong (226-2820) and Title II: Deborah Kalcevic and Paul 
     Cullinan (226-2820). Impact on State, Local, and Tribal 
     Governments: Sarah Puro (225-3320). Impact on the Private 
     Sector: Nabeel Alsalam (226-2666).
       Estimated approved by: Peter H. Fontaine, Deputy Assistant 
     Director for Budget Analysis.

                          ____________________




                        TRIBUTE TO DR. DON DUGI

  Mr. McCONNELL. Mr. President, I rise today to honor a noted and 
dedicated educator, Dr. Don Dugi. Dr. Dugi has been named the 2003 
Kentucky Professor of the Year, awarded by the Council for Advancement 
and Support of Education. Criteria for the award includes support from 
colleagues and extraordinary dedication to teaching demonstrated by 
involvement with undergraduate students.
  Dr. Dugi is a professor of political science at Transylvania 
University in Lexington, KY. He joined the faculty of Transylvania in 
1975 after earning his master's degree in political science from St. 
Mary's College in Texas. After his master's degree, he earned his Ph.D. 
in political science from Purdue University in 1981 where he wrote his 
dissertation on the ``Political Ideology of Kentucky Coal Producers.''
  During his tenure at Transylvania, Dr. Dugi has gained respect from 
both his colleagues and, more importantly, the students to whom he has 
dedicated his time and energy. In fact, the Student Government 
Association recognized his talent and love for teaching and honored him 
with its Teacher of the Year award. Dr. Dugi became the faculty advisor 
to both the Student Government Association and pre-law students in 
1975, roles he continues today. Each May, he teaches a class to prepare 
students for the law school admissions test. He receives no 
compensation and continues to teach his regular classes. This is but 
one example of Dr. Dugi's selfless commitment to the students at 
Transylvania.
  Colleagues also benefit from Dr. Dugi's commitment to excellence. The 
administration at Transylvania recognized Dr. Dugi's talents and 
awarded him a Bingham Fellowship for Excellence in Teaching in 1989. In 
1998, he became the first recipient of the prestigious Bingham-Young 
Professorship. With this honor, Dr. Dugi developed a program that 
allowed his colleagues to investigate the concept of race as both an 
intellectual and an instructive concern. For this purpose, he organized 
a variety of events including a film series, lecturers, performers, and 
artists. The entire Transylvania campus benefited from Dr. Dugi's hard 
work.
  An accomplished political scientist and educator, Dr. Dugi is a true 
leader in the field of political science and education, more generally, 
and should be commended for his unwavering dedication to Transylvania 
University, its faculty, staff, and its students. I ask each of my 
colleagues to join me in paying tribute to Dr. Don Dugi, not only for 
the 2003 Kentucky Professor of the Year Award, but for all that he 
gives to his students, his community, and his Nation.

                          ____________________




                         ADDITIONAL STATEMENTS

                                 ______
                                 

                        OREGON HEALTH CARE HERO

 Mr. SMITH. Mr. President, today I rise to honor a tireless 
advocate for Oregonians with disabilities. Cynthia Owens has committed 
herself to helping ensure, whether through grassroots organization or 
legislative activism, that individuals with disabilities are granted 
equal access and opportunity. Today, I recognize Cynthia Owens as an 
Oregon Health Care Hero.
  Twenty-one years ago, Cynthia and David Owens' youngest son, Andy, 
nearly drowned. The accident left Andy with severe physical 
disabilities. With the realization that she would need to be her son's 
advocate, Cynthia began working to protect and expand critical services 
that allow individuals with disabilities to live independently in their 
communities. Although her son's new disability served as her impetus, 
Cynthia's work with countless boards, commissions and organizations has 
had an impact far beyond her own son; her efforts have been felt 
throughout the disabled community in Oregon.
  United Cerebral Palsy was the first to benefit from Cynthia's 
commitment to the disabled community. She served for 13 years as a 
volunteer, working with families to help identify resources and 
services for their disabled loved ones. After becoming a legislative 
advocate at the federal and state level, she began working for The Arc 
of Oregon as the coordinator of a campaign

[[Page 28880]]

to extend services to all those eligible for disability assistance.
  With the experience she gained helping her son find a job in the 
community, Cynthia became involved in larger efforts to find employment 
for individuals with disabilities. She now works with the Oregon Health 
Sciences University Center on Self Determination, the National 
Coalition on Self Determination, and Self Determination Resources, Inc. 
Cynthia works with groups around the state to train others in the 
disability employment field, as well as maintaining a database for 
families and other interested in employment opportunities. Cynthia was 
recently honored with an appointment to the State Rehabilitation 
Council by Governor Kulongoski. The Council works to ensure that Oregon 
Vocational Rehabilitation Division assists Oregonians with disabilities 
achieve meaningful employment and independence.
  I have had the distinct pleasure of meeting both Cynthia and Andy. I 
am repeatedly amazed by the strong will, warmth and goodwill of the 
Owen's family, and honored to help support Cynthia and her work on 
behalf of the disabled community in Oregon. Cynthia and her husband, 
David, have faced many challenges raising their son. However, Cynthia 
has turned those challenges into opportunities for Andy and others like 
him.
  For being an outstanding mother and advocate. I salute Cynthia Owens 
and thank her for being a true Oregon Health Care Hero.

                          ____________________




                     HONORING DR. WILLIAM P. FOSTER

 Mr. GRAHAM of Florida. Mr. President, today I pay tribute to 
an innovative musician and Floridian, Dr. William P. Foster. For over 
50 years, Dr. Foster was conductor of the internationally acclaimed 
Florida A&M University Marching ``100'' Band. Throughout his musical 
career at FAMU, Dr. Foster has been credited with revolutionizing 
marching band techniques and redefining the marching band as an art 
form. Dr. Foster's dedication to excellence in education through the 
arts has enriched the lives of Floridians and Americans.
  In June of 1946, Dr. Foster came to Florida A&M University to 
establish the Marching ``100'' Band. Since its inception, the band has 
participated in more than 200 half-time pageants, has appeared in three 
films, three commercials, and numerous magazine and newspaper articles. 
The band has appeared on 60 Minutes, 20/20 and PM Magazine telecasts 
and thirty-four nationally televised performances on all networks with 
a viewing audience of over five billion people. On October 26, 1984, 
the FAMU Marching Band was presented the prestigious Sudler 
Intercollegiate Marching Band Trophy. In 1989, the band was selected by 
the French government, to serve as America's official representative in 
the Bastille Day Parade, celebrating the Bicentennial of the French 
Revolution. The band also appeared in both of President Bill Clinton's 
inaugural parades, in January of 1993 and 1997. This list of band 
appearances and honors is by no means exhaustive.
  Dr. Foster's contributions to FAMU have earned him State and national 
recognition as well. He is a member of the Hall of Fame for several 
organizations including the National Association for Distinguished Band 
Conductors, the Florida Music Educators Association and the Afro-
American Hall of Fame, to name a few. In 1994, he was elected president 
of the American Bandmasters Association and in 1996, President Bill 
Clinton nominated, and the U.S. Congress approved Dr. Foster's 
presidential appointment to serve on the National Council on the Arts. 
In August of 2003, Dr. Foster's efforts were recognized again by the 
State of Florida, when he was inducted into the Florida Artists Hall of 
Fame. This award acknowledges individuals who contribute to Florida's 
national and international reputation as a State with a strong and 
sustained commitment toward the development of cultural excellence.
  Dr. Foster has taken an active role to ensure the continued musical 
involvement of the FAMU student body. As an inspired bandleader and 
advisor, Dr. Foster sought financial support to aid his undergraduate 
students in the Marching ``100'' Band. Initially, Dr. Foster gave 
thousands of dollars of his own money, and started to work with large 
and small corporations, and private citizens. However, Dr. Foster was 
never satisfied with the level of support he received for the students. 
When Dr. Foster stepped down as Director of Bands and Department 
Chairman, he set forth to dedicate his attention the creation of a 
foundation. To this end, and with the assistance of Mr. Harold E. Byrd, 
Sr., on April 22, 1998 the William P. Foster Foundation was 
established.
  Mr. President, I commend Dr. William P. Foster for his commitment to 
education, music and philanthropy. His commitment to education and 
philanthropy is an example to us all. For his many years of public 
service, I am proud to acknowledge the work of Dr. William P. 
Foster.

                          ____________________




                  HONORING DR. OSWALD P. BRONSON, SR.

 Mr. GRAHAM of Florida. Mr. President, today I pay tribute to a 
fine humanitarian and Floridian, Dr. Oswald P. Bronson, Sr., who will 
be retiring in June 2004. An educator and spiritual leader, Dr. Bronson 
has spent his life building bridges between the college and the 
community. Throughout his 28-year career as President of Bethune-
Cookman College, Dr. Bronson has overseen tremendous growth and 
improvements on campus. Dr. Bronson's dedication to excellence in 
education and community advocacy has enriched the lives of Floridians 
and Americans.
  Dr. Bronson's leadership and achievements at Bethune-Cookman College 
are a benchmark in higher education. Under his guidance, the college 
has nearly doubled its enrollment to 2,500. It has raised its community 
economic impact to $250 million, boosted endowments from $1.2 million 
to $25 million, and increased its total operating budget from $6 
million to more than $45 million. His vibrant personality, genuine 
concern for the growth of the institution, and commitment to the 
founder's vision, enable him to bring unprecedented private, corporate 
and governmental support to the institution.
  Active on campus and off, Dr. Bronson's belief in service to the 
community is evident in his numerous outside activities, including his 
appointment to an advisory post by former President Bill Clinton. He 
has served as chairman and president of prestigious educational and 
religious organizations nationwide, including his most recent 
appointment to the Board of Directors for the National Association of 
Independent Colleges and Universities.
  Dr. Bronson is an ordained United Methodist Church minister, and 
former president of the Interdenominational Theological Seminary. He 
has served as a pastor in Florida, Georgia and Illinois for 16 years, 
and has lectured and taught in numerous mission schools, clinics, 
pastoral institutes and leadership training seminars.
  Dr. Bronson has fostered and strengthened Bethune-Cookman College's 
relationship with the local community and the world. A thoughtful and 
well-respected member of the Bethune-Cookman College family, Dr. 
Bronson has advocated for increased diversity and understanding on 
campus and off. I am pleased that outstanding Floridians like Dr. 
Bronson are setting an example for communities across our Nation, and I 
want to thank him for his service.

                          ____________________




                      SQUAW VALLEY PARK DEDICATION

 Mrs. BOXER. Mr. President, I am pleased to announce the 
dedication of Squaw Valley Park in Placer County, CA.
  Two decades ago, the Placer County Board of Supervisors and local 
community partners began their search for an ideal site for a community 
park. Their final choice was Squaw Valley, located within the Tahoe 
National Forest. Squaw Valley, which is internationally

[[Page 28881]]

renowned as the site of the 1960 VIII Winter Olympic Games, is one of 
the crown jewels of the Sierra Nevada.
  This park is also significant because its creation is the result of 
historic legislation, signed by President Clinton on July 29, 1998, 
allowing the U.S. Forest Service to conduct land transactions through 
sale rather than land exchange. I was proud to support this new 
approach because it saves taxpayers money through a much expedited 
transaction process.
  When completed next spring, Squaw Valley Park will provide an 
exceptional recreational environment in which local residents and 
visitors will be able to enjoy this breathtaking region of California. 
I commend all those who have made the dream of Squaw Valley Park a 
reality.

                          ____________________




   IPS CHARITY DYE ELEMENTARY SCHOOL 27: WINNER OF THE NATIONAL BLUE 
                          RIBBON SCHOOLS AWARD

 Mr. LUGAR. Mr. President, I rise today to recognize and 
congratulate Indianapolis Public School Charity Dye Elementary 27 as a 
recent recipient of the prestigious No Child Left Behind Blue Ribbon 
Schools Award.
  The Blue Ribbon Schools Program was established in 1982 to identify 
and recognize outstanding public and private schools across the United 
States. In keeping with the principles of the No Child Left Behind 
Act--the education reform bill signed into law in 2002--the 
requirements for this award have been strengthened and now focus more 
intently on student achievement results.
  Charity Dye Elementary School is an Indianapolis inner-city school, 
and is the first IPS school to receive this award in nearly 20 years. 
While the school faces all the same challenges as most inner-city 
schools, Charity Dye has shown that challenges can be overcome with 
hard work and dedication to the cause.
  Five years ago, the percentage of third grade students who passed the 
Indiana Statewide Testing for Educational Progress exam at Charity Dye 
was 30 percent. Last year, this number was 83 percent a gain of 50 
percentage points, and nearly 13 percentage points over the statewide 
average. This is an extraordinary turn around.
  Charity Dye has made this progress by internalizing the philosophy of 
the No Child Left Behind Act and operating under the assumption that 
every child can learn, and that every child will learn.
  I am very pleased to take this opportunity to applaud all the 
students, teachers, and administrators of Charity Dye Elementary School 
for their hard work and dedication to learning. I hope that the early 
love of learning will stay with each of the students of Charity Dye as 
they progress through school. And I encourage each and every one of 
Charity Dye's teachers, students, and administrators to keep up the 
excellent work.
  As a former mayor of Indianapolis, I am very proud of IPS Charity Dye 
Elementary 27 and offer this school as a model of excellence for other 
schools in Indiana and across the Nation.

                          ____________________




                    HONORING DR. MARIA ALICIA GARZA

 Mr. CRAPO. Mr. President, I rise today to honor Dr. Maria 
Alicia Garza, associate professor in the Department of Modern Languages 
and Literatures at Boise State University. Dr. Garza has been chosen as 
the Idaho Professor of the Year by the Council for the Advancement and 
Support of Education and the Carnegie Foundation for the Advancement of 
Teaching. This prestigious honor is a tribute to Dr. Garza's 
outstanding teaching, which touches, motivates, and inspires.
  Dr. Garza has been with Boise State since 1996 and has received 
excellent reviews from Day One. She is recognized by both faculty and 
students for her knowledge of the subject matter, her infectious 
enthusiasm, and her thorough preparation. As a result of this 
dedication, Dr. Garza's students have been motivated to succeed, as 
they have graduated from BSU and moved into the workforce.
  Not surprisingly, this is not the first time Dr. Garza has been 
recognized for her outstanding efforts. She has also received the 
Associated Students of Boise State University Faculty Recognition 
Award, as well as the College of Arts Distinguished Teaching Award 
during her time at Boise State. The Idaho Professor of the Year award 
is another example of Dr. Garza's commitment to high quality education 
in Idaho. I offer my congratulations and highest praise to Dr. Garza, 
Idaho's Professor of the Year.

                          ____________________




                        TRIBUTE TO DR. DON DUGI

 Mr. BUNNING. Mr. President, I pay tribute to Dr. Don Dugi 
professor of political science at Transylvania University located in 
Lexington, KY on being named the Kentucky Professor of the Year.
  The Professor of the Year Awards are the only national awards that 
recognize college and university professors for their teaching. Since 
1981, the Professor of the Year awards have been given to professors 
who exhibit dedication to teaching and commitment to their students.
  Dr. Dugi has exhibited great commitment to his students at 
Transylvania University. As a professor for political science, Dr. Dugi 
is tasked to mold our Nation's future leaders. Being honored with this 
award Dr. Dugi sets an example of excellence for the rest of the 
faculty and for his students.
  Mr. President, I now ask my fellow colleagues join me in thanking Dr. 
Dugi for his dedication and commitment to the education of America's 
future. In order for our society to continue to advance in the right 
direction, we must have professors like Dr. Dugi in our colleges and 
universities.

                          ____________________




                         PROFESSOR CAROLE GAVIN

 Mr. LAUTENBERG. Mr. President, I would like to take this 
opportunity to recognize Dr. Carole Gavin, my constituent who was 
recently named the New Jersey Professor of the Year by the Carnegie 
Foundation for the Advancement of Teaching and the Council for 
Advancement and Support of Education. This award is given to professors 
who demonstrate a high level of dedication to teaching and a commitment 
to students, and who use innovative instructional methods. Dr. Gavin's 
dedication to teaching non-English speakers and academic 
accomplishments make her an outstanding recipient of this award.
  As a professor of French and English as a Second Language at 
Burlington County College in New Jersey, Dr. Gavin has spent the past 
22 years devoted to her students. I think she describes her teaching 
philosophy best: ``my primary objective as a professor here at 
Burlington County College since 1971 has been to help students 
understand that language, whether it be a foreign language or English, 
plays a critical role in their success as human beings and 
professionals.''
  Dr. Gavin's professional accomplishments include expanding the 
college's English as a Second Language program into a multi-level, 
nine-course program that serves over one hundred students from many 
different countries. Last year, Dr. Gavin received the Association of 
Community College Teachers', ACCT, Northeast Regional Award. The ACCT 
describes her as ``a stellar member of the Burlington County College 
faculty,'' and calls her commitment to her students ``exemplary.''
  In addition to her role as teacher, Dr. Gavin recently underwent one 
of the most difficult personal challenges an individual can face. 
Emerging victorious from a battle with breast cancer, Dr. Gavin used 
her struggle to help others by working with the Phi Theta Kappa honor 
society to launch the Carole Gavin Scholarship initiative. This 
scholarship provides active Phi Theta Kappa members, who have been 
touched by cancer, with financial resources to help defray educational 
expenses for the Academic Year 2003--2004 while enrolled in either two 
or four-year institutions.
  It has become something of a cliche to describe someone as an 
inspiration. Nevertheless, the work that Carole

[[Page 28882]]

Gavin has done both professionally and personally is truly 
inspirational, and I offer her my deepest congratulations.

                          ____________________




                        TRIBUTE TO VICKY MROCZEK

  Mr. DeWINE. Mr. President, today I pay tribute to a 
remarkable woman--a woman who devoted herself to improving the lives of 
those often overlooked in our society--the elderly and the poor. The 
State of Ohio lost one of its most dynamic and compassionate public 
servants with the passing of Vicky Mroczek on September 28, 2003.
  Vicky Mroczek dedicated over 20 years of her career to public service 
in Ohio, most recently serving as the Chief of the Office of Community 
Services in the Ohio Department of Development. Since 1985, she 
administered Ohio's Home Energy Assistance Program, a federally funded 
program that helps low-income households manage their energy bills. 
Earlier in her career, she worked for the Ohio Consumer's counsel, 
representing Ohio's residential customers in utility matters. She also 
served on the Board of the Central Ohio Transit Authority.
  Vicky was also a prominent figure at the national level, working on 
creative and innovative approaches to helping low-income households 
afford essential energy services. She served as Chair of the National 
Low-Income Energy Consortium from 1993 until her death. She also served 
as Chair of the National Energy Assistance Directors Association from 
1990 through 1992.
  Vicky Mroczek was an engaging and dynamic public speaker, someone who 
could engage audiences from the cities to the farms, in local settings 
to national forums, reaching utility clients, utility executives, and 
everyone in between. She led with grace, fairness, and most of all, 
compassion. Her service and dedication to the citizens of Ohio and to 
low-income families across our Nation is a model to us all. She will be 
missed.
  Vicky's husband of 24 years, George Diehl; her mother Phyllis 
Mroczek; and her sister, Michelle Mroczek, remain in our thoughts and 
prayers.

                          ____________________




                        TRIBUTE TO LARRY GAMMON

 Mr. SUNUNU. Mr. President, I wish to pay tribute to the 
President of Easter Seals New Hampshire, Larry Gammon, whose leadership 
has been crucial to the ability of Easter Seals to do so much for so 
many in our State. He is a man of remarkable character, who has devoted 
his life to community service, beginning his career in public education 
and then joining Easter Seals, where he is currently in his thirty-
second year with the organization.
  Mr. Gammon shares the dedication, enthusiasm, and vision of the 
founders of Easter Seals to increase the independence and improve the 
quality of life for individuals with special needs. As a result, Easter 
Seals New Hampshire has grown significantly to meet the needs of 
communities throughout the State, as well as in Maine, New York, and 
Vermont.
  In New Hampshire, Easter Seals provides services to more than 20,000 
residents each year, addressing a wide range of physical and emotional 
concerns including cerebral palsy, autism, muscular dystrophy, and 
Alzheimers disease.
  And each day, an average of 125 New Hampshire children are served 
through Easter Seals' youth programs including families in need, family 
mediation, parenting workshops, and 24-hour emergency support. For 
those who needed, but could not afford, assistance in the past year, 
Easter Seals New Hampshire provided $2 million in free and reduced-cost 
services.
  New Hampshire's elderly population is well served by senior programs 
offered by Easter Seals including: a medical day rehabilitation program 
for individuals requiring light nursing monitoring; an ambulatory 
program for those with light medical and mental health needs; and an 
Alzheimer's day program for elders with dementia and memory loss.
  Equally impressive as the quantity of services provided by Easter 
Seals New Hampshire is their variety. Deaf or hard of hearing clients 
are fitted with hearing aids, and vocational training is provided to 
the visually impaired. Additionally, rehabilitation therapy is 
available for those who have sustained traumatic injuries.
  For 22 consecutive years, Easter Seals has ranked number one among 
National Health Council members for the percentage of program dollars 
spent on direct client services, allocating over 90 cents of every 
dollar for this purpose. Larry Gammon has provided prudent financial 
stewardship to Easter Seals New Hampshire with the organization earning 
numerous accolades for its fiscal management and services.
  Mr. Gammon is an individual of remarkable character who leads by 
example, with an impressive record of community service that extends 
beyond his work at Easter Seals and includes active roles in a number 
of other community organizations. This effort has made him successful 
in recruiting individuals of similar dedication to the board of 
directors and staff of Easter Seals, which now totals 1,200.
  The contributions of Larry Gammon and Easter Seals New Hampshire on 
behalf of individuals with special needs are an example of America's 
community spirit and a role model for the rest of us. I thank the 
Senate for the opportunity to honor this extraordinary individual and 
organization.

                          ____________________




              TRIBUTE TO WORLD OF CHILDREN AWARD HONOREES

 Mr. DeWINE. Mr. President, today I recognize the honorees for 
the 2003 Hannah Neil World of Children Awards presented in Columbus, 
OH, on November 20, 2003. These awards recognize people from around the 
world who have devoted their lives to making the world a better place 
for children. The awards are very prestigious, commensurate to the 
Pulitzer and Noble Prizes for those who dedicate their lives to 
improving the lives of children.
  Since the inception of the awards, 500 nominations have been received 
from 50 countries. An international Advisory Council, headed by three-
time heavyweight boxing champion Muhammad Ali and composed of 35 
members from 15 different countries, selects the award recipients.
  I would like to recognize each of this year's honorees and thank them 
for their selfless commitment to helping children across the globe:
  First, the Kellogg's Child Development Award honors an individual who 
has made a significant lifetime contribution to children's futures by 
greatly improving their opporuntities to learn and grow. The honorees 
for this award are:
  Fani Lerner from Parana, Brazil; Claudia Gonzales Moreno from 
Murillo, Bolivia; and Jetsun Pema from Himachal Pradesh, India.
  The Cardinal Health Children's Care Award recognizes an individual 
who has made a significant lifetime contribution to the health and 
well-being of children. The honorees for this award are:
  Dr. Martin Eichelberger from Washington, DC; Dr. Elizabeth Jones from 
California; and Mehendra G. Mehta from Mumbai, India.
  The Founder's Award honors an individual youth who has made 
significant contributions to enhancing the lives of other youth. The 
honorees for this award are:
  Ryan Hreljac from Ontario, Canada and Dayro Javier Reyes Acosta from 
Santander, Colombia.
  I extend my most sincere thanks to these honorees for their 
dedication and commitment to our world's children. Their efforts, 
indeed, are deserving of the highest praise and recognition, as they 
give voice and hope to children in need across the globe.

                          ____________________




     GUNNERY SERGEANT THOMAS S. HOGDAHL, UNITED STATES MARINE CORPS

 Mr. THOMAS. Mr. President, as a veteran marine and friend, I 
rise today to pay tribute to Gy Sgt Thomas S. Hogdahl, who will retire 
from the U.S. Marine Corps on March 1, 2004. I have had the pleasure to 
work with Hogdahl on many occasions. In addition to his professionalism 
and planning expertise

[[Page 28883]]

he will be missed for his intensity, integrity, and unique sense of 
humor. But mostly he will be missed for his dedication to the Members 
and staff of the Senate.
  Thomas Hogdahl was born in Teaneck, and was raised in Bergenfield NJ. 
There he played basketball and soccer and graduated from Bergenfield 
High School in 1983. In 1984 he enlisted in the Marine Corps, and 
subsequently reported to Parris Island, SC, to take on the challenge of 
becoming a US marine.
  Upon earning the title of marine, Gunnery Sergeant Hogdahl completed 
his followon training at Camp Lejeune, NC, where he received formal 
training as a Marine Corps Administrator, graduating as the honor 
graduate. He was then ordered cross-country to Camp Pendleton, CA, to 
serve as an administrative clerk to the hundreds of marines assigned to 
the historic 1st Marine Division. From 1986 to 1994, his service would 
take him to Okinawa, Japan, with the 3rd Marine Amphibious Force; 
Marine Corps Base Quantico, VA, with Security Battalion, and eventually 
to Dover, NJ, with the inspector and instructor staff for the 25th 
Marines, 4th Marine Division.
  In 1994, Gunnery Sergeant Hogdahl was selected for one of the most 
demanding billets in the Marine Corps, a Marine Corps Drill instructor 
(DI). I, as well as every person who has worn the Eagle, Globe, and 
Anchor will remember their drill instructor for the rest of their 
lives. He is the one person who has the greatest impact in transforming 
trainees into U.S. marines. After graduating in the top 10 percent of 
his DI School, Gunnery Sergeant Hogdahl returned to the legendary 
yellow footprints where he started his journey 10 years before, only 
this time it would be in Recruit Depot San Diego, and this time he 
would be wearing the traditional ``Smokey'' cover of a drill 
instructor. For the next 2 years his leadership and example would 
transform hundreds of young men into U.S. marines.
  In 1996, after leaving the drill field, Gunnery Sergeant Hogdahl 
attended the Advanced Personnel Admin Chief's Course, graduating again 
as the honor graduate. Thereafter he reported for duty at Marine Corps 
Base Quantico, VA, where he served as Administration Chief for 
headquarters and Service Battalion. Just over a year later Gunnery 
Sergeant Hogdahl was selected to attend the Staff Non-Commissioned 
Officer Career Course, from which he graduated in the top 10 percent 
amongst his fellow senior marines. Following school, Gunnery Sergeant 
Hogdahl was handpicked to fill a senior SNCO position as administrative 
assistant in the Office of the Under Secretary of the Navy. Based on 
his exemplary performance over the next year and a half, Gunnery 
Sergeant Hogdahl was once again selected for another position of great 
responsibility--the Staff Non-Commissioned Officer for the Marine 
Corps' U.S. Senate Liaison Office.
  In May 1999, Gunnery Sergeant Hogdahl began his tour with the Marine 
Corps' Senate Liaison Office, and since that time, he has been a key 
player in helping to maintain positive and productive relationships 
between the Marine Corps, my colleagues in the Senate, professional 
committee staff, and personal staff. He was responsible for responding 
to thousands of congressional inquiries ranging from such sensitive 
issues as notification of combat casualties during Operations Enduring 
Freedom and Iraqi Freedom to providing important, timely information on 
the operation and organization of the Marine Corps. Through his 
efforts, Gunnery Sergeant Hogdahl developed a sterling reputation for 
honesty, punctuality, and accuracy. His efforts not only communicated 
the Commandant's message to the Senate, but also upheld and added to 
the Marine Corps' image and reputation on Capitol Hill.
  While a member of the Marine Corps Senate Liaison Office, Gunnery 
Sergeant Hogdahl successfully planned and executed 28 international 
congressional delegations. I had the pleasure of traveling on three of 
these congressional delegations with Gunnery Sergeant Hogdahl, and was 
greatly impressed with his professionalism, attention to detail, and 
resourcefulness. His acumen for planning and coordination carried over 
into Gunnery Sergeant Hogdahl's ability to plan and organize numerous 
Marine Corps and Joint Service social events on Capitol Hill. These 
events included among others, the Marine Corps Birthday Commemoration, 
Joint Services Reception, and Marine Corps fall and spring receptions--
all very important in enabling myself, and my Senate colleagues to 
maintain important relationships with the Corps' senior leadership.
  Throughout his career as a U.S. marine, GySgt Thomas S. Hogdahl has 
demonstrated outstanding character, discerning judgment, and a deep 
sense of duty to his Country and Corps. On behalf of the U.S. Senate, I 
thank Gunnery Sergeant Hogdahl for his 21 years of service to the 
Nation and the U.S. Marine Corps. His wife Barbara, and their three 
sons--Thomas, Stephen, and Brandon--have reason to be proud of 
``Gunny'' Hogdahl as we are here in the U.S. Senate and I wish them all 
the best as Tom tackles new challenges in his certain to be successful 
civilian career.

                          ____________________




                       MESSAGE FROM THE PRESIDENT

  Messages from the President of the United States were communicated to 
the Senate by Ms. Evans, one of his secretaries.

                          ____________________




                      EXECUTIVE MESSAGES REFERRED

  As in executive session the Presiding Officer laid before the Senate 
messages from the President of the United States submitting sundry 
nominations which were referred to the appropriate committees.
  (The nominations received today are printed at the end of the Senate 
proceedings.)

                          ____________________




PERIODIC REPORT RELATIVE TO THE NATIONAL EMERGENCY WITH RESPECT TO IRAN 
         WHICH WAS DECLARED IN EXECUTIVE ORDER NO. 12170--PM 56

  The PRESIDING OFFICER laid before the Senate the following message 
from the President of the United States, together with an accompanying 
report; which was referred to the Committee on Banking, Housing, and 
Urban Affairs:

      Continuation of the National Emergency With Respect to Iran

  On November 14, 1979, by Executive Order 12170, the President 
declared a national emergency with respect to Iran pursuant to the 
International Emergency Economic Powers Act (50 U.S.C. 1701-1706) to 
deal with the unusual and extraordinary threat to the national 
security, foreign policy, and economy of the United States constituted 
by the situation in Iran. Because our relations with Iran have not yet 
returned to normal, and the process of implementing the January 19, 
1981, agreements with Iran is still underway, the national emergency 
declared on November 14, 1979, must continue in effect beyond November 
14, 2003. Therefore, consistent with section 202(d) of the National 
Emergencies Act (50 U.S.C. 1622(d)), I am continuing for 1 year this 
national emergency with respect to Iran.
  This notice shall be published in the Federal Register and 
transmitted to the Congress.
                                                      George W. Bush.  
The White House, November 12, 2003.

                          ____________________




                        MESSAGES FROM THE HOUSE

  At 2:17 p.m., on November 12, 2003, a message from the House of 
Representatives, delivered by Ms. Niland, one of its reading clerks, 
announced that the Speaker has signed the following enrolled bills:

       S. 313. An act to amend the Federal Food, Drug, and 
     Cosmetic Act to establish a program of fees relating to 
     animal drugs.
       H.R. 274. An act to authorize the Secretary of the Interior 
     to acquire the property in Cecil County, Maryland, known as 
     Garrett Island for inclusion in the Blackwater National 
     Wildlife Refuge; and
       H.R. 3232. An act to reauthorize certain school lunch and 
     child nutrition programs through March 31, 2004.

  The enrolled bills were subsequently signed by the President pro 
tempore (Mr. Stevens).

[[Page 28884]]


                                  ____
  At 3:47 p.m., a message from the House of Representatives, delivered 
by Ms. Niland, one of its reading clerks, announced that pursuant to 10 
U.S.C. 9355(a), and the order of the House of January 8, 2003, the 
Speaker appoints the following Members of the House of Representatives 
to the Board of Visitors to the United States Air Force Academy: Mr. 
Thompson of California, and Ms. Kilpatrick of Michigan.

                          ____________________




                         ENROLLED BILLS SIGNED

  On November 13, 2003, a message from the House of Representatives, 
delivered by one of its clerks, announced that the Speaker has signed 
the following enrolled bills:

       H.R. 2559. An act making appropriations for military 
     construction, family housing, and base realignment and 
     closure for the Department of Defense for the fiscal year 
     ending September 30, 2004, and for other purposes; and
       H.R. 3054. An act to amend the Policemen and Firemen's 
     Retirement and Disability Act to permit military service 
     previously performed by members and former members of the 
     Metropolitan Police Department of the District of Columbia, 
     the Fire Department of the District of Columbia, the United 
     States Park Police, and the United States Secret Service 
     Uniformed Division to count as creditable service for 
     purposes of calculating retirement annuities payable to such 
     members upon payment of a contribution by such members, and 
     for other purposes.

  The enrolled bills were subsequently signed by the President pro 
tempore (Mr. Stevens).

                          ____________________




                    MEASURES PLACED ON THE CALENDAR

  The following bills were read the first time:

       S. 1862. A bill to provide certain exceptions from 
     requirements for bilateral agreements with Australia and the 
     United Kingdom for exemptions from the International Traffic 
     in Arms Regulations.
       S. 1863. A bill to authorize the transfer of certain naval 
     vessels.
       S. 1864. A bill to enhance the security of the United 
     States and United States allies.
       S. 1865. A bill to enhance the security of the United 
     States and United States allies.
       S. 1866. A bill to enhance the security of the United 
     States and United States allies.

                          ____________________




                        ENROLLED BILL PRESENTED

  The Secretary of the Senate reported that on today, November 12, 
2003, she had presented to the President of the United States the 
following enrolled bill:

       S. 313. An act to amend the Federal Food, Drug, and 
     Cosmetic Act to establish a program of fees relating to 
     animal drugs.

     

                          ____________________


                   EXECUTIVE AND OTHER COMMUNICATIONS

  The following communication was laid before the Senate, together with 
accompanying papers, reports, and documents, and was referred as 
indicated:

       EC-5202. A communication from the Secretary of the Senate , 
     transmitting, pursuant to law, the report of the receipts and 
     expenditures of the Senate for the period April 1, 2003 
     through September 30, 2003; ordered to lie on the table.
       EC-5203. A communication from the Director, Regulatory 
     Review Group, Farm Service Agency, transmitting, pursuant to 
     law, the report of a rule entitled ``Prompt Disaster Set-
     Aside Consideration and Primary Loan Servicing Facilitation'' 
     (RIN0560-AG56) received on November 6, 2003; to the Committee 
     on Agriculture, Nutrition, and Forestry.
       EC-5204. A communication from the Director, Regulatory 
     Review Group, Farm Service Agency, transmitting, pursuant to 
     law, the report of a rule entitled ``Removal of Obsolete 
     Regulations'' (RIN0560-AH04) received on November 6, 2003; to 
     the Committee on Agriculture, Nutrition, and Forestry.
       EC-5205. A communication from the Principal Deputy, Office 
     of the Under Secretary of Defense for Personnel and 
     Readiness, transmitting, pursuant to law, a report relative 
     to the impact of compensation initiatives on recruiting and 
     retention; to the Committee on Armed Services. 
       EC-5206. A communication from the Assistant Director, 
     Executive and Political Personnel, Department of the Navy, 
     transmitting, pursuant to law, the report of a nomination 
     confirmed for the position of Secretary of the Navy, received 
     on November 6, 2003; to the Committee on Armed Services. 
       EC-5207. A communication from the Chief, Regulations and 
     Administrative Law, Coast Guard, transmitting, pursuant to 
     law, the report of a rule entitled ``Notification of Arrival 
     in U.S. Ports; Correction (USCG-2002-11865)'' (RIN1625-AA41) 
     received on November 10, 2003; to the Committee on Commerce, 
     Science, and Transportation. 
       EC-5208. A communication from the Chief, Regulations and 
     Administrative Law, Coast Guard, transmitting, pursuant to 
     law, the report of a rule entitled ``Regulated Navigation 
     Area: [CGD08-03-029], Reporting Requirements for Barges 
     Loaded with Certain Dangerous Cargoes; Inland Rivers, Eighth 
     Coast Guard District; Correction'' (RIN1625-AA11) received on 
     November 19, 2003; to the Committee on Commerce, Science, and 
     Transportation. 
       EC-5209. A communication from the Chief, Regulations and 
     Administrative Law, Coast Guard, transmitting, pursuant to 
     law, the report of a rule entitled ``Regatta and Marine 
     Parade Regulation; Special Local Reg.: [CGD07-03-099], World 
     Championship Super Boat Race, Deerfield Beach, FL'' (RIN1625-
     AA08) received on November 19, 2003; to the Committee on 
     Commerce, Science, and Transportation. 
       EC-5210. A communication from the Chief, Regulations and 
     Administrative Law, Coast Guard, transmitting, pursuant to 
     law, the report of a rule entitled ``Drawbridge Regulations: 
     [CGD08-03-043] St. Croix, Hudson, Wisconsin'' (RIN1625-AA09) 
     received on November 19, 2003; to the Committee on Commerce, 
     Science, and Transportation. 
       EC-5211. A communication from the Attorney Advisor, 
     Department of Transportation, transmitting, pursuant to law, 
     the report of a nomination for the position of General 
     Counsel, Department of Transportation, received on November 
     6, 2003; to the Committee on Commerce, Science, and 
     Transportation. 
       EC-5212. A communication from the Attorney Advisor, 
     Department of Transportation, transmitting, pursuant to law, 
     the report of a vacancy and designation of acting officer for 
     the position of General Counsel, Department of 
     Transportation; to the Committee on Commerce, Science, and 
     Transportation. 
       EC-5213. A communication from the Acting Division Chief, 
     Marine Mammal Division, Office of Protected Resources, 
     transmitting, pursuant to law, the report of a rule entitled 
     ``Dolphin-Safe Tuna Labeling; Official Mark'' (RIN0648-AN37) 
     received on November 6, 2003; to the Committee on Commerce, 
     Science, and Transportation. 
       EC-5214. A communication from the Acting Division Chief, 
     Marine Mammal Division, Office of Protected Resources, 
     transmitting, pursuant to law, the report of a rule entitled 
     ``Taking of Marine Mammals Incidental to Commercial Fishing 
     Operations; Tuna Purse Seine Vessels in the Eastern Tropical 
     Pacific Ocean'' (RIN0648-AI85) received on November 6, 2003; 
     to the Committee on Commerce, Science, and Transportation. 
       EC-5215. A communication from the Assistant Secretary for 
     Legislative Affairs, Department of State, transmitting, 
     pursuant to law, a report relative to Section 344 of the 
     Trade Act of 2002 ; to the Committee on Finance. 
       EC-5216. A communication from the Deputy Associate 
     Administrator, Environmental Protection Agency, transmitting, 
     pursuant to law, the report of a rule entitled ``Approval and 
     Promulgation of Air Quality Implementation Plans; Delaware; 
     Revisions to State I and Stage II Vapor Recovery at Gasoline 
     Dispensing Facilities'' (FRL#7586-2) received on November 6, 
     2003; to the Committee on Environment and Public Works. 
       EC-5217. A communication from the Deputy Associate 
     Administrator, Environmental Protection Agency, transmitting, 
     pursuant to law, the report of a rule entitled ``Approval and 
     Promulgation of Air Quality Implementation Plans; Kansas 
     Update to Materials Incorporated by Reference'' (FRL#7580-6) 
     received on November 6, 2003; to the Committee on Environment 
     and Public Works. 
       EC-5218. A communication from the Deputy Associate 
     Administrator, Environmental Protection Agency, transmitting, 
     pursuant to law, the report of a rule entitled ``Approval and 
     Promulgation of Implementation Plans; Texas; Revisions to 
     Regulations for Permits by Rule, Control of Air Pollution by 
     Permits for New Construction or Modification, and Federal 
     Operating Permits'' (FRL#7585-8) received on November 6, 
     2003; to the Committee on Environment and Public Works. 
       EC-5219. A communication from the Deputy Associate 
     Administrator, Environmental Protection Agency, transmitting, 
     pursuant to law, the report of a rule entitled ``Revisions to 
     the California State Implementation Plans, San Diego County 
     Air Pollution Control District; San Joaquin Valley Unified 
     Air Pollution Control District'' (FRL#7582-2) received on 
     November 6, 2003; to the Committee on Environment and Public 
     Works. 
       EC-5220. A communication from the Executive Director for 
     Operations, Nuclear Regulatory Commission, transmitting, 
     pursuant to law, the Commission's Year 2001 Commercial 
     Activities Inventory; to the Committee on Environment and 
     Public Works. 
       EC-5221. A communication from the Assistant Secretary, 
     Legislative Affairs, Department of State, transmitting, 
     pursuant to the Arms Export Control Act, the report of the 
     certification of a proposed license for the export of defense 
     articles or defense services sold commercially under a 
     contract in the amount of $100,000,000 or more to Japan; to 
     the Committee on Foreign Relations. 

[[Page 28885]]


       EC-5222. A communication from the Assistant Secretary, 
     Legislative Affairs, Department of State, transmitting, 
     pursuant to the Arms Export Control Act, the report of the 
     certification of a proposed manufacturing license agreement 
     for the manufacture of significant military equipment abroad 
     and the export of defense articles or defense services in the 
     amount of $100,000 ,000 or more to the United Kingdom, 
     Germany, and France; to the Committee on Foreign Relations. 
       EC-5223. A communication from the Assistant Secretary, 
     Legislative Affairs, Department of State, transmitting, 
     pursuant to the Arms Export Control Act, the report of the 
     certification of a proposed license for the export of defense 
     articles or defense services sold commercially under a 
     contract in the amount of $100,000,000 or more to The 
     Netherlands; to the Committee on Foreign Relations. 
       EC-5224. A communication from the Assistant Secretary, 
     Legislative Affairs, Department of State, transmitting, 
     pursuant to the Arms Export Control Act, the report of the 
     certification of a proposed license for the export of defense 
     articles or defense services sold commercially under a 
     contract in the amount of $100,000,000 or more to Japan; to 
     the Committee on Foreign Relations. 
       EC-5225. A communication from the Assistant Secretary, 
     Legislative Affairs, Department of State, transmitting, 
     pursuant to law, a report relative to Parts 120, 123, 124, 
     and 125 of the International Traffic in Arms Regulations; to 
     the Committee on Foreign Relations. 
       EC-5226. A communication from the Assistant Legal Adviser 
     for Treaty Affairs, Department of State, transmitting, 
     pursuant to law, the report of the texts and background 
     statements of international agreements, other than treaties; 
     to the Committee on Foreign Relations. 
       EC-5227. A communication from the Assistant Secretary, 
     Legislative Affairs, Department of State, transmitting, 
     pursuant to the American Servicemembers' Protection Act of 
     2002, the report of an extension of Presidential 
     Determination 2004-03 relative to Colombia; to the Committee 
     on Foreign Relations. 
       EC-5228. A communication from the Secretary, American 
     Battle Monuments Commission, transmitting, pursuant to law, 
     the Commission's Fiscal Year 2003 annual report; to the 
     Committee on Governmental Affairs. 
       EC-5229. A communication from the Chairman, Federal 
     Maritime Commission, transmitting, pursuant to law, the 
     report of the office of Inspector General for the period 
     April 1, 2001 through September 30, 2001; to the Committee on 
     Governmental Affairs. 
       EC-5230. A communication from the Acting Inspector General, 
     Selective Service System, transmitting, a report relative to 
     the Selective Service System's compliance with the Inspector 
     General Act of 1978; to the Committee on Governmental 
     Affairs. 
       EC-5231. A communication from the Secretary of Agriculture, 
     transmitting, pursuant to law, the report of the Office of 
     Inspector General for the six-month period ending September 
     30, 2001; to the Committee on Governmental Affairs. 
       EC-5232. A communication from the Deputy Secretary, 
     Division of Market Regulation, Securities and Exchange 
     Commission, transmitting, pursuant to law, the report of a 
     rule entitled ``Rule 10b-18'' (RIN3235-AH37) received on 
     November 10, 2003; to the Committee on Banking, Housing, and 
     Urban Affairs. 
       EC-5233. A communication from the Senior Paralegal for 
     Regulations, Office of Thrift Supervision, Department of the 
     Treasury, transmitting, pursuant to law, the report of a rule 
     entitled ``Savings Associations--Transactions with 
     Affiliates'' (RIN1550-AB55) received on November 10, 2003; to 
     the Committee on Banking, Housing, and Urban Affairs. 
       EC-5234. A communication from the Senior Paralegal for 
     Regulations, Office of Thrift Supervision, Department of the 
     Treasury, transmitting, pursuant to law, the report of a rule 
     entitled ``Risk-Based Capital Guidelines; Capital Adequacy 
     Guidelines; Capital Maintenance: Interim Capital Treatment of 
     Consolidated Asset-Backed Commercial Paper Program Assets'' 
     (RIN1550-AB79) received on November 10, 2003; to the 
     Committee on Banking, Housing, and Urban Affairs. 
       EC-5235. A communication from the Regulations Coordinator, 
     Department of Health and Human Services, transmitting, 
     pursuant to law, the report of a rule entitled ``Privacy Act; 
     Implementation'' received on November 7, 2003; to the 
     Committee on Health, Education, Labor, and Pensions. 
       EC-5236. A communication from the Director, Corporate 
     Policy and Research Department, Pension Benefit Guaranty 
     Corporation, transmitting, pursuant to law, the report of a 
     rule entitled ``Benefits Payable in Terminated Single-
     Employer Plans; Allocation of Assets in Single-Employer 
     Plans; Interest Assumptions for Valuing and Paying Benefits'' 
     received on November 6, 2003; to the Committee on Health, 
     Education, Labor, and Pensions. 
       EC-5237. A communication from the Secretary of Health and 
     Human Services and the Attorney General, transmitting, 
     pursuant to law, a report relative to the Health Care Fraud 
     and Abuse Control Program for Fiscal Year 2002; to the 
     Committee on Health, Education, Labor, and Pensions. 
       EC-5238. A communication from the Vice Chairman, Office of 
     the General Counsel, Federal Election Commission, 
     transmitting, pursuant to law, the report of a rule entitled 
     ``Party Committee Telephone Banks'' received on November 7, 
     2003; to the Committee on Rules and Administration. 
       EC-5239. A communication from the Vice Chairman, Office of 
     the General Counsel, Federal Election Commission, 
     transmitting, pursuant to law, the report of a rule entitled 
     ``Multicandidate Committees and Biennial Contribution 
     Limits'' received on November 7, 2003; to the Committee on 
     Rules and Administration.

                          ____________________




                         REPORTS OF COMMITTEES

  The following reports of committees were submitted on November 12, 
2003:

       By Mr. STEVENS, from the Committee on Appropriations:
       Special Report entitled ``Further Revised Allocation to 
     Subcommittees of Budget Totals for Fiscal Year 2004'' (Rept. 
     No. 108-195).

                          ____________________




                    EXECUTIVE REPORTS OF COMMITTEES

  The following executive reports of committees were submitted:

       By Mr. INHOFE for the Committee on Environment and Public 
     Works.
       *Rixio Enrique Medina, of Oklahoma, to be a Member of the 
     Chemical Safety and Hazard Investigation Board for a term of 
     five years.
       By Mr. GRASSLEY for the Committee on Finance.
       *Bradley D. Belt, of the District of Columbia, to be a 
     Member of the Social Security Advisory Board for a term 
     expiring September 30, 2008.
       *Jennifer Young, of Ohio, to be an Assistant Secretary of 
     Health and Human Services.
       *Michael O'Grady, of Maryland, to be an Assistant Secretary 
     of Health and Human Services.

  *Nomination was reported with recommendation that it be confirmed 
subject to the nominee's commitment to respond to requests to appear 
and testify before any duly constituted committee of the Senate.

                          ____________________




              INTRODUCTION OF BILLS AND JOINT RESOLUTIONS

  The following bills and joint resolutions were introduced, read the 
first and second times by unanimous consent, and referred as indicated:

           By Ms. STABENOW (for herself and Mr. Levin):
       S. 1850. A bill to direct the Secretary of the Interior to 
     conduct a study of maritime sites in the State of Michigan; 
     to the Committee on Energy and Natural Resources.
           By Ms. MURKOWSKI:
       S. 1851. A bill to raise the minimum state allocation under 
     section 217(b)(2) of the Cranston-Gonzalez National 
     Affordable Housing Act; to the Committee on Banking, Housing, 
     and Urban Affairs.
           By Mr. SPECTER (for himself and Mr. Santorum):
       S. 1852. A bill to provide financial assistance for the 
     rehabilitation of the Benjamin Franklin National Memorial in 
     Philadelphia, Pennsylvania, and the development of an exhibit 
     to commemorate the 300th anniversary of the birth of Benjamin 
     Franklin; to the Committee on Energy and Natural Resources.
           By Mr. KENNEDY (for himself, Mrs. Clinton, Mr. Daschle, 
             Mr. Durbin, Mrs. Murray, Ms. Cantwell, Mr. Sarbanes, 
             Mr. Levin, Mr. Bingaman, Mr. Schumer, Mr. Baucus, Mr. 
             Reed, Mr. Rockefeller, and Mr. Kerry):
       S. 1853. A bill to provide extended unemployment benefits 
     to displaced workers; to the Committee on Finance.
           By Mr. DODD (for himself, Ms. Snowe, and Mr. Durbin):
       S. 1854. A bill entitled the ``Digital Opportunity 
     Investment Trust Act''; to the Committee on Commerce, 
     Science, and Transportation.
           By Mr. ALLEN:
       S. 1855. A bill to authorize the Administrator of the 
     National Aeronautics and Space Administration to establish an 
     awards program in honor of Charles ``Pete'' Conrad, astronaut 
     and space scientist, for recognizing the discoveries made by 
     amateur astronomers of asteroids with near-Earth orbit 
     trajectories; to the Committee on Commerce, Science, and 
     Transportation.
           By Mrs. CLINTON:
       S. 1856. A bill to designate the Department of Veterans 
     Affairs outpatient clinic in Sunnyside, Queens, New York, as 
     the ``Thomas P. Noonan, Jr., Department of Veterans Affairs 
     Outpatient Clinic''; to the Committee on Veterans' Affairs.
           By Mr. LOTT (for himself and Mr. Smith):
       S. 1857. A bill to amend the Internal Revenue Code of 1986 
     to provide procedural fairness in the application of the 
     controlled

[[Page 28886]]

     group provisions to employers who contribute to multiemployer 
     pension plans and who engage in bona fide corporate 
     transactions; to the Committee on Finance.
           By Mr. COCHRAN (for himself, Mr. Harkin, Mr. Coleman, 
             Mr. Allard, Mr. Ensign, and Mr. Crapo):
       S. 1858. A bill to authorize the Secretary of Agriculture 
     to conduct a loan repayment program to encourage the 
     provision of veterinary services in shortage and emergency 
     situations; to the Committee on Agriculture, Nutrition, and 
     Forestry.
           By Mr. DURBIN:
       S. 1859. A bill to amend title 10, United States Code, to 
     revise the age and service requirements for eligibility to 
     receive retired pay for non-regular service; to the Committee 
     on Armed Services.
           By Mr. HATCH (for himself, Mr. Biden, and Mr. 
             Grassley):
       S. 1860. A bill to reauthorize the Office of National Drug 
     Control Policy; to the Committee on the Judiciary.
           By Mr. LUGAR:
       S. 1861. A bill to provide a framework for consideration by 
     the legislative and executive branches of proposed unilateral 
     economic sanctions in order to ensure coordination of United 
     States policy with respect to trade, security, and human 
     rights; to the Committee on Foreign Relations.
           By Mr. LUGAR:
       S. 1862. A bill to provide certain exceptions from 
     requirements for bilateral agreements with Australia and the 
     United Kingdom for exemptions from the International Traffic 
     in Arms Regulations; read the first time.
           By Mr. LUGAR (for himself and Mr. Biden):
       S. 1863. A bill to authorize the transfer of certain naval 
     vessels; read the first time.
           By Mr. LUGAR (for himself and Mr. Biden):
       S. 1864. A bill to enhance the security of the United 
     States and United States allies; read the first time.
           By Mr. LUGAR (for himself and Mr. Biden):
       S. 1865. A bill to enhance the security of the United 
     States and United States allies; read the first time.
           By Mr. LUGAR (for himself and Mr. Biden):
       S. 1866. A bill to enhance the security of the United 
     States and United States allies; read the first time.
           By Mr. JEFFORDS (for himself, Mr. Leahy, Mr. Kerry, Mr. 
             Lieberman, and Mr. Akaka):
       S. 1867. A bill to amend the Solid Waste Disposal Act to 
     encourage greater recycling of certain beverage containers 
     through the use of deposit refund incentives; to the 
     Committee on Environment and Public Works.
           By Mr. BROWNBACK (for himself, Mr. Crapo, Mr. Smith, 
             and Mr. Santorum):
       S.J. Res. 24. A joint resolution providing for the 
     recognition of Jerusalem as the undivided capital of Israel 
     before the United States recognizes a Palestinian state, and 
     for other purposes; to the Committee on Foreign Relations.

                          ____________________




            SUBMISSION OF CONCURRENT AND SENATE RESOLUTIONS

  The following concurrent resolutions and Senate resolutions were 
read, and referred (or acted upon), as indicated:

           By Mr. FEINGOLD:
       S. Res. 266. A resolution expressing the sense of the 
     Senate with respect to polio; to the Committee on Health, 
     Education, Labor, and Pensions.
           By Mrs. FEINSTEIN (for herself, Mr. Kyl, Mr. Lieberman, 
             Mr. Coleman, Mr. Lautenberg, Mr. Santorum, Mr. 
             Fitzgerald, and Mr. Cochran):
       S. Con. Res. 81. A concurrent resolution expressing the 
     deep concern of Congress regarding the failure of the Islamic 
     Republic of Iran to adhere to its obligations under a 
     safeguards agreement with the International Atomic Energy 
     Agency and the engagement by Iran in activities that appear 
     to be designed to develop nuclear weapons; to the Committee 
     on Foreign Relations.

                          ____________________




                         ADDITIONAL COSPONSORS


                                 S. 50

  At the request of Mr. Johnson, the name of the Senator from New York 
(Mr. Schumer) was added as a cosponsor of S. 50, a bill to amend title 
38, United States Code, to provide for a guaranteed adequate level of 
funding for veterans health care, and for other purposes.


                                 S. 344

  At the request of Mr. Akaka, the name of the Senator from Utah (Mr. 
Hatch) was added as a cosponsor of S. 344, a bill expressing the policy 
of the United States regarding the United States relationship with 
Native Hawaiians and to provide a process for the recognition by the 
United States of the Native Hawaiian governing entity, and for other 
purposes.


                                 S. 420

  At the request of Mrs. Dole, the name of the Senator from Mississippi 
(Mr. Lott) was added as a cosponsor of S. 420, a bill to provide for 
the acknowledgement of the Lumbee Tribe of North Carolina, and for 
other purposes.


                                 S. 451

  At the request of Ms. Snowe, the name of the Senator from West 
Virginia (Mr. Rockefeller) was added as a cosponsor of S. 451, a bill 
to amend title 10, United States Code, to increase the minimum Survivor 
Benefit Plan basic annuity for surviving spouses age 62 and older, to 
provide for a one-year open season under that plan, and for other 
purposes.


                                 S. 486

  At the request of Mr. Domenici, the name of the Senator from Montana 
(Mr. Burns) was added as a cosponsor of S. 486, a bill to provide for 
equal coverage of mental health benefits with respect to health 
insurance coverage unless comparable limitations are imposed on medical 
and surgical benefits.


                                 S. 557

  At the request of Ms. Collins, the name of the Senator from Utah (Mr. 
Hatch) was added as a cosponsor of S. 557, a bill to amend the Internal 
Revenue Code of 1986 to exclude from gross income amounts received on 
account of claims based on certain unlawful discrimination and to allow 
income averaging for backpay and frontpay awards received on account of 
such claims, and for other purposes.


                                 S. 569

  At the request of Mr. Ensign, the name of the Senator from New Jersey 
(Mr. Lautenberg) was added as a cosponsor of S. 569, a bill to amend 
title XVIII of the Social Security Act to repeal the medicare 
outpatient rehabilitation therapy caps.


                                 S. 596

  At the request of Mr. Ensign, the names of the Senator from 
Washington (Mrs. Murray) and the Senator from Idaho (Mr. Craig) were 
added as cosponsors of S. 596, a bill to amend the Internal Revenue 
Code of 1986 to encourage the investment of foreign earnings within the 
United States for productive business investments and job creation.


                                 S. 710

  At the request of Mr. Leahy, the name of the Senator from Kansas (Mr. 
Brownback) was added as a cosponsor of S. 710, a bill to amend the 
Immigration and Nationality Act to provide that aliens who commit acts 
of torture, extrajudicial killings, or other specified atrocities 
abroad are inadmissible and removable and to establish within the 
Criminal Division of the Department of Justice an Office of Special 
Investigations having responsibilities under that Act with respect to 
all alien participants in war crimes, genocide, and the commission of 
acts of torture and extrajudicial killings abroad.


                                 S. 780

  At the request of Mr. Lott, the name of the Senator from New York 
(Mrs. Clinton) was added as a cosponsor of S. 780, a bill to award a 
congressional gold medal to Chief Phillip Martin of the Mississippi 
Band of Choctaw Indians.


                                 S. 856

  At the request of Mr. Rockefeller, the name of the Senator from 
Michigan (Ms. Stabenow) was added as a cosponsor of S. 856, a bill to 
amend the Internal Revenue Code of 1986 to expand the incentives for 
the construction and renovation of public schools.


                                 S. 864

  At the request of Mr. Edwards, the name of the Senator from South 
Dakota (Mr. Johnson) was added as a cosponsor of S. 864, a bill to 
amend the Child Care and Development Block Grant Act of 1990 to provide 
for grants to parents and guardians of certain military dependents, in 
order to assist the parent and guardians in paying for the cost of 
child care services provided to the dependents, and for other purposes.


                                 S. 902

  At the request of Ms. Landrieu, the name of the Senator from 
Mississippi (Mr. Cochran) was added as a cosponsor of S . 902, a bill 
to declare, under the authority of Congress under Article I, section 8, 
of the Constitution to

[[Page 28887]]

``provide and maintain a Navy'', a national policy for the naval force 
structure required in order to ``provide for the common defense'' of 
the United States throughout the 21st century.


                                 S. 950

  At the request of Mr. Enzi, the name of the Senator from Michigan 
(Ms. Stabenow) was added as a cosponsor of S. 950, a bill to allow 
travel between the United States and Cuba.


                                 S. 971

  At the request of Mr. Harkin, the name of the Senator from Maryland 
(Mr. Sarbanes) was added as a cosponsor of S. 971, a bill to amend 
title XIX of the Social Security Act to provide individuals with 
disabilities and older Americans with equal access to community-based 
attendant services and supports, and for other purposes.


                                 S. 976

  At the request of Mr. Warner, the name of the Senator from Indiana 
(Mr. Bayh) was added as a cosponsor of S. 976, a bill to provide for 
the issuance of a coin to commemorate the 400th anniversary of the 
Jamestown settlement.


                                S. 1006

  At the request of Mr. Burns, the name of the Senator from Vermont 
(Mr. Leahy) was added as a cosponsor of S. 1006, a bill to reduce 
temporarily the duty on certain articles of natural cork.


                                S. 1140

  At the request of Mr. Lautenberg, the name of the Senator from New 
Jersey (Mr. Corzine) was added as a cosponsor of S. 1140, a bill to 
amend titles 23 and 49, United States Code, concerning length and 
weight limitations for vehicles operating on Federal-aid highways, and 
for other purposes.


                                S. 1143

  At the request of Mrs. Hutchison, the name of the Senator from 
Missouri (Mr. Bond) was added as a cosponsor of S. 1143, a bill to 
amend the Public Health Service Act to direct the Secretary of Health 
and Human Services to establish, promote, and support a comprehensive 
prevention, research, and medical management referral program for 
hepatitis C virus infection.


                                S. 1246

  At the request of Mr. Roberts, the name of the Senator from Maine 
(Ms. Collins) was added as a cosponsor of S. 1246, a bill to amend the 
Internal Revenue Code of 1986 to provide for collegiate housing and 
infrastructure grants.


                                S. 1353

  At the request of Mr. Brownback, the name of the Senator from 
Minnesota (Mr. Dayton) was added as a cosponsor of S. 1353, a bill to 
establish new special immigrant categories.


                                S. 1358

  At the request of Mr. Akaka, the name of the Senator from Arkansas 
(Mr. Pryor) was added as a cosponsor of S. 1358, a bill to amend 
chapter 23 of title 5, United States Code, to clarify the disclosure of 
information protected from prohibited personnel practices, require a 
statement in non-disclosure policies, forms, and agreements that such 
policies, forms, and agreements conform with certain disclosure 
protections, provide certain authority for the Special Counsel, and for 
other purposes.


                                S. 1392

  At the request of Mr. Harkin, the name of the Senator from New Mexico 
(Mr. Bingaman) was added as a cosponsor of S. 1392, a bill to amend the 
Richard B. Russell National School Lunch Act to improve the nutrition 
of students served under child nutrition programs.


                                S. 1393

  At the request of Mr. Harkin, the names of the Senator from Nebraska 
(Mr. Nelson), the Senator from Michigan (Mr. Levin) and the Senator 
from Georgia (Mr. Chambliss) were added as cosponsors of S. 1393, a 
bill to amend the Richard B. Russell National School Lunch Act to 
reauthorize and expand the fruit and vegetable pilot program.


                                S. 1394

  At the request of Mr. Harkin, the name of the Senator from New York 
(Mrs. Clinton) was added as a cosponsor of S. 1394, a bill to establish 
a demonstration project under the medicaid program to encourage the 
provision of community-based services to individuals with disabilities.


                                S. 1460

  At the request of Mr. Kennedy, the name of the Senator from Louisiana 
(Ms. Landrieu) was added as a cosponsor of S. 1460, a bill to amend the 
Federal Food, Drug, and Cosmetic Act to preserve the effectiveness of 
medically important antibiotics used in the treatment of human and 
animal diseases.


                                S. 1513

  At the request of Mr. Schumer, the name of the Senator from Oregon 
(Mr. Wyden) was added as a cosponsor of S. 1513, a bill to amend the 
National Labor Relations Act to establish an efficient system to enable 
employees to form or become members of labor organizations, and for 
other purposes.


                                S. 1531

  At the request of Mr. Hatch, the names of the Senator from Illinois 
(Mr. Durbin) and the Senator from North Dakota (Mr. Conrad) were added 
as cosponsors of S. 1531, a bill to require the Secretary of the 
Treasury to mint coins in commemoration of Chief Justice John Marshall.


                                S. 1538

  At the request of Mr. Harkin, the name of the Senator from New York 
(Mrs. Clinton) was added as a cosponsor of S. 1538, a bill to ensure 
that the goals of the Dietary Supplement Health and Education Act of 
1994 are met by authorizing appropriations to fully enforce and 
implement such Act and the amendments made by such Act, and for other 
purposes.


                                S. 1545

  At the request of Mr. Campbell, his name was withdrawn as a cosponsor 
of S. 1545, a bill to amend the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 to permit States to determine 
State residency for higher education purposes and to authorize the 
cancellation of removal and adjustment of status of certain alien 
students who are long-term United States residents.


                                S. 1570

  At the request of Mr. Santorum, the name of the Senator from Idaho 
(Mr. Crapo) was added as a cosponsor of S. 1570, a bill to amend the 
Internal Revenue Code of 1986 to allow individuals a refundable credit 
against income tax for the purchase of private health insurance, and to 
establish State health insurance safety-net programs.


                                S. 1619

  At the request of Mrs. Murray, the name of the Senator from New York 
(Mrs. Clinton) was added as a cosponsor of S. 1619, a bill to amend the 
Individuals with Disabilities Education Act to ensure that children 
with disabilities who are homeless or are wards of the State have 
access to special education services, and for other purposes.


                                S. 1630

  At the request of Mrs. Clinton, the name of the Senator from South 
Dakota (Mr. Johnson) was added as a cosponsor of S. 1630, a bill to 
facilitate nationwide availability of 2-1--1 telephone service for 
information and referral services, and for other purposes.


                                S. 1645

  At the request of Mr. Craig, the name of the Senator from Wisconsin 
(Mr. Kohl) was added as a cosponsor of S. 1645, a bill to provide for 
the adjustment of status of certain foreign agricultural workers, to 
amend the Immigration and Nationality Act to reform the H-2A worker 
program under that Act, to provide a stable, legal agricultural 
workforce, to extend basic legal protections and better working 
conditions to more workers, and for other purposes.


                                S. 1686

  At the request of Ms. Murkowski, her name was added as a cosponsor of 
S. 1686, a bill to reauthorize the adoption incentive payments program 
under part E of title IV of the Social Security Act, and for other 
purposes.
  At the request of Mr. Grassley, the name of the Senator from Maine 
(Ms. Snowe) was added as a cosponsor of S. 1686, supra.


                                S. 1700

  At the request of Mr. Leahy, the names of the Senator from Hawaii 
(Mr. Akaka), the Senator from New Jersey (Mr. Corzine), the Senator 
from Hawaii

[[Page 28888]]

(Mr. Inouye) and the Senator from Vermont (Mr. Jeffords) were added as 
cosponsors of S. 1700, a bill to eliminate the substantial backlog of 
DNA samples collected from crime scenes and convicted offenders, to 
improve and expand the DNA testing capacity of Federal, State, and 
local crime laboratories, to increase research and development of new 
DNA testing technologies, to develop new training programs regarding 
the collection and use of DNA evidence, to provide post-conviction 
testing of DNA evidence to exonerate the innocent, to improve the 
performance of counsel in State capital cases, and for other purposes.


                                S. 1702

  At the request of Mr. Smith, the name of the Senator from New Jersey 
(Mr. Lautenberg) was added as a cosponsor of S. 1702, a bill to amend 
the Internal Revenue Code of 1986 to extend the exclusion from gross 
income for employer-provided health coverage to designated plan 
beneficiaries of employees, and for other purposes.


                                S. 1704

  At the request of Ms. Collins, the name of the Senator from West 
Virginia (Mr. Rockefeller) was added as a cosponsor of S. 1704, a bill 
to amend the Public Health Service Act to establish a State family 
support grant program to end the practice of parents giving legal 
custody of their seriously emotionally disturbed children to State 
agencies for the purpose of obtaining mental health services for those 
children.


                                S. 1721

  At the request of Mr. Campbell, the name of the Senator from Wyoming 
(Mr. Thomas) was added as a cosponsor of S. 1721, a bill to amend the 
Indian Land Consolidation Act to improve provisions relating to probate 
of trust and restricted land, and for other purposes.


                                S. 1734

  At the request of Mrs. Lincoln, the name of the Senator from Hawaii 
(Mr. Inouye) was added as a cosponsor of S. 1734, a bill to amend 
titles XIX and XXI of the Social Security Act to provide States with 
the option to expand or add coverage of pregnant women under the 
Medicaid and State children's health insurance programs, and for other 
purposes.


                                S. 1736

  At the request of Mr. Enzi, the name of the Senator from Arkansas 
(Mrs. Lincoln) was added as a cosponsor of S. 1736, a bill to promote 
simplification and fairness in the administration and collection of 
sales and use taxes.


                                S. 1737

  At the request of Mr. Wyden, the names of the Senator from Illinois 
(Mr. Durbin) and the Senator from Washington (Mrs. Murray) were added 
as cosponsors of S. 1737, a bill to amend the Clayton Act to enhance 
the authority of the Federal Trade Commission or the Attorney General 
to prevent anticompetitive practices in tightly concentrated gasoline 
markets.


                                S. 1741

  At the request of Ms. Collins, the name of the Senator from Maryland 
(Mr. Sarbanes) was added as a cosponsor of S. 1741, a bill to provide a 
site for the National Women's History Museum in the District of 
Columbia.


                                S. 1765

  At the request of Mr. Lott, the name of the Senator from South 
Carolina (Mr. Graham) was added as a cosponsor of S. 1765, a bill to 
preserve and protect the free choice of individual employees to form, 
join, or assist labor organizations, or to refrain from such 
activities.


                                S. 1792

  At the request of Mr. Domenici, the name of the Senator from New 
Mexico (Mr. Bingaman) was added as a cosponsor of S . 1792, a bill to 
amend the Internal Revenue Code of 1986 to provide the same capital 
gains treatment for art and collectibles as for other investment 
property and to provide that a deduction equal to fair market value 
shall be allowed for charitable contributions of literary, musical, 
artistic, or scholarly compositions created by the donor.


                                S. 1833

  At the request of Mr. Daschle, the name of the Senator from Minnesota 
(Mr. Dayton) was added as a cosponsor of S. 1833, a bill to improve the 
health of minority individuals.


                                S. 1834

  At the request of Ms. Stabenow, the name of the Senator from Ohio 
(Mr. Voinovich) was added as a cosponsor of S. 1834, a bill to waive 
time limitations in order to allow the Medal of Honor to be awarded to 
Gary Lee McKiddy, of Miamisburg, Ohio, for acts of valor while a 
helicopter crew chief and door gunner with the 1st Cavalry Division 
during the Vietnam War.


                                S. 1853

  At the request of Mr. Kennedy, the names of the Senator from New 
Jersey (Mr. Corzine) and the Senator from Connecticut (Mr. Dodd) were 
added as cosponsors of S. 1853, a bill to provide extended unemployment 
benefits to displaced workers.


                            S. CON. RES. 81

  At the request of Mrs. Feinstein, the name of the Senator from Kansas 
(Mr. Brownback) was added as a cosponsor of S. Con. Res. 81, a 
concurrent resolution expressing the deep concern of Congress regarding 
the failure of the Islamic Republic of Iran to adhere to its 
obligations under a safeguards agreement with the International Atomic 
Energy Agency and the engagement by Iran in activities that appear to 
be designed to develop nuclear weapons.


                              S. RES. 164

  At the request of Mr. Ensign, the name of the Senator from Vermont 
(Mr. Leahy) was added as a cosponsor of S. Res. 164, a resolution 
reaffirming support of the Convention on the Prevention and Punishment 
of the Crime of Genocide and anticipating the commemoration of the 15th 
anniversary of the enactment of the Genocide Convention Implementation 
Act of 1987 (the Proxmire Act) on November 4, 2003.


                              S. RES. 202

  At the request of Mr. Campbell, the name of the Senator from 
Minnesota (Mr. Dayton) was added as a cosponsor of S. Res. 202, a 
resolution expressing the sense of the Senate regarding the genocidal 
Ukraine Famine of 1932-33.


                              S. RES. 248

  At the request of Mr. Campbell, the name of the Senator from Oregon 
(Mr. Smith) was added as a cosponsor of S. Res. 248, a resolution 
expressing the sense of the Senate concerning the individual Indian 
money account trust fund lawsuit.


                              S. RES. 253

  At the request of Mr. Campbell, the names of the Senator from North 
Carolina (Mrs. Dole), the Senator from Alabama (Mr. Sessions), the 
Senator from Pennsylvania (Mr. Santorum), the Senator from Nebraska 
(Mr. Hagel) and the Senator from Kentucky (Mr. Bunning) were added as 
cosponsors of S. Res. 253, a resolution to recognize the evolution and 
importance of motorsports.
  At the request of Mr. Nelson of Florida, the name of the Senator from 
Nevada (Mr. Reid) was added as a cosponsor of S. Res. 253, supra.
  At the request of Mr. Kyl, the names of the Senator from Tennessee 
(Mr. Alexander), the Senator from Virginia (Mr. Allen), the Senator 
from New Mexico (Mr. Domenici), the Senator from Nevada (Mr. Ensign), 
the Senator from New Hampshire (Mr. Sununu), the Senator from Oklahoma 
(Mr. Nickles), the Senator from Idaho (Mr. Craig), the Senator from 
Virginia (Mr. Warner), the Senator from Colorado (Mr. Allard) and the 
Senator from Georgia (Mr. Chambliss) were added as cosponsors of S. 
Res. 253, supra.


                              S. RES. 260

  At the request of Mr. Durbin, the names of the Senator from Louisiana 
(Ms. Landrieu) and the Senator from California (Mrs. Feinstein) were 
added as cosponsors of S. Res. 260, a resolution expressing the sense 
of the Senate that the Secretary of Health and Human Services should 
take action to remove dietary supplements containing ephedrine 
alkaloids from the market.


                           AMENDMENT NO. 2160

  At the request of Mr. DeWine, the names of the Senator from Alabama 
(Mr. Sessions) and the Senator from Alabama (Mr. Shelby) were added as

[[Page 28889]]

cosponsors of amendment No. 2160 intended to be proposed to H.R. 2861, 
a bill making appropriations for the Departments of Veterans Affairs 
and Housing and Urban Development, and for sundry independent agencies, 
boards, commissions, corporations, and offices for the fiscal year 
ending September 30, 2004, and for other purposes.

                          ____________________




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Ms. STABENOW (for herself and Mr. Levin):
  S. 1850. A bill to direct the Secretary of the Interior to conduct a 
study of maritime sites in the State of Michigan; to the Committee on 
Energy and Natural Resources.

  Ms. STABENOW. Mr. President, I rise today to introduce the Michigan 
Lighthouse and Maritime Heritage Act, a bill to promote and protect 
Michigan's Great Lakes history including its lighthouses and maritime 
museums.
  Before I discuss this bill, I want to say that it is extremely 
fitting that we are discussing the importance of Michigan's Great Lakes 
history, because today is an important day in that long history. Two 
years ago today, President Bush signed into law the FY 2003 Energy and 
Water Appropriations bill, which included a provision which I authored 
to place a two year ban on oil and gas drilling in the Great Lakes and 
protect them from the imminent threat of drilling.
  At the time, Governor Engler's administration was moving forward with 
plans to issue permits for oil and gas drilling in the Great Lakes 
despite the overwhelming opposition of the citizens of Michigan and the 
Great Lakes region. The Great Lakes drilling ban had overwhelming 
bipartisan support of the Great Lakes Senators and House members; so 
much so, that Senator Voinovich and I worked together to re-extend the 
drilling ban for an additional two years, through the end of FY 2005, 
in last year's Omnibus Appropriations bill.
  One of the reasons the Great Lakes drilling ban had such broad 
support is that as the elected stewards of this precious natural 
resource, we all understood how important the Great Lakes are to our 
region and the Nation. The Great Lakes make up 20 percent of the 
world's fresh water supply, and thirty-three million people rely on the 
Great Lakes for their drinking water, including 10 million for Lake 
Michigan alone. The Great Lakes' coastlines also are home to wetlands, 
dunes and endangered species and plants. Lake Michigan alone contains 
over 417 coastal wetlands, the most of any Great Lake.
  The Great Lakes are not just an important natural resource, but they 
are a critical part of Michigan's economy and quality of life. Millions 
of people use the Great Lakes each year to enjoy their beaches, good 
fishing and boating. The latest U.S. Fish and Wildlife estimate shows 
that recreational fishing totals an $839 million boost to Michigan's 
tourist economy alone. Michigan has over one million registered boaters 
on file, more than any other State.
  The Michigan Lighthouse and Maritime Heritage Act would help preserve 
the history of this precious natural resource for generations to come. 
The bill would require the National Park Service (NPS) to study and 
make recommendations as to the best way to promote and protect 
Michigan's lighthouses and maritime resources. After 18 months, the NPS 
would submit the study to Congress with its recommendations to link 
these wonderful resources such as establishing a lighthouse and 
maritime heritage trail, and to identify financial resources for 
Michigan's communities to preserve and restore their lighthouses, 
museums and other maritime resources. Congress could then move forward 
with establishing the lighthouse and maritime heritage trail, and 
implementing the NPS's recommendations. Hopefully, a Michigan 
lighthouse and maritime heritage trail would lead to increased visitors 
and tourism to these wonderful sites, which also would help bolster the 
local economy in these communities.
  The Great Lakes are an inseparable part of Michigan's identity and 
cultural history, and Michigan's landscape reflects that bond. Michigan 
is home to over 120 lighthouses, more than any other state in the U.S. 
The oldest Michigan lighthouses are over 180 years, dating back to the 
1820's. Michigan is also home to the country's only fresh water marine 
sanctuary, the Thunder Bay National Marine Sanctuary. This marine 
sanctuary is designated to protect over 100 shipwrecks through an area 
of Lake Huron known as shipwreck alley. Michigan is also home to 
numerous maritime museums and lighthouse museums which are located 
throughout the State.
  The Michigan Lighthouse and Maritime Heritage Act will help protect 
these precious Great Lakes resources for future generations of 
Michiganians, and promote the wonderful history of the Great Lakes for 
all who visit Michigan to enjoy.
                                 ______
                                 
      By Ms. MURKOWSKI:
  S. 1851. A bill to raise the minimum state allocation under section 
217(b)(2) of the Cranston-Gonzalez National Affordable Housing Act; to 
the Committee on Banking, Housing, and Urban Affairs.
  Ms. MURKOWSKI. Mr. President, I rise to introduce a bill that will 
increase the minimum funding level for low population States for the 
U.S. Department of Housing and Urban Development's HOME Investment 
Partnerships Program.
  The HOME program was created when the Cranston-Gonzalez National 
Affordable Housing bill was signed into law in 1990. Funds were first 
appropriated for this program in 1992. HOME program funds are disbursed 
to State and local governments for the purpose of assisting with the 
expansion of housing for low-income families. These governmental 
entities have a great deal of flexibility when using these funds to 
implement the program's purpose.
  When this program was created, a minimum funding level of $3 million 
was created for States that would normally receive a small amount of 
HOME funds under the allocation formula, which is based on a State's 
population, among other parameters. Three States--Alaska, Delaware, and 
Nevada--received this level of funding for this program in fiscal year 
2003. Assuming a three percent inflation rate per year between 1992--
when this program was first funded--and 2003, a $3 million allocation 
in 1992 dollars decreased in value to $2,145,904 in 2003.
  This is unacceptable. My State is one of the most expensive areas in 
the country to develop housing, especially when one takes into account 
the cost to transport building materials to extremely remote areas of 
my State.
  This legislation increases the minimum State funding level for the 
HOME program to $5 million. Based on fiscal year 2003 allocations for 
this program, ten States received less than $5 million. Those States 
are: Alaska, Delaware, Nevada, Hawaii, Montana, North Dakota, South 
Dakota, Utah, Vermont, and Wyoming. My proposed increase in funding 
would be offset by an overall decrease in allocations to other States. 
If a $5 million minimum funding level had been in place by fiscal year 
2003, the other 40 States would only have experienced an overall 
decrease of less than $15 million. Bearing in mind that the amount 
appropriated in fiscal year 2003 for this program is just under $2 
billion, such a decrease in funds seems reasonable considering no 
changes have been made to the minimum State funding level since the 
HOME program was first funded in 1992.
  In addition, the congressionally-appointed, bipartisan Millennium 
Housing Commission recommended increasing the minimum State funding 
level for the HOME program to $5 million in their May 30, 2002, report 
to Congress.
  It is imperative that we address this important issue so that we can 
address the housing needs of a greater amount of low-income families in 
low-population States.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

[[Page 28890]]



                                S. 1851

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Small State HOME Program 
     Equity Act of 2003''.

     SEC. 2. ALLOCATION OF RESOURCES.

       Section 217(b)(2)(A) of the Cranston-Gonzalez National 
     Affordable Housing Act (42 U.S.C. 12747(b)(2)(A)) is amended 
     by striking ``$3,000,000'' each place it occurs and inserting 
     ``$5,000,000''.
                                 ______
                                 
      By Mr. SPECTER (for himself and Mr. SANTORUM):
  S. 1852. A bill to provide financial assistance for the 
rehabilitation of the Benjamin Franklin National Memorial in 
Philadelphia, Pennsylvania, and the development of an exhibit to 
commemorate the 300th anniversary of the birth of Benjamin Franklin; to 
the Committee on Energy and Natural Resources.
  Mr. SPECTER. Mr. President, I have sought recognition today to 
introduce a bill to authorize Federal funding for the rehabilitation of 
the Benjamin Franklin National Memorial. This memorial, an attraction 
for some 1 million visitors annually, is truly a national treasure and 
it has come under significant deterioration--threatening its very 
existence. I, along with my distinguished colleague from Pennsylvania, 
Senator Santorum, are introducing this bill to ensure that Federal 
funding is made available to preserve and protect our Nation's memorial 
to Benjamin Franklin, America's distinguished scientist, statesman, 
inventor, and diplomat.
  Unveiled in 1938, the memorial is located in the Memorial Hall of the 
Franklin Institute Science Museum of Philadelphia, PA--one of the 
Nation's premier science and technology museums. The Institute became 
custodian of the memorial in 1972 when Public Law 92-511 designated the 
Memorial Hall as the Benjamin Franklin National Memorial. In 1973, a 
Memorandum of Agreement was executed by the U.S. Department of the 
Interior and the Franklin Institute and directed the Department to 
cooperate with the Institute in ``all appropriate and mutually 
agreeable ways in the preservation and presentation of the Benjamin 
Franklin National Memorial Hall as a national memorial.'' To date, the 
Department has not provided any Federal funding to the Franklin 
Institute other than $300,000, which Senator Santorum and I secured 
from the ``Save America's Treasures'' program in the Fiscal Year 2000 
Interior Appropriations Act to help improve accessibility to the 
memorial.
  Unlike other national memorials, the Benjamin Franklin National 
Memorial does not receive an annual allocation of Federal funds that 
provides for preventative maintenance or other important activities. 
The significant burden of maintaining this national memorial has become 
a challenge to the Franklin Institute. For example, under the terms of 
the 1973 Agreement, the Institute is required to admit the public to 
Memorial Hall free of charge. Accordingly, the Institute--a non-profit 
organization--has absorbed the sole responsibility for providing the 
funds necessary to preserve and maintain the memorial.
  The legislation that Senator Santorum and I are introducing today 
finally provides the Franklin Institute with the Federal support 
necessary to ease the financial burden of maintaining a national 
memorial--enabling the Institute to continue its duties as its 
custodian. The bill authorizes up to $10 million in Federal funds to 
provide needed rehabilitation and to help enhance the experience at the 
memorial through the addition of exhibition space for the proper 
display of the finest existing collection of Franklin artifacts.
  The Benjamin Franklin National Memorial at the Franklin Institute 
serves as the Nation's primary location honoring Franklin's life, 
legacy, and ideals. This was further solidified in July 2002, when 
President George W. Bush signed into law House Resolution 2362, which 
created the Benjamin Franklin Tercentenary Commission.
  This commission, which I chair, is charged with studying and 
recommending activities appropriate for the 300th anniversary of 
Franklin's birth in 2006. As we expect visitors to the memorial from 
throughout the world for this celebration, it is important that the 
Franklin Institute, as custodian of the memorial, begin the meticulous 
restoration and enhancement of it promptly. I urge my colleagues to 
support this legislation to preserve this national tribute to Benjamin 
Franklin for years to come.
                                 ______
                                 
      By Mr. LOTT (for himself and Mr. Smith):
  S. 1857. A bill to amend the internal revenue Code of 1986 to provide 
procedural fairness in the application of the controlled group 
provisions to employers who contribute to multiemployer pension plans 
and who engage in bona fide corporate transactions; to the Committee on 
Finance.
  Mr. LOTT. Mr. President, I rise to day to introduce, along with my 
colleagues Senator Smith from Oregon, the multiemployer Pension Plan 
Procedural Fairness Act of 2003. The purpose of this legislation is to 
provide a modest amount of procedural fairness with respect to claims 
filed against former employers under the multiemployer pension plan 
(MEPPA) rules.
  By way of background, MEPPA makes an employer that completely or 
partially withdraws from participation in a multiemployer pension fund 
liable for the employer's share of the plans' unfunded vested benefits. 
That liability is referred to as ``withdrawal liability'' and can be 
collected from any member of the controlled group of employers that 
included the withdrawing employer. The process of collecting withdrawal 
liability can become quite unfair when the pension fund attempts to 
assert liability against a former employer or a former member of a 
controlled group of employers that, as a result of a legitimate 
business separation, such as a sale or spin-off transaction, ceased to 
be associated with the withdrawing employer several years before the 
compete or partial withdrawal occurred.
  MEPPA provides that a former employer or former member of a 
controlled group can still be liable if ``a principal purpose'' of the 
business separation transaction was ``to evade or avoid'' withdrawal 
liability. The legislative history indicates that the ``evade or 
avoid'' provision was designed to prevent unscrupulous employers from 
dumping a distressed subsidiary in order to evade or avoid withdrawal 
liability. I firmly believe that unscrupulous companies that attempt to 
evade withdrawal liability should be held liable. However, companies 
that engage in legitimate transactions should be able to defend against 
withdrawal liability claims that arose from events which occurred many 
years after the business separation.
  The simplest way to understand the issue is with an illustration. 
Assume that a parent company operates a subsidiary that makes 
contributions to a multiemployer plan. Assume further that, for valid 
business reasons, the parent company disposes of the subsidiary via a 
bona fide ``spin-off'' transaction. At the time of the spin-off, the 
subsidiary was current on all of its required contributions to the 
multiemployer pension fund, and the subsidiary continues to make 
contributions to the multiemployer plan after the spin-off. To complete 
the example, assume that several years after the spin-off, the spun-off 
subsidiary goes out of business and ceases to make contributions to the 
multiemployer pension fund. Under this scenario, the MEPPA rules allow 
the pension fund to claim that a principal purpose of the transaction 
was to evade or avoid withdrawal liability. Because the MEPPA rules do 
not provide any time restrictions for making these claims, a former 
parent company may be forced to defend against such a claim years, if 
not decades after the transaction in question. By contrast, the single-
employer plan rules provide a 5-year safe harbor rule that protects 
employers against such claims.
  While multiemployer plans should certainly be able to pursue claims 
against unscrupulous employers, there are two procedural rules in MEPPA 
that severely and unfairly hinder an employer's ability to defend 
itself

[[Page 28891]]

against a claim for withdrawal liability under the evade or avoid 
standard when the transaction in question occurred several years before 
the date of a complete or partial withdrawal. The first rule is 
referred to as the ``pay to play'' rule, and the second rule involves 
the burden of proof borne by the employer.
  Under MEPPA, if the pension fund makes a claim for withdrawal 
liability against the former parent company under the ``evade or 
avoid'' standard, the claim is sent to arbitration. However, the parent 
company must begin making payments to the multiemployer pension plan 
within 60 days after receiving a demand solely based upon the plan's 
unilateral decision to assert a withdrawal liability claim and long 
before any neutral third party finds that ``a principal purpose'' of 
the challenged transaction was to ``evade or avoid'' withdrawal 
liability. As a result, a company that engaged in a bona fide business 
transaction many years before the withdrawal occurred is forced to 
begin paying on the claim based on nothing more than the plan's demand.
  According to the legislative history, this unique ``pay to play'' 
rule was enacted in response to what Congress perceived to be 
inefficient, cumbersome and costly procedures for collecting delinquent 
contributions from employers. Simple collection actions were converted 
into complex litigation through defenses that were unrelated to the 
multiemployer plan's entitlement to the contribution. However, the 
relevant MEPPA language is not limited to collection actions. While it 
may be appropriate to require a contesting employer to commence 
payments while the claim is being litigated, it is not fair to require 
prepayment in the case of an ``evade or avoid'' claim when the 
transaction in question occurred many years before the complete or 
partial withdrawal occurred.
  The second procedural unfairness involves the burden of proof that an 
employer faces in rebutting a claim under the ``evade or avoid'' 
standard. MEPPA provides that a plan sponsor's determination is 
presumed correct, unless the contesting party shows by a preponderance 
of evidence that the determination is incorrect. The impetus behind 
Congress's decision to include such a presumption was the need to avoid 
a perceived potential for conflict and delay over the soundness of 
actuarial determinations of liability. Specifically, the presumption 
was crafted in order to prevent ``the likelihood of dispute and delay 
over technical actuarial matters with respect to which there are often 
several equally `correct' approaches. Without such a presumption, a 
plan would be helpless to resist dilatory tactics by a withdrawing 
employer--tactics that could, and could be intended to, result in 
prohibitive collection costs to the plan.'' However, the MEPPA 
presumption language is not limited to actuarial determinations, but 
reaches liability determinations as well.
  Even if this presumption is appropriate when withdrawal liability is 
triggered shortly after a transaction occurs, it is unfair to apply the 
presumption when the transaction in question occurred several years 
before the withdrawal took place. In this situation, a company that 
engages in a bona fide transaction may be forced to prove a negative--
namely that a principal purpose of a transaction that occurred many 
years ago was not to evade or avoid withdrawal liability.
  To summarize, under the MEPPA rules, an employer may find itself in a 
position where it has to respond to claims regarding a legitimate 
business transaction that occurred many years earlier. Furthermore, in 
defending against the claim, the employer must 1. prove that a 
principal purpose of the transaction was not to evade or avoid 
withdrawal liability, and 2. prepay the contested amount of the 
liability well in advance of any final determination of liability. This 
is patently unfair. Our legislation is a modest attempt to inject some 
notions of procedural fairness in this situation.
  Our bill does not change the present-law rules regarding the 
determination of liability with respect to a complete or partial 
withdrawal from a multiemployer pension plan. However, it does change 
the procedural rules applicable to such a determination, but only with 
respect to a transaction that occurred five years or more before the 
date of the complete or partial withdrawal.
  Under our bill, when a determination of an employer's withdrawal 
liability is based on a finding by the plan sponsor that a principal 
purpose of a transaction was to evade or avoid liability, and the 
transaction in question occurred five years or more before the date of 
the complete or partial withdrawal, the following rules would apply: 1. 
the determination by the plan sponsor is not presumed to be correct, 
and the plan sponsor has the burden to establish, by a preponderance of 
the evidence, each and every element of the claim for withdrawal 
liability, and 2. if an employer contests the plan sponsor's 
determination either through arbitration or through a claim brought in 
court, the employer is not obligated to make any withdrawal liability 
payments until a final decision in the arbitration, or in court, 
upholds the plan sponsor's determination. Our bill would apply to any 
employer that receives a notification after October 31, 2003.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1857

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Multiemployer Pension Plan 
     Procedural Fairness Act of 2003''.

     SEC. 2. AMENDMENT TO THE INTERNAL REVENUE CODE OF 1986.

       (a) In General.--Section 414(f) of the Internal Revenue 
     Code of 1986 is amended--
       (1) by striking paragraph (2) and inserting the following:
       ``(2) Common control.--
       ``(A) In general.--For purposes of this subsection and 
     subtitle E of title IV of the Employee Retirement Income 
     Security Act of 1974 (29 U.S.C. 1381 et seq.), all trades or 
     businesses (whether or not incorporated) which are under 
     common control within the meaning of subsection (c) are 
     considered a single employer.
       ``(B) Principal purpose test.--If a principal purpose of 
     any transaction is to evade or avoid liability under subtitle 
     E of title IV of the Employee Retirement Income Security Act 
     of 1974 (29 U.S.C. 1381 et seq.), then, subject to paragraph 
     (6), the determination of whether one or more trades or 
     businesses are under common control for purposes of such 
     subtitle shall be made without regard to such transaction.'', 
     and
       (2) by adding at the end the following:
       ``(6) Determination of common control more than 5 years 
     following a transaction.--
       ``(A) In general.--If--
       ``(i) a plan sponsor of a plan determines that--

       ``(I) a complete or partial withdrawal of an employer has 
     occurred, or
       ``(II) an employer is liable for withdrawal liability 
     payments with respect to the complete or partial withdrawal 
     of an employer from the plan,

       ``(ii) such determination is based in whole or in part on a 
     finding by the plan sponsor that a principal purpose of any 
     transaction was to evade or avoid liability under subtitle E 
     of title IV of the Employee Retirement Income Security Act of 
     1974 (29 U.S.C. 1381 et seq.), and
       ``(iii) such transaction occurred at least 5 years before 
     the date of the complete or partial withdrawal,

     then the special rules under subparagraph (B) shall be used 
     in applying section 4219(c) and section 4221(a) of the 
     Employee Retirement Income Security Act of 1974 (29 U.S.C. 
     1399(c) and 1401(a)) to the employer.
       ``(B) Special rules.--
       ``(i) Determination.--Notwithstanding section 4221(a)(3) of 
     the Employee Retirement Income Security Act of 1974 (29 
     U.S.C. 1401(a)(3))--

       ``(I) a determination by the plan sponsor under 
     subparagraph (A)(i) shall not be presumed to be correct, and
       ``(II) the plan sponsor shall have the burden to establish, 
     by a preponderance of the evidence, each and every element of 
     the claim for withdrawal liability.

       ``(ii) Procedure.--Notwithstanding section 4219(c) and 
     section 4221(d) of the Employee Retirement Income Security 
     Act of 1974 (29 U.S.C. 1399(c) and 1401(d)), if an employer 
     contests the plan sponsor's determination under subparagraph 
     (A)(i) through an arbitration proceeding pursuant to section 
     4221(a) of such Act (29 U.S.C. 1401(a)), or through a claim 
     brought in a court of competent jurisdiction, the employer 
     shall not

[[Page 28892]]

     be obligated to make any withdrawal liability payments until 
     a final decision in the arbitration, or in court, upholds the 
     plan sponsor's determination.''.
       (c) Effective Date.--The amendments made by this section 
     shall apply to any employer that receives a notification 
     under section 4219(b)(1) of the Employee Retirement Income 
     Security Act of 1974 (29 U.S.C. 1399(b)(1)) after October 31, 
     2003.
                                 ______
                                 
      By Mr. COCHRAN (for himself, Mr. Harkin, Mr. Coleman, Mr. Allard, 
        Mr. Ensign, and Mr. Crapo):
  S. 1858. A bill to authorize the Secretary of Agriculture to conduct 
a loan repayment program to encourage the provision of veterinary 
services in shortage and emergency situations; to the Committee on 
Agriculture, Nutrition, and Forestry.
  Mr. COCHRAN. Mr. President, the United States is experiencing a 
serious shortage of veterinarians in rural agricultural and inner-city 
areas. Veterinarians are needed in these areas to support our Nation's 
defense against bioterrorism, improve food safety, and prevent disease 
outbreaks. Unfortunately, the financial constraints of loan repayment 
obligations prevent many new veterinary graduates from working in these 
underserved areas.
  Today, I am pleased to introduce, along with the distinguished 
Senator from Iowa, Mr. Harkin, legislation that addresses these 
challenges. The bill authorizes the Secretary of Agriculture to assist 
veterinarians in repaying their educational loans if they agree to 
provide veterinary medical services in areas where the Secretary has 
determined that a shortage of qualified veterinarians exist.
  In addition, at the request of the United States Department of 
Agriculture, the bill authorizes the Secretary to provide additional 
loan repayment for those veterinarians in this program who agree to 
provide services to the Federal Government in emergency situations. 
When epidemics of animal diseases break out in specific locations in 
the United States, there is often a serious shortage of trained 
veterinarians available to respond. Examples include the Exotic 
Newcastle Disease outbreak in California and an outbreak of low 
pathogenic Avian Influenza in Virginia in 2002. This legislation would 
enable the Department of Agriculture to locate trained veterinarians 
where they are needed in an emergency situation.
  This legislation has the support of the Department of Agriculture and 
the American Veterinary Medical Association which have worked together 
to develop this legislation to ensure that we have the veterinary 
health professionals available to protect our food supply. This is an 
important step in resolving the serious shortage of veterinarians.
  Mr. HARKIN. Mr. President, I am pleased to join the chairman of the 
Committee on Agriculture, Nutrition and Forestry, Senator Cochran, to 
introduce the National Veterinary Medical Service Act. This bill will 
offer veterinarians a valuable opportunity to serve where they are 
needed most, while receiving help in paying off their often burdensome 
student loans.
  The cost of becoming a veterinarian is tremendous. Unless aspiring 
veterinarians come from a wealthy background, they will have 
accumulated substantial debt by the time they leave school. Because of 
this debt, their postgraduate opportunities for employment are greatly 
limited to the geographical areas and types of jobs where incomes meet 
the burden of student loan repayment. By defraying some of this debt, 
this bill will help veterinarians to take jobs where there are 
shortages of veterinarians--such as meat and poultry inspectors in the 
Federal Government, or in rural areas where large animal practitioners 
are needed.
  Many of these unfilled positions are essential to ensuring the health 
and food security of Americans. We need to keep the Federal Government 
staffed with skilled veterinarians in order to maintain a safe food 
supply and the health of our livestock and poultry. We have all seen 
the devastating effects diseases such as E. coli O157:H7, Salmonella 
and Foot and Mouth Disease can have on the livestock and poultry 
industries and the human and economic toll they can take.
  I have worked on many initiatives to address the uneven distribution 
of medical professionals. Although it often can require extra 
incentives to get these professionals where they are needed, they often 
transform these shortage areas by providing critically important 
services. I have been very happy with the ability of past bills to 
enable medical professionals to go where they are needed, and I am 
confident the National Veterinary Medical Service Act will be as 
successful for veterinarians. I am proud to cosponsor this bill, and I 
urge my colleagues to support it.
                                 ______
                                 
      By Mr. DURBIN:
  S. 1859. A bill to amend title 10, United States Code, to revise the 
age and service requirements for eligibility to receive retired pay for 
non-regular service; to the Committee on Armed Services.
  Mr. DURBIN. Mr. President, today, I am introducing a bill that would 
not only lower the retirement age for reservists but offer incentives 
for members of the National Guard and Reserves to remain longer in the 
service of their country.
  The bill, the Reservists Retention Act of 2003, lowers the age at 
which reservists could draw full retirement benefits. Under current 
law, reservists must complete 20 qualifying years, ``good years'', or 
more in order to retire at age 60. A number of bills have been 
introduced during this Congress that would lower the reserve retirement 
age in various ways: to age 55; or with immediate eligibility as soon 
as the reservist completes 20 qualifying years; or with a two-for-one 
formula where for every two years served beyond 20, the reservist will 
earn a one-year drop in the retirement age.
  These bills are all serious attempts to address the growing 
recognition that our Reserve Forces are overburdened and under-
compensated. The Reservists Retention Act of 2003 aims to balance key 
provisions from these bills by allowing reservists who serve beyond the 
requisite 20 qualifying years to retire one year earlier for each year 
of service beyond 20, down to the age of 55. For example, a reservist 
who completes 23 qualifying years would be able to retire at 57; one 
who completes 25 or more years would be able to retire at 55, but no 
earlier than 55.
  In the face of frequent and increasingly long deployments, offering 
this ``one-for-one'' retirement formula for extended service will aid 
in retaining experienced reservists in both the National Guard and 
Reserves beyond the 20-year mark.
  I believe this bill is fair and recognizes the drastically changed 
nature of Reserve service. Since the end of the Cold War, employment of 
our Reserve Forces has shifted profoundly, from being primarily an 
expansion force to augment Active Forces during a major war, to the 
situation today where DoD admits that no significant operation can be 
undertaken without the Reserve Components.
  Right now there are 155,000 National Guard and Reserves who are 
mobilized and on active duty. Another 43,000 reservists have been 
alerted that they can expect to be called up early next year. Those who 
are assigned to Iraq can expect to be away from their families for 18 
months, with 12 months of that time in Iraq.
  We need to clearly demonstrate our commitment to the well being of 
America's reservists and their families. The Reservists Retention Act 
of 2003 acknowledges the increasing stress associated with reserve 
service by providing an incentive to experienced personnel to remain in 
the Reserves or National Guard until retirement.
  They are doing so much for us; we should do no less for them.
  I hope my colleagues will join me in supporting this important 
measure. I ask unanimous consent that the text of the bill be printed 
in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1859

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

[[Page 28893]]



     SECTION 1. ELIGIBILITY FOR RETIRED PAY FOR NON-REGULAR 
                   SERVICE.

       (a) Age and Service Requirements.--Subsection (a) of 
     section 12731 of title 10, United States Code, is amended to 
     read as follows:
       ``(a)(1) Except as provided in subsection (c), a person is 
     entitled, upon application, to retired pay computed under 
     section 12739 of this title, if the person--
       ``(A) satisfies one of the combinations of requirements for 
     minimum age and minimum number of years of service (computed 
     under section 12732 of this title) that are specified in the 
     table in paragraph (2);
       ``(B) performed the last six years of qualifying service 
     while a member of any category named in section 12732(a)(1) 
     of this title, but not while a member of a regular component, 
     the Fleet Reserve, or the Fleet Marine Corps Reserve, except 
     that in the case of a person who completed 20 years of 
     service computed under section 12732 of this title before 
     October 5, 1994, the number of years of qualifying service 
     under this subparagraph shall be eight; and
       ``(C) is not entitled, under any other provision of law, to 
     retired pay from an armed force or retainer pay as a member 
     of the Fleet Reserve or the Fleet Marine Corps Reserve.
       ``(2) The combinations of minimum age and minimum years of 
     service required of a person under subparagraph (A) of 
     paragraph (1) for entitlement to retired pay as provided in 
     such paragraph are as follows:

``Age, in years, The minimum years of service required for that age is:
  55............................................................25 ....

  56............................................................24 ....

  57............................................................23 ....

  58............................................................22 ....

  59............................................................21 ....

  60.........................................................20.''.....

       (b) 20-Year Letter.--Subsection (d) of such section is 
     amended by striking ``the years of service required for 
     eligibility for retired pay under this chapter'' in the first 
     sentence and inserting ``20 years of service computed under 
     section 12732 of this title.''.
       (c) Effective Date.--This section and the amendments made 
     by this subsection (a) shall take effect on the first day of 
     the first month beginning on or after the date of the 
     enactment of this Act and shall apply with respect to retired 
     pay payable for that month and subsequent months.

      By Mr. HATCH (for himself, Mr. Biden, and Mr. Grassley):
  S. 1860. A bill to reauthorize the Office of National Drug Control 
Policy; to the Committee on the Judiciary.
  Mr. HATCH. Mr. President. I rise to introduce with my colleagues, 
Senators Biden and Grassley, ``The Office of National Drug Control 
Policy Reauthorization Act of 2003.'' This bill is a forward-looking 
measure which will strengthen the Office of National Drug Control 
Policy as we face the new challenges posed by illegal drugs.
  I want to thank my colleagues Senators Biden and Grassley for working 
with me to draft this important legislation. Senator Biden has a long 
and impressive record in addressing the problem of illegal drugs. He is 
considered the father of ONDCP. He had the vision, the commitment, and 
the dedication to make it a reality. I thank him again for his work on 
this proposal that we are introducing today.
  I also want to thank Senator Grassley for his work on this important 
legislation. Senator Grassley has been a tireless advocate in fighting 
illegal drugs. As the chair of the Senate Caucus on International 
Narcotics Control, Senator Grassley has demonstrated leadership and 
commitment in addressing issues relating to domestic and international 
drug trafficking.
  The bipartisan legislation we are introducing today reauthorizes 
ONDCP for 5 years and provides ONDCP with the necessary tools and 
resources to: Develop national drug control policy; coordinate and 
oversee the implementation of the national drug control policy; assess 
and certify the adequacy of national drug control programs and the 
budget for those programs; evaluate the effectiveness of National Drug 
Control Program agencies' programs; and develop specific goals and 
performance measurements needed to assess the effectiveness of the 
national drug control policy and the programs of the national drug 
control program agencies.
  The legislation includes a number of reforms which will enhance 
ONDCP's ability to serve as the coordinator of Federal, State, and 
local policies aimed at reducing the availability of, and demand for, 
illegal drugs. The bill: 1. expands ONDCP's role and authority in 
overseeing the performance of federal agencies' drug control programs, 
and requires ONDCP to develop specific goals and measurements to assess 
the performance of Federal agencies; 2. requires ONDCP to develop a new 
performance measurement system which includes annual and 5-year 
objectives for assessing the National Drug Control Strategy; 3. expands 
and increases authorized funding for the High Intensity Drug 
Trafficking Areas Program designed to reduce illegal Drug trafficking 
and drug production activities in designated areas; 4. creates a new 
emerging threat fund for ONDCP to allocated to individual HIDTAs to 
respond to emerging drug trafficking threats in specific HIDTAs; 5. 
improves the Counter-Drug Technology Transfer program to provide 
increased technologies for State and local law enforcement agencies, 
and reforms the program to ensure timely delivery of such technologies; 
and 6. reauthorizes and enacts reforms to the National Youth Anti-Drug 
Media Campaign to ensure responsible use of Federal funds used to 
support the campaign.
  I want to take a moment to address several specific issues. First, I 
am a strong supporter of the HIDTA program. The HIDTA program brings 
together Federal, State, and local law enforcement, promotes 
intelligence sharing among these law enforcement agencies, and ensures 
coordinated and effective law enforcement strategies. The HIDTA program 
has proven successful, and is even more important today because of the 
FBI's need to reallocate resources from drug enforcement to terrorism. 
Given this reality, it is critical that we support the HIDTA program as 
an important resource in the fight against illegal drug traffickers.
  Second, I want to express my continued support for the National Youth 
Anti-Drug Medical Campaign. While I know the campaign has suffered from 
some management problems in the last few years, I am confident that the 
campaign is on the right track. I want to commend ONDCP Director John 
Walters and The Partnership for a Drug-Free America President Roy 
Bostock for their commitment to working together, and for the steps 
they have taken to ensure that the campaign operates effectively.
  The legislation includes specific reforms which will support the 
campaign and make sure that it operates in a cost-effective manner. 
Specifically, the bill: 1. Delineates the specific roles and 
responsibilities of ONDCP, the Partnership and a media buying 
contractor; 2. restricts the use of funds for creative development of 
advertisements, except for advertisements intended to reach a minority, 
ethnic or other special audience that cannot be otherwise obtained from 
the Partnership; 3. requires the Director to obtain no-cost matches of 
advertising broadcast times, print space or in-kind contributions which 
directly relate to substance abuse prevention and specially promote the 
purposes of the campaign; 4. disqualifies any corporation, partnership 
or individual from bidding on a media buying contract if such entity, 
within the last 10 years, in connection with the national media 
campaign has been convicted of any Federal criminal offense, subject to 
any Federal civil judgment or penalty in a civil proceeding involving 
the United States; or settled any Federal civil proceeding or potential 
proceeding; and 5. provides financial and performance accountability 
requirements for the campaign.
  I also wanted to highlight title VII of the bill--Drug Abuse 
Education, Prevention, and Treatment. These provisions, which Senators 
Biden, Grassley, Leahy and I authored in the 107th Congress as part of 
S. 304, provide much-needed education, prevention and treatment 
resources which are so critical to reducing the demand for illegal 
drugs. As I have said before, our national drug strategy must embrace a 
comprehensive policy that reduces the demand for, as well as the supply 
of, drugs. To reduce the demand for drugs, we must redouble our efforts 
at prevention and treatment. This Nation's battle with substance abuse 
can be successful only through a balanced approach--one that supports 
law enforcement but at the same time promotes education, prevention and 
treatment.
  Title VII of the bill includes a proposal to establish residential 
drug treatment facilities for drug-addicted

[[Page 28894]]

women who have young children. Such facilities are in short supply in 
this the country, and the problem has grown worse with an ever 
increasing number of women with children who are abusing drugs.
  Treatment is even more imperative for our troubled juveniles, the 
vast majority of whom will go on to lead productive lives if we can 
just break the addiction cycle. This bill provides substantial 
resources to States for juvenile residential treatment facilities and 
to Federal, State, and local agencies and private service providers to 
coordinate the delivery of mental health and substance abuse services 
to children at risk.
  Finally, the bill eliminates a restriction in the Controlled 
Substances Act and will permit medical practitioners to provide drug 
addiction treatment in group practices. This provision will expand 
treatment options for thousands of patients who have been denied access 
to critical addiction treatments.
  The proposed legislation we are introducing today will ensure that 
Congress provides the required oversight--and support of--ONDCP as it 
continues its critical role of coordinating our National Drug Control 
Strategy to ensure that we reduce the availability of, and demand for, 
illegal drugs in our country. I urge my colleagues to support this 
important legislation.
  I ask unanimous consent that a section-by-section analysis be printed 
in the Record.
  There being no objection, the analysis was ordered to be printed in 
the Record, as follows:

  Office of National Drug Control Policy Reauthorization Act of 2003 
                      Section-by-Section Analysis


  title i--organization of office of national drug control policy and 
                       roles and responsibilities

       Sec. 101. Amendments to Definitions. This section updates 
     the definitions for ``Demand Reduction'', ``Office'', ``State 
     and Local Affairs'', and ``Supply Reduction'', and adds a 
     definition for ``Appropriate Congressional Committees''.
       Sec. 102. Establishment of the Office of National Drug 
     Control Policy. This section expands the responsibilities of 
     ONDCP to require ONDCP to evaluate the effectiveness of 
     National Drug Control Program Agencies' programs, and to 
     develop specific goals and performance measurements relevant 
     to assessing these programs. This section also defines the 
     responsibilities of the Director, and four Deputy Directors.
       Sec. 103. Appointment and Responsibilities of the Director. 
     This section clarifies succession of the Director and Deputy 
     Directors when vacancies occur; specifies additional 
     responsibilities for the Director and ONDCP; clarifies 
     ONDCP's fund control notice authority and requires 
     appropriate reporting to Congress of such notices; creates a 
     United States Interdiction Coordinator; and requires ONDCP to 
     submit to Congress a comprehensive strategy to address the 
     increased threat from South American heroin.
       Sec. 104. Amendments to Ensure Coordination With Other 
     Agencies. This section requires the secretaries of the 
     Interior and Agriculture, Homeland Security, and Defense to 
     submit to ONDCP and Congress reports relating to their 
     agencies' efforts to reduce the cultivation and supply of 
     illegal drugs relevant to the preparation and implementation 
     of the National Drug Control Strategy.


              title ii--the national drug control strategy

       Sec. 201. Annual Preparation and Submission of the National 
     Drug Control Strategy. This section retains the requirement 
     that the President submit to Congress by February 1st of each 
     year a National Drug Control Strategy which sets forth a 
     comprehensive plan for the year to reduce abuse and the 
     consequences of drug abuse by limiting the availability of 
     and demand for illegal drugs. The section also sets forth the 
     required contents of the strategy, and the process for 
     developing the strategy.
       Sec. 202. Performance Measures. This section requires that 
     ONDCP submit with the National Drug Control Strategy a new 
     performance measurement system that includes annual and 5-
     year targets for each of the National Drug Control Strategy 
     goals and objectives.


 title iii--high intensity drug trafficking areas program and counter-
                   drug technology assessment center

       Sec. 301. Purposes of High Intensity Drug Trafficking Areas 
     Program. This section establishes the purposes of the HIDTA 
     program--to reduce drug trafficking and drug production in 
     designated areas in the United States by: (1) facilitating 
     cooperation among federal, state and local law enforcement 
     agencies to share information and implement coordinated 
     enforcement activities; (2) enhancing intelligence sharing 
     among Federal, state and local law enforcement agencies; (3) 
     providing reliable intelligence to law enforcement agencies 
     needed to design effective enforcement strategies and 
     operations; and (4) supporting coordinated law enforcement 
     strategies which maximize use of available resources to 
     reduce the supply of drugs in HIDTA designated areas.
       Sec. 302. Designations of HIDTAs and Evaluation of HIDTA 
     Performance. This section includes minor changes to existing 
     law regarding factors for consideration in designating HIDTAs 
     and consultation with appropriate officials. In addition, the 
     section sets out specific requirements for an initial 
     evaluation of all existing HIDTAs and a requirement for 
     continuing evaluation of HIDTAs as part of the National Drug 
     Control Strategy.
       Sec. 303. Organization of HIDTAs. This section established 
     minimum requirements for organization of HIDTAs, and 
     specifically requires that each HIDTA have an Executive Board 
     responsible for managing the HIDTA comprised of an equal 
     number of representatives from Federal law enforcement and 
     State and local law enforcement agencies.
       Sec. 304. HIDTA Funding. This section authorizes funding 
     for HIDTAs: $280 million for FY 2004; $290 million for FY 
     2005 and 2006; and $300 million for FY 2007 and 2008; 
     requires the Director to submit to Congress a budget 
     justification document each year to support the funding 
     request for each HIDTA; and authorizes the Director to set 
     aside up to 10 percent of the total HIDTA funding request for 
     grants to respond to emerging drug trafficking threats.
       Sec. 305. Assessment of Task Forces in HIDTA Areas. This 
     section requires the Director to submit to Congress, not 
     later than 180 days after the enactment of the Act, a report 
     assessing the number and operation of all task forces within 
     each HIDTA.
       Sec. 306. Funding for Certain HIDTA Areas. This provision 
     dedicates $1 million of High Intensity Drug Trafficking Area 
     money to (1) prevent intimidation of potential witnesses in 
     drug cases and (2) combat drug trafficking by creating a 
     toll-free telephone hotline for use by the public to provide 
     information about drug activity.
       Sec. 307. Report on Intelligence Sharing. This section 
     requires the Director to submit to Congress, not later than 
     180 days after the enactment of the Act, a report evaluating 
     existing and planned intelligence systems in order to ensure 
     effective information sharing among Federal, State and local 
     law enforcement agencies responsible for drug trafficking and 
     drug production enforcement.
       Sec. 308. Counter-Drug Technology Assessment Center. This 
     section revised the title of the Director of Technology to 
     Chief Scientist for Technology; reauthorizes the Technology 
     Transfer Program; establishes procedures and reporting 
     requirements to ensure prompt transfer to technologies to 
     State and local law enforcement agencies; and authorizes use 
     of such technologies for homeland security purposes.


 title iv--reauthorizaiton and improvement of the national youth anti-
                          drug media campaign

       Sec. 401. Short Title. This section establishes the title, 
     ``National Youth Anti-Drug Media Campaign Reauthorization Act 
     of 2003.''
       Sec. 402. Purposes of the National Anti-Drug Media 
     Campaign. This section clarifies the purposes of the 
     campaign: (1) preventing drug abuse among young people in the 
     United States; (2) increasing awareness of adults of the 
     impact of drug abuse on young people; and (3) encouraging 
     parents and other interested adults to discuss the dangers of 
     drug use with young people.
       Sec. 403. Roles and Responsibilities of the Director, the 
     Responsibilities of the Director, the Partnership for a Drug 
     Free America, and a Media Buying Contractor. This section 
     establishes the roles and responsibilities of the Director, 
     the Partnership for a Drug-Free America and a Media Buying 
     Contractor. The Director, in consultation with PDFA, shall 
     determine the overall purposes and strategy of the national 
     media campaign.
       Sec. 404. Responsible Use of Federal Funds for the National 
     Youth Anti-Drug Media Campaign. This section requires the 
     Director to allocate sufficient funds to meet the goals of 
     the national media campaign; restricts the use of such funds 
     for creative development of advertisements, except for 
     advertisements intended to reach a minority, ethnic or other 
     special audience that cannot be otherwise obtained from PDFA; 
     requires the Director to obtain no cost matches of 
     advertising broadcast times, print space or in-kind 
     contributions which directly relate to substance abuse 
     prevention and specifically promote the purposes set forth in 
     section 102(a); and exempts any no cost match advertisements 
     from the sponsorship identification provisions in section 317 
     of the Communications Act of 1934 (Section 103(c)(2)).
       In addition, this section ensures responsible use of 
     federal funds by requiring: not less than 89 percent of 
     appropriated amounts for each fiscal year be used for the 
     purpose of advertising time and space (Section 103(d)(1)(A)); 
     no more than $5,000,000 is used in each fiscal year to 
     develop creative content by an entity other than the 
     Partnership for a Drug Free America (Section 103(d)(1)(B)); 
     disqualification of any corporation, partnership or 
     individual from bidding

[[Page 28895]]

     on a contract if such entity, within the last 10 years, in 
     connection with the national media campaign has been 
     convicted of any Federal criminal offense, subject to any 
     Federal civil judgment or penalty in a civil proceeding 
     involving the United States; or settled any Federal civil 
     proceeding or potential proceeding (Section 103(d)(1)(C)(i-
     iii); and ONDCP to re-solicit bids for any existing contracts 
     with a disqualified bidder, provided that the national media 
     campaign is not interrupted during the re-solicitation 
     process.
       Finally, this section includes financial and performance 
     accountability requirements, and expands ONDCP's reporting 
     requirements to Congress on issues related to the national 
     media campaign.
       Sec. 405. GAO Audit of National Media Campaign. This 
     section directs GAO to conduct an audit of the national media 
     campaign and submit a report to Congress, within one year 
     after the date of enactment of the Act.
       Sec. 406. Authorization for the National Media Campaign. 
     This section authorizes funding for the national media 
     campaign of $195 million for each of the fiscal years 2004 
     through 2008.


       title v--authorizations and extension of termination date

       Sec. 501. Authorization of Appropriations. This section 
     extends the authorization date for ONDCP from 2004 through 
     2008.
       Sec. 502. Extension of Termination Date. This section 
     extends the termination date of the Act from September 30, 
     2003 to September 30, 2008.


       title vi--designation of united states anti-doping agency

       Sec. 601. Designation of United States Anti-Doping Agency. 
     This section designates the United States Anti-Doping Agency: 
     to serve as the independent anti-doping organization for 
     amateur athletic competitions recognized by the United States 
     Olympic Committee; to ensure that athletes participating in 
     amateur athletic activities do not use performance-enhancing 
     drugs; to implement anti-doping education programs; and (4) 
     to serve as the United States representative responsible for 
     coordination with other similar anti-doping organizations.
       Sec. 602. Authorization of Appropriations. This section 
     authorizes funding for the United States Anti-Doping Agency 
     for fiscal years 2004 through 2008: for fiscal year 2004, 
     $7.2 million; for fiscal year 2005, $9.2 million; for fiscal 
     year 2006, $9.5 million; for fiscal year 2007, $9.9 million; 
     and for fiscal year 2008, $10.5 million.


          TITLE VII--DRUG EDUCATION, PREVENTION, AND TREATMENT

       Sec. 701. Expansion of Substance Abuse Education and 
     Prevention Efforts. This section authorizes the Administrator 
     of the Substance Abuse and Mental Health Services 
     Administration to make grants to public and non-profit 
     private entities to carry out school-based programs 
     concerning the dangers of abuse of and addiction to illicit 
     drugs and to carry out community-based abuse and addiction 
     prevention programs that are effective and research-based. In 
     awarding grants, the Administrator is required to give 
     priority to rural and urban areas that are experiencing a 
     high rate or rapid increase in abuse. The section authorizes 
     $100 million to be appropriated for FY 2004 and such sums as 
     necessary for each succeeding fiscal year.
       Sec. 702. Funding for Rural States and Economically 
     Depressed Communities. This section authorizes $50 million 
     for each of the fiscal years 2005 through 2007 for grants to 
     States to provide treatment facilities in rural and 
     economically depressed communities that have high rates of 
     drug addiction but lack resources to provide adequate 
     treatment.
       Sec. 703. Residential Treatment Programs for Juveniles. 
     This section authorizes $100 million a year for each fiscal 
     year of 2005 through 2007 for grants to States to provide 
     residential treatment facilities designed to treat drug 
     addicted juveniles.
       Sec. 704. Drug Treatment Alternatives to Prison Programs 
     Administered by State or Local Prosecutors. This section 
     authorizes funding of $30 million for each fiscal year of 
     2004 through 2006 to create a pilot project for the Attorney 
     General to award grants to State or local prosecutors to 
     develop, implement or expand residential drug treatment 
     programs as an alternative to prison drug treatment programs.
       Sec. 705. Funding for Residential Treatment Centers for 
     Women and Children. This section authorizes $10 million for 
     each of the fiscal years 2005 through 2007 for grants to 
     States to provide residential treatment facilities for women 
     who have minor children and who are addicted to 
     methamphetamine, heroin, and other drugs. Such facilities 
     offer specialized treatment for addicted mothers and allow 
     their children to reside with them in the facility or nearby 
     while undergoing treatment.


            TITLE VIII--ANABOLIC STEROID CONTROL ACT OF 2003

       Sec. 801. Short Title. This section creates a short title, 
     ``The Anabolic Steroid Control Act of 2003.''
       Sec. 802. Amendments to the Controlled Substances Act. This 
     section amends the definition of ``anabolic steroid'' under 
     21 U.S.C. 802, to remove the requirement that such a 
     substance promote muscle growth, and thereby encompass 
     steroid precursors such as androstenedione and other similar 
     substances--many of which have been developed since the 
     Steroid Control Act of 1990. This section also makes 
     technical corrections to the current list of anabolic 
     steriods, and adds known steroid precursors to the anabolic 
     steroid list except dehydroepiandrosterone (DHEA). Finally, 
     this section modifies the definition of ``felony drug 
     offense'' in 21 U.S.C. 802 to apply to offenses involving 
     anabolic steroids.
       Sec. 803. Sentencing Commission Guidelines. This section 
     directs the United States Sentencing Commission to review and 
     revise the sentencing guidelines, as necessary, for crimes 
     involving anabolic steroids.
       Sec. 804. Prevention and Education Programs. This section 
     authorizes $15 million for each of the fiscal years of 2004 
     through 2009 for the Secretary of Health and Human Services 
     to award grants to public and non-profit entities to carry 
     out science-based education programs in elementary and 
     secondary schools to highlight the harmful effects of 
     steroids and steroid precursors.
       Sec. 805. National Household survey on Drug Use and Health. 
     This section authorizes $1 million for each of the fiscal 
     years of 2004 through 2009 for the Secretary of Health and 
     Human Services to include questions concerning the use of 
     steroids and steroid precursors in the National Survey on 
     Drug Use and Health, an annual survey conducted to measure 
     the extent of alcohol, drug and tobacco use in the United 
     States.


             title ix--national guard counter-drug schools

       Sec. 901. National Guard Counter-Drug Schools. This section 
     authorizes $30 million for each fiscal year of 2004 through 
     2008 for the Chief of the National Guard Bureau to establish 
     and operate five National Guard Counter-Drug Schools to 
     provide training in drug interdiction and demand reduction 
     activities to Federal, State and local law enforcement 
     agencies, community-based organizations, and other 
     organizations engaged in counter-drug activities.


                   title x--miscellaneous provisions

       Sec. 1001. Repeals. This section repeals the President's 
     Council on Counter-Narcotics and the Parents Advisory Council 
     on Youth Drug Abuse, neither of which has ever met.
       Sec. 1002. Amendment to the Higher Education Act. This 
     section clarifies and narrows Section 484(r)(1) of the Higher 
     Education Act (20 U.S.C. 1091(r)(1) to prohibit the award of 
     any federal education grant to any student who has been 
     convicted of any offense under Federal or state law involving 
     possession or sale of a controlled substance while they are 
     receiving a federal education grant.
       Sec. 1003. Controlled Substances Act Amendment. This 
     section makes a technical correction to the Drug Addiction 
     Treatment Act of 2000 which inadvertently classified HMOs and 
     other large health systems in the same category as small 
     group practices of physicians. Additionally, this section 
     clarifies that the reporting requirements under the Act apply 
     three years after approval of the controlled substance, not 
     three years from the date of passage of the Act.
       Sec. 1004. Exportation of Narcotic and Nonnarcotic Drugs. 
     This Section authorizes companies to export controlled 
     substances to central warehouse facilities outside the United 
     States for delivery to locations in other countries, subject 
     to the DEA certification requirement.
       Sec. 1005. Study of Work Place Environment at ONDCP. This 
     section directs GAO to conduct a study and report to Congress 
     on the workplace environment at ONDCP.
       Sec. 1006. Requirement for Latin American Heroin Strategy. 
     This section requires the Director to submit to Congress a 
     comprehensive strategy that addresses the increased threat 
     from Latin American heroin, and in particular Colombian 
     heroin.

  Mr. BIDEN. Mr. President, I rise today to introduce legislation to 
reauthorize the so-called ``Drug Czar's'' office with Senator Hatch, 
the Chairman of the Judiciary Committee and Senator Grassley, the 
Chairman of the Caucus on International Narcotics Control.
  This bipartisan legislation will, I hope, result in speedy action to 
reauthorize the drug director's office for 5 years. No matter what 
perspective any of us have on a specific drug policy, this legislation 
is about whether we will have a drug director and a drug office to be 
responsible for developing, coordinating and enacting a national drug 
policy.
  Some twenty years ago I began fighting to create the Office of 
National Drug Control Policy (ONDCP) because I believed then, as I 
believe now, that we needed a Cabinet-level official who would 
coordinate Federal drug policy. I argued that Cabinet-level status was 
necessary because this individual needed to have the clout to stop 
interagency feuding, fight for necessary

[[Page 28896]]

budgetary resources and decertify inadequate agency drug budgets. But 
just as important, I believed that the public needed to have one high 
profile person to hold accountable for developing and implementing an 
effective national strategy.
  In 1982 my bill creating a national drug director passed as part of a 
larger crime bill, but the President vetoed it. He, like all 
Presidents--both Democrats and Republicans did not like the idea of 
being held accountable for what was seen as an intractable problem. But 
I kept at it and six years later the bill became law.
  Before we had a drug czar's office there was no official in charge of 
the Administration's drug effort. And because there was no one Cabinet 
official in charge, other members of the President's Cabinet could duck 
responsibility to talk about tough drug policy issues. And that meant 
no Administration talked enough or did enough about the drug problem 
and no Administration was held accountable on drug policy. I'm glad 
that those days are behind us.
  As the person responsible for coordinating Federal drug policy, the 
drug czar deals with almost every federal agency, from the Department 
of Justice on drug courts to the Department of Homeland Security on 
interdiction issues to the State Department and the Department of 
Defense on Plan Colombia to the Department of Health and Human Services 
on groundbreaking research on how drug use changes brain chemistry. It 
is the drug director's job to make sure that all of these wide ranging 
issues are addressed in the annual drug strategy so that our national 
policy is a balanced one, giving proper attention to drug enforcement, 
drug treatment, drug prevention and research.
  That is why the bill that Senator Hatch, Senator Grassley and I are 
introducing today retains the provision in current law requiring the 
Drug Director to submit to Congress an annual drug strategy, detailing 
how he proposes to address all aspects of our national drug problem. We 
also ask him to reach out to state and local officials not only to get 
their input but also to get their support to advance the national goals 
on the local level.
  And just as with my original drug czar legislation, the 
reauthorization bill retains as its central goal holding every 
Administration and every President accountable on the drug issue by 
requiring ONDCP to evaluate the effectiveness of drug policy and 
programs and develop specific performance measurements and goals.
  The bill also includes a number of changes to strengthen current drug 
control policies and programs. In the area of law enforcement, the bill 
reauthorizes and increases the funding for the High Intensity Drug 
Trafficking Area (HIDTA) program which helps to coordinate federal, 
state and local efforts to reduce drug trafficking and production in 
designated areas. The bill also requires an evaluation of each 
individual HIDTA to monitor the program's effectiveness and requires 
ONDCP to report to Congress on intelligence sharing among HIDTAs and 
other law enforcement entities.
  In terms of prevention and treatment efforts, the legislation 
includes a number of important provisions. First, it reauthorizes the 
National Youth Anti Drug Media Campaign and modifies the program so 
that it will be more accountable. Second, it includes a number of 
provisions that the Senate passed unanimously last Congress as part of 
the Drug Abuse Education, Prevention and Treatment Act to expand drug 
treatment for rural states, economically depressed communities, 
juveniles and women with children as well as to create a demonstration 
project to fund drug treatment alternatives to prison programs 
administered by state and local prosecutors. And finally, the bill 
amends the Higher Education Act to clarify that those convicted of drug 
offenses are not prohibited from receiving federal student aid unless 
they commit a drug felony while they are receiving the grant, loan or 
work assistance.
  I want to thank Senator Hatch and Senator Grassley for their 
cooperation in crafting a bipartisan bill to reauthorize the Office of 
National Drug Control Policy. Both Senators have been leaders on drug 
policy issues and I am glad to work with them on this important matter. 
I hope that the rest of my colleagues will support this legislation and 
that we can pass it without delay.

  Mr. GRASSLEY. Mr. President, I rise today to add my comments to those 
of Senator Hatch and Senator Biden on the re-authorization of the 
Office of National Drug Control Policy. Drug use in America may not be 
on the front page of the New York Times or Washington Post, but remains 
a deep concern for many people in small towns and local neighborhoods 
where the effects of drug abuse are painfully felt. Drugs pose an 
immediate threat to their lives, and the lives of their children.
  The re-authorization of ONDCP is about the leadership role we expect 
the Federal government to play in confronting the issue. I want to take 
a moment to highlight a few revisions we have proposed in an effort to 
strengthen the leadership role that ONDCP should play.
  The legislation we are introducing today will improve the capacities 
of the Office to coordinate our Federal efforts against drug use. We 
have strengthened the role of the Deputy Director of State and Local 
Affairs, because we recognize that the coordination of activities, 
information sharing, and resource allocations between Federal, State, 
and local law enforcement is increasingly critical.
  As everyone is this body knows, there isn't enough money to go around 
to fully fund all of the worthy causes that are out there, and part of 
our job is making these tough choices. By increasing the coordination 
between resources that are already deployed, we can increase the 
effectiveness of these efforts without having to reinvent how business 
gets done. ONDCP is an ideal place to play broker over these efforts 
and move this forward.
  We have also included provisions clarifying the authorities and 
responsibilities of the offices of Demand Reduction and Supply 
Reduction. Much of ONDCP's responsibilities involves coordinating the 
activities and focus of other Departments. There is no one simple 
solution to our drug problem, and ONDCP has a responsibility to ensure 
that Federal prevention, law enforcement, treatment, and interdiction 
initiatives cover the full spectrum of opportunities available. 
Accordingly, our bill clarifies the roles and responsibilities of the 
various Deputies at ONDCP to strengthen their ability to coordinate the 
counterdrug activities both within ONDCP and those of other 
Departments.
  The Office of National Drug Control Policy also has responsibility 
for the execution and effectiveness of the High Intensity Drug 
Trafficking Areas program, or HIDTA program. The HIDTA program has 
proven to be an effective mechanism for getting multiple law 
enforcement agencies from multiple levels of government to work 
together. For a relatively modest amount, participating law enforcement 
agencies have benefited tremendously from the increased information 
sharing and coordination that HIDTAs generate.
  However, there was legitimate concern over the lack of performance 
measures for the HIDTA program. In addition, there seemed to be some 
confusion over what the overall purpose of a HIDTA designation was. 
finally, funding for the HIDTA program has been stifled because of a 
fear that ONDCP may cut the amount for one particular HIDTA in favor of 
another. Our legislation addresses these concerns in ways we believe 
will improve the effectiveness, accountability, and transparency of the 
program.
  First, this legislation establishes that the purpose of the HIDTA 
program is fourfold: facilitating cooperation among Federal, State, and 
local law enforcement; enhancing intelligence sharing; providing 
reliable intelligence to law enforcement agencies for the design of 
effective enforcement strategies and operations; and supporting 
coordinated strategies designed to reduce the supply of illegal drugs 
within a designated area. By focusing

[[Page 28897]]

the purpose of a HIDTA on improving the capabilities and capacities of 
those within the HIDTA, we will strengthen the effectiveness of these 
designated areas to go after drugs.
  Second, the legislation creates an evaluation mechanism which 
requires ONDCP to first establish specific purposes and measures for 
each HIDTA, and then evaluate the performance of each HIDTA based on 
the purposes and measures that were established. Because threats each 
HIDTA faces are unique, the performance of each HIDTA will be evaluated 
against the goals which are established for that particular HIDTA, 
rather than an undefined National standard. Not only should this give 
Congress a better understanding of the performance of this program, but 
it should give ONDCP a mechanism to better evaluate and support the 
particular needs of individual HIDTAs.
  Third, this legislation requires ONDCP to itemize how much it 
believes each HIDTA should be funded when the budget request is 
submitted, rather than waiting until after the appropriations process 
is complete. Combined with the previous two changes, these changes will 
combine to give ONDCP the flexibility it needs and the HIDTA program 
the credibility it needs to expand its leadership and funding for the 
coordination of law enforcement counterdrug operations.
  The final section of this legislation that I would like to mention is 
the National Media Campaign. I will be honest: I am still not convinced 
that this program makes the best possible use of drug prevention 
dollars. But I am in the minority here. Almost everyone I've talked to 
believes our prevention efforts will be better with the campaign than 
without it--even if the evidence that the campaign makes a difference 
is questionable, at best. If the campaign is going to continue, and 
this legislation does extend the Campaign, I think it's important that 
it get back to the parameters that were established when it was 
initially pitched to and authorized by congress.
  I think what we have here is a good start in this direction, and I 
appreciate my colleagues' willingness to take my concerns into 
consideration. The legislation we have drafted refocuses the campaign 
toward its initial, buy-one-get-one-free hypothesis. We've proposed 
enhancing the capacity of the campaign to measure its effectiveness, in 
an effort to move beyond the 6-month time lag that has hampered past 
measurements of performance. We have also included a clearer outline of 
what should, and should not, be paid for by the campaign. And we have 
created a clear role for the Partnership for a Drug Free America, who 
has been working on this effort for much longer than Congress has 
funded it.
  All in all, I think we have a good bill. Not a perfect bill, but a 
good bill. I look forward to continue working with the Committee, our 
colleagues in the House, and the Administration with the hope that we 
can re-authorize ONDCP expeditiously.
                                 ______
                                 
      By Mr. LUGAR:
  S. 1861. A bill to provide a framework for consideration by the 
legislative and executive branches of proposed unilateral economic 
sanctions in order to ensure coordination of United States policy with 
respect to trade, security, and human rights; to the Committee on 
Foreign Relations.
  Mr. LUGAR. Mr. President, I rise to introduce the Sanctions Policy 
Reform Act.
  The fundamental purpose of my bill is to promote good governance 
through thoughtful deliberation on those proposals involving unilateral 
economic sanctions directed against other countries. My bill lays out a 
set of guidelines and requirements for a careful and deliberative 
process in both branches of government when considering new unilateral 
sanctions. It does not preclude the use of economic sanctions nor does 
it change those sanctions already in force. It is based on the 
principle that if we improve the quality of our policy process and 
public discourse, we can improve the quality of the policy itself.
  Numerous studies have shown that unilateral sanctions rarely succeed 
and often harm the United States more than the target country. 
Sanctions can jeopardize billions of dollars in U.S. export earnings 
and hundreds of thousands of American jobs. They frequently weaken our 
international competitiveness by yielding to other countries those 
markets and opportunities that we abandon. They also can undermine our 
ability to provide humanitarian assistance abroad.
  Unilateral sanctions often appear to be cost-free, but they have many 
unintended victims--the poor in the target countries, American 
companies, American labor, American consumers and, quite frankly, 
American foreign policy. Sanctions can weaken our international 
competitiveness, lower our global market share, abandon our established 
market to others and jeopardize billions in export earnings--the key to 
our economic growth. They may also impair our ability to provide 
humanitarian assistance. They sometimes anger our friends and call our 
international leadership into question. In many cases, unilateral 
sanctions are well-intentioned, but impotent, serving only to create 
the illusion of U.S. action. In the worst cases, unilateral sanctions 
are actually undermining our own interests in the world.
  Unilateral sanctions do have a place in our foreign policy. There 
will always be situations in which the actions of other countries are 
so egregious or so threatening to the United States that some response 
by the United States, short of the use of military force, is needed and 
justified. In these instances, sanctions can be helpful in getting the 
attention of another country, in showing U.S. determination to change 
behaviors we find objectionable, or in stimulating a search for 
creative solutions to difficult foreign policy problems.
  But decisions to impose them must be fully considered and debated. 
Too frequently, this does not happen. Unilateral sanctions are often 
the result of a knee-jerk impulse to take action, combined with a timid 
desire to avoid the risks and commitments involved in more potent 
foreign policy steps that have greater potential to protect American 
interests. We must avoid putting U.S. national security in a straight-
jacket, and we must have a clear idea of the consequences of sanctions 
on our own security and prosperity before we enact them.
  To this end, I am offering this bill to reform the U.S. sanctions 
decision-making process. The bill will establish procedural guidelines 
and informational requirements that must be met prior to the imposition 
of unilateral economic sanctions. For example, before imposing 
unilateral sanctions, Congress would be required to consider findings 
by executive branch officials that evaluate the impact of the proposed 
sanctions on American agriculture, energy requirements, and capital 
markets. The bill mandates that we be better informed about the 
prospects that our sanctions will succeed, about the economic costs to 
the United States, and about the sanctions' impact on other American 
objectives.
  In addition, this sanctions policy reform bill provides for more 
active consultation between the Congress and the President and for 
Presidential waiver authority if the President determines it is in our 
national security interests. It also establishes an executive branch 
Sanctions Review Committee, which will be tasked with evaluating the 
effect of any proposed sanctions and providing appropriate 
recommendations to the President prior to the imposition of such 
sanctions.
  The bill would have no effect on existing sanctions. It would apply 
only to new sanctions that are enacted after this bill became law. It 
also would apply only to sanctions that are unilateral and that are 
intended to achieve foreign policy goals. As such, it excludes trade 
remedies or trade sanctions imposed because of market access 
restrictions, unfair trade practices, or violations of U.S. commercial 
or trade laws.
  Let me suggest a number of fundamental principles that I believe 
should shape our approach to unilateral economic sanctions: unilateral 
economic sanctions should not be the policy of first resort. To the 
extent possible,

[[Page 28898]]

other means of persuasion and influence ought to be exhausted first; if 
harm is to be done or is intended, we must follow the cardinal 
principle that we plan to harm our adversary more than we harm 
ourselves; when possible, multilateral economic sanctions and 
international cooperation are preferable to unilateral sanctions and 
are more likely to succeed, even though they may be more difficult to 
obtain; we ought to avoid double standards and be as consistent as 
possible in the application of our sanctions policy; to the extent 
possible, we ought to avoid disproportionate harm to the civilian 
population. We should avoid the use of food as a weapon of foreign 
policy and we should permit humanitarian assistance programs to 
function; our foreign policy goals ought to be clear, specific and 
achievable within a reasonable period of time; we ought to keep to a 
minimum the adverse affects to our sanctions on our friends and allies; 
we should keep in mind that unilateral sanctions can cause adverse 
consequences that may be more problematic than the actions that 
prompted the sanctions--a regime collapse, a humanitarian disaster, a 
mass exodus of people, or more repression and isolation in the target 
country, for example; we should explore options for solving problems 
through dialogue, public diplomacy, and positive inducements or 
rewards; the President of the United States should always have options 
that include both sticks and carrots that can be adjusted according to 
circumstance and nuance; the Congress should be vigilant by insuring 
that his options are consistent with Congressional intent and the law; 
and in those cases where we do impose sanctions unilaterally, our 
actions must be part of a coherent and coordinated foreign policy that 
is coupled with diplomacy and consistent with our international 
obligations and objectives.
  An unexamined reliance on unilateral sanctions may be appropriate for 
a third-rate power whose foreign policy interests lie primarily in 
satisfying domestic constituencies or cultivating a self-righteous 
posture. But the United States is the world's only superpower. Our own 
prosperity and security, as well as the future of the world, depend on 
a vigorous and effective assertion of our international interests.
  The United States should never abandon its leadership role in the 
world, nor forsake the basic values we cherish. We must ask, however, 
whether we are always able to change the actions of other countries 
whose behavior we find disagreeable or threatening. If we are able to 
influence those actions, we need to ponder how best to proceed. In my 
judgment, unilateral economic sanctions will not always be the best 
answer. But, if they are the answer, they should be structured so that 
they do as little harm as possible to our global interests. By 
improving upon our procedures and the quality and timeliness of our 
information when considering new sanctions, I believe U.S. foreign 
policy will be more effective.
                                 ______
                                 
      By Mr. JEFFORDS (for himself, Mr. Leahy, Mr. Kerry, Mr. 
        Lieberman, and Mr. Akaka):
  S. 1867. A bill to amend the Solid Waste Disposal Act to encourage 
greater recycling of certain beverage containers through the use of 
deposit refund incentives; to the Committee on Environment and Public 
Works.

  Mr. JEFFORDS. Mr. President, like every loyal Red Sox fan, I believe 
that next season, my team will be victorious. I bring this same level 
of optimism to my efforts to reduce the amount of wasted resources and 
litter caused by discarded beverage containers. I rise today to 
introduce the National Beverage Producer Responsibility Act of 2003, 
the Bottle Bill, convinced that this is our year.
  I have long been an advocate for increased recycling. Vermont passed 
its Bottle Bill in 1972 when I was State Attorney General. In 1975, 
during my first session as a Representative in the U.S. House, I 
introduced a national Bottle Bill, closely resembling Vermont's very 
successful example. Last Congress, as Chairman of the Environment and 
Public Works Committee, I convened the first congressional hearing in 
many years on recycling, in which the Committee heard expert testimony 
on the merits of a national program to recycle beverage containers.
  The reason that I continue to push this issue is simple--it makes 
sense. Beverage container recycling is one of the simplest ways to see 
a dramatic improvement in our environment. One hundred and twenty 
billion--let me repeat, 120 billion with a ``B''--beverage containers 
were wasted by not being recycled in 2001. If we could raise the 
Nation's recycling rate to 80 percent, we would save the equivalent of 
300 million barrels of oil over the next ten years and eliminate 4 
million tons of greenhouse gas emissions annually. States that have 
enacted bottle bills also have benefited by reducing road side litter 
by up to 84 percent.
  These savings may sound unrealistic. But, in Vermont alone, recycling 
efforts in 2001 reduced greenhouse gas emissions by 94,000 metric tons 
of carbon equivalent. That's equal to approximately two-thirds of all 
industrial carbon dioxide emissions from fossil fuel combustion in 
Vermont and 4.5 percent of greenhouse gas emissions. To me, those 
savings sound remarkable.
  Why a refundable deposit program? Thirty years of experience 
demonstrates that refundable deposit bottle bills are dramatically more 
effective than voluntary efforts. The ten States that have implemented 
deposit laws recycle more containers than all of the other 40 States 
combined. While I applaud curbside and other voluntary recycling 
efforts, the 71 percent of Americans who live in non-bottle bill States 
account for only 28 percent of recycled beverage containers.
  My bill, the National Beverage Producer Responsibility Act of 2003, 
strikes a balance between the wishes of industry, the authority of 
individual states, and the needs of a healthy environment. Unlike 
traditional bottle bills, this legislation would fully harness market 
incentives by setting an 80 percent recovery performance standard and 
allowing industry the freedom to design the most efficient deposit-
return program to reach the standard. States that already have bottle 
bills will retain their authority to continue their programs in their 
own individual ways as long as they meet the national performance 
standard.
  This Saturday, November 15, 2003, is America Recycles Day in Vermont 
and across the country. Two years ago, to help commemorate the 2001 
America Recycles Day, I participated in a public service announcement 
to raise awareness regarding the need to buy recycled goods. The 
importance of recycling deserves, however, more than a 30-second public 
service announcement and more than its own day on the calendar. For it 
to work, recycling must be a commitment of all of ours each and every 
day of the year.
  Vermont's commitment to recycling has provided some impressive 
statistics. For example, in 2001, 31 percent of Vermont's municipal 
waste was diverted from landfills. That year, 13,260 tons of containers 
were recycled through soft drink and beer distributors and materials 
recovery facilities. The benefit of these programs is, of course, that 
they help keep our Green Mountains green. I commend and thank Governor 
Jim Douglas for his many recent initiatives to encourage and improve 
the efficiency of recycling across Vermont. For example, under Governor 
Douglas' leadership, Vermont has implemented beverage container 
recycling programs at 20 State information centers. In the first phase, 
in less than two months, over 200 pounds of aluminum, glass, and 
plastic were recovered from 51,000 visitors passing through one such 
information center in Williston, VT.
  And today, the U.S. Senate's other Vermonter, Patrick Leahy, joins me 
and Senators Joseph Lieberman, Daniel Akaka, and John Kerry as original 
cosponsors as I introduce the National Beverage Producer Responsibility 
Act of 2003.
  Mr. AKAKA. Mr. President, I am pleased to be an original cosponsor 
for the National Beverage Producer Responsibility Act of 2003, a bill 
introduced today by Senator Jim Jeffords. This bill serves a need that 
we already

[[Page 28899]]

have seen in Hawaii--to reduce litter and increase recycling by 
encouraging businesses to work together in a partnership with 
government to reclaim glass, plastic bottles, and cans that accumulate 
on our shores, in our landfills, and along our streets.
  The bill sets up a deposit charge that can be reclaimed when the 
beverage container is returned. The legislation sets a measurable 
performance standard of 80 percent recovery rate for used, empty 
beverage containers for recycling or reuse. The bill was crafted to 
address the concerns of industry, retain the authority of individual 
States, and promote a healthy environment. It empowers the beverage 
container industry to design a container recycling program that best 
fits its business requirements to meet the 80 percent goal. States like 
Hawaii and 10 other States across the Nation that already have bottle 
bills will be able to continue their programs as long as the programs 
meet the national performance standard. It aims to protect and preserve 
our Nation's natural resources and reduce costs to counties, cities, 
and residents. In my own State, Hawaii recently enacted a beverage 
container bill which will take effect in 2005.
  As our Nation prepares to celebrate America Recycles Day on Saturday, 
November 15, I am optimistic that the National Beverage Producer 
Responsibility Act of 2003 will help keep our parks, beaches, and 
roadsides cleaner; reduce burdens on landfills; decrease ground water 
contamination; save energy; lower taxes for disposal costs; and create 
new industries and jobs.
      By Mr. BROWNBACK (for himself, Mr. Crapo, Mr. Smith, and Mr. 
        Santorum):
  S.J. Res. 24. A joint resolution providing for the recognition of 
Jerusalem as the undivided capital of Israel before the United States 
recognizes a Palestinian state, and for other purposes; to the 
Committee on Foreign Relations.
  Mr. BROWNBACK. Mr. President, I rise to introduce a joint resolution 
regarding the status of Jerusalem, and its potential in catapulting the 
Middle East Peace process forward.
  Just prior to returning from the summer recess, I traveled to Israel 
for five days on one of the most important official trips I have made 
since coming to the Congress in 1994. I have been to Israel before, but 
this trip had a special meaning for me both in terms of who and what I 
saw.
  I arrived in the aftermath of the bus bombing in Jerusalem that 
killed Yeshiva students going to the Wailing Wall. The same week I was 
there, Palestinian Prime Minister Abu Mazen lost a no confidence vote 
and conceded to a shake up of the Palestinian cabinet. A wave of 
Palestinian terrorism ensued and it appeared that no Palestinian 
leader, at that time, had the will or the desire to contain terrorism 
much less stamp it out so that President Bush's Roadmap for Peace could 
proceed.
  On my way from the airport in Tel Aviv to the hotel in Jerusalem, I 
made a brief visit to a town called B'nei Berek, a small Orthodox 
suburb of Tel Aviv. B'nei Berek was established shortly after the 
founding of Israel. In the intervening 50 year period, this town has 
turned into a thriving city of over 200,000 people--a very special 
place for the Orthodox community in Israel.
  While I was there I met with one of the most respected and senior 
Rabbis in Israel. This man lived in a very modest apartment on an 
average street, and you would never know that he was one of the most 
important theological scholars in Israel. His home was lined with 
volume after volume of theological text, but he spoke plainly and 
deliberately about the importance of his faith and the role of faith in 
the lives of the Jewish people. The history of the Jewish people seemed 
to be etched onto his face and into his eyes.
  On this same trip I met with the Israeli Foreign Minister Silvan 
Shalom, Finance Minister Benjamin Netanyahu, Former Israeli Defense 
Force General Ephraim Eitam and Ambassador John Wolf, who is charged 
with monitoring the implementation of commitments in the peace process.
  One evening, I went on a tour of the Western Wall and the tunnels 
that run underneath the current level of buildings around the old city 
wall. The tour took over an hour and explored some of the most exciting 
history about Israel, Jerusalem and the Temple.
  There is a point in the tunnels that leads to an old entrance into 
the old city that, if opened, would lead to a special place below where 
the Temple once stood. This place, I'm sure my colleagues as children 
in Sunday school learned, is called the Holy of Holies.
  The Temple was built around this place, and it could not be entered 
except by the High Priest on Yom Kippur. It is the place, described in 
the Book of Genesis, where Abraham was to sacrifice his son Isaac. It 
is also the place where the Ark of the Covenant was kept. This was a 
unique experience.
  Jerusalem is a special place. It is extremely important to the peace 
process. In my hand is the ``Jerusalem Resolution,'' a proposition 
which I hope will propel the peace process forward by moving two big 
issues forward.
  This resolution seeks to make it U.S. policy that prior to the 
recognition by the U.S. of a Palestinian State, the U.S. Embassy must 
be moved to Jerusalem and that Jerusalem be declared as the undivided 
capital of Israel. This resolution would establish an important, 
tangible asset on both sides for advancing the peace process.
  For the past decade, we have attempted to forge a peace agreement 
between the Palestinians and Israelis on a design of land for peace. 
This model has failed. We should attempt a new way. If we address two 
major issues at the outset of vital interest to the ultimate desire for 
peace, we can help to create a powerful momentum for peace. This bill 
pushes for the resolution of the status of Jerusalem in conjunction 
with the recognition of a Palestinian state.
  Jerusalem has been the capital of the Jewish people for three 
thousand years, and is the center of Jewish faith and culture. 
Jerusalem is the seat of Israel's Government, and is the only capital 
city designated by the host country in which the U.S. does not maintain 
an embassy nor recognize it as the capital.
  In this resolution, three months prior to the recognition of a 
Palestinian state, the United States must move its embassy to Jerusalem 
and the status of Jerusalem must be resolved by the international 
recognition of Jerusalem as Israel's capital.
  I hope that my colleagues will join me in my effort. The peace 
process is in need of a major paradigm shift. We can't continue to bog 
ourselves down in the mechanics of the process. We must think grand 
about this problem and move beyond the status quo.
  This resolution is a challenge to this body to change its perspective 
on this issue. I hope in the coming months we can engage in serious 
debate over peace and the way toward it in the Middle East.

                          ____________________




                         SUBMITTED RESOLUTIONS

                                 ______
                                 

SENATE RESOLUTION 266--EXPRESSING THE SENSE OF THE SENATE WITH RESPECT 
                                TO POLIO

  Mr. FEINGOLD submitted the following resolution; which was referred 
to the Committee on Health, Education, Labor, and Pensions:

                              S. Res. 266

       Whereas polio has caused millions of casualties through 
     history, paralyzing millions and killing untold numbers of 
     others;
       Whereas polio remains a public health threat in today's 
     world, despite being easily preventable by vaccination;
       Whereas polio is now limited to 10 countries, with the 
     distinct possibility that it can be once and forever 
     extinguished as an affliction on mankind by ensuring the 
     vaccination of all children in these countries under the age 
     of 5;
       Whereas a Global Polio Eradication Initiative exists that 
     seeks to once and forever end polio as an illness, which 
     includes efforts underway by the Centers for Disease Control 
     and Prevention; and
       Whereas the United States has the capacity to act to speed 
     the eradication of polio by assisting in the targeting of its 
     few remaining reservoirs: Now, therefore, be it
       Resolved, That the Senate--
       (1) expresses serious concern about the continuing threat 
     posed by polio;

[[Page 28900]]

       (2) encourages the United Nations and its component 
     agencies, the private sector, private voluntary organizations 
     and non-governmental organizations, concerned States, and 
     international financial institutions to act with haste and 
     manifold dedication to eradicate polio as soon as possible; 
     and
       (3) calls upon the United States government to continue its 
     contribution to the multilateral effort to eradicate polio, 
     including closely monitoring laboratory stocks of the polio 
     virus.

                          ____________________




    SENATE CONCURRENT RESOLUTION 81--EXPRESSING THE DEEP CONCERN OF 
   CONGRESS REGARDING THE FAILURE OF THE ISLAMIC REPUBLIC OF IRAN TO 
    ADHERE TO ITS OBLIGATIONS UNDER A SAFEGUARDS AGREEMENT WITH THE 
   INTERNATIONAL ATOMIC ENERGY AGENCY AND THE ENGAGEMENT BY IRAN IN 
    ACTIVITIES THAT APPEAR TO BE DESIGNED TO DEVELOP NUCLEAR WEAPONS

  Mrs. FEINSTEIN (for herself, Mr. Kyl, Mr. Lieberman, Mr. Coleman, Mr. 
Lautenberg, Mr. Santorum, Mr. Fitzgerald, and Mr. Cochran) submitted 
the following concurrent resolution; which was referred to the 
Committee on Foreign Relations:

                            S. Con. Res. 81

       Whereas, on January 1, 1968, Iran signed the Treaty on the 
     Non-Proliferation of Nuclear Weapons, done at Washington, 
     London, and Moscow July 1, 1968, and entered into force March 
     5, 1970 (the ``Nuclear Non-Proliferation Treaty'');
       Whereas by becoming a party to the Nuclear Non-
     Proliferation Treaty as a non-nuclear weapons state, Iran has 
     committed itself to permanently abstaining from the 
     development or acquisition of nuclear weapons;
       Whereas, in March 2003, the Director of the International 
     Atomic Energy Agency (IAEA) announced that Iran was 
     constructing a facility to enrich uranium, a key component of 
     nuclear weapons;
       Whereas environmental sampling by the IAEA at Iran's Natanz 
     nuclear facility revealed the presence of highly enriched 
     uranium that can be used to develop nuclear weapons;
       Whereas the traces of highly-enriched uranium detected by 
     the IAEA at the Natanz facility and the Kalaye Electric 
     Company could indicate that Iran has been secretly attempting 
     to produce weapons-grade uranium at these facilities;
       Whereas the June 6, 2003, report of the Director General of 
     the IAEA expressed concern over the failure of the Government 
     of Iran to report material, facilities, and activities at its 
     nuclear facilities, including those that have the potential 
     to enrich uranium and develop nuclear weapons, in 
     contravention of its obligations under the safeguards 
     agreement it signed in connection with the Nuclear Non-
     Proliferation Treaty;
       Whereas the Board of Governors of the IAEA adopted a 
     resolution on September 12, 2003, that called on Iran to 
     provide the IAEA a full declaration of all imported material 
     and components relevant to the uranium enrichment program, to 
     grant unrestricted access, including environmental sampling, 
     to the IAEA, to resolve questions regarding the conclusion of 
     the IAEA experts who tested gas centrifuges in that country, 
     to provide complete information regarding the conduct of 
     uranium conversion experiments, and to provide such other 
     information and explanations and take such other steps as the 
     IAEA determines necessary to resolve by October 31, 2003, all 
     outstanding issues involving Iran's nuclear materials and 
     nuclear activities;
       Whereas on October 21, 2003, the Government of Iran reached 
     an agreement with 3 European foreign ministers in which it 
     promised to extend full cooperation to the IAEA, sign the 
     IAEA Additional Protocol and commence ratification 
     procedures, comport itself in accordance with the provisions 
     of the Model Additional Protocol prior to ratification, and 
     voluntarily suspend all uranium enrichment and processing 
     activities;
       Whereas the 3 European governments promised a dialogue with 
     Iran to ease Iran's access to a variety of modern 
     technologies and supplies once certain international concerns 
     regarding Iran are fully resolved;
       Whereas, even if Iran adheres to its commitment to the 
     European foreign ministers to suspend enriching and 
     processing uranium, Iran has explicitly indicated that it 
     reserves the right to resume this activity at a time of its 
     choosing;
       Whereas, although Iran has provided the IAEA with what it 
     claims is a full statement about the nature of its nuclear 
     activities, the IAEA has indicated it may take some months to 
     fully evaluate the Iranian declaration, and IAEA head 
     Mohammed El Baradei has already stated that the documents 
     show that Iran failed to comply with some of its commitments 
     under the Nuclear Non-Proliferation Treaty;
       Whereas Iran has not yet provided the IAEA unrestricted 
     access to conduct inspections that the IAEA believes are 
     necessary to resolve issues concerning Iran's nuclear 
     program;
       Whereas, on October 23, 2003, the Government of Iran 
     provided the IAEA with a declaration that it described as a 
     complete and accurate history of its nuclear program;
       Whereas Iran's National Security Council Chief, Hassan 
     Rouhani, stated on October 21, 2003, that Iran was not 
     prepared to abandon its uranium enrichment program, and the 
     Iranian Foreign Ministry indicated on October 26, 2003, that 
     it has not yet suspended uranium enrichment but was merely 
     studying the issue;
       Whereas, in June 2003, Iran conducted a successful test of 
     the 800-mile range Shahab-3 missile, and Iran is also seeking 
     to produce a 1,200-mile Shahab-4 missile; and
       Whereas the continuation of construction by Iran of 
     unsafeguarded nuclear facilities, coupled with its ties to 
     terrorist groups, will continue to constitute a severe threat 
     to international peace and security and to vital American 
     national interests: Now, therefore, be it
       Resolved by the Senate (the House of Representatives 
     concurring), That Congress--
       (1) deplores the development by Iran of a nuclear weapons 
     program and the failure of the Government of Iran for well 
     over a decade to report material, facilities, and activities 
     to the International Atomic Energy Agency in contravention of 
     its obligations under the safeguards agreement it signed in 
     connection with the Treaty on the Non-Proliferation of 
     Nuclear Weapons, done at Washington, London, and Moscow July 
     1, 1968, and entered into force March 5, 1970 (hereafter in 
     this resolution referred to as the ``Nuclear Non-
     Proliferation Treaty'');
       (2) concurs with the view of the Department of State, as 
     delivered in testimony to the U.S.--Israel Joint 
     Parliamentary Committee on September 17, 2003, by the 
     Assistant Secretary of State for Verification and Compliance 
     that the explanations provided by the Government of Iran for 
     its nuclear activities are not credible;
       (3) concurs with the conclusion reached in the Department 
     of State's Annual Report on Adherence to and Compliance with 
     Arms Control and Non-Proliferation Agreements and Commitments 
     that Iran is pursuing a program to develop nuclear weapons;
       (4) acknowledges the agreement reached between the 
     Government of Iran and the foreign ministers of Germany, 
     France, and the United Kingdom, but questions whether it 
     signifies a sincere and lasting decision by the Government of 
     Iran to abandon its nuclear weapons program;
       (5) believes that Iran must come into full compliance with 
     its obligations;
       (6) calls on the President to use all appropriate means to 
     prevent Iran from acquiring nuclear weapons, including--
       (A) urging the Government of Iran to end its nuclear 
     weapons program and comply fully and unconditionally with the 
     terms of the resolution adopted by the Board of Governors of 
     the International Atomic Energy Agency on September 12, 2003 
     (hereafter in this resolution referred to as the ``IAEA 
     resolution''), that calls on Iran to--
       (i) provide the Agency a full declaration of all imported 
     material and components relevant to the uranium enrichment 
     program;
       (ii) grant unrestricted access, including environmental 
     sampling, to the Agency;
       (iii) resolve questions regarding the conclusion of the 
     Agency experts who tested gas centrifuges in that country;
       (iv) provide complete information regarding the conduct of 
     uranium conversion experiments; and
       (v) provide such other information and explanations and 
     take such other steps as the Agency determines necessary to 
     resolve by October 31, 2003, all outstanding issues involving 
     Iran's nuclear materials and nuclear activities; and
       (B) taking such diplomatic measures as are necessary to 
     encourage other nations, especially Russia, France, Germany, 
     and the United Kingdom, to urge the Government of Iran to 
     fully and immediately comply with the such resolution;
       (7) calls on Russia to--
       (A) use all appropriate means to urge Iran to accept in 
     full the IAEA resolution;
       (B) suspend all nuclear cooperation with Iran, particularly 
     the completion of the Bushehr nuclear reactor and the 
     delivery of fuel for that reactor, until Iran fully and 
     completely complies with the IAEA resolution and fully 
     implements the Model Additional Protocol;
       (C) insist that no fuel will be supplied to the Bushehr 
     reactor unless Iran agrees to return all spent fuel to 
     Russia; and
       (D) put into effect procedures to ensure that Iran cannot 
     divert any spent fuel;
       (8) calls on member states of the United Nations to prevent 
     the Government of Iran from continuing to pursue and develop 
     programs or facilities that could be used in a nuclear 
     weapons program and end all nuclear cooperation with Iran, 
     including the provision of dual use items, until Iran 
     complies fully with the IAEA resolution and fully implements 
     the Model Additional Protocol;
       (9) calls on the European Union to condition economic and 
     commercial agreements with Iran on the full compliance by 
     Iran

[[Page 28901]]

     with its commitment not to pursue nuclear weapons and to 
     stipulate that any rights that Iran obtains under such 
     agreements will be immediately revoked if Iran interferes 
     with the work of the IAEA or takes any other steps to acquire 
     nuclear weapons;
       (10) calls on the IAEA, in accordance with its own 
     regulations, to formally declare Iran in violation of the 
     Nuclear Non-Proliferation Treaty at its November 20, 2003, 
     board meeting and refer the matter to the United Nations 
     Security Council for further action;
       (11) calls on the United Nations Security Council, 
     immediately upon receiving any violations report from the 
     IAEA, to address the threat to international peace and 
     security posed by Iran's nuclear weapons program by passing a 
     Security Council resolution, or take such other action that 
     may be necessary to impose stringent diplomatic and economic 
     sanctions against Iran; and
       (12) calls on the Government of Iran to cease all efforts 
     to acquire nuclear fuel cycle capabilities and to end the 
     enrichment and processing of uranium until it is able to 
     provide specific, verifiable assurances that it is not 
     engaged in a clandestine nuclear weapons program by--
       (A) coming into complete and verifiable compliance with its 
     obligations under the IAEA resolution, including the prompt 
     and unconditional implementation of the Model Additional 
     Protocol; and
       (B) fully meeting its obligations under the Nuclear Non-
     Proliferation Treaty.

                          ____________________




                     AMENDMENTS SUBMITTED & PROPOSED

       SA 2150. Mr. BOND (for himself and Ms. Mikulski) proposed 
     an amendment to the bill H.R. 2861, making appropriations for 
     the Departments of Veterans Affairs and Housing and Urban 
     Development, and for sundry independent agencies, boards, 
     commissions, corporations, and offices for the fiscal year 
     ending September 30, 2004, and for other purposes.
       SA 2151. Ms. LANDRIEU submitted an amendment intended to be 
     proposed to amendment SA 2150 proposed by Mr. Bond (for 
     himself and Ms. Mikulski) to the bill H.R. 2861, supra.
       SA 2152. Mrs. CLINTON (for herself, Mr. Enzi, Ms. Cantwell, 
     Mr. Grassley, Mrs. Murray, Mr. Smith, Mr. Schumer, Mr. Wyden, 
     Mr. Harkin, Ms. Stabenow, Mr. Kerry, Mr. Dodd, Mr. Lieberman, 
     Mr. Levin, and Mr. Daschle) submitted an amendment intended 
     to be proposed to amendment SA 2150 proposed by Mr. Bond (for 
     himself and Ms. Mikulski) to the bill H.R. 2861, supra.
       SA 2153. Mr. GRAHAM, of Florida (for himself and Mr. 
     Nelson, of Florida) submitted an amendment intended to be 
     proposed to amendment SA 2150 proposed by Mr. Bond (for 
     himself and Ms. Mikulski) to the bill H.R. 2861, supra; which 
     was ordered to lie on the table.
       SA 2154. Mr. JEFFORDS submitted an amendment intended to be 
     proposed to amendment SA 2150 proposed by Mr. Bond (for 
     himself and Ms. Mikulski) to the bill H.R. 2861, supra; which 
     was ordered to lie on the table.
       SA 2155. Mr. DAYTON submitted an amendment intended to be 
     proposed to amendment SA 2150 proposed by Mr. Bond (for 
     himself and Ms. Mikulski) to the bill H.R. 2861, supra; which 
     was ordered to lie on the table.
       SA 2156. Mr. CRAIG (for Mr. Bond (for himself, Mr. 
     McConnell, Mr. Talent, Mr. Chambliss, Mr. Miller, and Mr. 
     Craig)) proposed an amendment to amendment SA 2150 proposed 
     by Mr. Bond (for himself and Ms. Mikulski) to the bill H.R. 
     2861, supra.
       SA 2157. Mr. SANTORUM submitted an amendment intended to be 
     proposed to amendment SA 2150 proposed by Mr. Bond (for 
     himself and Ms. Mikulski) to the bill H.R. 2861, supra; which 
     was ordered to lie on the table.
       SA 2158. Mr. CRAIG (for himself, Mr. Harkin, Mr. Cochran, 
     Mr. Conrad, Mr. Chambliss, Mr. Coleman, Mr. Crapo, Mr. Lugar, 
     Mr. Breaux, Mr. Roberts, Mr. Fitzgerald, and Mr. Pryor) 
     proposed an amendment to amendment SA 2150 proposed by Mr. 
     Bond (for himself and Ms. Mikulski) to the bill H.R. 2861, 
     supra.
       SA 2159. Mr. DORGAN proposed an amendment to amendment SA 
     2158 proposed by Mr. Craig (for himself, Mr. Harkin, Mr. 
     Cochran, Mr. Conrad, Mr. Chambliss, Mr. Coleman, Mr. Crapo, 
     Mr. Lugar, Mr. Breaux, Mr. Roberts, Mr. Fitzgerald, and Mr. 
     Pryor) to the amendment SA 2150 proposed by Mr. Bond (for 
     himself and Ms. Mikulski) to the bill H.R. 2861, supra.
       SA 2160. Mr. DeWINE (for himself and Mr. Voinovich) 
     submitted an amendment intended to be proposed to amendment 
     SA 2150 proposed by Mr. Bond (for himself and Ms. Mikulski) 
     to the bill H.R. 2861, supra; which was ordered to lie on the 
     table.
       SA 2161. Mr. DeWINE (for himself and Mr. Voinovich) 
     submitted an amendment intended to be proposed to amendment 
     SA 2150 proposed by Mr. Bond (for himself and Ms. Mikulski) 
     to the bill H.R. 2861, supra; which was ordered to lie on the 
     table.
       SA 2162. Mr. DeWINE (for himself, Mr. Levin, and Mr. 
     Voinovich) submitted an amendment intended to be proposed to 
     amendment SA 2150 proposed by Mr. Bond (for himself and Ms. 
     Mikulski) to the bill H.R. 2861, supra; which was ordered to 
     lie on the table.
       SA 2163. Mr. DeWINE (for himself and Mr. Voinovich) 
     submitted an amendment intended to be proposed to amendment 
     SA 2150 proposed by Mr. Bond (for himself and Ms. Mikulski) 
     to the bill H.R. 2861, supra; which was ordered to lie on the 
     table.
       SA 2164. Ms. CANTWELL (for herself, Mr. Carper, Mr. 
     Brownback, Mr. Hagel, Mr. Roberts, Mr. Nelson, of Nebraska, 
     and Mrs. Murray) submitted an amendment intended to be 
     proposed to amendment SA 2150 proposed by Mr. Bond (for 
     himself and Ms. Mikulski) to the bill H.R. 2861, supra; which 
     was ordered to lie on the table.
       SA 2165. Mr. COLEMAN submitted an amendment intended to be 
     proposed to amendment SA 2150 proposed by Mr. Bond (for 
     himself and Ms. Mikulski) to the bill H.R. 2861, supra; which 
     was ordered to lie on the table.
       SA 2166. Mr. DORGAN submitted an amendment intended to be 
     proposed to amendment SA 2150 proposed by Mr. Bond (for 
     himself and Ms. Mikulski) to the bill H.R. 2861, supra; which 
     was ordered to lie on the table.
       SA 2167. Mr. BOND proposed an amendment to amendment SA 
     2150 proposed by Mr. Bond (for himself and Ms. Mikulski) to 
     the bill H .R. 2861, supra.
       SA 2168. Mr. REED submitted an amendment intended to be 
     proposed to amendment SA 2150 proposed by Mr. Bond (for 
     himself and Ms. Mikulski) to the bill H.R. 2861, supra; which 
     was ordered to lie on the table.
       SA 2169. Mr. LEVIN (for himself, Ms. Collins, Ms. Stabenow, 
     and Mr. Voinovich) submitted an amendment intended to be 
     proposed to amendment SA 2150 proposed by Mr. Bond (for 
     himself and Ms. Mikulski) to the bill H.R. 2861, supra; which 
     was ordered to lie on the table.
       SA 2170. Mr. BOND (for Mr. Leahy (for himself and Mr. 
     Brownback)) proposed an amendment to the bill S. 1685, to 
     extend and expand the basic pilot program for employment 
     eligiblity verification, and for other purposes.
       SA 2171. Mr. LAUTENBERG (for himself, Ms. Mikulski, Mr. 
     Jeffords, Mrs. Boxer, Mr. Corzine, Mr. Schumer, Mr. Leahy, 
     Mr. Lieberman, Mr. Kerry, Mr. Kennedy, Mr. Edwards, Ms. 
     Cantwell, and Mr. Durbin) proposed an amendment to amendment 
     SA 2150 proposed by Mr. Bond (for himself and Ms. Mikulski) 
     to the bill H.R. 2861, making appropriations for the 
     Departments of Veterans Affairs and Housing and Urban 
     Development , and for sundry independent agencies, boards, 
     commissions, corporations, and offices for the fiscal year 
     ending September 30 , 2004, and for other purposes.
       SA 2172. Mr. BOND (for Mr. Graham, of South Carolina (for 
     himself and Mr. Hollings)) proposed an amendment to amendment 
     SA 2150 proposed by Mr. Bond (for himself and Ms. Mikulski) 
     to the bill H.R. 2861, supra.
       SA 2173. Mr. BOND (for Ms. Mikulski (for herself and Mr. 
     Bond)) proposed an amendment to amendment SA 2150 proposed by 
     Mr. Bond (for himself and Ms. Mikulski) to the bill H .R. 
     2861, supra.
       SA 2174. Mr. BOND proposed an amendment to amendment SA 
     2150 proposed by Mr. Bond (for himself and Ms. Mikulski) to 
     the bill H .R. 2861, supra.
       SA 2175. Mr. BOND (for Mr. Stevens) proposed an amendment 
     to amendment SA 2150 proposed by Mr. Bond (for himself and 
     Ms. Mikulski) to the bill H.R. 2861, supra.
       SA 2176. Mr. BOND (for Mr. Durbin (for himself and Mr. 
     Fitzgerald)) proposed an amendment to amendment SA 2150 
     proposed by Mr. Bond (for himself and Ms. Mikulski) to the 
     bill H .R. 2861, supra.
       SA 2177. Mr. BOND (for Ms. Murkowski) proposed an amendment 
     to amendment SA 2150 proposed by Mr. Bond (for himself and 
     Ms. Mikulski) to the bill H.R. 2861, supra.
       SA 2178. Ms. MIKULSKI proposed an amendment to amendment SA 
     2150 proposed by Mr. Bond (for himself and Ms. Mikulski) to 
     the bill H.R. 2861, supra.
       SA 2179. Mr. FITZGERALD submitted an amendment intended to 
     be proposed to amendment SA 2150 proposed by Mr. Bond (for 
     himself and Ms. Mikulski) to the bill H.R. 2861, supra; which 
     was ordered to lie on the table.
       SA 2180. Mr. BOND proposed an amendment to amendment SA 
     2150 proposed by Mr. Bond (for himself and Ms. Mikulski) to 
     the bill H.R. 2861, supra.
       SA 2181. Mr. BOND (for Ms. Murkowski) proposed an amendment 
     to amendment SA 2150 proposed by Mr. Bond (for himself and 
     Ms. Mikulski) to the bill H.R. 2861, supra.
       SA 2182. Ms. MURKOWSKI (for Mr. Dorgan (for himself, Mr. 
     Rockefeller, and Ms. Landrieu)) proposed an amendment to 
     amendment SA 2150 proposed by Mr. Bond (for himself and Ms. 
     Mikulski) to the bill H.R. 2861, supra.
       SA 2183. Mr. BOND (for Mr. Sarbanes (for himself, Ms. 
     Collins, Mr. Byrd, Mr. Santorum, Mr. Reed, Ms. Snowe, Mr. 
     Kennedy, Mr. Dodd , Mr. Kerry, Mr. Allen, Mr. Schumer, Mrs. 
     Murray, Mrs. Clinton, Mr. Leahy, Mr. Chafee, Ms. Cantwell, 
     Mrs. Feinstein, Mr. Lautenberg, Ms. Stabenow, Mr. Jeffords, 
     Mr. Lieberman, Mr. Akaka, Mr. Dayton, and Mr. Nelson, of 
     Florida))

[[Page 28902]]

     proposed an amendment to amendment SA 2150 proposed by Mr. 
     Bond (for himself and Ms. Mikulski) to the bill H.R. 2861, 
     supra.
       SA 2184. Mr. BOND (for Mrs. Clinton (for herself, Ms. 
     Snowe, Mr. Kennedy, Mr. Chafee, Mrs. Murray, Mr. Reed, Mr. 
     Harkin, and Mr. Dodd)) proposed an amendment to amendment SA 
     2150 proposed by Mr. Bond (for himself and Ms. Mikulski) to 
     the bill H.R. 2861, supra.
       SA 2185. Mr. BOND (for Mr. Levin (for himself, Ms. Collins, 
     and Ms. Stabenow)) proposed an amendment to amendment SA 2150 
     proposed by Mr. Bond (for himself and Ms. Mikulski) to the 
     bill H.R. 2861, supra.
       SA 2186. Mr. BOND (for Mrs. Boxer) proposed an amendment to 
     amendment SA 2150 proposed by Mr. Bond (for himself and Ms. 
     Mikulski) to the bill H.R. 2861, supra.
       SA 2187. Mr. McCAIN submitted an amendment intended to be 
     proposed to amendment SA 2150 proposed by Mr. Bond (for 
     himself and Ms. Mikulski) to the bill H.R. 2861, supra; which 
     was ordered to lie on the table.
       SA 2188. Mr. INHOFE submitted an amendment intended to be 
     proposed to amendment SA 2150 proposed by Mr. Bond (for 
     himself and Ms. Mikulski) to the bill H.R. 2861, supra; which 
     was ordered to lie on the table.
       SA 2189. Mr. INHOFE submitted an amendment intended to be 
     proposed to amendment SA 2150 proposed by Mr. Bond (for 
     himself and Ms. Mikulski) to the bill H.R. 2861, supra; which 
     was ordered to lie on the table.
       SA 2190. Mr. GRAHAM, of Florida submitted an amendment 
     intended to be proposed by him to the bill H.R. 2861, supra; 
     which was ordered to lie on the table.

                          ____________________




                           TEXT OF AMENDMENTS

  SA 2150. Mr. BOND (for himself and Ms. Mikulski) proposed an 
amendment to the bill H.R. 2861, making appropriations for the 
Departments of Veterans Affairs and Housing and Urban Development, and 
for sundry independent agencies, boards, commissions, corporations, and 
offices for the fiscal year ending September 30, 2004, and for other 
purposes; as follows:

       Strike all after the enacting clause and insert the 
     following:

     That the following sums are appropriated, out of any money in 
     the Treasury not otherwise appropriated, for the Departments 
     of Veteran Affairs and Housing and Urban Development, and for 
     sundry independent agencies, boards, commissions, 
     corporations, and offices for the fiscal year ending 
     September 30, 2004, and for other purposes, namely:

                TITLE I--DEPARTMENT OF VETERANS AFFAIRS

                    Veterans Benefits Administration


                       Compensation and Pensions

                     (including transfer of funds)

       For the payment of compensation benefits to or on behalf of 
     veterans and a pilot program for disability examinations as 
     authorized by law (38 U.S.C. 107, chapters 11, 13, 18, 51, 
     53, 55, and 61); pension benefits to or on behalf of veterans 
     as authorized by law (38 U.S.C. chapters 15, 51, 53, 55, and 
     61; 92 Stat. 2508); and burial benefits, emergency and other 
     officers' retirement pay, adjusted-service credits and 
     certificates, payment of premiums due on commercial life 
     insurance policies guaranteed under the provisions of article 
     IV of the Soldiers' and Sailors' Civil Relief Act of 1940 (50 
     U.S.C. App. 540 et seq.) and for other benefits as authorized 
     by law (38 U.S.C. 107, 1312, 1977, and 2106, chapters 23, 51, 
     53, 55, and 61; 50 U.S.C. App. 540-548; 43 Stat. 122, 123; 45 
     Stat. 735; 76 Stat. 1198), $29,845,127,000, to remain 
     available until expended: Provided, That not to exceed 
     $17,056,000 of the amount appropriated under this heading 
     shall be reimbursed to ``General operating expenses'' and 
     ``Medical care'' for necessary expenses in implementing those 
     provisions authorized in the Omnibus Budget Reconciliation 
     Act of 1990, and in the Veterans' Benefits Act of 1992 (38 
     U.S.C. chapters 51, 53, and 55), the funding source for which 
     is specifically provided as the ``Compensation and pensions'' 
     appropriation: Provided further, That such sums as may be 
     earned on an actual qualifying patient basis, shall be 
     reimbursed to ``Medical facilities revolving fund'' to 
     augment the funding of individual medical facilities for 
     nursing home care provided to pensioners as authorized.


                         readjustment benefits

       For the payment of readjustment and rehabilitation benefits 
     to or on behalf of veterans as authorized by law (38 U.S.C. 
     chapters 21, 30, 31, 34, 35, 36, 39, 51, 53, 55, and 61), 
     $2,529,734,000, to remain available until expended: Provided, 
     That expenses for rehabilitation program services and 
     assistance which the Secretary is authorized to provide under 
     section 3104(a) of title 38, United States Code, other than 
     under subsection (a)(1), (2), (5), and (11) of that section, 
     shall be charged to this account.


                   veterans insurance and indemnities

       For military and naval insurance, national service life 
     insurance, servicemen's indemnities, service-disabled 
     veterans insurance, and veterans mortgage life insurance as 
     authorized by 38 U.S.C. chapter 19; 70 Stat. 887; 72 Stat. 
     487, $29,017,000, to remain available until expended.


         veterans housing benefit program fund program account

                     (including transfer of funds)

       For the cost of direct and guaranteed loans, such sums as 
     may be necessary to carry out the program, as authorized by 
     38 U.S.C. chapter 37, as amended: Provided, That such costs, 
     including the cost of modifying such loans, shall be as 
     defined in section 502 of the Congressional Budget Act of 
     1974, as amended: Provided further, That during fiscal year 
     2004, within the resources available, not to exceed $300,000 
     in gross obligations for direct loans are authorized for 
     specially adapted housing loans.
       In addition, for administrative expenses to carry out the 
     direct and guaranteed loan programs, $154,850,000, which may 
     be transferred to and merged with the appropriation for 
     ``General operating expenses''.


                  education loan fund program account

                     (including transfer of funds)

       For the cost of direct loans, $1,000, as authorized by 38 
     U.S.C. 3698, as amended: Provided, That such costs, including 
     the cost of modifying such loans, shall be as defined in 
     section 502 of the Congressional Budget Act of 1974, as 
     amended: Provided further, That these funds are available to 
     subsidize gross obligations for the principal amount of 
     direct loans not to exceed $3,400.
       In addition, for administrative expenses necessary to carry 
     out the direct loan program, $70,000, which may be 
     transferred to and merged with the appropriation for 
     ``General operating expenses''.


            vocational rehabilitation loans program account

                     (including transfer of funds)

       For the cost of direct loans, $52,000, as authorized by 38 
     U.S.C. chapter 31, as amended: Provided, That such costs, 
     including the cost of modifying such loans, shall be as 
     defined in section 502 of the Congressional Budget Act of 
     1974, as amended: Provided further, That funds made available 
     under this heading are available to subsidize gross 
     obligations for the principal amount of direct loans not to 
     exceed $3,938,000: Provided further, That the loan level 
     shall be considered an estimate and not a limitation.
       In addition, for administrative expenses necessary to carry 
     out the direct loan program, $300,000, which may be 
     transferred to and merged with the appropriation for 
     ``General operating expenses''.


          native american veteran housing loan program account

                     (including transfer of funds)

       For administrative expenses to carry out the direct loan 
     program authorized by 38 U.S.C. chapter 37, subchapter V, as 
     amended, $571,000, which may be transferred to and merged 
     with the appropriation for ``General operating expenses''.

  guaranteed transitional housing loans for homeless veterans program 
                                account

       For the administrative expenses to carry out the guaranteed 
     transitional housing loan program authorized by 38 U.S.C. 
     chapter 37, subchapter VI, not to exceed $750,000 of the 
     amounts appropriated by this Act for ``General operating 
     expenses'' and ``Medical care'' may be expended.

                     Veterans Health Administration


                              medical care

                     (including transfer of funds)

       For necessary expenses for the maintenance and operation of 
     hospitals, nursing homes, and domiciliary facilities; for 
     furnishing, as authorized by law, inpatient and outpatient 
     care and treatment to beneficiaries of the Department of 
     Veterans Affairs, including care and treatment in facilities 
     not under the jurisdiction of the department; and furnishing 
     recreational facilities, supplies, and equipment; funeral, 
     burial, and other expenses incidental thereto for 
     beneficiaries receiving care in the department; 
     administrative expenses in support of planning, design, 
     project management, real property acquisition and 
     disposition, construction and renovation of any facility 
     under the jurisdiction or for the use of the department; 
     oversight, engineering and architectural activities not 
     charged to project cost; repairing, altering, improving or 
     providing facilities in the several hospitals and homes under 
     the jurisdiction of the department, not otherwise provided 
     for, either by contract or by the hire of temporary employees 
     and purchase of materials; uniforms or allowances therefor, 
     as authorized by 5 U.S.C. 5901-5902; aid to State homes as 
     authorized by 38 U.S.C. 1741; administrative and legal 
     expenses of the department for collecting and recovering 
     amounts owed the department as authorized under 38 U.S.C. 
     chapter 17, and the Federal Medical Care Recovery Act, 42 
     U.S.C. 2651 et seq., $25,488,080,000, plus reimbursements: 
     Provided, That, notwithstanding any other provision of law, 
     the Secretary of Veterans Affairs shall establish a priority 
     for treatment for veterans who are service-connected 
     disabled, lower income, or have special needs: Provided 
     further, That, notwithstanding any other provision of law, 
     the Secretary of Veterans Affairs shall give priority funding 
     for the provision of basic medical benefits to veterans in 
     enrollment priority groups 1 through 6: Provided further, 
     That of the funds made available under this heading, 
     $1,100,000,000 is for equipment and land and

[[Page 28903]]

     structures object classifications only, which amount shall 
     not become available for obligation until August 1, 2004, and 
     shall remain available until September 30, 2005: Provided 
     further, That of the funds made available under this heading, 
     not to exceed $1,100,000,000 shall be available until 
     September 30, 2005: Provided further, That of the funds made 
     available under this heading, the Secretary may transfer up 
     to $400,000,000 to ``Construction, major projects'' for 
     purposes of implementing CARES subject to a determination by 
     the Secretary that such funds will improve access and quality 
     of veteran's health care needs: Provided further, That, 
     notwithstanding any other provision of law, the Secretary of 
     Veterans Affairs may provide prescription drugs to enrolled 
     veterans with privately written prescriptions based on 
     requirements established by the Secretary: Provided further, 
     That the Secretary of Veterans Affairs shall conduct by 
     contract a program of recovery audits for the fee basis and 
     other medical services contracts with respect to payments for 
     hospital care; and, notwithstanding 31 U.S.C. 3302(b), 
     amounts collected, by setoff or otherwise, as the result of 
     such audits shall be available, without fiscal year 
     limitation, for the purposes for which funds are appropriated 
     under this heading and the purposes of paying a contractor a 
     percent of the amount collected as a result of an audit 
     carried out by the contractor: Provided further, That all 
     amounts so collected under the preceding proviso with respect 
     to a designated health care region (as that term is defined 
     in 38 U.S.C. 1729A(d)(2)) shall be allocated, net of payments 
     to the contractor, to that region: Provided further, That 
     such sums as may be deposited to the Medical Care Collections 
     Fund pursuant to 38 U.S.C. 1729A may be transferred to this 
     account, to remain available until expended for the purposes 
     of this account: Provided further, That Medical Care 
     Collections Funds may be used for construction, alteration 
     and improvement of any parking facility set forth in 38 
     U.S.C. 8109: Provided further, That of the unobligated 
     balances remaining from prior year recoveries under this 
     heading, $270,000,000 is rescinded.
       For an additional amount for ``Medical care'', 
     $1,300,000,000: Provided, That the entire amount is 
     designated by the Congress as an emergency requirement 
     pursuant to section 502 of H. Con. Res. 95, the concurrent 
     resolution on the budget for fiscal year 2004: Provided 
     further, That the entire amount shall be available only to 
     the extent that an official budget request for a specific 
     dollar amount, that includes designation of the entire amount 
     of the request as an emergency requirement as defined in H. 
     Con. Res. 95, the concurrent resolution on the budget for 
     fiscal year 2004, is transmitted by the President to the 
     Congress.


                    medical and prosthetic research

       For necessary expenses in carrying out programs of medical 
     and prosthetic research and development as authorized by 38 
     U.S.C. chapter 73, to remain available until September 30, 
     2005, $413,000,000 plus reimbursements.


      medical administration and miscellaneous operating expenses

       For necessary expenses in the administration of the 
     medical, hospital, nursing home, domiciliary, construction, 
     supply, and research activities, as authorized by law; 
     administrative expenses in support of capital policy 
     activities, $79,146,000: Provided further, That of the funds 
     made available under this heading, not to exceed, $4,000,000 
     shall be available until September 30, 2005, plus 
     reimbursements: Provided further, That technical and 
     consulting services offered by the Facilities Management 
     Field Support Service, including project management and real 
     property administration (including leases, site acquisition 
     and disposal activities directly supporting projects), shall 
     be provided to Department of Veterans Affairs components only 
     on a reimbursable basis, and such amounts will remain 
     available until September 30, 2004.

                      Departmental Administration


                       general operating expenses

       For necessary operating expenses of the Department of 
     Veterans Affairs, not otherwise provided for, including 
     administrative expenses in support of department-wide capital 
     planning, management and policy activities, uniforms or 
     allowances therefor; not to exceed $25,000 for official 
     reception and representation expenses; hire of passenger 
     motor vehicles; and reimbursement of the General Services 
     Administration for security guard services, and the 
     Department of Defense for the cost of overseas employee mail, 
     $1,283,272,000: Provided, That expenses for services and 
     assistance authorized under 38 U.S.C. 3104(a)(1), (2), (5), 
     and (11) that the Secretary determines are necessary to 
     enable entitled veterans: (1) to the maximum extent feasible, 
     to become employable and to obtain and maintain suitable 
     employment; or (2) to achieve maximum independence in daily 
     living, shall be charged to this account: Provided further, 
     That the Veterans Benefits Administration shall be funded at 
     not less than $1,004,704,000: Provided further, That of the 
     funds made available under this heading, not to exceed 
     $64,000,000 shall be available for obligation until September 
     30, 2005: Provided further, That from the funds made 
     available under this heading, the Veterans Benefits 
     Administration may purchase up to two passenger motor 
     vehicles for use in operations of that Administration in 
     Manila, Philippines.


                    national cemetery administration

       For necessary expenses of the National Cemetery 
     Administration for operations and maintenance, not otherwise 
     provided for, including uniforms or allowances therefor; 
     cemeterial expenses as authorized by law; purchase of one 
     passenger motor vehicle for use in cemeterial operations; and 
     hire of passenger motor vehicles, $144,203,000: Provided, 
     That of the funds made available under this heading, not to 
     exceed $7,200,000 shall be available until September 30, 
     2005.


                      office of inspector general

       For necessary expenses of the Office of Inspector General 
     in carrying out the provisions of the Inspector General Act 
     of 1978, as amended, $62,250,000, to remain available until 
     September 30, 2005.


                      construction, major projects

       For constructing, altering, extending and improving any of 
     the facilities under the jurisdiction or for the use of the 
     Department of Veterans Affairs, or for any of the purposes 
     set forth in sections 316, 2404, 2406, 8102, 8103, 8106, 
     8108, 8109, 8110, and 8122 of title 38, United States Code, 
     including planning, architectural and engineering services, 
     maintenance or guarantee period services costs associated 
     with equipment guarantees provided under the project, 
     services of claims analysts, offsite utility and storm 
     drainage system construction costs, and site acquisition, 
     where the estimated cost of a project is more than the amount 
     set forth in 38 U.S.C. 8104(a)(3)(A) or where funds for a 
     project were made available in a previous major project 
     appropriation, $272,690,000, to remain available until 
     expended, of which $183,000,000 shall be for Capital Asset 
     Realignment for Enhanced Services (CARES) activities; and of 
     which $10,000,000 shall be to make reimbursements as provided 
     in 41 U.S.C. 612 for claims paid for contract disputes: 
     Provided, That except for advance planning activities, 
     including needs assessments which may or may not lead to 
     capital investments, and other capital asset management 
     related activities, such as portfolio development and 
     management activities, and investment strategy studies funded 
     through the advance planning fund and the planning and design 
     activities funded through the design fund and CARES funds, 
     including needs assessments which may or may not lead to 
     capital investments, none of the funds appropriated under 
     this heading shall be used for any project which has not been 
     approved by the Congress in the budgetary process: Provided 
     further, That funds provided in this appropriation for fiscal 
     year 2004, for each approved project (except those for CARES 
     activities referenced above) shall be obligated: (1) by the 
     awarding of a construction documents contract by September 
     30, 2004; and (2) by the awarding of a construction contract 
     by September 30, 2005: Provided further, That the Secretary 
     of Veterans Affairs shall promptly report in writing to the 
     Committees on Appropriations any approved major construction 
     project in which obligations are not incurred within the time 
     limitations established above: Provided further, That no 
     funds from any other account except the ``Parking revolving 
     fund'', may be obligated for constructing, altering, 
     extending, or improving a project which was approved in the 
     budget process and funded in this account until 1 year after 
     substantial completion and beneficial occupancy by the 
     Department of Veterans Affairs of the project or any part 
     thereof with respect to that part only.


                      construction, minor projects

       For constructing, altering, extending, and improving any of 
     the facilities under the jurisdiction or for the use of the 
     Department of Veterans Affairs, including planning and 
     assessments of needs which may lead to capital investments, 
     architectural and engineering services, maintenance or 
     guarantee period services costs associated with equipment 
     guarantees provided under the project, services of claims 
     analysts, offsite utility and storm drainage system 
     construction costs, and site acquisition, or for any of the 
     purposes set forth in sections 316, 2404, 2406, 8102, 8103, 
     8106, 8108, 8109, 8110, 8122, and 8162 of title 38, United 
     States Code, where the estimated cost of a project is equal 
     to or less than the amount set forth in 38 U.S.C. 
     8104(a)(3)(A), $252,144,000, to remain available until 
     expended, along with unobligated balances of previous 
     ``Construction, minor projects'' appropriations which are 
     hereby made available for any project where the estimated 
     cost is equal to or less than the amount set forth in 38 
     U.S.C. 8104(a)(3)(A), of which $42,000,000 shall be for 
     Capital Asset Realignment for Enhanced Services (CARES) 
     activities: Provided, That from amounts appropriated under 
     this heading, additional amounts may be used for CARES 
     activities upon notification of and approval by the 
     Committees on Appropriations: Provided further, That funds in 
     this account shall be available for: (1) repairs to any of 
     the nonmedical facilities under the jurisdiction or for the 
     use of the department which are necessary because of loss or 
     damage caused by

[[Page 28904]]

     any natural disaster or catastrophe; and (2) temporary 
     measures necessary to prevent or to minimize further loss by 
     such causes.


       grants for construction of state extended care facilities

       For grants to assist States to acquire or construct State 
     nursing home and domiciliary facilities and to remodel, 
     modify or alter existing hospital, nursing home and 
     domiciliary facilities in State homes, for furnishing care to 
     veterans as authorized by 38 U.S.C. 8131-8137, $102,100,000, 
     to remain available until expended.


        grants for the construction of state veterans cemeteries

       For grants to aid States in establishing, expanding, or 
     improving State veterans cemeteries as authorized by 38 
     U.S.C. 2408, $32,000,000, to remain available until expended.


                       administrative provisions

                     (including transfer of funds)

       Sec. 101. Any appropriation for fiscal year 2004 for 
     ``Compensation and pensions'', ``Readjustment benefits'', and 
     ``Veterans insurance and indemnities'' may be transferred to 
     any other of the mentioned appropriations.
       Sec. 102. Appropriations available to the Department of 
     Veterans Affairs for fiscal year 2004 for salaries and 
     expenses shall be available for services authorized by 5 
     U.S.C. 3109.
       Sec. 103. No appropriations in this Act for the Department 
     of Veterans Affairs (except the appropriations for 
     ``Construction, major projects'', ``Construction, minor 
     projects'', and the ``Parking revolving fund'') shall be 
     available for the purchase of any site for or toward the 
     construction of any new hospital or home.
       Sec. 104. No appropriations in this Act for the Department 
     of Veterans Affairs shall be available for hospitalization or 
     examination of any persons (except beneficiaries entitled 
     under the laws bestowing such benefits to veterans, and 
     persons receiving such treatment under 5 U.S.C. 7901-7904 or 
     42 U.S.C. 5141-5204), unless reimbursement of cost is made to 
     the ``Medical care'' account at such rates as may be fixed by 
     the Secretary of Veterans Affairs.
       Sec. 105. Appropriations available to the Department of 
     Veterans Affairs for fiscal year 2004 for ``Compensation and 
     pensions'', ``Readjustment benefits'', and ``Veterans 
     insurance and indemnities'' shall be available for payment of 
     prior year accrued obligations required to be recorded by law 
     against the corresponding prior year accounts within the last 
     quarter of fiscal year 2003.
       Sec. 106. Appropriations accounts available to the 
     Department of Veterans Affairs for fiscal year 2004 shall be 
     available to pay prior year obligations of corresponding 
     prior year appropriations accounts resulting from title X of 
     the Competitive Equality Banking Act, Public Law 100-86, 
     except that if such obligations are from trust fund accounts 
     they shall be payable from ``Compensation and pensions''.
       Sec. 107. Notwithstanding any other provision of law, 
     during fiscal year 2004, the Secretary of Veterans Affairs 
     shall, from the National Service Life Insurance Fund (38 
     U.S.C. 1920), the Veterans' Special Life Insurance Fund (38 
     U.S.C. 1923), and the United States Government Life Insurance 
     Fund (38 U.S.C. 1955), reimburse the ``General operating 
     expenses'' account for the cost of administration of the 
     insurance programs financed through those accounts: Provided, 
     That reimbursement shall be made only from the surplus 
     earnings accumulated in an insurance program in fiscal year 
     2004 that are available for dividends in that program after 
     claims have been paid and actuarially determined reserves 
     have been set aside: Provided further, That if the cost of 
     administration of an insurance program exceeds the amount of 
     surplus earnings accumulated in that program, reimbursement 
     shall be made only to the extent of such surplus earnings: 
     Provided further, That the Secretary shall determine the cost 
     of administration for fiscal year 2004 which is properly 
     allocable to the provision of each insurance program and to 
     the provision of any total disability income insurance 
     included in such insurance program.
       Sec. 108. Notwithstanding any other provision of law, the 
     Department of Veterans Affairs shall continue the Franchise 
     Fund pilot program authorized to be established by section 
     403 of Public Law 103-356 until October 1, 2004: Provided, 
     That the Franchise Fund, established by title I of Public Law 
     104-204 to finance the operations of the Franchise Fund pilot 
     program, shall continue until October 1, 2004.
       Sec. 109. Amounts deducted from enhanced-use lease proceeds 
     to reimburse an account for expenses incurred by that account 
     during a prior fiscal year for providing enhanced-use lease 
     services, may be obligated during the fiscal year in which 
     the proceeds are received.
       Sec. 110. Funds available in any Department of Veterans 
     Affairs appropriation for fiscal year 2004 or funds for 
     salaries and other administrative expenses shall also be 
     available to reimburse the Office of Resolution Management 
     and the Office of Employment Discrimination Complaint 
     Adjudication for all services provided at rates which will 
     recover actual costs but not exceed $29,318,000 for the 
     Office of Resolution Management and $3,059,000 for the Office 
     of Employment and Discrimination Complaint Adjudication: 
     Provided, That payments may be made in advance for services 
     to be furnished based on estimated costs: Provided further, 
     That amounts received shall be credited to ``General 
     operating expenses'' for use by the office that provided the 
     service.
       Sec. 111. No appropriations in this Act for the Department 
     of Veterans Affairs shall be available to enter into any new 
     lease of real property if the estimated annual rental is more 
     than $300,000 unless the Secretary submits a report which the 
     Committees on Appropriations of the Congress approve within 
     30 days following the date on which the report is received.
       Sec. 112. No appropriations in this Act for the Department 
     of Veterans Affairs shall be available for hospitalization or 
     treatment of any person by reason of eligibility under 
     section 1710(a)(3) of title 38, United States Code, unless 
     that person has disclosed to the Secretary of Veterans 
     Affairs, in such form as the Secretary may require--
       (1) current, accurate third-party reimbursement information 
     for purposes of section 1729 of such title; and
       (2) annual income information for purposes of section 1722 
     of such title.
       Sec. 113. None of the funds in this Act may be used to 
     implement sections 2 and 5 of Public Law 107-287.
       Sec. 114. Receipts that would otherwise be credited to the 
     Veterans Extended Care Revolving Fund, the Medical Facilities 
     Revolving Fund, the Special Therapeutic and Rehabilitation 
     Fund, the Nursing Home Revolving Fund, the Veterans Health 
     Services Improvement Fund, and the Parking Revolving Fund 
     shall be deposited into the Medical Care Collections Fund, 
     and shall be transferred to the Medical Care account, to 
     remain available until expended, to carry out the purposes of 
     the Medical Care account.
       Sec. 115. Notwithstanding any other provision of law, at 
     the discretion of the Secretary of Veterans Affairs, proceeds 
     or revenues derived from enhanced-use leasing activities 
     (including disposal) that are deposited into the Medical Care 
     Collections Fund may be transferred and merged with major 
     construction and minor construction accounts and be used for 
     construction (including site acquisition and disposition), 
     alterations and improvements of any medical facility under 
     the jurisdiction or for the use of the Department of Veterans 
     Affairs. Such sums as realized are in addition to the amount 
     provided for in the Major and Minor Construction 
     appropriations.

         TITLE II--DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

                       Public and Indian Housing


                        housing certificate fund

              (including transfer and rescission of funds)

       For activities and assistance under the United States 
     Housing Act of 1937, as amended (42 U.S.C. 1437 et seq.) 
     (``the Act'' herein), not otherwise provided for, 
     $18,433,606,000, and amounts that are recaptured in this 
     account, to remain available until expended: Provided, That 
     of the amounts made available under this heading, 
     $14,233,606,379 and the aforementioned recaptures shall be 
     available on October 1, 2003 and $4,200,000,000 shall be 
     available on October 1, 2004: Provided further, That amounts 
     made available under this heading are provided as follows:
       (1) $16,202,616,000 for expiring or terminating section 8 
     project-based subsidy contracts (including section 8 moderate 
     rehabilitation contracts), for amendments to section 8 
     project-based subsidy contracts, for contracts entered into 
     pursuant to section 441 of the McKinney-Vento Homeless 
     Assistance Act, for the 1-year renewal of section 8 contracts 
     for units in projects that are subject to approved plans of 
     action under the Emergency Low Income Housing Preservation 
     Act of 1987 or the Low-Income Housing Preservation and 
     Resident Homeownership Act of 1990, and for renewals of 
     expiring section 8 tenant-based annual contributions 
     contracts (including amendments and renewals of enhanced 
     vouchers under any provision of law authorizing such 
     assistance under section 8(t) of the Act (42 U.S.C. 
     1437f(t))): Provided, That notwithstanding any other 
     provision of law, the Secretary shall renew expiring section 
     8 tenant-based annual contributions contracts for each public 
     housing agency (including for agencies participating in the 
     Moving to Work demonstration, unit months representing 
     section 8 tenant-based assistance funds committed by the 
     public housing agency for specific purposes, other than 
     reserves, that are authorized pursuant to any agreement and 
     conditions entered into under such demonstration, and 
     utilized in compliance with any applicable program obligation 
     deadlines) based on the total number of unit months which 
     were under lease as reported on the most recent end-of-year 
     financial statement submitted by the public housing agency to 
     the Department, adjusted by such additional information 
     submitted by the public housing agency to the Secretary which 
     the Secretary determines to be timely and reliable regarding 
     the total number of unit months under lease at the time of 
     renewal of the annual contributions contract, and by applying 
     an inflation factor

[[Page 28905]]

     based on local or regional factors to the actual per unit 
     cost as reported: Provided further, That funds may be made 
     available in this paragraph to support a total number of unit 
     months under lease that exceeds a public housing agency's 
     authorized level of units under lease to the extent that the 
     use of these funds is part of a strategy for a public housing 
     agency to attain its authorized level of units under 
     contract: Provided further, That when a public housing agency 
     is over its authorized contract level, that public housing 
     agency may not issue another voucher (including turnover 
     vouchers) until that public housing agency is at or below its 
     authorized contract level for vouchers.
       (2) $461,329,000 for a central fund to be allocated by the 
     Secretary for the support of section 8 subsidy contracts or 
     amendments to such contracts, and for such other purposes as 
     are set forth in this paragraph: Provided, That subject to 
     the following proviso, the Secretary shall use amounts in 
     such fund, as necessary, for contract amendments to maintain 
     the total number of unit months under lease (up to the 
     authorized level) including turnover and reissuance of 
     authorized vouchers, and for contract amendments resulting 
     from a significant increase in per-unit costs, or otherwise 
     provide funds so that public housing agencies may lease units 
     up to their authorized unit level: Provided further, That the 
     Secretary may use up to $36,000,000 in such funds for 
     incremental vouchers under section 8 of the Act to be used 
     for non-elderly disabled families affected by the designation 
     of a public housing development under section 7 of the Act, 
     the establishment of preferences in accordance with section 
     651 of the Housing and Community Development Act of 1992 (42 
     U.S.C. 13611), or the restriction of occupancy to elderly 
     families in accordance with section 658 of such Act (42 
     U.S.C. 13618): Provided further, That the Secretary may only 
     allocate the incremental vouchers under the previous proviso 
     upon a determination that there are adequate funds under this 
     heading to fund all voucher needs in this fiscal year: 
     Provided further, That if a public housing agency, at any 
     point in time during their fiscal year, has obligated the 
     amounts made available to such agency pursuant to paragraph 
     (1) under this heading for the renewal of expiring section 8 
     tenant-based annual contributions contracts, and if such 
     agency has expended 50 percent of the amounts available to 
     such agency in its annual contributions contract reserve 
     account, the Secretary shall make available such amounts as 
     are necessary from amounts available from such central fund 
     to fund amendments under the preceding proviso within 30 days 
     of a request from such agency: Provided further, That none of 
     the funds made available in this paragraph may be used to 
     support a total number of unit months under lease which 
     exceeds a public housing agency's authorized level of units 
     under contract: Provided further, That the Secretary shall 
     provide quarterly reports to the Committees on Appropriations 
     of the House and the Senate on the obligation of funds 
     provided in this paragraph;
       (3) $252,203,000 for section 8 rental assistance for 
     relocation and replacement of housing units that are 
     demolished or disposed of pursuant to the Omnibus 
     Consolidated Rescissions and Appropriations Act of 1996 
     (Public Law 104-134), conversion of section 23 projects to 
     assistance under section 8, the family unification program 
     under section 8(x) of the Act, relocation of witnesses in 
     connection with efforts to combat crime in public and 
     assisted housing pursuant to a request from a law enforcement 
     or prosecution agency, enhanced vouchers under any provision 
     of law authorizing such assistance under section 8(t) of the 
     Act (42 U.S.C.1437f(t)), and tenant protection assistance, 
     including replacement and relocation assistance;
       (4) $72,000,000 for family self-sufficiency coordinators 
     under section 23 of the Act;
       (5) not to exceed $1,339,448,400 for administrative and 
     other expenses of public housing agencies in administering 
     the section 8 tenant-based rental assistance program: 
     Provided, That the fee otherwise authorized under section 
     8(q) of the Act shall be determined in accordance with 
     section 8(q), as in effect immediately before the enactment 
     of the Quality Housing and Work Responsibility Act of 1998;
       (6) $100,000,000 for contract administrators for section 8 
     project-based assistance;
       (7) not less than $3,010,000 shall be transferred to the 
     Working Capital Fund for the development of and modifications 
     to information technology systems which serve activities 
     under ``Public and Indian Housing''; and
       (8) up to $3,000,000 for an outside audit by a major 
     accounting firm to assess the current status of all funds 
     within this account, including the amounts of obligated and 
     unobligated funds for all programs funded under this heading 
     for fiscal year 2004 as well as the availability of funds 
     currently appropriated under this heading for fiscal years 
     2005 and thereafter.
       The Secretary may transfer up to 15 percent of funds 
     provided under paragraphs (1), (2), (3) or (5), herein to 
     paragraphs (1), (2), (3) or (5), if the Secretary determines 
     that such action is necessary because the funding provided 
     under one such paragraph otherwise would be depleted and as a 
     result, the maximum utilization of section 8 tenant-based 
     assistance with the funds appropriated for this purpose by 
     this Act would not be feasible: Provided, That prior to 
     undertaking the transfer of funds in excess of 10 percent 
     from any paragraph pursuant to the previous proviso, the 
     Secretary shall notify the Chairman and Ranking Member of the 
     Subcommittees on Veterans Affairs and Housing and Urban 
     Development, and Independent Agencies of the Committees on 
     Appropriations of the House of Representatives and the Senate 
     and shall not transfer any such funds until 30 days after 
     such notification: Provided further, That, hereafter, the 
     Secretary shall require public housing agencies to submit 
     accounting data for funds disbursed under this heading in 
     this Act and prior Acts by source and purpose of such funds: 
     Provided further, That incremental vouchers previously made 
     available under this heading for non-elderly disabled 
     families shall, to the extent practicable, continue to be 
     provided to non-elderly disabled families upon turnover: 
     Provided further, That $1,372,000,000 is rescinded from 
     unobligated balances remaining from funds appropriated to the 
     Department of Housing and Urban Development under this 
     heading or the heading ``Annual contributions for assisted 
     housing'' or any other heading for fiscal year 2003 and prior 
     years, to be effected by the Secretary no later than 
     September 30, 2004: Provided further, That any such balances 
     governed by reallocation provisions under the statute 
     authorizing the program for which the funds were originally 
     appropriated shall be available for the rescission: Provided 
     further, That any obligated balances of contract authority 
     from fiscal year 1974 and prior that have been terminated 
     shall be cancelled.


                      public housing capital fund

                     (including transfer of funds)

       For the Public Housing Capital Fund Program to carry out 
     capital and management activities for public housing 
     agencies, as authorized under section 9 of the United States 
     Housing Act of 1937, as amended (42 U.S.C. 1437g), 
     $2,641,000,000 (the ``Act''), to remain available until 
     September 30, 2007: Provided, That of the total amount 
     provided under this heading, in addition to amounts otherwise 
     allocated under this heading, $400,000,000 shall be allocated 
     for such capital and management activities only among public 
     housing agencies that have obligated all assistance for the 
     agency for fiscal years 2001 and 2002 made available under 
     this same heading in accordance with the requirements under 
     paragraphs (1) and (2) of section 9(j) of such Act: Provided 
     further, That notwithstanding any other provision of law or 
     regulation, during fiscal year 2004, the Secretary may not 
     delegate to any Department official other than the Deputy 
     Secretary any authority under paragraph (2) of such section 
     9(j) regarding the extension of the time periods under such 
     section for obligation of amounts made available for fiscal 
     years 1998, 1999, 2000, 2001, 2002, 2003, or 2004: Provided 
     further, That with respect to any amounts made available 
     under the Public Housing Capital Fund for fiscal years 1999, 
     2000, 2001, 2002, 2003, or 2004 that remain unobligated in 
     violation of paragraph (1) of such section 9(j) or unexpended 
     in violation of paragraph (5)(A) of such section 9(j), the 
     Secretary shall recapture any such amounts and reallocate 
     such amounts among public housing agencies determined under 
     6(j) of the Act to be high-performing: Provided further, That 
     for purposes of this heading, the term ``obligate'' means, 
     with respect to amounts, that the amounts are subject to a 
     binding agreement that will result in outlays immediately or 
     in the future: Provided further, That of the total amount 
     provided under this heading, up to $50,000,000 shall be for 
     carrying out activities under section 9(h) of such Act, of 
     which up to $13,000,000 shall be for the provision of 
     remediation services to public housing agencies identified as 
     ``troubled'' under the Section 8 Management Assessment 
     Program and for surveys used to calculate local Fair Market 
     Rents and assess housing conditions in connection with rental 
     assistance under section 8 of the Act: Provided further, That 
     of the total amount provided under this heading, up to 
     $500,000 shall be for lease adjustments to section 23 
     projects, and no less than $10,610,000 shall be transferred 
     to the Working Capital Fund for the development of and 
     modifications to information technology systems which serve 
     programs or activities under ``Public and Indian housing'': 
     Provided further, That no funds may be used under this 
     heading for the purposes specified in section 9(k) of the 
     United States Housing Act of 1937, as amended: Provided 
     further, That of the total amount provided under this 
     heading, up to $40,000,000 shall be available for the 
     Secretary of Housing and Urban Development to make grants to 
     public housing agencies for emergency capital needs resulting 
     from emergencies and natural disasters in fiscal year 2003: 
     Provided further, That of the total amount provided under 
     this heading, $15,000,000 shall be for Neighborhood Networks 
     grants for activities authorized in section 9(d)(1)(E) of the 
     United States Housing Act of 1937, as amended: Provided 
     further, That notwithstanding any other provision of law, 
     amounts made available in the previous proviso shall be 
     awarded to public housing agencies on a competitive basis as 
     provided

[[Page 28906]]

     in section 102 of the Department of Housing and Urban 
     Development Reform Act of 1989: Provided further, That of the 
     total amount provided under this heading, $55,000,000 shall 
     be for supportive services, service coordinators and 
     congregate services as authorized by section 34 of the Act 
     and the Native American Housing Assistance and Self-
     Determination Act of 1996: Provided further, That of the 
     total amount provided under this heading, up to $125,000,000 
     shall be for grants and credit subsidy to support a loan 
     guarantee and loan program for the development of public 
     housing units in mixed income housing developments: Provided 
     further, That the first proviso under this heading in the 
     Departments of Veterans Affairs and Housing and Urban 
     Development, and Independent Agencies Appropriations Act, 
     2003 is amended by striking ``1998, 1999''.


                     public housing operating fund

       For payments to public housing agencies for the operation 
     and management of public housing, as authorized by section 
     9(e) of the United States Housing Act of 1937, as amended (42 
     U.S.C. 1437g(e)), $3,576,600,000: Provided, That of the total 
     amount provided under this heading, $10,000,000 shall be for 
     programs, as determined appropriate by the Attorney General, 
     which assist in the investigation, prosecution, and 
     prevention of violent crimes and drug offenses in public and 
     federally-assisted low-income housing, including Indian 
     housing, which shall be administered by the Department of 
     Justice through a reimbursable agreement with the Department 
     of Housing and Urban Development: Provided further, That, in 
     fiscal year 2004 and all fiscal years hereafter, no amounts 
     under this heading in any appropriations Act may be used for 
     payments to public housing agencies for the costs of 
     operation and management of public housing for any year prior 
     to the current year of such Act: Provided further, That no 
     funds may be used under this heading for the purposes 
     specified in section 9(k) of the United States Housing Act of 
     1937, as amended.


     revitalization of severely distressed public housing (hope VI)

       For grants to public housing agencies for demolition, site 
     revitalization, replacement housing, and tenant-based 
     assistance grants to projects as authorized by section 24 of 
     the United States Housing Act of 1937, as amended (``such 
     Act''), $195,115,000, to remain available until expended: 
     Provided, That the Secretary may recapture funds from grants 
     previously awarded under this heading in fiscal year 1997 and 
     prior fiscal years for use in making grants in fiscal year 
     2004 as authorized under section 24 of such Act: Provided 
     further, That the Secretary may only recapture grants under 
     the previous proviso where the Secretary determines that a 
     project is less than 90 percent complete and that the project 
     is unlikely to be completed successfully within the next 2 
     fiscal years: Provided further, That the Secretary shall not 
     recapture funds from any HOPE VI project that has unobligated 
     funds due to litigation or a court ordered consent decree: 
     Provided further, That the Secretary shall establish an 
     alternative housing plan to meet tenant needs where the 
     Secretary is recapturing HOPE VI funds from a public housing 
     agency with a failed HOPE VI project and the Secretary may 
     recapture only the amount of funds which are not necessary to 
     meet the requirements of the alternative housing plan: 
     Provided further, That the Secretary shall report to the 
     Congress by December 15, 2003 on the status of all HOPE VI 
     projects that are unlikely to be completed according to 
     program requirements: Provided further, That the Secretary 
     shall report to the Congress on any decision to recapture 
     funds from a HOPE VI project, including the justification for 
     the decision and the provisions of the alternative housing 
     plan: Provided further, That the Secretary may use up to 
     $3,000,000 of the funds made available under this heading for 
     technical assistance and contract expertise, to be provided 
     directly or indirectly by grants, contracts or cooperative 
     agreements, including training and cost of necessary travel 
     for participants in such training, by or to officials and 
     employees of the department and of public housing agencies 
     and to residents: Provided further, That none of such funds 
     shall be used directly or indirectly by granting competitive 
     advantage in awards to settle litigation or pay judgments, 
     unless expressly permitted herein.


                  native american housing block grants

                     (including transfers of funds)

       For the Native American Housing Block Grants program, as 
     authorized under title I of the Native American Housing 
     Assistance and Self-Determination Act of 1996 (NAHASDA) (25 
     U.S.C. 4111 et seq.), $646,600,000, to remain available until 
     expended, of which $2,200,000 shall be contracted through the 
     Secretary as technical assistance and capacity building to be 
     used by the National American Indian Housing Council in 
     support of the implementation of NAHASDA; of which $4,000,000 
     shall be to support the inspection of Indian housing units, 
     contract expertise, training, and technical assistance in the 
     training, oversight, and management of Indian housing and 
     tenant-based assistance, including up to $300,000 for related 
     travel; and of which no less than $2,720,000 shall be 
     transferred to the Working Capital Fund for development of 
     and modifications to information technology systems which 
     serve programs or activities under ``Public and Indian 
     housing'': Provided, That of the amount provided under this 
     heading, $2,000,000 shall be made available for the cost of 
     guaranteed notes and other obligations, as authorized by 
     title VI of NAHASDA: Provided further, That such costs, 
     including the costs of modifying such notes and other 
     obligations, shall be as defined in section 502 of the 
     Congressional Budget Act of 1974, as amended: Provided 
     further, That these funds are available to subsidize the 
     total principal amount of any notes and other obligations, 
     any part of which is to be guaranteed, not to exceed 
     $16,658,000: Provided further, That for administrative 
     expenses to carry out the guaranteed loan program, up to 
     $150,000 from amounts in the first proviso, which shall be 
     transferred to and merged with the appropriation for 
     ``Salaries and expenses'', to be used only for the 
     administrative costs of these guarantees.


           indian housing loan guarantee fund program account

                     (including transfer of funds)

       For the cost of guaranteed loans, as authorized by section 
     184 of the Housing and Community Development Act of 1992 (12 
     U.S.C. 1715z-13a), $5,300,000, to remain available until 
     expended: Provided, That such costs, including the costs of 
     modifying such loans, shall be as defined in section 502 of 
     the Congressional Budget Act of 1974, as amended: Provided 
     further, That these funds are available to subsidize total 
     loan principal, any part of which is to be guaranteed, not to 
     exceed $197,243,000.
       In addition, for administrative expenses to carry out the 
     guaranteed loan program, up to $250,000 from amounts in the 
     first paragraph, which shall be transferred to and merged 
     with the appropriation for ``Salaries and expenses'', to be 
     used only for the administrative costs of these guarantees.


      native hawaiian housing loan guarantee fund program account

                     (including transfer of funds)

       For the cost of guaranteed loans, as authorized by section 
     184A of the Housing and Community Development Act of 1992 (12 
     U.S.C. 1715z-13b), $1,035,000, to remain available until 
     expended: Provided, That such costs, including the costs of 
     modifying such loans, shall be as defined in section 502 of 
     the Congressional Budget Act of 1974, as amended: Provided 
     further, That these funds are available to subsidize total 
     loan principal, any part of which is to be guaranteed, not to 
     exceed $39,712,000.
       In addition, for administrative expenses to carry out the 
     guaranteed loan program, up to $35,000 from amounts in the 
     first paragraph, which shall be transferred to and merged 
     with the appropriation for ``Salaries and expenses'', to be 
     used only for the administrative costs of these guarantees.

                   Community Planning and Development


              housing opportunities for persons with aids

       For carrying out the Housing Opportunities for Persons with 
     AIDS program, as authorized by the AIDS Housing Opportunity 
     Act (42 U.S.C. 12901 et seq.), $291,000,000, to remain 
     available until September 30, 2005: Provided, That the 
     Secretary shall renew all expiring contracts for permanent 
     supportive housing that were funded under section 854(c)(3) 
     of such Act that meet all program requirements before 
     awarding funds for new contracts and activities authorized 
     under this section: Provided further, That the formula funds 
     made available under this heading for fiscal year 2004 shall 
     be awarded to eligible grantees under the same rules and 
     requirements as were in effect for fiscal year 2003: Provided 
     further, That the Secretary may use up to $3,000,000 of the 
     funds under this heading for training, oversight, and 
     technical assistance activities.


                 rural housing and economic development

       For the Office of Rural Housing and Economic Development in 
     the Department of Housing and Urban Development, $25,000,000 
     to remain available until expended, which amount shall be 
     awarded by June 1, 2004, to Indian tribes, State housing 
     finance agencies, State community and/or economic development 
     agencies, local rural nonprofits and community development 
     corporations to support innovative housing and economic 
     development activities in rural areas: Provided, That all 
     grants shall be awarded on a competitive basis as specified 
     in section 102 of the Department of Housing and Urban 
     Development Reform Act of 1989.


                       community development fund

                     (including transfers of funds)

       For assistance to units of State and local government, and 
     to other entities, for economic and community development 
     activities, and for other purposes, $4,950,000,000, to remain 
     available until September 30, 2006: Provided, That of the 
     amount provided, $4,545,700,000 is for carrying out the 
     community development block grant program under title I of 
     the Housing and Community Development Act of 1974, as amended 
     (the ``Act'' herein) (42 U.S.C. 5301 et seq.): Provided 
     further, That not to exceed 20 percent of any grant made with 
     funds appropriated under

[[Page 28907]]

     this heading (other than a grant made available in this 
     paragraph to the Housing Assistance Council or the National 
     American Indian Housing Council, or a grant using funds under 
     section 107(b)(3) of the Act) shall be expended for 
     ``Planning and Management Development'' and 
     ``Administration'', as defined in regulations promulgated by 
     the Department: Provided further, That $72,500,000 shall be 
     for grants to Indian tribes notwithstanding section 106(a)(1) 
     of such Act; $3,300,000 shall be for a grant to the Housing 
     Assistance Council; $2,600,000 shall be for a grant to the 
     National American Indian Housing Council; $52,500,000 shall 
     be for grants pursuant to section 107 of the Act; no less 
     than $4,900,000 shall be transferred to the Working Capital 
     Fund for the development of and modification to information 
     technology systems which serve programs or activities under 
     ``Community planning and development''; $12,000,000 shall be 
     for grants pursuant to the Self Help Homeownership 
     Opportunity Program; $35,500,000 shall be for capacity 
     building, of which $31,500,000 shall be for Capacity Building 
     for Community Development and Affordable Housing for LISC and 
     the Enterprise Foundation for activities as authorized by 
     section 4 of the HUD Demonstration Act of 1993 (42 U.S.C. 
     9816 note), as in effect immediately before June 12, 1997, 
     with not less than $5,000,000 of the funding to be used in 
     rural areas, including tribal areas, and of which $4,000,000 
     shall be for capacity building activities administered by 
     Habitat for Humanity International; $10,000,000 for the 
     Native Hawaiian Housing Block Grant Program, as authorized 
     under the Native American Housing Assistance and Self-
     Determination Act of 1996 (25 U.S.C. 4111 et seq.), of which 
     $400,000 shall be for training and technical assistance; 
     $60,000,000 shall be available for YouthBuild program 
     activities authorized by subtitle D of title IV of the 
     Cranston-Gonzalez National Affordable Housing Act, as 
     amended, and such activities shall be an eligible activity 
     with respect to any funds made available under this heading: 
     Provided, That local YouthBuild programs that demonstrate an 
     ability to leverage private and nonprofit funding shall be 
     given a priority for YouthBuild funding: Provided further, 
     That no more than 10 percent of any grant award under the 
     YouthBuild program may be used for administrative costs: 
     Provided further, That of the amount made available for 
     YouthBuild not less than $10,000,000 is for grants to 
     establish YouthBuild programs in underserved and rural areas 
     and $2,000,000 is to be made available for a grant to 
     YouthBuild USA for capacity building for community 
     development and affordable housing activities as specified in 
     section 4 of the HUD Demonstration Act of 1993, as amended.
       Of the amount made available under this heading, 
     $21,000,000 shall be available for neighborhood initiatives 
     that are utilized to improve the conditions of distressed and 
     blighted areas and neighborhoods, to stimulate investment, 
     economic diversification, and community revitalization in 
     areas with population outmigration or a stagnating or 
     declining economic base, or to determine whether housing 
     benefits can be integrated more effectively with welfare 
     reform initiatives: Provided, That these grants shall be 
     provided in accordance with the terms and conditions 
     specified in the report accompanying this Act.
       Of the amount made available under this heading, 
     $140,000,000 shall be available for grants for the Economic 
     Development Initiative (EDI) to finance a variety of targeted 
     economic investments in accordance with the terms and 
     conditions specified in the report accompanying this Act.
       The referenced statement of the managers under this heading 
     in title II of Division K of the Consolidated Appropriations 
     Resolution, 2003 (Public Law 108-7; H. Rept. 108-10) is 
     deemed to be amended with respect to item number 721 by 
     striking ``training'' and inserting ``creation, small 
     business development and quality of life improvements within 
     the State of South Carolina''.
       The referenced statement of the managers under this heading 
     in title II of Division K of the Consolidated Appropriations 
     Resolution, 2003 (Public Law 108-7; H. Rept. 108-10) is 
     deemed to be amended with respect to item number 317 by 
     striking ``135,000'' and inserting ``151,000''.
       The referenced statement of the managers under this heading 
     in title II of Division K of the Consolidated Appropriations 
     Resolution, 2003 (Public Law 108-7; H. Rept. 108-10) is 
     deemed to be amended with respect to item number 324 by 
     striking ``225,000'' and inserting ``209,000''.


         community development loan guarantees program account

                     (including transfer of funds)

       For the cost of guaranteed loans, $6,325,000, to remain 
     available until September 30, 2005, as authorized by section 
     108 of the Housing and Community Development Act of 1974, as 
     amended: Provided, That such costs, including the cost of 
     modifying such loans, shall be as defined in section 502 of 
     the Congressional Budget Act of 1974, as amended: Provided 
     further, That these funds are available to subsidize total 
     loan principal, any part of which is to be guaranteed, not to 
     exceed $275,000,000, notwithstanding any aggregate limitation 
     on outstanding obligations guaranteed in section 108(k) of 
     the Housing and Community Development Act of 1974, as 
     amended.
       In addition, for administrative expenses to carry out the 
     guaranteed loan program, $1,000,000 which shall be 
     transferred to and merged with the appropriation for 
     ``Salaries and expenses''.


                       brownfields redevelopment

       For Economic Development Grants, as authorized by section 
     108(q) of the Housing and Community Development Act of 1974, 
     as amended, for Brownfields redevelopment projects, 
     $25,000,000, to remain available until September 30, 2005: 
     Provided, That the Secretary of Housing and Urban Development 
     shall make these grants available on a competitive basis as 
     specified in section 102 of the Department of Housing and 
     Urban Development Reform Act of 1989.


                  home investment partnerships program

                     (including transfer of funds)

       For the HOME investment partnerships program, as authorized 
     under title II of the Cranston-Gonzalez National Affordable 
     Housing Act, as amended, $1,925,000,000, to remain available 
     until September 30, 2006: Provided, That of the total amount 
     provided in this paragraph, up to $40,000,000 shall be 
     available for housing counseling under section 106 of the 
     Housing and Urban Development Act of 1968; and no less than 
     $1,100,000 shall be transferred to the Working Capital Fund 
     for the development of, maintenance of, and modification to 
     information technology systems which serve programs or 
     activities under ``Community planning and development''.
       In addition to the amounts made available under this 
     heading, $50,000,000, to remain available until September 30, 
     2006, for assistance to homebuyers as authorized under title 
     II of the Cranston-Gonzalez National Affordable Housing Act, 
     as amended: Provided, That the Secretary shall provide such 
     assistance in accordance with a formula developed through 
     rulemaking.


                       homeless assistance grants

                     (including transfer of funds)

       For the emergency shelter grants program as authorized 
     under subtitle B of title IV of the McKinney-Vento Homeless 
     Assistance Act, as amended; the supportive housing program as 
     authorized under subtitle C of title IV of such Act; the 
     section 8 moderate rehabilitation single room occupancy 
     program as authorized under the United States Housing Act of 
     1937, as amended, to assist homeless individuals pursuant to 
     section 441 of the McKinney-Vento Homeless Assistance Act; 
     and the shelter plus care program as authorized under 
     subtitle F of title IV of such Act, $1,325,000,000, to remain 
     available until September 30, 2006: Provided, That not less 
     than 30 percent of funds made available, excluding amounts 
     provided for renewals under the shelter plus care program, 
     shall be used for permanent housing: Provided further, That 
     all funds awarded for services shall be matched by 25 percent 
     in funding by each grantee: Provided further, That the 
     Secretary shall renew on an annual basis expiring contracts 
     or amendments to contracts funded under the shelter plus care 
     program if the program is determined to be needed under the 
     applicable continuum of care and meets appropriate program 
     requirements and financial standards, as determined by the 
     Secretary: Provided further, That all awards of assistance 
     under this heading shall be required to coordinate and 
     integrate homeless programs with other mainstream health, 
     social services, and employment programs for which homeless 
     populations may be eligible, including Medicaid, State 
     Children's Health Insurance Program, Temporary Assistance for 
     Needy Families, Food Stamps, and services funding through the 
     Mental Health and Substance Abuse Block Grant, Workforce 
     Investment Act, and the Welfare-to-Work grant program: 
     Provided further, That $12,000,000 of the funds appropriated 
     under this heading shall be available for the national 
     homeless data analysis project and technical assistance: 
     Provided further, That no less than $2,580,000 of the funds 
     appropriated under this heading shall be transferred to the 
     Working Capital Fund for the development of and modifications 
     to information technology systems which serve activities 
     under ``Community planning and development''.


                    Urban Development Action Grants

       From balances of the Urban Development Action Grant 
     Program, as authorized by title I of the Housing and 
     Community Development Act of 1974, as amended, $30,000,000 
     are cancelled.

                            Housing Programs


                    housing for special populations

                     (including transfer of funds)

       For assistance for the purchase, construction, acquisition, 
     or development of additional public and subsidized housing 
     units for low income families not otherwise provided for, 
     $1,033,801,000, to remain available until September 30, 2007: 
     Provided, That $783,286,000, plus recaptures or cancelled 
     commitments, shall be for capital advances, including 
     amendments to capital advance contracts, for housing for the 
     elderly, as authorized by section 202 of the Housing Act of

[[Page 28908]]

     1959, as amended, and for project rental assistance for the 
     elderly under section 202(c)(2) of such Act, including 
     amendments to contracts for such assistance and renewal of 
     expiring contracts for such assistance for up to a 1-year 
     term, and for supportive services associated with the 
     housing, of which amount $50,000,000 shall be for service 
     coordinators and the continuation of existing congregate 
     service grants for residents of assisted housing projects, of 
     which amount up to $30,000,000 shall be for grants under 
     section 202b of the Housing Act of 1959 (12 U.S.C. 1701q-2) 
     for conversion of eligible projects under such section to 
     assisted living or related use, including substantial capital 
     repair, of which amount $25,000,000 shall be maintained by 
     the Secretary as a revolving loan fund for use as gap 
     financing to assist grantees in meeting all the initial cost 
     requirements for developing projects under section 202 of 
     such Act: Provided further, That of the amount under this 
     heading, $250,515,000 shall be for capital advances, 
     including amendments to capital advance contracts, for 
     supportive housing for persons with disabilities, as 
     authorized by section 811 of the Cranston-Gonzalez National 
     Affordable Housing Act, for project rental assistance for 
     supportive housing for persons with disabilities under 
     section 811(d)(2) of such Act, including amendments to 
     contracts for such assistance and renewal of expiring 
     contracts for such assistance for up to a 1-year term, and 
     for supportive services associated with the housing for 
     persons with disabilities as authorized by section 811(b)(1) 
     of such Act, and for tenant-based rental assistance contracts 
     entered into pursuant to section 811 of such Act: Provided 
     further, That of the amount made available under this 
     heading, $15,000,000 shall be available to the Secretary of 
     Housing and Urban Development only for making grants to 
     private nonprofit organizations and consumer cooperatives for 
     covering costs of architectural and engineering work, site 
     control, and other planning relating to the development of 
     supportive housing for the elderly that is eligible for 
     assistance under section 202 of the Housing Act of 1959 (12 
     U.S.C. 1701q): Provided further, That amounts made available 
     in the previous proviso shall be awarded on a competitive 
     basis as provided in section 102 of the Department of Housing 
     and Urban Development Reform Act of 1989: Provided further, 
     That no less than $940,000, to be divided evenly between the 
     appropriations for the section 202 and section 811 programs, 
     shall be transferred to the Working Capital Fund for the 
     development of and modifications to information technology 
     systems which serve activities under ``Housing programs'' or 
     ``Federal housing administration'': Provided further, That, 
     in addition to amounts made available for renewal of tenant-
     based rental assistance contracts pursuant to the second 
     proviso of this paragraph, the Secretary may designate up to 
     25 percent of the amounts earmarked under this paragraph for 
     section 811 of such Act for tenant-based assistance, as 
     authorized under that section, including such authority as 
     may be waived under the next proviso, which assistance is 5 
     years in duration: Provided further, That the Secretary may 
     waive the provisions governing the terms and conditions of 
     project rental assistance and tenant-based rental assistance 
     for such section 202 and such section 811, except that the 
     initial contract term for such assistance shall not exceed 5 
     years in duration: Provided further, That all balances and 
     recaptures, as of October 1, 2003, remaining in the 
     ``Congregate housing services'' account as authorized by the 
     Housing and Community Development Amendments of 1978, as 
     amended, shall be transferred to and merged with the amounts 
     for those purposes under this heading.


                         flexible subsidy fund

                          (transfer of funds)

       From the Rental Housing Assistance Fund, all uncommitted 
     balances of excess rental charges as of September 30, 2003, 
     and any collections made during fiscal year 2004 (with the 
     exception of amounts required to make refunds of excess 
     income remittances as authorized by Public Law 106-569), 
     shall be transferred to the Flexible Subsidy Fund, as 
     authorized by section 236(g) of the National Housing Act, as 
     amended.


                       rental housing assistance

                              (rescission)

       Up to $303,000,000 of recaptured section 236 budget 
     authority resulting from prepayment of mortgages subsidized 
     under section 236 of the National Housing Act (12 U.S.C. 
     1715z-1) shall be rescinded in fiscal year 2004: Provided, 
     That the limitation otherwise applicable to the maximum 
     payments that may be required in any fiscal year by all 
     contracts entered into under section 236 is reduced in fiscal 
     year 2004 by not more than $303,000,000 in uncommitted 
     balances of authorizations of contract authority provided for 
     this purpose in appropriations Acts.


                  manufactured housing fees trust fund

       For necessary expenses as authorized by the National 
     Manufactured Housing Construction and Safety Standards Act of 
     1974, as amended (42 U.S.C. 5401 et seq.), $13,000,000, to 
     remain available until expended, to be derived from the 
     Manufactured Housing Fees Trust Fund: Provided, That not to 
     exceed the total amount appropriated under this heading shall 
     be available from the general fund of the Treasury to the 
     extent necessary to incur obligations and make expenditures 
     pending the receipt of collections to the Fund pursuant to 
     section 620 of such Act: Provided further, That the amount 
     made available under this heading from the general fund shall 
     be reduced as such collections are received during fiscal 
     year 2004 so as to result in a final fiscal year 2004 
     appropriation from the general fund estimated at not more 
     than $0 and fees pursuant to such section 620 shall be 
     modified as necessary to ensure such a final fiscal year 2004 
     appropriation.

                     Federal Housing Administration


               mutual mortgage insurance program account

                     (including transfers of funds)

       During fiscal year 2004, commitments to guarantee loans to 
     carry out the purposes of section 203(b) of the National 
     Housing Act, as amended, shall not exceed a loan principal of 
     $185,000,000,000.
       During fiscal year 2004, obligations to make direct loans 
     to carry out the purposes of section 204(g) of the National 
     Housing Act, as amended, shall not exceed $50,000,000: 
     Provided, That the foregoing amount shall be for loans to 
     nonprofit and governmental entities in connection with sales 
     of single family real properties owned by the Secretary and 
     formerly insured under the Mutual Mortgage Insurance Fund.
       For administrative expenses necessary to carry out the 
     guaranteed and direct loan program, $359,000,000, of which 
     not to exceed $355,000,000 shall be transferred to the 
     appropriation for ``Salaries and expenses''; and not to 
     exceed $4,000,000 shall be transferred to the appropriation 
     for ``Office of Inspector General''. In addition, for 
     administrative contract expenses, $85,000,000, of which no 
     less than $20,744,000 shall be transferred to the Working 
     Capital Fund for the development of and modifications to 
     information technology systems which serve programs or 
     activities under ``Housing programs'' or ``Federal housing 
     administration'': Provided, That to the extent guaranteed 
     loan commitments exceed $65,500,000,000 on or before April 1, 
     2004, an additional $1,400 for administrative contract 
     expenses shall be available for each $1,000,000 in additional 
     guaranteed loan commitments (including a pro rata amount for 
     any amount below $1,000,000), but in no case shall funds made 
     available by this proviso exceed $30,000,000.


                general and special risk program account

                     (including transfers of funds)

       For the cost of guaranteed loans, as authorized by sections 
     238 and 519 of the National Housing Act (12 U.S.C. 1715z-3 
     and 1735c), including the cost of loan guarantee 
     modifications, as that term is defined in section 502 of the 
     Congressional Budget Act of 1974, as amended, $15,000,000, to 
     remain available until expended: Provided, That these funds 
     are available to subsidize total loan principal, any part of 
     which is to be guaranteed, of up to $25,000,000,000.
       Gross obligations for the principal amount of direct loans, 
     as authorized by sections 204(g), 207(l), 238, and 519(a) of 
     the National Housing Act, shall not exceed $50,000,000, of 
     which not to exceed $30,000,000 shall be for bridge financing 
     in connection with the sale of multifamily real properties 
     owned by the Secretary and formerly insured under such Act; 
     and of which not to exceed $20,000,000 shall be for loans to 
     nonprofit and governmental entities in connection with the 
     sale of single-family real properties owned by the Secretary 
     and formerly insured under such Act.
       In addition, for administrative expenses necessary to carry 
     out the guaranteed and direct loan programs, $229,000,000, of 
     which $209,000,000, shall be transferred to the appropriation 
     for ``Salaries and expenses''; and of which $20,000,000 shall 
     be transferred to the appropriation for ``Office of Inspector 
     General''.
       In addition, for administrative contract expenses necessary 
     to carry out the guaranteed and direct loan programs, 
     $93,780,000, of which no less than $16,946,000 shall be 
     transferred to the Working Capital Fund for the development 
     of and modifications to information technology systems which 
     serve activities under ``Housing programs'' or ``Federal 
     housing administration'': Provided, That to the extent 
     guaranteed loan commitments exceed $8,426,000,000 on or 
     before April 1, 2004, an additional $1,980 for administrative 
     contract expenses shall be available for each $1,000,000 in 
     additional guaranteed loan commitments over $8,426,000,000 
     (including a pro rata amount for any increment below 
     $1,000,000), but in no case shall funds made available by 
     this proviso exceed $14,400,000.

                Government National Mortgage Association


guarantees of mortgage-backed securities loan guarantee program account

                     (including transfer of funds)

       New commitments to issue guarantees to carry out the 
     purposes of section 306 of the National Housing Act, as 
     amended (12 U.S.C. 1721(g)), shall not exceed 
     $200,000,000,000, to remain available until September 30, 
     2005.
       For administrative expenses necessary to carry out the 
     guaranteed mortgage-backed

[[Page 28909]]

     securities program, $10,695,000, to be derived from the GNMA 
     guarantees of mortgage-backed securities guaranteed loan 
     receipt account, of which not to exceed $10,695,000, shall be 
     transferred to the appropriation for ``Salaries and 
     expenses''.

                    Policy Development and Research


                        research and technology

       For contracts, grants, and necessary expenses of programs 
     of research and studies relating to housing and urban 
     problems, not otherwise provided for, as authorized by title 
     V of the Housing and Urban Development Act of 1970, as 
     amended (12 U.S.C. 1701z-1 et seq.), including carrying out 
     the functions of the Secretary under section 1(a)(1)(i) of 
     Reorganization Plan No. 2 of 1968, $47,000,000, to remain 
     available until September 30, 2005: Provided, That of the 
     total amount provided under this heading, $7,500,000 shall be 
     for the Partnership for Advancing Technology in Housing 
     (PATH) Initiative.

                   Fair Housing and Equal Opportunity


                        fair housing activities

       For contracts, grants, and other assistance, not otherwise 
     provided for, as authorized by title VIII of the Civil Rights 
     Act of 1968, as amended by the Fair Housing Amendments Act of 
     1988, and section 561 of the Housing and Community 
     Development Act of 1987, as amended, $50,000,000, to remain 
     available until September 30, 2005, of which $20,000,000 
     shall be to carry out activities pursuant to such section 
     561: Provided, That no funds made available under this 
     heading shall be used to lobby the executive or legislative 
     branches of the Federal Government in connection with a 
     specific contract, grant or loan.

                     Office of Lead Hazard Control


                         lead hazard reduction

       For the Lead Hazard Reduction Program, as authorized by 
     section 1011 of the Residential Lead-Based Paint Hazard 
     Reduction Act of 1992, $175,000,000, to remain available 
     until September 30, 2005, of which $10,000,000 shall be for 
     the Healthy Homes Initiative, pursuant to sections 501 and 
     502 of the Housing and Urban Development Act of 1970: 
     Provided, That both programs may include research, studies, 
     evaluations, testing, and demonstration efforts, including 
     education and outreach by units of general local government, 
     community-based organizations and other appropriate entities 
     concerning lead-based paint poisoning and other housing-
     related diseases and hazards: Provided, That of the total 
     amount made available under this heading, $50,000,000 shall 
     be made available on a competitive basis for areas with the 
     highest lead paint abatement needs, as identified by the 
     Secretary as having: (1) the highest number of pre-1940 units 
     of rental housing; and (2) a disproportionately high number 
     of documented cases of lead-poisoned children: Provided 
     further, That each grantee receiving funds under the previous 
     proviso shall target those privately owned units and 
     multifamily buildings that are occupied by low-income 
     families as defined under section 3(b)(2) of the United 
     States Housing Act of 1937: Provided further, That not less 
     than 90 percent of the funds made available under this 
     paragraph shall be used exclusively for abatement, 
     inspections, risk assessments, temporary relocations and 
     interim control of lead-based hazards as defined by 42 U.S.C. 
     4851: Provided further, That each recipient of funds provided 
     under the first proviso shall make a matching contribution in 
     an amount not less than 25 percent: Provided further, That 
     each applicant shall submit a detailed plan and strategy that 
     demonstrates adequate capacity that is acceptable to the 
     Secretary of the Department of Housing and Urban Development 
     to carry out the proposed use of funds pursuant to a Notice 
     of Funding Availability.

                     Management and Administration


                         salaries and expenses

                     (including transfer of funds)

       For necessary administrative and non-administrative 
     expenses of the Department of Housing and Urban Development, 
     not otherwise provided for, including purchase of uniforms, 
     or allowances therefor, as authorized by 5 U.S.C. 5901-5902; 
     hire of passenger motor vehicles; services as authorized by 5 
     U.S.C. 3109; and not to exceed $25,000 for official reception 
     and representation expenses, $1,112,130,000, of which 
     $564,000,000 shall be provided from the various funds of the 
     Federal Housing Administration, $10,695,000 shall be provided 
     from funds of the Government National Mortgage Association, 
     $1,000,000 shall be provided from the ``Community development 
     loan guarantees program'' account, $150,000 shall be provided 
     by transfer from the ``Native American housing block grants'' 
     account, $250,000 shall be provided by transfer from the 
     ``Indian housing loan guarantee fund program'' account and 
     $35,000 shall be transferred from the ``Native Hawaiian 
     housing loan guarantee fund'' account: Provided further, That 
     the General Counsel of the Department of Housing and Urban 
     Development shall have for fiscal year 2004 and all fiscal 
     years hereafter overall responsibility for all issues related 
     to appropriations law: Provided further, That the Secretary 
     shall fill 7 out of 10 vacancies at the GS-14 and GS-15 
     levels until the total number of GS-14 and GS-15 positions in 
     the Department has been reduced from the number of GS-14 and 
     GS-15 positions on the date of enactment of Public Law 106-
     377 by 2\1/2\ percent: Provided further, That no funds shall 
     be made available for the salaries (other than pensions and 
     related costs) of any employees who had significant 
     responsibility for allocating funding for the overleasing of 
     vouchers by public housing agencies.


                          working capital fund

       For additional capital for the Working Capitol Fund (42 
     U.S.C. 3535) for the development of, modifications to, and 
     infrastructure for Department-wide information technology 
     systems, and for the continuing operation of both Department-
     wide and program-specific information systems, $240,000,000, 
     to remain available until September 30, 2005: Provided, That 
     any amounts transferred to this Fund under this Act shall 
     remain available until expended.


                      office of inspector general

                     (including transfer of funds)

       For necessary expenses of the Office of Inspector General 
     in carrying out the Inspector General Act of 1978, as 
     amended, $102,000,000, of which $24,000,000 shall be provided 
     from the various funds of the Federal Housing Administration: 
     Provided, That the Inspector General shall have independent 
     authority over all personnel issues within this office: 
     Provided further, That no less than $300,000 shall be 
     transferred to the Working Capital Fund for the development 
     of and modifications to information technology systems for 
     the Office of Inspector General.


                         consolidated fee fund

                              (rescission)

       All unobligated balances remaining available from fees and 
     charges under section 7(j) of the Department of Housing and 
     Urban Development Act on October 1, 2003 are rescinded.

             Office of Federal Housing Enterprise Oversight


                         Salaries and Expenses

                     (including transfer of funds)

       For carrying out the Federal Housing Enterprises Financial 
     Safety and Soundness Act of 1992, including not to exceed 
     $500 for official reception and representation expenses, 
     $32,415,000, to remain available until expended, to be 
     derived from the Federal Housing Enterprises Oversight Fund: 
     Provided, That not to exceed such amount shall be available 
     from the general fund of the Treasury to the extent necessary 
     to incur obligations and make expenditures pending the 
     receipt of collections to the Fund: Provided further, That 
     the general fund amount shall be reduced as collections are 
     received during the fiscal year so as to result in a final 
     appropriation from the general fund estimated at not more 
     than $32,415,000.

                       Administrative Provisions

       Sec. 201. Fifty percent of the amounts of budget authority, 
     or in lieu thereof 50 percent of the cash amounts associated 
     with such budget authority, that are recaptured from projects 
     described in section 1012(a) of the Stewart B. McKinney 
     Homeless Assistance Amendments Act of 1988 (42 U.S.C. 1437 
     note) shall be rescinded, or in the case of cash, shall be 
     remitted to the Treasury, and such amounts of budget 
     authority or cash recaptured and not rescinded or remitted to 
     the Treasury shall be used by State housing finance agencies 
     or local governments or local housing agencies with projects 
     approved by the Secretary of Housing and Urban Development 
     for which settlement occurred after January 1, 1992, in 
     accordance with such section. Notwithstanding the previous 
     sentence, the Secretary may award up to 15 percent of the 
     budget authority or cash recaptured and not rescinded or 
     remitted to the Treasury to provide project owners with 
     incentives to refinance their project at a lower interest 
     rate.
       Sec. 202. None of the amounts made available under this Act 
     may be used during fiscal year 2004 to investigate or 
     prosecute under the Fair Housing Act any otherwise lawful 
     activity engaged in by one or more persons, including the 
     filing or maintaining of a non-frivolous legal action, that 
     is engaged in solely for the purpose of achieving or 
     preventing action by a Government official or entity, or a 
     court of competent jurisdiction.
       Sec. 203. (a) Notwithstanding section 854(c)(1)(A) of the 
     AIDS Housing Opportunity Act (42 U.S.C. 12903(c)(1)(A)), from 
     any amounts made available under this title for fiscal year 
     2004 that are allocated under such section, the Secretary of 
     Housing and Urban Development shall allocate and make a 
     grant, in the amount determined under subsection (b), for any 
     State that--
       (1) received an allocation in a prior fiscal year under 
     clause (ii) of such section; and
       (2) is not otherwise eligible for an allocation for fiscal 
     year 2004 under such clause (ii) because the areas in the 
     State outside of the metropolitan statistical areas that 
     qualify under clause (i) in fiscal year 2004 do not have the 
     number of cases of acquired immunodeficiency syndrome (AIDS) 
     required under such clause.
       (b) The amount of the allocation and grant for any State 
     described in subsection (a) shall be an amount based on the 
     cumulative number of AIDS cases in the areas of that State 
     that are outside of metropolitan statistical areas that 
     qualify under clause (i) of

[[Page 28910]]

     such section 854(c)(1)(A) in fiscal year 2004, in proportion 
     to AIDS cases among cities and States that qualify under 
     clauses (i) and (ii) of such section and States deemed 
     eligible under subsection (a).
       Sec. 204. Except as explicitly provided in law, any grant 
     or assistance made pursuant to title II of this Act shall be 
     made on a competitive basis in accordance with section 102 of 
     the Department of Housing and Urban Development Reform Act of 
     1989.
       Sec. 205. Funds of the Department of Housing and Urban 
     Development subject to the Government Corporation Control Act 
     or section 402 of the Housing Act of 1950 shall be available, 
     without regard to the limitations on administrative expenses, 
     for legal services on a contract or fee basis, and for 
     utilizing and making payment for services and facilities of 
     the Federal National Mortgage Association, Government 
     National Mortgage Association, Federal Home Loan Mortgage 
     Corporation, Federal Financing Bank, Federal Reserve banks or 
     any member thereof, Federal Home Loan banks, and any insured 
     bank within the meaning of the Federal Deposit Insurance 
     Corporation Act, as amended (12 U.S.C. 1811-1831).
       Sec. 206. Unless otherwise provided for in this Act or 
     through a reprogramming of funds, no part of any 
     appropriation for the Department of Housing and Urban 
     Development shall be available for any program, project or 
     activity in excess of amounts set forth in the budget 
     estimates submitted to Congress.
       Sec. 207. Corporations and agencies of the Department of 
     Housing and Urban Development which are subject to the 
     Government Corporation Control Act, as amended, are hereby 
     authorized to make such expenditures, within the limits of 
     funds and borrowing authority available to each such 
     corporation or agency and in accordance with law, and to make 
     such contracts and commitments without regard to fiscal year 
     limitations as provided by section 104 of such Act as may be 
     necessary in carrying out the programs set forth in the 
     budget for 2004 for such corporation or agency except as 
     hereinafter provided: Provided, That collections of these 
     corporations and agencies may be used for new loan or 
     mortgage purchase commitments only to the extent expressly 
     provided for in this Act (unless such loans are in support of 
     other forms of assistance provided for in this or prior 
     appropriations Acts), except that this proviso shall not 
     apply to the mortgage insurance or guaranty operations of 
     these corporations, or where loans or mortgage purchases are 
     necessary to protect the financial interest of the United 
     States Government.
       Sec. 208. None of the funds provided in this title for 
     technical assistance, training, or management improvements 
     may be obligated or expended unless HUD provides to the 
     Committees on Appropriations a description of each proposed 
     activity and a detailed budget estimate of the costs 
     associated with each program, project or activity as part of 
     the Budget Justifications. For fiscal year 2004, HUD shall 
     transmit this information to the Committees by March 15, 2004 
     for 30 days of review.
       Sec. 209. Notwithstanding any other provision of law, in 
     fiscal year 2004, in managing and disposing of any 
     multifamily property that is owned or held by the Secretary 
     and is occupied primarily by elderly or disabled families, 
     the Secretary of Housing and Urban Development shall maintain 
     any rental assistance payments under section 8 of the United 
     States Housing Act of 1937 that are attached to any dwelling 
     units in the property. To the extent the Secretary determines 
     that such a multifamily property owned or held by the 
     Secretary is not feasible for continued rental assistance 
     payments under such section 8, the Secretary may, in 
     consultation with the tenants of that property, contract for 
     project-based rental assistance payments with an owner or 
     owners of other existing housing properties or provide other 
     rental assistance.
       Sec. 210. A public housing agency or such other entity that 
     administers Federal housing assistance in the States of 
     Alaska, Iowa, and Mississippi shall not be required to 
     include a resident of public housing or a recipient of 
     assistance provided under section 8 of the United States 
     Housing Act of 1937 on the board of directors or a similar 
     governing board of such agency or entity as required under 
     section (2)(b) of such Act. Each public housing agency or 
     other entity that administers Federal housing assistance 
     under section 8 in the States of Alaska, Iowa and Mississippi 
     shall establish an advisory board of not less than 6 
     residents of public housing or recipients of section 8 
     assistance to provide advice and comment to the public 
     housing agency or other administering entity on issues 
     related to public housing and section 8. Such advisory board 
     shall meet not less than quarterly.
       Sec. 211. Section 24(n) of the United States Housing Act of 
     1937 (42 U.S.C. 1437v(n)) is amended by striking ``September 
     30, 2004'' and inserting ``September 30, 2006''.
       Sec. 212. The Secretary of Housing and Urban Development 
     shall provide quarterly reports to the House and Senate 
     Committees on Appropriations regarding all uncommitted, 
     unobligated, and excess funds in each program and activity 
     within the jurisdiction of the Department and shall submit 
     additional, updated budget information to these committees 
     upon request.
       Sec. 213. The Secretary of Housing and Urban Development 
     shall submit an annual report no later than August 30, 2004 
     and annually thereafter to the House and Senate Committees on 
     Appropriations regarding the number of Federally assisted 
     units under lease and the per unit cost of these units to the 
     Department of Housing and Urban Development.
       Sec. 214. (a) Notwithstanding any other provision of law, 
     the amount allocated for fiscal year 2004 and thereafter to 
     the City of Philadelphia, Pennsylvania on behalf of the 
     Philadelphia, PA-NJ Primary Metropolitan Statistical Area 
     (hereafter ``metropolitan area''), under section 854(c) of 
     the AIDS Housing Opportunity Act (42 U.S.C. 12903(c)), shall 
     be adjusted by the Secretary of Housing and Urban Development 
     by allocating to the State of New Jersey the proportion of 
     the metropolitan area's amount that is based on the number of 
     cases of AIDS reported in the portion of the metropolitan 
     area that is located in New Jersey. The State of New Jersey 
     shall use amounts allocated to the State under this 
     subsection to carry out eligible activities under section 855 
     of the AIDS Housing Opportunity Act (42 U.S.C. 12904) in the 
     portion of the metropolitan area that is located in New 
     Jersey.
       (b) Notwithstanding any other provision of law, the 
     Secretary of Housing and Urban Development shall allocate to 
     Wake County, North Carolina, the amounts that otherwise would 
     be allocated for fiscal year 2004 and thereafter under 
     section 854(c) of the AIDS Housing Opportunity Act (42 U.S.C. 
     12903(c)) to the City of Raleigh, North Carolina, on behalf 
     of the Raleigh-Durham-Chapel Hill, North Carolina 
     Metropolitan Statistical Area. Any amounts allocated to Wake 
     County shall be used to carry out eligible activities under 
     section 855 of such Act (42 U.S.C. 12904) within such 
     metropolitan statistical area.
       Sec. 215. (a) During fiscal year 2004, in the provision of 
     rental assistance under section 8(o) of the United States 
     Housing Act of 1937 (42 U.S.C. 1437f(o)) in connection with a 
     program to demonstrate the economy and effectiveness of 
     providing such assistance for use in assisted living 
     facilities that is carried out in the counties of the State 
     of Michigan specified in subsection (b) of this section, 
     notwithstanding paragraphs (3) and (18)(B)(iii) of such 
     section 8(o), a family residing in an assisted living 
     facility in any such county, on behalf of which a public 
     housing agency provides assistance pursuant to section 
     8(o)(18) of such Act, may be required, at the time the family 
     initially receives such assistance, to pay rent in an amount 
     exceeding 40 percent of the monthly adjusted income of the 
     family by such a percentage or amount as the Secretary of 
     Housing and Urban Development determines to be appropriate.
       (b) The counties specified in this subsection are Oakland 
     County, Macomb County, Wayne County, and Washtenaw County, in 
     the State of Michigan.
       Sec. 216. Section 683(2) of the Housing and Community 
     Development Act of 1992 is amended--
       (1) in subparagraph (F), by striking ``and'';
       (2) in subparagraph (G), by striking ``section.'' and 
     inserting ``section; and''; and
       (3) by adding the following new subparagraph at the end:
       ``(H) housing that is assisted under section 811 of the 
     Cranston-Gonzalez National Affordable Housing Act.''.
       Sec. 217. Section 224 of the National Housing Act (12 
     U.S.C. 1735o) is amended by adding the following new sentence 
     at the end of the first paragraph: ``Notwithstanding the 
     preceding sentence and the following paragraph, if an 
     insurance claim is paid in cash for any mortgage that is 
     insured under section 203 or 234 of this Act and is endorsed 
     for mortgage insurance after the date of enactment of this 
     sentence, the debenture interest rate for purposes of 
     calculating such a claim shall be the monthly average yield, 
     for the month in which the default on the mortgage occurred, 
     on United States Treasury Securities adjusted to a constant 
     maturity of ten years.''.
       Sec. 218. The McKinney-Vento Homeless Assistance Act (42 
     U.S.C. 11301 et seq.) is amended--
       (1) in section 101(b), by striking ``Interagency Council on 
     the Homeless'' and inserting ``United States Interagency 
     Council on Homelessness'';
       (2) in section 102(b)(1), by striking ``an Interagency 
     Council on the Homeless'' and inserting ``the United States 
     Interagency Council on Homelessness'';
       (3) in the heading for title II, by striking ``INTERAGENCY 
     COUNCIL ON THE HOMELESS'' and inserting ``UNITED STATES 
     INTERAGENCY COUNCIL ON HOMELESSNESS'';
       (4) in sections 201, 207(1), 501(c)(2)(a), and 501(d)(3), 
     by striking ``Interagency Council on the Homeless'' and 
     inserting ``United States Interagency Council on 
     Homelessness''; and
       (5) in section 204(c), by inserting after ``reimbursable'' 
     the two places it appears the following: ``or 
     nonreimbursable''.
       Sec. 219. Title II of the National Housing Act (12 U.S.C. 
     1707 et seq.) is amended by adding the following new section 
     at the end:

[[Page 28911]]




         ``Payment Rewards for Certain Single Family Mortgages

       ``Sec. 257. For purposes of establishing an alternative to 
     high cost mortgages for borrowers with credit impairments, 
     the Secretary may insure under sections 203(b) and 234(c) of 
     this title any mortgage that meets the requirements of such 
     sections, except as provided in the following sentences. The 
     Secretary may establish lower percentage of appraised value 
     limitations than those provided in section 203(b)(2)(B). 
     Notwithstanding section 203(c)(2)(B), the Secretary may 
     establish and collect annual premium payments in an amount 
     not exceeding 1.0 percent of the remaining insured principal 
     balance and such payments may be reduced or eliminated in 
     subsequent years based on mortgage payment performance. All 
     mortgages insured pursuant to this section shall be 
     obligations of the Mutual Mortgage Insurance Fund 
     notwithstanding section 519 of this Act.''.
       Sec. 220. (a) Information Comparisons for Public and 
     Assisted Housing Programs.--Section 453(j) of the Social 
     Security Act (42 U.S.C. 653(j)) is amended by adding at the 
     end the following new paragraph:
       ``(7) Information comparisons for housing assistance 
     programs.--
       ``(A) Furnishing of information by hud.--Subject to 
     subparagraph (G), the Secretary of Housing and Urban 
     Development shall furnish to the Secretary, on such periodic 
     basis as determined by the Secretary of Housing and Urban 
     Development in consultation with the Secretary, information 
     in the custody of the Secretary of Housing and Urban 
     Development for comparison with information in the National 
     Directory of New Hires, in order to obtain information in 
     such Directory with respect to individuals who are 
     participating in any program under--
       ``(i) the United States Housing Act of 1937 (42 U.S.C. 1437 
     et seq.);
       ``(ii) section 202 of the Housing Act of 1959 (12 U.S.C. 
     1701q);
       ``(iii) section 221(d)(3), 221(d)(5), or 236 of the 
     National Housing Act (12 U.S.C. 1715l(d) and 1715z-1);
       ``(iv) section 811 of the Cranston-Gonzalez National 
     Affordable Housing Act (42 U.S.C. 8013); or
       ``(v) section 101 of the Housing and Urban Development Act 
     of 1965 (12 U.S.C. 1701s).
       ``(B) Requirement to seek minimum information.--The 
     Secretary of Housing and Urban Development shall seek 
     information pursuant to this section only to the extent 
     necessary to verify the employment and income of individuals 
     described in subparagraph (A).
       ``(C) Duties of the secretary.--
       ``(i) Information disclosure.--The Secretary, in 
     cooperation with the Secretary of Housing and Urban 
     Development, shall compare information in the National 
     Directory of New Hires with information provided by the 
     Secretary of Housing and Urban Development with respect to 
     individuals described in subparagraph (A), and shall disclose 
     information in such Directory regarding such individuals to 
     the Secretary of Housing and Urban Development, in accordance 
     with this paragraph, for the purposes specified in this 
     paragraph.
       ``(ii) Condition on disclosure.--The Secretary shall make 
     disclosures in accordance with clause (i) only to the extent 
     that the Secretary determines that such disclosures do not 
     interfere with the effective operation of the program under 
     this part.
       ``(D) Use of information by hud.--The Secretary of Housing 
     and Urban Development may use information resulting from a 
     data match pursuant to this paragraph only--
       ``(i) for the purpose of verifying the employment and 
     income of individuals described in subparagraph (A); and
       ``(ii) after removal of personal identifiers, to conduct 
     analyses of the employment and income reporting of 
     individuals described in subparagraph (A).
       ``(E) Disclosure of information by hud.--
       ``(i) Purpose of disclosure.--The Secretary of Housing and 
     Urban Development may make a disclosure under this 
     subparagraph only for the purpose of verifying the employment 
     and income of individuals described in subparagraph (A).
       ``(ii) Disclosures permitted.--Subject to clause (iii), the 
     Secretary of Housing and Urban Development may disclose 
     information resulting from a data match pursuant to this 
     paragraph only to a public housing agency, the Inspector 
     General of the Department of Housing and Urban Development, 
     and the Attorney General in connection with the 
     administration of a program described in subparagraph (A). 
     Information obtained by the Secretary of Housing and Urban 
     Development pursuant to this paragraph shall not be made 
     available under section 552 of title 5, United States Code.
       ``(iii) Conditions on disclosure.--Disclosures under this 
     paragraph shall be--

       ``(I) made in accordance with data security and control 
     policies established by the Secretary of Housing and Urban 
     Development and approved by the Secretary;
       ``(II) subject to audit in a manner satisfactory to the 
     Secretary; and
       ``(III) subject to the sanctions under subsection (l)(2).

       ``(iv) Additional disclosures.--

       ``(I) Determination by secretaries.--The Secretary of 
     Housing and Urban Development and the Secretary shall 
     determine whether to permit disclosure of information under 
     this paragraph to persons or entities described in subclause 
     (II), based on an evaluation made by the Secretary of Housing 
     and Urban Development (in consultation with and approved by 
     the Secretary), of the costs and benefits of disclosures made 
     under clause (ii) and the adequacy of measures used to 
     safeguard the security and confidentiality of information so 
     disclosed.
       ``(II) Permitted persons or entities.--If the Secretary of 
     Housing and Urban Development and the Secretary determine 
     pursuant to subclause (I) that disclosures to additional 
     persons or entities shall be permitted, information under 
     this paragraph may be disclosed by the Secretary of Housing 
     and Urban Development to a private owner, a management agent, 
     and a contract administrator in connection with the 
     administration of a program described in subparagraph (A), 
     subject to the conditions in clause (iii) and such additional 
     conditions as agreed to by the Secretaries.

       ``(v) Restrictions on redisclosure.--A person or entity to 
     which information is disclosed under this subparagraph may 
     use or disclose such information only as needed for verifying 
     the employment and income of individuals described in 
     subparagraph (A), subject to the conditions in clause (iii) 
     and such additional conditions as agreed to by the 
     Secretaries.
       ``(F) Reimbursement of hhs costs.--The Secretary of Housing 
     and Urban Development shall reimburse the Secretary, in 
     accordance with subsection (k)(3), for the costs incurred by 
     the Secretary in furnishing the information requested under 
     this paragraph.
       ``(G) Consent.--The Secretary of Housing and Urban 
     Development shall not seek, use, or disclose information 
     under this paragraph relating to an individual without the 
     prior written consent of such individual (or of a person 
     legally authorized to consent on behalf of such 
     individual).''.
       (b) Consent to Information Comparison and Use as Condition 
     of Hud Program Eligibility.--As a condition of participating 
     in any program authorized under--
       (1) the United States Housing Act of 1937 (42 U.S.C. 1437 
     et seq.);
       (2) section 202 of the Housing Act of 1959 (12 U.S.C. 
     1701q);
       (3) section 221(d)(3), 221(d)(5), or 236 of the National 
     Housing Act (12 U.S.C. 1715l(d) and 1715z-1);
       (4) section 811 of the Cranston-Gonzalez National 
     Affordable Housing Act (42 U.S.C. 8013); or
       (5) section 101 of the Housing and Urban Development Act of 
     1965 (12 U.S.C. 1701s),
     the Secretary of Housing and Urban Development may require 
     consent by an individual (or by a person legally authorized 
     to consent on behalf of such individual) for such Secretary 
     to obtain, use, and disclose information with respect to such 
     individual in accordance with section 453(j)(7) of the Social 
     Security Act (42 U.S.C. 653(j)(7)).
       Sec. 221. Section 9 of the United States Housing Act of 
     1937 is amended by inserting at the end the following new 
     subsection:
       ``(o) Loan Guarantee Development Funding.--
       ``(1) In order to facilitate the financing of the 
     rehabilitation and development needs of public housing, the 
     Secretary is authorized to provide loan guarantees for public 
     housing agencies to enter into loans or other financial 
     obligations with financial institutions for the purpose of 
     financing the rehabilitation of a portion of public housing 
     or the development off-site of public housing in mixed income 
     developments (including demolition costs of the public 
     housing units to be replaced), provided that the number of 
     public housing units developed off-site replaces no less than 
     an equal number of on-site public housing units in a project. 
     Loans or other obligations entered into pursuant to this 
     subsection shall be in such form and denominations, have such 
     maturities, and be subject to such conditions as may be 
     prescribed by regulations issued by the Secretary.
       ``(2) The Secretary may prohibit a public housing agency 
     from obtaining a loan under this subsection only if the 
     rehabilitation or replacement housing proposed by a public 
     housing agency is inconsistent with its Public Housing Agency 
     Plan, as submitted under section 5A, or the proposed terms of 
     the guaranteed loan constitutes an unacceptable financial 
     risk to the public housing agency or for repayment of the 
     loan under this subsection.
       ``(3) Notwithstanding any other provision of this title, 
     funding allocated to a public housing agency under 
     subsections (d)(2) and (e)(2) of this section for capital and 
     operating funds is authorized for use in the payment of the 
     principal and interest due (including such servicing, 
     underwriting or other costs as may be specified in the 
     regulations of the Secretary) on the loans or other 
     obligations entered into pursuant to this subsection.
       ``(4) The amount of any loan or other obligation entered 
     into under this subsection shall not exceed in total the pro-
     rata amount of funds that would be allocated over a period 
     not to exceed 30 years under subsections (d)(2) and (e)(2) of 
     this section on a per unit

[[Page 28912]]

     basis as a percentage of the number of units that are 
     designated to be rehabilitated or replaced under this 
     subsection by a public housing agency as compared to the 
     total number of units in the public housing development, as 
     determined on the basis of funds made available under such 
     subsections (d)(2) and (e)(2) in the previous year. Any 
     reduction in the total amount of funds provided to a public 
     housing agency under this section in subsequent years shall 
     not reduce the amount of funds to be paid under a loan 
     entered into under this subsection but instead shall reduce 
     the capital and operating funds which are available for the 
     other housing units in the public housing development in that 
     fiscal year. Any additional income, including the receipt of 
     rental income from tenants, generated by the rehabilitated or 
     replaced units may be used to establish a loan loss reserve 
     for the public housing agency to assist in the repayment of 
     loans or other obligations entered into under this subsection 
     or to address any shortfall in the operating or capital needs 
     of the public housing agency in any fiscal year.
       ``(5) Subject to appropriations, the Secretary may use 
     funds from the Public Housing Capital Fund to--
       ``(A) establish a loan loss reserve account within the 
     Department of Housing and Urban Development to minimize the 
     risk of loss associated with the repayment of loans 
     guaranteed under this subsection,
       ``(B) make grants to a public housing agency for capital 
     investment needs or for the creation of a loan loss reserve 
     account to be used in conjunction with a loan made under this 
     subsection for the rehabilitation of a portion of public 
     housing or the development off-site of public housing in 
     mixed income developments (including demolition costs of the 
     public housing units to be replaced), or
       ``(C) or repay any losses associated with a loan guarantee 
     under this subsection.
       ``(6) The Secretary may, to the extent approved in 
     appropriations Acts, assist in the payment of all or a 
     portion of the principal and interest amount due under the 
     loan or other obligation entered into under this subsection, 
     if the Secretary determines that the public housing agency is 
     unable to pay the amount it owes because of circumstances of 
     extreme hardship beyond the control of the public housing 
     agency.''.
       Sec. 222. Section 204(a) of the McKinney-Vento Homeless 
     Assistance Act (42 U.S.C. 11314(a)) is amended by striking in 
     the first sentence after the word ``level'', ``V'', and 
     inserting in its place ``III''.
       Sec. 223. Notwithstanding any other provision of law, the 
     State of Hawaii may elect by July 31, 2004 to distribute 
     funds under section 106(d)(2) of the Housing and Community 
     Development Act of 1974, to units of general local government 
     located in nonentitlement areas of that State. If the State 
     of Hawaii fails to make such election, the Secretary shall 
     for fiscal years 2005 and thereafter make grants to the units 
     of general local government located in the State of Hawaii's 
     nonentitlement areas (Hawaii, Kauai, and Maui counties). The 
     Secretary of Housing and Urban Development shall allocate 
     funds under section 106(d) of such Act to units of general 
     local government located in nonentitlement areas within the 
     State of Hawaii in accordance with a formula which bears the 
     same ratio to the total amount available for the 
     nonentitlement areas of the State as the weighted average of 
     the ratios between (1) the population of that eligible unit 
     of general local government and the population of all 
     eligible units of general local government in the 
     nonentitlement areas of the State; (2) the extent of poverty 
     in that eligible unit of general local government and the 
     extent of poverty in all of the eligible units of general 
     local government in the nonentitlement areas of the State; 
     and (3) the extent of housing overcrowding in that eligible 
     unit of general local government and the extent of housing 
     overcrowding in all of the eligible units of general local 
     government in the nonentitlement areas of the State. In 
     determining the weighted average of the ratios described in 
     the previous sentence, the ratio described in clause (2) 
     shall be counted twice and the ratios described in clauses 
     (1) and (3) shall be counted once. Notwithstanding any other 
     provision, grants made under this section shall be subject to 
     the program requirements of section 104 of the Housing and 
     Community Development Act of 1974 in the same manner as such 
     requirements are made applicable to grants made under section 
     106(b) of the Housing and Community Development Act of 1974.
       Sec. 224. The Secretary of Housing and Urban Development 
     shall issue a proposed rulemaking, in accordance with Title 
     V, United States Code, not later than 90 days from the date 
     of enactment of this Act that--
       (1) addresses and expands, as necessary, the participation 
     and certification requirements for the sale of HUD-owned 
     multifamily housing projects and the foreclosure sale of any 
     multifamily housing securing a mortgage held by the 
     Secretary, including whether a potential purchaser is in 
     substantial compliance with applicable state or local 
     government housing statutes, regulations, ordinances and 
     codes with regard to other properties owned by the purchaser; 
     and
       (2) requires any state, city, or municipality that 
     exercises its right of first refusal for the purchase of a 
     multifamily housing project under section 203 of the Housing 
     and Community Development Amendments of 1978 (12 U.S.C. 
     1701z-11(i)) to ensure that potential purchasers of the 
     project from the state, city, or municipality are subject to 
     the same standards that they would otherwise be subject to if 
     they had purchased the project directly from the Secretary, 
     including whether a potential purchaser is in substantial 
     compliance with applicable state or local government housing 
     statutes, regulations, ordinances and codes with regard to 
     other properties owned by the purchaser.
       Sec. 225. Section 217 of Public Law 107-73 is amended by 
     striking ``the rehabilitation'' and inserting in lieu 
     thereof: ``redevelopment, including demolition and new 
     construction''.

                    TITLE III--INDEPENDENT AGENCIES

                  American Battle Monuments Commission


                         salaries and expenses

       For necessary expenses, not otherwise provided for, of the 
     American Battle Monuments Commission, including the 
     acquisition of land or interest in land in foreign countries; 
     purchases and repair of uniforms for caretakers of national 
     cemeteries and monuments outside of the United States and its 
     territories and possessions; rent of office and garage space 
     in foreign countries; purchase (one for replacement only) and 
     hire of passenger motor vehicles; and insurance of official 
     motor vehicles in foreign countries, when required by law of 
     such countries, $35,000,000, to remain available until 
     expended.

             Chemical Safety and Hazard Investigation Board


                         SALARIES AND EXPENSES

       For necessary expenses in carrying out activities pursuant 
     to section 112(r)(6) of the Clean Air Act, as amended, 
     including hire of passenger vehicles, uniforms or allowances 
     therefore, as authorized by 5 U.S.C. 5901-5902, and for 
     services authorized by 5 U.S.C. 3109 but at rates for 
     individuals not to exceed the per diem equivalent to the 
     maximum rate payable for senior level positions under 5 
     U.S.C. 5376, $8,000,000, of which $5,500,000 is to remain 
     available until September 30, 2004 and $2,500,000, of which 
     is to remain available until September 30, 2005: Provided 
     further, That the Chemical Safety and Hazard Investigation 
     Board shall have not more than three career Senior Executive 
     Service positions.

                       Department of the Treasury

              Community Development Financial Institutions


   community development financial institutions fund program account

       To carry out the Community Development Banking and 
     Financial Institutions Act of 1994, including services 
     authorized by 5 U.S.C. 3109, but at rates for individuals not 
     to exceed the per diem rate equivalent to the rate for ES-3, 
     $70,000,000, to remain available until September 30, 2005, of 
     which not less than $5,000,000 shall be for financial 
     assistance, technical assistance, training and outreach 
     programs designed to benefit Native American, Native 
     Hawaiian, and Alaskan Native communities and provided 
     primarily through qualified community development lender 
     organizations with experience and expertise in community 
     development banking and lending in Indian country, Native 
     American organizations, tribes and tribal organizations and 
     other suitable providers, and up to $12,000,000 may be used 
     for administrative expenses, including administration of the 
     New Markets Tax Credit, up to $6,000,000 may be used for the 
     cost of direct loans, and up to $250,000 may be used for 
     administrative expenses to carry out the direct loan program: 
     Provided, That the cost of direct loans, including the cost 
     of modifying such loans, shall be as defined in section 502 
     of the Congressional Budget Act of 1974, as amended: Provided 
     further, That these funds are available to subsidize gross 
     obligations for the principal amount of direct loans not to 
     exceed $11,000,000.

                   Consumer Product Safety Commission


                         salaries and expenses

       For necessary expenses of the Consumer Product Safety 
     Commission, including hire of passenger motor vehicles, 
     services as authorized by 5 U.S.C. 3109, but at rates for 
     individuals not to exceed the per diem rate equivalent to the 
     maximum rate payable under 5 U.S.C. 5376, purchase of nominal 
     awards to recognize non-Federal officials' contributions to 
     Commission activities, and not to exceed $500 for official 
     reception and representation expenses, $60,000,000.

             Corporation for National and Community Service


       national and community service programs operating expenses

                     (including transfer of funds)

       For necessary expenses for the Corporation for National and 
     Community Service (the ``Corporation'') in carrying out 
     programs, activities, and initiatives under the National and 
     Community Service Act of 1990 (the ``Act'') (42 U.S.C. 12501 
     et seq.), $452,575,000,

[[Page 28913]]

     to remain available until September 30, 2005: Provided, That 
     not more than $330,000,000 of the amount provided under this 
     heading shall be available for the National Service Trust 
     under subtitle D of title I of the Act (42 U.S.C. 12601 et 
     seq.) and for grants under the National Service Trust Program 
     authorized under subtitle C of title I of the Act (42 U.S.C. 
     12571 et seq.) (relating to activities of the AmeriCorps 
     program), including grants to organizations operating 
     projects under the AmeriCorps Education Awards Program 
     (without regard to the requirements of sections 121(d) and 
     (e), section 131(e), section 132, and sections 140(a), (d), 
     and (e) of the Act): Provided further, That from the amount 
     provided under the previous proviso, the Corporation may 
     transfer funds as necessary, to remain available without 
     fiscal year limitation, to the National Service Trust for 
     educational awards authorized under subtitle D of title I of 
     the Act (42 U.S.C. 12601), of which up to $5,000,000 shall be 
     available to support national service scholarships for high 
     school students performing community service: Provided 
     further, That the Corporation shall approve and enroll 
     AmeriCorps members pursuant to the Strengthen AmeriCorps 
     Program Act (Public Law 108-45): Provided further, That of 
     the amount provided under this heading for grants under the 
     National Service Trust program authorized under subtitle C of 
     title I of the Act, not more than $50,000,000 may be used to 
     administer, reimburse, or support any national service 
     program authorized under section 121(d)(2) of such Act (42 
     U.S.C. 12581(d)(2)): Provided further, That not more than 
     $14,575,000 shall be available for quality and innovation 
     activities authorized under subtitle H of title I of the Act 
     (42 U.S.C. 12853 et seq.), of which $5,000,000 shall be 
     available for challenge grants to non-profit organizations: 
     Provided further, That notwithstanding subtitle H of title I 
     of the Act (42 U.S.C. 12853), none of the funds provided 
     under the previous proviso shall be used to support salaries 
     and related expenses (including travel) attributable to 
     Corporation employees: Provided further, That to the maximum 
     extent feasible, funds appropriated under subtitle C of title 
     I of the Act shall be provided in a manner that is consistent 
     with the recommendations of peer review panels in order to 
     ensure that priority is given to programs that demonstrate 
     quality, innovation, replicability, and sustainability: 
     Provided further, That not more than $10,000,000 of the funds 
     made available under this heading shall be made available for 
     the Points of Light Foundation for activities authorized 
     under title III of the Act (42 U.S.C. 12661 et seq.), of 
     which not more than $2,500,000 may be used to support an 
     endowment fund, the corpus of which shall remain intact and 
     the interest income from which shall be used to support 
     activities described in title III of the Act, provided that 
     the Foundation may invest the corpus and income in federally 
     insured bank savings accounts or comparable interest bearing 
     accounts, certificates of deposit, money market funds, mutual 
     funds, obligations of the United States, and other market 
     instruments and securities but not in real estate 
     investments: Provided further, That no funds shall be 
     available for national service programs run by Federal 
     agencies authorized under section 121(b) of such Act (42 
     U.S.C. 12571(b)): Provided further, That not more than 
     $5,000,000 of the funds made available under this heading 
     shall be made available to America's Promise--The Alliance 
     for Youth, Inc.: Provided further, That to the maximum extent 
     practicable, the Corporation shall increase significantly the 
     level of matching funds and in-kind contributions provided by 
     the private sector, and shall reduce the total Federal costs 
     per participant in all programs by not less than 10 percent: 
     Provided further, That the Inspector General of the 
     Corporation for National and Community Service shall conduct 
     random audits of the grantees that administer activities 
     under the AmeriCorps programs and shall debar any grantee (or 
     successor in interest or any entity with substantially the 
     same person or persons in control) that has been determined 
     to have committed any substantial violations of the 
     requirements of the AmeriCorps programs, including any 
     grantee that has been determined to have violated the 
     prohibition of using Federal funds to lobby the Congress: 
     Provided further, That the Inspector General shall obtain 
     reimbursements in the amount of any misused funds from any 
     grantee that has been determined to have committed any 
     substantial violations of the requirements of the AmeriCorps 
     programs.


                         SALARIES AND EXPENSES

       For necessary expenses (including payment of salaries, 
     authorized travel, hire of passenger motor vehicles, the 
     rental of conference rooms in the District of Columbia, the 
     employment of experts and consultants authorized under 5 
     U.S.C. 3109, and not to exceed $2,500 for official reception 
     and representation expenses) involved in carrying out the 
     National and Community Service Act of 1990 (42 U.S.C. 12501 
     et seq.) involved in administration as provided under section 
     501(a)(4) of the Act, $25,000,000.


                      office of inspector general

       For necessary expenses of the Office of Inspector General 
     in carrying out the Inspector General Act of 1978, as 
     amended, $6,500,000, to remain available until September 30, 
     2005.


                       administrative provisions

       Notwithstanding any other provision of law, the term 
     ``qualified student loan'' with respect to national service 
     education awards shall mean any loan determined by an 
     institution of higher education to be necessary to cover a 
     student's cost of attendance at such institution and made, 
     insured, or guaranteed directly to a student by a State 
     agency, in addition to other meanings under section 148(b)(7) 
     of the National and Community Service Act.
       Notwithstanding any other provision of law, funds made 
     available under section 129(d)(5)(B) of the National and 
     Community Service Act to assist entities in placing 
     applicants who are individuals with disabilities may be 
     provided to any entity that receives a grant under section 
     121 of the Act.

           United States Court of Appeals for Veterans Claims


                         salaries and expenses

       For necessary expenses for the operation of the United 
     States Court of Appeals for Veterans Claims as authorized by 
     38 U.S.C. 7251-7298, $16,220,000 of which $1,175,000 shall be 
     available for the purpose of providing financial assistance 
     as described, and in accordance with the process and 
     reporting procedures set forth, under this heading in Public 
     Law 102-229.

                      Department of Defense--Civil

                       Cemeterial Expenses, Army


                         salaries and expenses

       For necessary expenses, as authorized by law, for 
     maintenance, operation, and improvement of Arlington National 
     Cemetery and Soldiers' and Airmen's Home National Cemetery, 
     including the purchase of two passenger motor vehicles for 
     replacement only, and not to exceed $1,000,000 for official 
     reception and representation expenses, $32,000,000, to remain 
     available until expended.

                Department of Health and Human Services

                     National Institutes of Health


          national institute of environmental health sciences

       For necessary expenses for the National Institute of 
     Environmental Health Sciences in carrying out activities set 
     forth in section 311(a) of the Comprehensive Environmental 
     Response, Compensation, and Liability Act of 1980, as 
     amended, and section 126(g) of the Superfund Amendments and 
     Reauthorization Act of 1986, $78,774,000.

            Agency for Toxic Substances and Disease Registry


            toxic substances and environmental public health

       For necessary expenses for the Agency for Toxic Substances 
     and Disease Registry (ATSDR) in carrying out activities set 
     forth in sections 104(i), 111(c)(4), and 111(c)(14) of the 
     Comprehensive Environmental Response, Compensation, and 
     Liability Act of 1980 (CERCLA), as amended; section 118(f) of 
     the Superfund Amendments and Reauthorization Act of 1986 
     (SARA), as amended; and section 3019 of the Solid Waste 
     Disposal Act, as amended, $73,467,000, which may be derived 
     to the extent funds are available from the Hazardous 
     Substance Superfund Trust Fund pursuant to section 517(a) of 
     SARA (26 U.S.C. 9507): Provided, That notwithstanding any 
     other provision of law, in lieu of performing a health 
     assessment under section 104(i)(6) of CERCLA, the 
     Administrator of ATSDR may conduct other appropriate health 
     studies, evaluations, or activities, including, without 
     limitation, biomedical testing, clinical evaluations, medical 
     monitoring, and referral to accredited health care providers: 
     Provided further, That in performing any such health 
     assessment or health study, evaluation, or activity, the 
     Administrator of ATSDR shall not be bound by the deadlines in 
     section 104(i)(6)(A) of CERCLA: Provided further, That none 
     of the funds appropriated under this heading shall be 
     available for ATSDR to issue in excess of 40 toxicological 
     profiles pursuant to section 104(i) of CERCLA during fiscal 
     year 2004, and existing profiles may be updated as necessary.

                    Environmental Protection Agency


                         science and technology

       For science and technology, including research and 
     development activities, which shall include research and 
     development activities under the Comprehensive Environmental 
     Response, Compensation, and Liability Act of 1980, as 
     amended; necessary expenses for personnel and related costs 
     and travel expenses, including uniforms, or allowances 
     therefor, as authorized by 5 U.S.C. 5901-5902; services as 
     authorized by 5 U.S.C. 3109, but at rates for individuals not 
     to exceed the per diem rate equivalent to the maximum rate 
     payable for senior level positions under 5 U.S.C. 5376; 
     procurement of laboratory equipment and supplies; other 
     operating expenses in support of research and development; 
     construction, alteration, repair, rehabilitation, and 
     renovation of facilities, not to exceed $75,000 per project, 
     $715,579,000, which shall remain available until September 
     30, 2005.


                 environmental programs and management

       For environmental programs and management, including 
     necessary expenses, not otherwise provided for, for personnel 
     and related

[[Page 28914]]

     costs and travel expenses, including uniforms, or allowances 
     therefor, as authorized by 5 U.S.C. 5901-5902; services as 
     authorized by 5 U.S.C. 3109, but at rates for individuals not 
     to exceed the per diem rate equivalent to the maximum rate 
     payable for senior level positions under 5 U.S.C. 5376; hire 
     of passenger motor vehicles; hire, maintenance, and operation 
     of aircraft; purchase of reprints; library memberships in 
     societies or associations which issue publications to members 
     only or at a price to members lower than to subscribers who 
     are not members; construction, alteration, repair, 
     rehabilitation, and renovation of facilities, not to exceed 
     $75,000 per project; and not to exceed $9,000 for official 
     reception and representation expenses, $2,219,659,000, which 
     shall remain available until September 30, 2005, including 
     administrative costs of the brownfields program under the 
     Small Business Liability Relief and Brownfields 
     Revitalization Act of 2002.


                      office of inspector general

       For necessary expenses of the Office of Inspector General 
     in carrying out the provisions of the Inspector General Act 
     of 1978, as amended, and for construction, alteration, 
     repair, rehabilitation, and renovation of facilities, not to 
     exceed $75,000 per project, $36,808,000, to remain available 
     until September 30, 2005.


                        buildings and facilities

       For construction, repair, improvement, extension, 
     alteration, and purchase of fixed equipment or facilities of, 
     or for use by, the Environmental Protection Agency, 
     $42,918,000, to remain available until expended.


                     Hazardous Substance Superfund

                     (including transfers of funds)

       For necessary expenses to carry out the Comprehensive 
     Environmental Response, Compensation, and Liability Act of 
     1980 (CERCLA), as amended, including sections 111(c)(3), 
     (c)(5), (c)(6), and (e)(4) (42 U.S.C. 9611), and for 
     construction, alteration, repair, rehabilitation, and 
     renovation of facilities, not to exceed $75,000 per project; 
     $1,265,000,000 (of which $100,000,000 shall not become 
     available until September 1, 2003), to remain available until 
     expended, consisting of such sums as are available in the 
     Trust Fund as authorized by section 517(a) of the Superfund 
     Amendments and Reauthorization Act of 1986 (SARA) and up to 
     $1,265,000,000 as a payment from general revenues to the 
     Hazardous Substance Superfund for purposes as authorized by 
     section 517(b) of SARA, as amended: Provided, That funds 
     appropriated under this heading may be allocated to other 
     Federal agencies in accordance with section 111(a) of CERCLA: 
     Provided further, That of the funds appropriated under this 
     heading, $13,214,000 shall be transferred to the ``Office of 
     Inspector General'' appropriation to remain available until 
     September 30, 2005, and $45,000,000 shall be transferred to 
     the ``Science and technology'' appropriation to remain 
     available until September 30, 2005.


                leaking underground storage tank program

       For necessary expenses to carry out leaking underground 
     storage tank cleanup activities authorized by section 205 of 
     the Superfund Amendments and Reauthorization Act of 1986, and 
     for construction, alteration, repair, rehabilitation, and 
     renovation of facilities, not to exceed $75,000 per project, 
     $72,545,000, to remain available until expended.


                           oil spill response

       For expenses necessary to carry out the Environmental 
     Protection Agency's responsibilities under the Oil Pollution 
     Act of 1990, $16,209,000, to be derived from the Oil Spill 
     Liability trust fund, to remain available until expended.


                   state and tribal assistance grants

       For environmental programs and infrastructure assistance, 
     including capitalization grants for State revolving funds and 
     performance partnership grants, $3,814,000,000, to remain 
     available until expended, of which $1,350,000,000 shall be 
     for making capitalization grants for the Clean Water State 
     Revolving Funds under title VI of the Federal Water Pollution 
     Control Act, as amended (the ``Act''); $850,000,000 shall be 
     for capitalization grants for the Drinking Water State 
     Revolving Funds under section 1452 of the Safe Drinking Water 
     Act, as amended, except that, notwithstanding section 1452(n) 
     of the Safe Drinking Water Act, as amended, none of the funds 
     made available under this heading in this Act, or in previous 
     appropriations Acts, shall be reserved by the Administrator 
     for health effects studies on drinking water contaminants; 
     $50,000,000 shall be for architectural, engineering, 
     planning, design, construction and related activities in 
     connection with the construction of high priority water and 
     wastewater facilities in the area of the United States-Mexico 
     Border, after consultation with the appropriate border 
     commission; $45,000,000 shall be for grants to the State of 
     Alaska to address drinking water and wastewater 
     infrastructure needs of rural and Alaska Native Villages: 
     Provided, That, of these funds (1) 25 percent will be set 
     aside for regional hub communities of populations over 1,000 
     but under 5,000, (2) the State of Alaska shall provide a 
     match of 25 percent, (3) no more than 5 percent of the fund 
     may be used for administrative and overhead expenses, and (4) 
     a statewide priority list shall be established which shall 
     remain in effect for at least three years; $3,500,000 shall 
     be for remediation of above ground leaking fuel tanks 
     pursuant to Public Law 106-554; $130,000,000 shall be for 
     making grants for the construction of drinking water, 
     wastewater and storm water infrastructure and for water 
     quality protection in accordance with the terms and 
     conditions specified for such grants in the committee report 
     accompanying this Act, and, notwithstanding any other 
     provision of law, heretofore and hereafter, projects awarded 
     such grants under this heading that also receive loans from a 
     State water pollution control or drinking water revolving 
     fund may be administered in accordance with applicable State 
     water pollution control or drinking water revolving fund 
     administrative and procedural requirements, and, for purposes 
     of these grants, each grantee shall contribute not less than 
     45 percent of the cost of the project unless the grantee is 
     approved for a waiver by the Administrator of the 
     Environmental Protection Agency; $100,500,000 shall be to 
     carry out section 104(k) of the Comprehensive Environmental 
     Response, Compensation, and Liability Act of 1980 (CERCLA), 
     as amended, including grants, interagency agreements, and 
     associated program support costs; and $1,130,000,000 shall be 
     for grants, including associated program support costs, to 
     States, federally recognized tribes, interstate agencies, 
     tribal consortia, and air pollution control agencies for 
     multi-media or single media pollution prevention, control and 
     abatement and related activities, including activities 
     pursuant to the provisions set forth under this heading in 
     Public Law 104-134, and for making grants under section 103 
     of the Clean Air Act for particulate matter monitoring and 
     data collection activities of which and subject to terms and 
     conditions specified by the Administrator, of which 
     $60,000,000 shall be for carrying out section 128 of CERCLA, 
     as amended, and $20,000,000 shall be for Environmental 
     Information Exchange Network grants, including associated 
     program support costs: Provided, That for fiscal year 2004, 
     State authority under section 302(a) of Public Law 104-182 
     shall remain in effect: Provided further, That 
     notwithstanding section 603(d)(7) of the Act, the limitation 
     on the amounts in a State water pollution control revolving 
     fund that may be used by a State to administer the fund shall 
     not apply to amounts included as principal in loans made by 
     such fund in fiscal year 2004 and prior years where such 
     amounts represent costs of administering the fund to the 
     extent that such amounts are or were deemed reasonable by the 
     Administrator, accounted for separately from other assets in 
     the fund, and used for eligible purposes of the fund, 
     including administration: Provided further, That for fiscal 
     year 2004, and notwithstanding section 518(f) of the Act, the 
     Administrator is authorized to use the amounts appropriated 
     for any fiscal year under section 319 of that Act to make 
     grants to Indian tribes pursuant to sections 319(h) and 
     518(e) of that Act: Provided further, That for fiscal year 
     2004, notwithstanding the limitation on amounts in section 
     518(c) of the Act, up to a total of 1\1/2\ percent of the 
     funds appropriated for State Revolving Funds under title VI 
     of that Act may be reserved by the Administrator for grants 
     under section 518(c) of such Act: Provided further, That no 
     funds provided by this legislation to address the water, 
     wastewater and other critical infrastructure needs of the 
     colonias in the United States along the United States-Mexico 
     border shall be made available to a county or municipal 
     government unless that government has established an 
     enforceable local ordinance, or other zoning rule, which 
     prevents in that jurisdiction the development or construction 
     of any additional colonia areas, or the development within an 
     existing colonia the construction of any new home, business, 
     or other structure which lacks water, wastewater, or other 
     necessary infrastructure: Provided further, That the 
     referenced statement of the managers under this heading in 
     Public Law 106-377 is deemed to be amended by striking 
     ``wastewater'' in reference to item number 219 and inserting 
     ``water'': Provided further, That the referenced statement of 
     the managers under this heading in Public Law 108-7 is deemed 
     to be amended by striking ``wastewater'' in reference to item 
     number 409 and inserting ``water''.


                       administrative provisions

       For fiscal year 2004, notwithstanding 31 U.S.C. 6303(1) and 
     6305(1), the Administrator of the Environmental Protection 
     Agency, in carrying out the Agency's function to implement 
     directly Federal environmental programs required or 
     authorized by law in the absence of an acceptable tribal 
     program, may award cooperative agreements to federally-
     recognized Indian Tribes or Intertribal consortia, if 
     authorized by their member Tribes, to assist the 
     Administrator in implementing Federal environmental programs 
     for Indian Tribes required or authorized by law, except that 
     no such cooperative agreements may be awarded from funds 
     designated for State financial assistance agreements.
       None of the funds appropriated or otherwise made available 
     by this Act shall be used to promulgate a final regulation to 
     implement changes in the payment of pesticide

[[Page 28915]]

     tolerance processing fees as proposed at 64 Fed. Reg. 31040, 
     or any similar proposals. The Environmental Protection Agency 
     may proceed with the development of such a rule.
       The Environmental Protection Agency may not use any of the 
     funds appropriated or otherwise made available by this Act to 
     implement the Registration Fee system codified at 40 Code of 
     Federal Regulations Subpart U (sections 152.400 et seq.) if 
     its authority to collect maintenance fees pursuant to FIFRA 
     section 4(i)(5) is extended for at least 1 year beyond 
     September 30, 2003.
       Section 136a-1 of title 7, U.S.C. is amended--
       (1) in subsection (i)(5)(C)(i) by striking ``2003'' and 
     inserting ``2004'';
       (2) in subsection (i)(5)(H) by striking ``2003'' and 
     inserting ``2004'';
       (3) in subsection (i)(6) by striking ``2003'' and inserting 
     ``2004''; and
       (4) in subsection (k)(3)(A) by striking ``2003'' and 
     inserting ``2004''.
       Notwithstanding CERCLA 104(k)(4)(B)(i)(IV), appropriated 
     funds may hereafter be used to award grants or loans under 
     section 104(k) of CERCLA to eligible entities that satisfy 
     all of the elements set forth in CERCLA section 101(40) to 
     qualify as a bona fide prospective purchaser except that the 
     date of acquisition of the property was prior to the date of 
     enactment of the Small Business Liability Relief and 
     Brownfield Revitalization Act of 2001.
       For fiscal year 2004, notwithstanding any other provision 
     of law, recipients of grants awarded under section 104(k) of 
     the Comprehensive Environmental Response, Compensation, and 
     Liability Act of 1980 (42 U.S.C. 9601 et seq.) may use funds 
     for reasonable administrative costs, as determined by the 
     Administrator of the Environmental Protection Agency.
       Section 209(e)(1)(A) of the Clean Air Act (42 U.S.C. 
     7543(e)(1)(A)) is amended by striking out ``New engines which 
     are'' and inserting in lieu thereof the following: ``Any 
     engine covered by a certificate of conformity that also 
     covers any engine''.

                   Executive Office of the President


                office of science and technology policy

       For necessary expenses of the Office of Science and 
     Technology Policy, in carrying out the purposes of the 
     National Science and Technology Policy, Organization, and 
     Priorities Act of 1976 (42 U.S.C. 6601 and 6671), hire of 
     passenger motor vehicles, and services as authorized by 5 
     U.S.C. 3109, not to exceed $2,500 for official reception and 
     representation expenses, and rental of conference rooms in 
     the District of Columbia, $7,027,000.


  council on environmental quality and office of environmental quality

       For necessary expenses to continue functions assigned to 
     the Council on Environmental Quality and Office of 
     Environmental Quality pursuant to the National Environmental 
     Policy Act of 1969, the Environmental Quality Improvement Act 
     of 1970, and Reorganization Plan No. 1 of 1977, and not to 
     exceed $750 for official reception and representation 
     expenses, $3,238,000: Provided, That, notwithstanding section 
     202 of the National Environmental Policy Act of 1970, the 
     Council shall consist of one member, appointed by the 
     President, by and with the advice and consent of the Senate, 
     serving as chairman and exercising all powers, functions, and 
     duties of the Council.

                 Federal Deposit Insurance Corporation


                      office of inspector general

       For necessary expenses of the Office of Inspector General 
     in carrying out the provisions of the Inspector General Act 
     of 1978, as amended, $30,848,000, to be derived from the Bank 
     Insurance Fund, the Savings Association Insurance Fund, and 
     the FSLIC Resolution Fund.

                    General Services Administration


                federal citizen information center fund

       For necessary expenses of the Federal Citizen Information 
     Center, including services authorized by 5 U.S.C. 3109, 
     $14,000,000, to be deposited into the Federal Citizen 
     Information Center Fund: Provided, That the appropriations, 
     revenues, and collections deposited into the Fund shall be 
     available for necessary expenses of Federal Citizen 
     Information Center activities in the aggregate amount not to 
     exceed $21,000,000. Appropriations, revenues, and collections 
     accruing to this Fund during fiscal year 2004 in excess of 
     $21,000,000 shall remain in the Fund and shall not be 
     available for expenditure except as authorized in 
     appropriations Acts.

           United States Interagency Council on Homelessness


                           OPERATING EXPENSES

       For necessary expenses (including payment of salaries, 
     authorized travel, hire of passenger motor vehicles, the 
     rental of conference rooms in the District of Columbia, and 
     the employment of experts and consultants under section 3109 
     of title 5, United States Code) of the Interagency Council on 
     the Homeless in carrying out the functions pursuant to title 
     II of the McKinney-Vento Homeless Assistance Act, as amended, 
     $1,500,000.

             National Aeronautics and Space Administration


                       Space Flight Capabilities

       For necessary expenses, not otherwise provided for, in the 
     conduct and support of space flight capabilities research and 
     development activities, including research, development, 
     operations, support and services; maintenance; construction 
     of facilities including repair, rehabilitation, 
     revitalization and modification of facilities, construction 
     of new facilities and additions to existing facilities, 
     facility planning and design, and acquisition or condemnation 
     of real property, as authorized by law; environmental 
     compliance and restoration; space flight, spacecraft control 
     and communications activities including operations, 
     production, and services; program management; personnel and 
     related costs, including uniforms or allowances therefor, as 
     authorized by 5 U.S.C. 5901-5902; travel expenses; purchase 
     and hire of passenger motor vehicles; not to exceed $35,000 
     for official reception and representation expenses; and 
     purchase, lease, charter, maintenance and operation of 
     mission and administrative aircraft, $7,582,100,000, to 
     remain available until September 30, 2005, of which no less 
     than $3,968,000,000 shall be available for activities related 
     to the Space Shuttle and shall not be available for transfer 
     to any other program or account, and no more than 
     $1,507,000,000 shall be available for activities related to 
     the International Space Station.


                  Science, Aeronautics and Exploration

                     (including transfer of funds)

       For necessary expenses, not otherwise provided for, in the 
     conduct and support of science, aeronautics and exploration 
     research and development activities, including research, 
     development, operations, support and services; maintenance; 
     construction of facilities including repair, rehabilitation, 
     revitalization, and modification of facilities, construction 
     of new facilities and additions to existing facilities, 
     facility planning and design, and restoration, and 
     acquisition or condemnation of real property, as authorized 
     by law; environmental compliance and restoration; space 
     flight, spacecraft control and communications activities 
     including operations, production, and services; program 
     management; personnel and related costs, including uniforms 
     or allowances therefor, as authorized by 5 U.S.C. 5901-5902; 
     travel expenses; purchase and hire of passenger motor 
     vehicles; not to exceed $35,000 for official reception and 
     representation expenses; and purchase, lease, charter, 
     maintenance and operation of mission and administrative 
     aircraft, $7,730,507,000, to remain available until September 
     30, 2005, of which amounts as determined by the Administrator 
     for salaries and benefits; training, travel and awards; 
     facility and related costs; information technology services; 
     science, engineering, fabricating and testing services; and 
     other administrative services may be transferred to ``Space 
     flight capabilities'' in accordance with section 312(b) of 
     the National Aeronautics and Space Act of 1958, as amended by 
     Public Law 106-377.


                      office of inspector general

       For necessary expenses of the Office of Inspector General 
     in carrying out the Inspector General Act of 1978, as 
     amended, $26,300,000.


                       Administrative Provisions

       Notwithstanding the limitation on the availability of funds 
     appropriated for ``Science, aeronautics and exploration'', or 
     ``Space flight capabilities'' by this appropriations Act, 
     when any activity has been initiated by the incurrence of 
     obligations for construction of facilities as authorized by 
     law, such amount available for such activity shall remain 
     available until expended. This provision does not apply to 
     the amounts appropriated for institutional minor 
     revitalization and construction of facilities, and 
     institutional facility planning and design.
       Notwithstanding the limitation on the availability of funds 
     appropriated for ``Science, aeronautics and exploration'', or 
     ``Space flight capabilities'' by this appropriations Act, the 
     amounts appropriated for construction of facilities shall 
     remain available until September 30, 2006.
       From amounts made available in this Act for these 
     activities, the Administration may transfer amounts between 
     aeronautics from the ``Science, aeronautics and exploration'' 
     account to the ``Space flight capabilities'' account, 
     provided NASA meets all reprogramming requirements.
       Funds for announced prizes otherwise authorized shall 
     remain available, without fiscal year limitation, until the 
     prize is claimed or the offer is withdrawn.
       NASA shall maintain a working capital fund in the United 
     States Treasury and report to the Congress on the status of 
     this fund by January 31, 2004. Amounts in the fund are 
     available for financing activities, services, equipment, 
     information, and facilities as authorized by law to be 
     provided within the Administration; to other agencies or 
     instrumentalities of the United States; to any State, 
     Territory, or possession or political subdivision thereof; to 
     other public or private agencies; or to any person, firm, 
     association, corporation, or educational institution on a 
     reimbursable basis. The fund shall also be available for the 
     purpose of funding capital repairs, renovations, 
     rehabilitation, sustainment, demolition, or replacement of 
     NASA real property, on a reimbursable basis within the 
     Administration.

[[Page 28916]]

     Amounts in the fund are available without regard to fiscal 
     year limitation. The capital of the fund consists of amounts 
     appropriated to the fund; the reasonable value of stocks of 
     supplies, equipment, and other assets and inventories on 
     order that the Administrator transfers to the fund, less the 
     related liabilities and unpaid obligations; and payments 
     received for loss or damage to property of the fund. The fund 
     shall be reimbursed, in advance, for supplies and services at 
     rates that will approximate the expenses of operation, such 
     as the accrual of annual leave, depreciation of plant, 
     property and equipment, and overhead.
       The unexpired balances of prior appropriations to NASA for 
     activities for which funds are provided under this Act may be 
     transferred to the new account established for the 
     appropriation that provides such activity under this Act. 
     Balances so transferred may be merged with funds in the newly 
     established account and thereafter may be accounted for as 
     one fund under the same terms and conditions.
       Notwithstanding any other provision of law, no funds under 
     this Act or any other Act may be used to compensate any 
     person who contracts with NASA who has otherwise chosen to 
     retire early or has taken a buy-out.

                  National Credit Union Administration


                       central liquidity facility

       During fiscal year 2004, gross obligations of the Central 
     Liquidity Facility for the principal amount of new direct 
     loans to member credit unions, as authorized by 12 U.S.C. 
     1795 et seq., shall not exceed $1,500,000,000: Provided, That 
     administrative expenses of the Central Liquidity Facility in 
     fiscal year 2004 shall not exceed $310,000.


               community development revolving loan fund

       For the Community Development Revolving Loan Fund program 
     as authorized by 42 U.S.C. 9812, 9822 and 9910, $1,500,000 
     shall be available: Provided, That of this amount $700,000, 
     together with amounts of principal and interest on loans 
     repaid, is available until expended for loans to community 
     development credit unions, and $800,000 is available until 
     September 30, 2005 for technical assistance to low-income and 
     community development credit unions.

                      National Science Foundation


                    Research and Related Activities

       For necessary expenses in carrying out the National Science 
     Foundation Act of 1950, as amended (42 U.S.C. 1861-1875), and 
     the Act to establish a National Medal of Science (42 U.S.C. 
     1880-1881); services as authorized by 5 U.S.C. 3109; 
     maintenance and operation of aircraft and purchase of flight 
     services for research support; acquisition of aircraft; and 
     authorized travel; $4,220,610,000, of which not to exceed 
     $341,730,000 shall remain available until expended for Polar 
     research and operations support, and for reimbursement to 
     other Federal agencies for operational and science support 
     and logistical and other related activities for the United 
     States Antarctic program; the balance to remain available 
     until September 30, 2005: Provided, That receipts for 
     scientific support services and materials furnished by the 
     National Research Centers and other National Science 
     Foundation supported research facilities may be credited to 
     this appropriation: Provided further, That to the extent that 
     the amount appropriated is less than the total amount 
     authorized to be appropriated for included program 
     activities, all amounts, including floors and ceilings, 
     specified in the authorizing Act for those program activities 
     or their subactivities shall be reduced proportionally: 
     Provided further, That $90,000,000 of the funds available 
     under this heading shall be made available for a 
     comprehensive research initiative on plant genomes for 
     economically significant crops.


          major research equipment and facilities construction

       For necessary expenses for the acquisition, construction, 
     commissioning, and upgrading of major research equipment, 
     facilities, and other such capital assets pursuant to the 
     National Science Foundation Act of 1950, as amended, 
     including authorized travel, $149,680,000, to remain 
     available until expended.


                     education and human resources

       For necessary expenses in carrying out science and 
     engineering education and human resources programs and 
     activities pursuant to the National Science Foundation Act of 
     1950, as amended (42 U.S.C. 1861-1875), including services as 
     authorized by 5 U.S.C. 3109, authorized travel, and rental of 
     conference rooms in the District of Columbia, $975,870,000, 
     to remain available until September 30, 2005: Provided, That 
     to the extent that the amount of this appropriation is less 
     than the total amount authorized to be appropriated for 
     included program activities, all amounts, including floors 
     and ceilings, specified in the authorizing Act for those 
     program activities or their subactivities shall be reduced 
     proportionally.


                         salaries and expenses

       For salaries and expenses necessary in carrying out the 
     National Science Foundation Act of 1950, as amended (42 
     U.S.C. 1861-1875); services authorized by 5 U.S.C. 3109; hire 
     of passenger motor vehicles; not to exceed $9,000 for 
     official reception and representation expenses; uniforms or 
     allowances therefor, as authorized by 5 U.S.C. 5901-5902; 
     rental of conference rooms in the District of Columbia; and 
     reimbursement of the General Services Administration for 
     security guard services; $225,700,000: Provided, That 
     contracts may be entered into under ``Salaries and expenses'' 
     in fiscal year 2004 for maintenance and operation of 
     facilities, and for other services, to be provided during the 
     next fiscal year.


                  office of the NATIONAL SCIENCE BOARD

       For necessary expenses (including payment of salaries, 
     authorized travel, hire of passenger motor vehicles, the 
     rental of conference rooms in the District of Columbia, and 
     the employment of experts and consultants under section 3109 
     of title 5, United States Code) involved in carrying out 
     section 4 of the National Science Foundation Act of 1950 (42 
     U.S.C. 1863) and Public Law 86-209 (42 U.S.C. 1880 et seq.), 
     $3,900,000: Provided, That not more than $9,000 shall be 
     available for official reception and representation expenses.


                      office of inspector general

       For necessary expenses of the Office of Inspector General 
     as authorized by the Inspector General Act of 1978, as 
     amended, $10,000,000, to remain available until September 30, 
     2005.

                 Neighborhood Reinvestment Corporation


          payment to the neighborhood reinvestment corporation

       For payment to the Neighborhood Reinvestment Corporation 
     for use in neighborhood reinvestment activities, as 
     authorized by the Neighborhood Reinvestment Corporation Act 
     (42 U.S.C. 8101-8107), $115,000,000, of which $5,000,000 
     shall be for a multi-family rental housing program.


                        Administrative Provision

       Section 605(a) of the Neighborhood Reinvestment Corporation 
     Act (42 U.S.C. 8104) is amended by--
       (1) striking out ``compensation'' and inserting ``salary''; 
     and striking out ``highest rate provided for GS-18 of the 
     General Schedule under section 5332 of title 5 United States 
     Code''; and inserting ``rate for level IV of the Executive 
     Schedule''; and
       (2) inserting after the end the following sentence: ``The 
     Corporation shall also apply the provisions of section 
     5307(a)(1), (b)(1) and (b)(2) of title 5, United States Code, 
     governing limitations on certain pay as if its employees were 
     Federal employees receiving payments under title 5.''.

                        Selective Service System


                         salaries and expenses

       For necessary expenses of the Selective Service System, 
     including expenses of attendance at meetings and of training 
     for uniformed personnel assigned to the Selective Service 
     System, as authorized by 5 U.S.C. 4101-4118 for civilian 
     employees; purchase of uniforms, or allowances therefor, as 
     authorized by 5 U.S.C. 5901-5902; hire of passenger motor 
     vehicles; services as authorized by 5 U.S.C. 3109; and not to 
     exceed $750 for official reception and representation 
     expenses; $26,308,000: Provided, That during the current 
     fiscal year, the President may exempt this appropriation from 
     the provisions of 31 U.S.C. 1341, whenever the President 
     deems such action to be necessary in the interest of national 
     defense: Provided further, That none of the funds 
     appropriated by this Act may be expended for or in connection 
     with the induction of any person into the Armed Forces of the 
     United States: Provided further, That none of the funds 
     appropriated under this heading may be used in direct support 
     of the Corporation for National and Community Service.

                      TITLE IV--GENERAL PROVISIONS

       Sec. 401. No part of any appropriation contained in this 
     Act shall remain available for obligation beyond the current 
     fiscal year unless expressly so provided herein.
       Sec. 402. No funds appropriated by this Act may be 
     expended--
       (1) pursuant to a certification of an officer or employee 
     of the United States unless--
       (A) such certification is accompanied by, or is part of, a 
     voucher or abstract which describes the payee or payees and 
     the items or services for which such expenditure is being 
     made; or
       (B) the expenditure of funds pursuant to such 
     certification, and without such a voucher or abstract, is 
     specifically authorized by law; and
       (2) unless such expenditure is subject to audit by the 
     General Accounting Office or is specifically exempt by law 
     from such audit.
       Sec. 403. None of the funds provided in this Act to any 
     department or agency may be obligated or expended for: (1) 
     the transportation of any officer or employee of such 
     department or agency between the domicile and the place of 
     employment of the officer or employee, with the exception of 
     an officer or employee authorized such transportation under 
     31 U.S.C. 1344 or 5 U.S.C. 7905; or (2) to provide a cook, 
     chauffeur, or other personal servants to any officer or 
     employee of such department or agency.
       Sec. 404. None of the funds provided in this Act may be 
     used for payment, through grants or contracts, to recipients 
     that do not

[[Page 28917]]

     share in the cost of conducting research resulting from 
     proposals not specifically solicited by the Government: 
     Provided, That the extent of cost sharing by the recipient 
     shall reflect the mutuality of interest of the grantee or 
     contractor and the Government in the research.
       Sec. 405. None of the funds provided in this Act may be 
     used, directly or through grants, to pay or to provide 
     reimbursement for payment of the salary of a consultant 
     (whether retained by the Federal Government or a grantee) at 
     more than the daily equivalent of the rate paid for level IV 
     of the Executive Schedule, unless specifically authorized by 
     law.
       Sec. 406. None of the funds provided in this Act may be 
     used to pay the expenses of, or otherwise compensate, non-
     Federal parties intervening in regulatory or adjudicatory 
     proceedings. Nothing herein affects the authority of the 
     Consumer Product Safety Commission pursuant to section 7 of 
     the Consumer Product Safety Act (15 U.S.C. 2056 et seq.).
       Sec. 407. Except as otherwise provided under existing law, 
     or under an existing Executive order issued pursuant to an 
     existing law, the obligation or expenditure of any 
     appropriation under this Act for contracts for any consulting 
     service shall be limited to contracts which are: (1) a matter 
     of public record and available for public inspection; and (2) 
     thereafter included in a publicly available list of all 
     contracts entered into within 24 months prior to the date on 
     which the list is made available to the public and of all 
     contracts on which performance has not been completed by such 
     date. The list required by the preceding sentence shall be 
     updated quarterly and shall include a narrative description 
     of the work to be performed under each such contract.
       Sec. 408. Except as otherwise provided by law, no part of 
     any appropriation contained in this Act shall be obligated or 
     expended by any executive agency, as referred to in the 
     Office of Federal Procurement Policy Act (41 U.S.C. 401 et 
     seq.), for a contract for services unless such executive 
     agency: (1) has awarded and entered into such contract in 
     full compliance with such Act and the regulations promulgated 
     thereunder; and (2) requires any report prepared pursuant to 
     such contract, including plans, evaluations, studies, 
     analyses and manuals, and any report prepared by the agency 
     which is substantially derived from or substantially includes 
     any report prepared pursuant to such contract, to contain 
     information concerning: (A) the contract pursuant to which 
     the report was prepared; and (B) the contractor who prepared 
     the report pursuant to such contract.
       Sec. 409. (a) It is the sense of the Congress that, to the 
     greatest extent practicable, all equipment and products 
     purchased with funds made available in this Act should be 
     American-made.
       (b) In providing financial assistance to, or entering into 
     any contract with, any entity using funds made available in 
     this Act, the head of each Federal agency, to the greatest 
     extent practicable, shall provide to such entity a notice 
     describing the statement made in subsection (a) by the 
     Congress.
       Sec. 410. None of the funds appropriated in this Act may be 
     used to implement any cap on reimbursements to grantees for 
     indirect costs, except as published in Office of Management 
     and Budget Circular A-21.
       Sec. 411. Such sums as may be necessary for fiscal year 
     2004 pay raises for programs funded by this Act shall be 
     absorbed within the levels appropriated in this Act.
       Sec. 412. None of the funds made available in this Act may 
     be used for any program, project, or activity, when it is 
     made known to the Federal entity or official to which the 
     funds are made available that the program, project, or 
     activity is not in compliance with any Federal law relating 
     to risk assessment, the protection of private property 
     rights, or unfunded mandates.
       Sec. 413. Except in the case of entities that are funded 
     solely with Federal funds or any natural persons that are 
     funded under this Act, none of the funds in this Act shall be 
     used for the planning or execution of any program to pay the 
     expenses of, or otherwise compensate, non-Federal parties to 
     lobby or litigate in respect to adjudicatory proceedings 
     funded in this Act. A chief executive officer of any entity 
     receiving funds under this Act shall certify that none of 
     these funds have been used to engage in the lobbying of the 
     Federal Government or in litigation against the United States 
     unless authorized under existing law.
       Sec. 414. No part of any funds appropriated in this Act 
     shall be used by an agency of the executive branch, other 
     than for normal and recognized executive-legislative 
     relationships, for publicity or propaganda purposes, and for 
     the preparation, distribution or use of any kit, pamphlet, 
     booklet, publication, radio, television or film presentation 
     designed to support or defeat legislation pending before the 
     Congress, except in presentation to the Congress itself.
       Sec. 415. All Departments and agencies funded under this 
     Act are encouraged, within the limits of the existing 
     statutory authorities and funding, to expand their use of 
     ``E-Commerce'' technologies and procedures in the conduct of 
     their business practices and public service activities.
       Sec. 416. None of the funds made available in this Act may 
     be transferred to any department, agency, or instrumentality 
     of the United States Government that is established after the 
     date of the enactment of this Act, except pursuant to a 
     transfer made by, or transfer authority provided in, this Act 
     or any other appropriation Act.
       Sec. 417. None of the funds provided in this Act to any 
     department or agency shall be obligated or expended to 
     procure passenger automobiles as defined in 15 U.S.C. 2001 
     with an EPA estimated miles per gallon average of less than 
     22 miles per gallon.
       This Act may be cited as the ``Departments of Veterans 
     Affairs and Housing and Urban Development, and Independent 
     Agencies Appropriations Act, 2004''.
                                 ______
                                 
  SA 2151. Ms. LANDRIEU submitted an amendment intended to be proposed 
to amendment SA 2150 proposed by Mr. Bond (for himself and Ms. 
Mikulski) to the bill H.R. 2861, making appropriations for the 
Departments of Veterans Affairs and Housing and Urban Development, and 
for sundry independent agencies, boards, commissions, corporations, and 
offices for the fiscal year ending September 30, 2004, and for other 
purposes; as follows:

       On page 125, between lines 7 and 8, insert the following:
       Sec. 418. Section 106(d) of the Housing and Community 
     Development Act of 1974 (42 U.S.C. 5306(d)) is amended--
       (1) in paragraph (3)(A), by striking ``shall not exceed 2 
     percent'' and inserting ``shall not, subject to paragraph 
     (6), exceed 3 percent'';
       (2) in paragraph (5), by striking ``not to exceed 1 
     percent'' and inserting ``subject to paragraph (6), not to 
     exceed 3 percent'';
       (3) by redesignating the second paragraph (5) and paragraph 
     (6) as paragraphs (7) and (8), respectively; and
       (4) by inserting after paragraph (5) the following:
       ``(6) Of the amounts received under paragraph (1), the 
     State may deduct not more than an aggregate total of 3 
     percent of such amounts for--
       ``(A) administrative expenses under paragraph (3)(A); and
       ``(B) technical assistance under paragraph (5).''.
                                 ______
                                 
  SA 2152. Mrs. CLINTON (for herself, Mr. Enzi, Ms. Cantwell, Mr. 
Grassley, Mrs. Murray, Mr. Smith, Mr. Schumer, Mr. Wyden, Mr. Harkin, 
Ms. Stabenow, Mr. Kerry, Mr. Dodd, Mr. Lieberman, Mr. Levin, and Mr. 
Daschle) submitted an amendment intended to be proposed to amendment SA 
2150 proposed by Mr. Bond (for himself and Ms. Mikulski) to the bill 
H.R. 2861, making appropriations for the Departments of Veterans 
Affairs and Housing and Urban Development, and for sundry independent 
agencies, boards, commissions, corporations, and offices for the fiscal 
year ending September 30, 2004, and for other purposes; as follows:

       At the end of title I, add the following:
       Sec. 116. (a) Limitation on Use of Funds for CARES 
     Initiative.--No funds appropriated or otherwise made 
     available for the Department of Veterans Affairs for a fiscal 
     year before fiscal year 2005 may be obligated or expended to 
     take any actions proposed under the Capital Asset Realignment 
     for Enhanced Services (CARES) initiative that would result in 
     the closure of a Department of Veterans Affairs health care 
     facility, or reduction in services at such a facility, until 
     the Secretary of Veterans Affairs--
       (1) modifies the Capital Asset Realignment for Enhanced 
     Services initiative national planning procedures to require 
     that no changes be made in long-term care, domiciliary care, 
     or mental health services without a completed and separate 
     Capital Asset Realignment for Enhanced Services planning 
     process intended to assess the future demand for such 
     services;
       (2) modifies the Capital Asset Realignment for Enhanced 
     Services initiative national planning process to take into 
     account the impact that any transfer of health care services 
     under the initiative will have on the access of veterans to 
     primary outpatient care, inpatient hospital care, and 
     tertiary hospital care in rural and frontier population 
     areas, as defined by the Census Bureau, taking into 
     consideration such travel matters as road conditions, numbers 
     of lanes on roads, and seasonal changes in and other factors 
     relating to the weather;
       (3) modifies the Capital Asset Realignment for Enhanced 
     Services initiative national planning process to permit 
     veterans to testify at hearings of the Capital Asset 
     Realignment for Enhanced Services Commission and reconvenes 
     the Commission for further hearings on the initiative in 
     regions where the Commission has held hearings without 
     permitting veterans to testify;
       (4) modifies the Capital Asset Realignment for Enhanced 
     Services initiative national planning process to hold at 
     least one hearing regarding the realignment of services under 
     the initiative within 30 miles of each Department of Veterans 
     Affairs facility that would

[[Page 28918]]

     experience a realignment of services under the national plan 
     for the initiative; and
       (5) submits to Congress a report on the Capital Asset 
     Realignment for Enhanced Services initiative national 
     planning process that sets forth the results of the 
     modifications under paragraphs (1), (2), (3), and (4).
       (b) Availability of CARES Initiative Funds for Enhanced 
     Services.--Notwithstanding any other provision of law, 
     neither subsection (a) nor any other provision of law shall 
     be construed to limit the obligation or expenditure of funds 
     under the Capital Asset Realignment for Enhanced Services 
     initiative for the provision of enhanced services as long as 
     the provision of such services does not involve the closure 
     of a Department health care facility or a reduction in 
     services as such a facility.
                                 ______
                                 
  SA 2153. Mr. GRAHAM of Florida (for himself and Mr. Nelson of 
Florida) submitted an amendment intended to be proposed to amendment SA 
2150 proposed by Mr. Bond (for himself and Ms. Mikulski) to the bill 
H.R. 2861, making appropriations for the Departments of Veterans 
Affairs and Housing and Urban Development, and for sundry independent 
agencies, boards, commissions, corporations, and offices for the fiscal 
year ending September 30, 2004, and for other purposes; which was 
ordered to lie on the table; as follows:

       At the end of title I, add the following:
       Sec. 116. Of the amount appropriated or otherwise made 
     available by this title under the heading ``construction, 
     major projects'', $300,000 shall be available for advance 
     planning for national cemeteries in the areas as follows:
       (1) The Jacksonville, Florida, area.
       (2) The Sarasota, Florida, area.
                                 ______
                                 
  SA 2154. Mr. JEFFORDS submitted an amendment intended to be proposed 
to amendment SA 2150 proposed by Mr. Bond (for himself and Ms. 
Mikulski) to the bill H.R. 2861, making appropriations for the 
Departments of Veterans Affairs and Housing and Urban Development, and 
for sundry independent agencies, boards, commissions, corporations, and 
offices for the fiscal year ending September 30, 2004, and for other 
purposes; which was ordered to lie on the table; as follows:

       At the appropriate place, add the following:

     SEC. __. NATIONAL ACADEMY OF SCIENCES STUDY.

       The matter under the heading ``ADMINISTRATIVE PROVISIONS'' 
     under the heading ``ENVIRONMENTAL PROTECTION AGENCY'' in 
     title III of division K of section 2 of the Consolidated 
     Appropriations Resolution, 2003 (117 Stat. 513), is amended--
       (1) in the first sentence of the fifth undesignated 
     paragraph (beginning ``As soon as''), by inserting before the 
     period at the end the following: ``, and the impact of the 
     final rule entitled `Prevention of Significant Deterioration 
     (PSD) and Nonattainment New Source Review (NSR): Equipment 
     Replacement Provision of the Routine Maintenance, Repair and 
     Replacement Exclusion', amending parts 51 and 52 of title 40, 
     Code of Federal Regulations, and published in electronic 
     docket OAR-2002-0068 on August 27, 2003''; and
       (2) in the sixth undesignated paragraph (beginning ``The 
     National Academy of Sciences''), by striking ``March 3, 
     2004'' and inserting ``September 1, 2004''.
                                 ______
                                 
  SA 2155. Mr. DAYTON submitted an amendment intended to be proposed to 
amendment SA 2150 proposed by Mr. Bond (for himself and Ms. Mikulski) 
to the bill H.R. 2861, making appropriations for the Departments of 
Veterans Affairs and Housing and Urban Development, and for sundry 
independent agencies, boards, commissions, corporations, and offices 
for the fiscal year ending September 30, 2004, and for other purposes; 
which was ordered to lie on the table; as follows:

       On page 125, between lines 7 and 8, insert the following:
       Sec. 418. There are appropriated $1,100,000 to the 
     Secretary of Housing and Urban Development for the purposes 
     of making the grant authorized under section 3 of the Paul 
     and Sheila Wellstone Center for Community Building Act.
                                 ______
                                 
  SA 2156. Mr. CRAIG (for Mr. Bond (for himself, Mr. McConnell, Mr. 
Talent, Mr. Chambliss, Mr. Miller, and Mr. Craig)) proposed an 
amendment to amendment SA 2150 proposed by Mr. Bond (for himself and 
Ms. Mikulski) to the bill H.R. 2861, making appropriations for the 
Departments of Veterans Affairs and Housing and Urban Development, and 
for sundry independent agencies, boards, commissions, corporations, and 
offices for the fiscal year ending September 30, 2004, and for the 
purposes; as follows:

       Page 106, strike lines 16 to 20 and insert in lieu thereof 
     the following:
       Section 209(e)(1) of the Clean Air Act (42 U.S.C. 
     7543(e)(1)) is amended by--
       (a) striking the words ``either of''; and
       (b) in paragraph (A), adding before the period at the end 
     the following: ``, and any new spark-ignition engines smaller 
     than 50 horsepower''.
       Not later than December 1, 2004, the Administrator of the 
     Environmental Protection Agency shall propose regulations 
     containing new standards applicable to emissions from new 
     nonroad spark-ignition engines smaller than 50 horsepower.
                                 ______
                                 
  SA 2157. Mr. SANTORUM submitted an amendment intended to be proposed 
to amendment SA 2150 proposed by Mr. Bond (for himself and Ms. 
Mikulski) to the bill H.R. 2861, making appropriations for the 
Departments of Veterans Affairs and Housing and Urban Development, and 
for sundry independent agencies, boards, commissions, corporations, and 
offices for the fiscal year ending September 30, 2004, and for other 
purposes; which was ordered to lie on the table; as follows:

       On page 89, line 14, strike ``$452,575,000'' and insert 
     ``$545,575,000''.

       On page 89, line 16, strike ``$330,000,000'' and insert 
     ``$423,000,000''.

       On page 92, line 22, strike the period and insert ``: 
     Provided further, That each amount under each heading (other 
     than this heading) in this Act shall be reduced on a pro rata 
     basis by $93,000,000.''.
                                 ______
                                 
  SA 2158. Mr. CRAIG (for himself, Mr. Harkin, Mr. Cochran, Mr. Conrad, 
Mr. Chambliss, Mr. Coleman, Mr. Crapo, Mr. Lugar, Mr. Breaux, Mr. 
Roberts, Mr. Fitzgerald, and Mr. Pryor) proposed an amendment to 
amendment SA 2150 proposed by Mr. Bond (for himself and Ms. Mikulski) 
to the bill H.R. 2861, making appropriations for the Departments of 
Veterans Affairs and Housing and Urban Development, and for sundry 
independent agencies, boards, commissions, corporations, and offices 
for the fiscal year ending September 30, 2004, and for other purposes; 
as follows:

       Beginning on page 105, strike line 3 and all that follows 
     through page 105, line 25, and insert the following:

     SEC. __. PESTICIDE REGISTRATION.

       (a) Short Title.--This section may be cited as the 
     ``Pesticide Registration Improvement Act of 2003''.
       (b) Registration Requirements for Antimicrobial 
     Pesticides.--Section 3(h) of the Federal Insecticide, 
     Fungicide, and Rodenticide Act (7 U.S.C. 136a(h)) is 
     amended--
       (1) in paragraph (2)(F), by striking ``90 to 180 days'' and 
     inserting ``120 days''; and
       (2) in paragraph (3)--
       (A) in subparagraph (D)(vi), by striking ``240 days'' and 
     inserting ``120 days''; and
       (B) in subparagraph (F), by adding at the end the 
     following:
       ``(iv) Limitation.--Notwithstanding clause (ii), the 
     failure of the Administrator to notify an applicant for an 
     amendment to a registration for an antimicrobial pesticide 
     shall not be judicially reviewable in a Federal or State 
     court if the amendment requires scientific review of data 
     within--

       ``(I) the time period specified in subparagraph (D)(vi), in 
     the absence of a final regulation under subparagraph (B); or
       ``(II) the time period specified in paragraph (2)(F), if 
     adopted in a final regulation under subparagraph (B).''.

       (c) Maintenance Fees.--
       (1) Amounts for registrants.--Section 4(i)(5) of the 
     Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 
     136a-1(i)(5)) is amended--
       (A) in subparagraph (A)--
       (i) by striking ``(A) Subject'' and inserting the 
     following:
       ``(A) In general.--Subject''; and
       (ii) by striking ``of--'' and all that follows through 
     ``additional registration'' and inserting ``for each 
     registration'';
       (B) in subparagraph (D)--
       (i) by striking ``(D) The'' and inserting the following:
       ``(D) Maximum amount of fees for registrants.--The'';
       (ii) in clause (i), by striking ``shall be $55,000; and'' 
     and inserting ``shall be--
       ``(I) for fiscal year 2004, $84,000;
       ``(II) for each of fiscal years 2005 and 2006, $87,000;
       ``(III) for fiscal year 2007, $68,000; and
       ``(IV) for fiscal year 2008, $55,000; and''; and
       (iii) in clause (ii), by striking ``shall be $95,000.'' and 
     inserting ``shall be--
       ``(I) for fiscal year 2004, $145,000;
       ``(II) for each of fiscal years 2005 and 2006, $151,000;
       ``(III) for fiscal year 2007, $117,000; and
       ``(IV) for fiscal year 2008, $95,000.''; and
       (C) in subparagraph (E)--
       (i) by striking ``(E)(i) For'' and inserting the following:
       ``(E) Maximum amount of fees for small businesses.--
       ``(i) In general.--For'';

[[Page 28919]]

       (ii) by indenting the margins of subclauses (I) and (II) of 
     clause (i) appropriately; and
       (iii) in clause (i)--

       (I) subclause (I), by striking ``shall be $38,500; and'' 
     and inserting ``shall be--

       ``(aa) for fiscal year 2004, $59,000;
       ``(bb) for each of fiscal years 2005 and 2006, $61,000;
       ``(cc) for fiscal year 2007, $48,000; and
       ``(dd) for fiscal year 2008, $38,500; and''; and

       (II) in subclause (II), by striking ``shall be $66,500.'' 
     and inserting ``shall be--

       ``(aa) for fiscal year 2004, $102,000;
       ``(bb) for each of fiscal years 2005 and 2006, $106,000;
       ``(cc) for fiscal year 2007, $82,000; and
       ``(dd) for fiscal year 2008, $66,500.''.
       (2) Total amount of fees.--Section 4(i)(5)(C) of the 
     Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 
     136(a)-1(i)(5)(C)) is amended--
       (A) by striking ``(C)(i) The'' and inserting the following:
       ``(C) Total amount of fees.--The''; and
       (B) by striking ``aggregate amount'' and all that follows 
     through clause (ii) and inserting ``aggregate amount of--
       ``(i) for fiscal year 2004, $26,000,000;
       ``(ii) for fiscal year 2005, $27,000,000;
       ``(iii) for fiscal year 2006, $27,000,000;
       ``(iv) for fiscal year 2007, $21,000,000; and
       ``(v) for fiscal year 2008, $15,000,000.''.
         (3) Definition of small business.--Section 4(i)(5)(E)(ii) 
           of the Federal Insecticide, Fungicide, and Rodenticide 
           Act (7 U.S.C. 136a-1(i)(5)(E)(ii)) is amended--
       (A) by redesignating subclauses (I) and (II) as items (aa) 
     and (bb), respectively, and indenting the margins 
     appropriately;
       (B) by striking ``(ii) For purposes of'' and inserting the 
     following:
       ``(ii) Definition of small business.--

       ``(I) In general.--In'';

       (C) in item (aa) (as so redesignated), by striking ``150'' 
     and inserting ``500'';
       (D) in item (bb) (as so redesignated), by striking ``gross 
     revenue from chemicals that did not exceed $40,000,000.'' and 
     inserting ``global gross revenue from pesticides that did not 
     exceed $60,000,000.''; and
       (E) by adding at the end the following:

       ``(II) Affiliates.--

       ``(aa) In general.--In the case of a business entity with 1 
     or more affiliates, the gross revenue limit under subclause 
     (I)(bb) shall apply to the gross revenue for the entity and 
     all of the affiliates of the entity, including parents and 
     subsidiaries, if applicable.
       ``(bb) Affiliated persons.--For the purpose of item (aa), 
     persons are affiliates of each other if, directly or 
     indirectly, either person controls or has the power to 
     control the other person, or a third person controls or has 
     the power to control both persons.
       ``(cc) Indicia of control.--For the purpose of item (aa), 
     indicia of control include interlocking management or 
     ownership, identity of interests among family members, shared 
     facilities and equipment, and common use of employees.''.
       (4) Extension of authority for collecting maintenance 
     fees.--Section 4(i)(5)(H) of the Federal Insecticide, 
     Fungicide, and Rodenticide Act (7 U.S.C. 136a-1(i)(5)(H)) is 
     amended by striking ``2003'' and inserting ``2008''.
       (5) Reregistration and other activities.--Section 4(g)(2) 
     of the Federal Insecticide, Fungicide and Rodenticide Act (7 
     U.S.C. 136a-1(g)(2)) is amended--
       (A) by striking subparagraph (A) and inserting the 
     following:
       ``(A) In general.--The Administrator shall make a 
     determination as to eligibility for reregistration--
       ``(i) for all active ingredients subject to reregistration 
     under this section for which tolerances or exemptions from 
     tolerances are required under the Federal Food, Drug, and 
     Cosmetic Act (21 U.S.C. 301 et seq.), not later than the last 
     date for tolerance reassessment established under section 
     408(q)(1)(C) of that Act (21 U.S.C. 346a(q)(1)(C)); and
       ``(ii) for all other active ingredients subject to 
     reregistration under this section, not later than October 3, 
     2008.'';
       (B) in subparagraph (B)--
       (i) by striking ``(B) Before'' and inserting the following:
       ``(B) Product-specific data.--
       ``(i) In general.--Before'';
       (ii) by striking ``The Administrator'' and inserting the 
     following:
       ``(ii) Timing.--

       ``(I) In general.--Subject to subclause (II), the 
     Administrator''; and

       (iii) by adding at the end the following:

       ``(II) Extraordinary circumstances.--In the case of 
     extraordinary circumstances, the Administrator may provide 
     such a longer period, of not more than 2 additional years, 
     for submission of data to the Administrator under this 
     subparagraph.''; and

       (C) in subparagraph (D)--
       (i) by striking ``(D) If'' and inserting the following:
       ``(D) Determination to not reregister.--
       ``(i) In general.--If''; and
       (ii) by adding at the end the following:
       ``(ii) Timing for regulatory action.--Regulatory action 
     under clause (i) shall be completed as expeditiously as 
     possible.''.
       (d) Other Fees.--
       (1) In general.--Section 4(i)(6) of the Federal 
     Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136a-
     1(i)(6)) is amended--
       (A) by striking ``During'' and inserting ``Except as 
     provided in section 33, during''; and
       (B) by striking ``2003'' and inserting ``2010''.
       (2) Tolerance fees.--Notwithstanding section 408(m)(1) of 
     the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 
     346a(m)(1)), during the period beginning on October 1, 2003, 
     and ending on September 30, 2008, the Administrator of the 
     Environmental Protection Agency shall not collect any 
     tolerance fees under that section.
       (e) Expedited Processing of Similar Applications.--Section 
     4(k)(3) of the Federal Insecticide, Fungicide, and 
     Rodenticide Act (7 U.S.C. 136a-1(k)(3)) is amended--
       (1) in the paragraph heading, by striking ``Expedited'' and 
     inserting ``Review of inert ingredients; expedited''; and
       (2) in subparagraph (A)--
       (A) by striking ``1997'' and all that follows through ``of 
     the maintenance fees'' and inserting ``2004 through 2006, 
     approximately $3,300,000, and for each of fiscal years 2007 
     and 2008, between \1/8\ and \1/7\, of the maintenance fees'';
       (B) by redesignating clauses (i), (ii), and (iii) as 
     subclauses (I), (II) and (III), respectively, and indenting 
     appropriately; and
       (C) by striking ``resources to assure the expedited 
     processing and review of any application that'' and inserting 
     ``resources--
       ``(i) to review and evaluate new inert ingredients; and
       ``(ii) to ensure the expedited processing and review of any 
     application
     that--''.
       (f) Pesticide Registration Service Fees.--The Federal 
     Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136a et 
     seq.) is amended--
       (1) by redesignating sections 33 and 34 (7 U.S.C. 136x, 
     136y) as sections 34 and 35, respectively; and
       (2) by inserting after section 32 (7 U.S.C. 136w-7) the 
     following:

     ``SEC. 33. PESTICIDE REGISTRATION SERVICE FEES.

       ``(a) Definition of Costs.--In this section, the term 
     `costs', when used with respect to review and decisionmaking 
     pertaining to an application for which registration service 
     fees are paid under this section, means--
       ``(1) costs to the extent that--
       ``(A) officers and employees provide direct support for the 
     review and decisionmaking for covered pesticide applications, 
     associated tolerances, and corresponding risk and benefits 
     information and analyses;
       ``(B) persons and organizations under contract with the 
     Administrator engage in the review of the applications, and 
     corresponding risk and benefits information and assessments; 
     and
       ``(C) advisory committees and other accredited persons or 
     organizations, on the request of the Administrator, engage in 
     the peer review of risk or benefits information associated 
     with covered pesticide applications;
       ``(2) costs of management of information, and the 
     acquisition, maintenance, and repair of computer and 
     telecommunication resources (including software), used to 
     support review of pesticide applications, associated 
     tolerances, and corresponding risk and benefits information 
     and analyses; and
       ``(3) costs of collecting registration service fees under 
     subsections (b) and (c) and reporting, auditing, and 
     accounting under this section.
       ``(b) Fees.--
       ``(1) In general.--Effective beginning on the effective 
     date of the Pesticide Registration Improvement Act of 2003, 
     the Administrator shall assess and collect covered pesticide 
     registration service fees in accordance with this section.
       ``(2) Covered pesticide registration applications.--
       ``(A) In general.--An application for the registration of a 
     pesticide covered by this Act that is received by the 
     Administrator on or after the effective date of the Pesticide 
     Registration Improvement Act of 2003 shall be subject to a 
     registration service fee under this section.
       ``(B) Existing applications.--
       ``(i) In general.--Subject to clause (ii), an application 
     for the registration of a pesticide that was submitted to the 
     Administrator before the effective date of the Pesticide 
     Registration Improvement Act of 2003 and is pending on that 
     effective date shall be subject to a service fee under this 
     section if the application is for the registration of a new 
     active ingredient that is not listed in the Registration 
     Division 2003 Work Plan of the Office of Pesticide Programs 
     of the Environmental Protection Agency.
       ``(ii) Tolerance or exemption fees.--The amount of any fee 
     otherwise payable for an application described in clause (i) 
     under this section shall be reduced by the amount of any fees 
     paid to support the related petition for a pesticide 
     tolerance or exemption under the Federal Food, Drug, and 
     Cosmetic Act (21 U.S.C. 301 et seq.).
       ``(C) Documentation.--An application subject to a 
     registration service fee under this section shall be 
     submitted with documentation certifying--
       ``(i) payment of the registration service fee; or
       ``(ii) a request for a waiver from or reduction of the 
     registration service fee.

[[Page 28920]]

       ``(3) Schedule of covered applications and registration 
     service fees.--
       ``(A) In general.--Not later than 30 days after the 
     effective date of the Pesticide Registration Improvement Act 
     of 2003, the Administrator shall publish in the Federal 
     Register a schedule of covered pesticide registration 
     applications and corresponding registration service fees.
       ``(B) Report.--Subject to paragraph (6), the schedule shall 
     be the same as the applicable schedule appearing in the 
     Congressional Record on pages S11631 through S11633, dated 
     September 17, 2003.
       ``(4) Pending pesticide registration applications.--
       ``(A) In general.--An applicant that submitted a 
     registration application to the Administrator before the 
     effective date of the Pesticide Registration Improvement Act 
     of 2003, but that is not required to pay a registration 
     service fee under paragraph (2)(B), may, on a voluntary 
     basis, pay a registration service fee in accordance with 
     paragraph (2)(B).
       ``(B) Voluntary fee.--The Administrator may not compel 
     payment of a registration service fee for an application 
     described in subparagraph (A).
       ``(C) Documentation.--An application for which a voluntary 
     registration service fee is paid under this paragraph shall 
     be submitted with documentation certifying--
       ``(i) payment of the registration service fee; or
       ``(ii) a request for a waiver from or reduction of the 
     registration service fee.
       ``(5) Resubmission of pesticide registration 
     applications.--If a pesticide registration application is 
     submitted by a person that paid the fee for the application 
     under paragraph (2), is determined by the Administrator to be 
     complete, and is not approved or is withdrawn (without a 
     waiver or refund), the submission of the same pesticide 
     registration application by the same person (or a licensee, 
     assignee, or successor of the person) shall not be subject to 
     a fee under paragraph (2).
       ``(6) Fee adjustment.--Effective for a covered pesticide 
     registration application received on or after October 1, 
     2005, the Administrator shall--
       ``(A) increase by 5 percent the service fee payable for the 
     application under paragraph (3); and
       ``(B) publish in the Federal Register the revised 
     registration service fee schedule.
       ``(7) Waivers and reductions.--
       ``(A) In general.--An applicant for a covered pesticide 
     registration may request the Administrator to waive or reduce 
     the amount of a registration service fee payable under this 
     section under the circumstances described in subparagraphs 
     (D) through (G).
       ``(B) Documentation.--
       ``(i) In general.--A request for a waiver from or reduction 
     of the registration service fee shall be accompanied by 
     appropriate documentation demonstrating the basis for the 
     waiver or reduction.
       ``(ii) Certification.--The applicant shall provide to the 
     Administrator a written certification, signed by a 
     responsible officer, that the documentation submitted to 
     support the waiver or reduction request is accurate.
       ``(iii) Inaccurate documentation.--An application shall be 
     subject to the applicable registration service fee payable 
     under paragraph (3) if, at any time, the Administrator 
     determines that--

       ``(I) the documentation supporting the waiver or reduction 
     request is not accurate; or
       ``(II) based on the documentation or any other information, 
     the waiver or reduction should not have been granted or 
     should not be granted.

       ``(C) Determination to grant or deny request.--As soon as 
     practicable, but not later than 60 days, after the date on 
     which the Administrator receives a request for a waiver or 
     reduction of a registration service fee under this paragraph, 
     the Administrator shall--
       ``(i) determine whether to grant or deny the request; and
       ``(ii) notify the applicant of the determination.
       ``(D) Minor uses.--
       ``(i) In general.--The Administrator may waive or reduce a 
     registration service fee for an application for minor uses 
     for a pesticide.
       ``(ii) Supporting documentation.--An applicant requesting a 
     waiver under this subparagraph shall provide supporting 
     documentation that demonstrates, to the satisfaction of the 
     Administrator, that anticipated revenues from the uses that 
     are the subject of the application would be insufficient to 
     justify imposition of the full application fee.
       ``(E) IR-4 waiver.--The Administrator shall waive the 
     registration service fee for an application if the 
     Administrator determines that--
       ``(i) the application is solely associated with a tolerance 
     petition submitted in connection with the Inter-Regional 
     Project Number 4 (IR-4) as described in section 2 of Public 
     Law 89-106 (7 U.S.C. 450i(e)); and
       ``(ii) the waiver is in the public interest.
       ``(F) Small businesses.--
       ``(i) In general.--The Administrator shall waive 50 percent 
     of the registration service fees payable by an entity for a 
     covered pesticide registration application under this section 
     if the entity is a small business (as defined in section 
     4(i)(5)(E)(ii)) at the time of application.
       ``(ii) Waiver of fees.--The Administrator shall waive all 
     of the registration service fees payable by an entity under 
     this section if the entity--

       ``(I) is a small business (as defined in section 
     4(i)(5)(E)(ii)) at the time of application; and
       ``(II) has average annual global gross revenues described 
     in section 4(i)(5)(E)(ii)(I)(bb) that does not exceed 
     $10,000,000, at the time of application.

       ``(iii) Formation for waiver.--The Administrator shall not 
     grant a waiver under this subparagraph if the Administrator 
     determines that the entity submitting the application has 
     been formed or manipulated primarily for the purpose of 
     qualifying for the waiver.
       ``(iv) Documentation.--An entity requesting a waiver under 
     this subparagraph shall provide to the Administrator--

       ``(I) documentation demonstrating that the entity is a 
     small business (as defined in section 4(i)(5)(E)(ii)) at the 
     time of application; and
       ``(II) if the entity is requesting a waiver of all 
     registration service fees payable under this section, 
     documentation demonstrating that the entity has an average 
     annual global gross revenues described in section 
     4(i)(5)(E)(ii)(I)(bb) that does not exceed $10,000,000, at 
     the time of application.

       ``(G) Federal and state agency exemptions.--An agency of 
     the Federal Government or a State government shall be exempt 
     from covered registration service fees under this section.
       ``(8) Refunds.--
       ``(A) Early withdrawals.--If, during the first 60 days 
     after the beginning of the applicable decision time review 
     period under subsection (f)(3), a covered pesticide 
     registration application is withdrawn by the applicant, the 
     Administrator shall refund all but 10 percent of the total 
     registration service fee payable under paragraph (3) for the 
     application.
       ``(B) Withdrawals after the first 60 days of decision 
     review time period.--
       ``(i) In general.--If a covered pesticide registration 
     application is withdrawn after the first 60 days of the 
     applicable decision time review period, the Administrator 
     shall determine what portion, if any, of the total 
     registration service fee payable under paragraph (3) for the 
     application may be refunded based on the proportion of the 
     work completed at the time of withdrawal.
       ``(ii) Timing.--The Administrator shall--

       ``(I) make the determination described in clause (i) not 
     later than 90 days after the date the application is 
     withdrawn; and
       ``(II) provide any refund as soon as practicable after the 
     determination.

       ``(C) Discretionary refunds.--
       ``(i) In general.--In the case of a pesticide registration 
     application that has been filed with the Administrator and 
     has not been withdrawn by the applicant, but for which the 
     Administrator has not yet made a final determination, the 
     Administrator may refund a portion of a covered registration 
     service fee if the Administrator determines that the refund 
     is justified.
       ``(ii) Basis.--The Administrator may provide a refund for 
     an application under this subparagraph--

       ``(I) on the basis that, in reviewing the application, the 
     Administrator has considered data submitted in support of 
     another pesticide registration application; or
       ``(II) on the basis that the Administrator completed 
     portions of the review of the application before the 
     effective date of this section.

       ``(D) Credited fees.--In determining whether to grant a 
     refund under this paragraph, the Administrator shall take 
     into account any portion of the registration service fees 
     credited under paragraph (2) or (4).
       ``(c) Pesticide Registration Fund.--
       ``(1) Establishment.--There is established in the Treasury 
     of the United States a Pesticide Registration Fund to be used 
     in carrying out this section (referred to in this section as 
     the `Fund'), consisting of--
       ``(A) such amounts as are deposited in the Fund under 
     paragraph (2);
       ``(B) any interest earned on investment of amounts in the 
     Fund under paragraph (4); and
       ``(C) any proceeds from the sale or redemption of 
     investments held in the Fund.
       ``(2) Deposits in fund.--Subject to paragraph (4), the 
     Administrator shall deposit fees collected under this section 
     in the Fund.
       ``(3) Expenditures from fund.--
       ``(A) In general.--Subject to subparagraphs (B) and (C) and 
     paragraph (4), the Administrator may make expenditures from 
     the Fund--
       ``(i) to cover the costs associated with the review and 
     decisionmaking pertaining to all applications for which 
     registration service fees have been paid under this section; 
     and
       ``(ii) to otherwise carry out this section.
       ``(B) Worker protection.--For each of fiscal years 2004 
     through 2008, the Administrator shall use approximately \1/
     17\ of the amount in the Fund (but not more than $1,000,000, 
     and not less than $750,000, for any fiscal year) to enhance 
     current scientific and regulatory activities related to 
     worker protection.

[[Page 28921]]

       ``(C) New inert ingredients.--For each of fiscal years 2004 
     and 2005, the Administrator shall use approximately \1/34\ of 
     the amount in the Fund (but not to exceed $500,000 for any 
     fiscal year) for the review and evaluation of new inert 
     ingredients.
       ``(4) Collections and appropriations acts.--The fees 
     authorized by this section and amounts deposited in the 
     Fund--
       ``(A) shall be collected and made available for obligation 
     only to the extent provided in advance in appropriations 
     Acts; and
       ``(B) shall be available without fiscal year limitation.
       ``(5) Unused funds.--Amounts in the Fund not currently 
     needed to carry out this section shall be--
       ``(A) maintained readily available or on deposit;
       ``(B) invested in obligations of the United States or 
     guaranteed by the United States; or
       ``(C) invested in obligations, participations, or other 
     instruments that are lawful investments for fiduciary, trust, 
     or public funds.
       ``(d) Assessment of Fees.--
       ``(1) Definition of covered functions.--In this subsection, 
     the term `covered functions' means functions of the Office of 
     Pesticide Programs of the Environmental Protection Agency, as 
     identified in key programs and projects of the final 
     operating plan for the Environmental Protection Agency 
     submitted as part of the budget process for fiscal year 2002, 
     regardless of any subsequent transfer of 1 or more of the 
     functions to another office or agency or the subsequent 
     transfer of a new function to the Office of Pesticide 
     Programs.
       ``(2) Minimum amount of appropriations.--Registration 
     service fees may not be assessed for a fiscal year under this 
     section unless the amount of appropriations for salaries, 
     contracts, and expenses for the functions (as in existence in 
     fiscal year 2002) of the Office of Pesticide Programs of the 
     Environmental Protection Agency for the fiscal year 
     (excluding the amount of any fees appropriated for the fiscal 
     year) are equal to or greater than the amount of 
     appropriations for covered functions for fiscal year 2002 
     (excluding the amount of any fees appropriated for the fiscal 
     year).
       ``(3) Use of fees.--Registration service fees authorized by 
     this section shall be available, in the aggregate, only to 
     defray increases in the costs associated with the review and 
     decisionmaking for the review of pesticide registration 
     applications and associated tolerances (including increases 
     in the number of full-time equivalent positions in the 
     Environmental Protection Agency engaged in those activities) 
     over the costs for fiscal year 2002, excluding costs paid 
     from fees appropriated for the fiscal year.
       ``(4) Compliance.--The requirements of paragraph (2) shall 
     have been considered to have been met for any fiscal year if 
     the amount of appropriations for salaries, contracts, and 
     expenses for the functions (as in existence in fiscal year 
     2002) of the Office of Pesticide Programs of the 
     Environmental Protection Agency for the fiscal year 
     (excluding the amount of any fees appropriated for the fiscal 
     year) is not more than 3 percent below the amount of 
     appropriations for covered functions for fiscal year 2002 
     (excluding the amount of any fees appropriated for the fiscal 
     year).
       ``(5) Subsequent authority.--If the Administrator does not 
     assess registration service fees under subsection (b) during 
     any portion of a fiscal year as the result of paragraph (2) 
     and is subsequently permitted to assess the fees under 
     subsection (b) during the fiscal year, the Administrator 
     shall assess and collect the fees, without any modification 
     in rate, at any time during the fiscal year, notwithstanding 
     any provisions of subsection (b) relating to the date fees 
     are to be paid.
       ``(e) Reforms to Reduce Decision Time Review Periods.--To 
     the maximum extent practicable consistent with the degrees of 
     risk presented by pesticides and the type of review 
     appropriate to evaluate risks, the Administrator shall 
     identify and evaluate reforms to the pesticide registration 
     process under this Act with the goal of reducing decision 
     review periods in effect on the effective date of the 
     Pesticide Registration Improvement Act of 2003 for pesticide 
     registration actions for covered pesticide registration 
     applications (including reduced risk applications).
       ``(f) Decision Time Review Periods.--
       ``(1) In general.--Not later than 30 days after the 
     effective date of the Pesticide Registration Improvement Act 
     of 2003, the Administrator shall publish in the Federal 
     Register a schedule of decision review periods for covered 
     pesticide registration actions and corresponding registration 
     service fees under this Act.
       ``(2) Report.--The schedule shall be the same as the 
     applicable schedule appearing in the Congressional Record on 
     pages S11631 through S11633, dated September 17, 2003.
       ``(3) Applications subject to decision time review 
     periods.--The decision time review periods specified in 
     paragraph (1) shall apply to--
       ``(A) covered pesticide registration applications subject 
     to registration service fees under subsection (b)(2);
       ``(B) covered pesticide registration applications for which 
     an applicant has voluntarily paid registration service fees 
     under subsection (b)(4); and
       ``(C) covered pesticide registration applications listed in 
     the Registration Division 2003 Work Plan of the Office of 
     Pesticide Programs of the Environmental Protection Agency.
       ``(4) Start of decision time review period.--
       ``(A) In general.--Except as provided in subparagraphs (C), 
     (D), and (E), in the case of a pesticide registration 
     application accompanied by the registration service fee 
     required under this section, the decision time review period 
     begins 21 days after the date on which the Administrator 
     receives the covered pesticide registration application.
       ``(B) Completeness of application.--In conducting an 
     initial screening of an application, the Administrator shall 
     determine--
       ``(i) whether--

       ``(I) the applicable registration service fee has been 
     paid; or
       ``(II) the application contains a waiver or refund request; 
     and

       ``(ii) whether the application--

       ``(I) contains all necessary forms, data, draft labeling, 
     and, documentation certifying payment of any registration 
     service fee required under this section; or
       ``(II) establishes a basis for any requested waiver or 
     reduction.

       ``(C) Applications with waiver or reduction requests.--
       ``(i) In general.--In the case of an application submitted 
     with a request for a waiver or reduction of registration 
     service fees under subsection (b)(7), the decision time 
     review period shall be determined in accordance with this 
     subparagraph.
       ``(ii) Request granted with no additional fees required.--
     If the Administrator grants the waiver or reduction request 
     and no additional fee is required, the decision time review 
     period begins on the earlier of--

       ``(I) the date on which the Administrator grants the 
     request; or
       ``(II) the date that is 60 days after the date of receipt 
     of the application.

       ``(iii) Request granted with additional fees required.--If 
     the Administrator grants the waiver or reduction request, in 
     whole or in part, but an additional registration service fee 
     is required, the decision time review period begins on the 
     date on which the Administrator receives certification of 
     payment of the applicable registration service fee.
       ``(iv) Request denied.--If the Administrator denies the 
     waiver or reduction request, the decision time review period 
     begins on the date on which the Administrator receives 
     certification of payment of the applicable registration 
     service fee.
       ``(D) Pending applications.--
       ``(i) In general.--The start of the decision time review 
     period for applications described in clause (ii) shall be the 
     date on which the Administrator receives certification of 
     payment of the applicable registration service fee.
       ``(ii) Applications.--Clause (i) applies to--

       ``(I) covered pesticide registration applications for which 
     voluntary fees have been paid under subsection (b)(4); and
       ``(II) covered pesticide registration applications received 
     on or after the effective date of the Pesticide Registration 
     Improvement Act of 2003 but submitted without the applicable 
     registration service fee required under this section due to 
     the inability of the Administrator to assess fees under 
     subsection (d)(1).

       ``(E) 2003 work plan.--In the case of a covered pesticide 
     registration application listed in the Registration Division 
     2003 Work Plan of the Office of Pesticide Programs of the 
     Environmental Protection Agency, the decision time review 
     period begins on the date that is 30 days after the effective 
     date of the Pesticide Registration Improvement Act of 2003.
       ``(5) Extension of decision time review period.--The 
     Administrator and the applicant may mutually agree in writing 
     to extend a decision time review period under this 
     subsection.
       ``(g) Judicial Review.--
       ``(1) In general.--Any applicant adversely affected by the 
     failure of the Administrator to make a determination on the 
     application of the applicant for registration of a new active 
     ingredient or new use for which a registration service fee is 
     paid under this section may obtain judicial review of the 
     failure solely under this section.
       ``(2) Scope.--
       ``(A) In general.--In an action brought under this 
     subsection, the only issue on review is whether the 
     Administrator failed to make a determination on the 
     application specified in paragraph (1) by the end of the 
     applicable decision time review period required under 
     subsection (f) for the application.
       ``(B) Other actions.--No other action authorized or 
     required under this section shall be judicially reviewable by 
     a Federal or State court.
       ``(3) Timing.--
       ``(A) In general.--A person may not obtain judicial review 
     of the failure of the Administrator to make a determination 
     on the application specified in paragraph (1) before

[[Page 28922]]

     the expiration of the 2-year period that begins on the date 
     on which the decision time review period for the application 
     ends.
       ``(B) Meeting with administrator.--To be eligible to seek 
     judicial review under this subsection, a person seeking the 
     review shall first request in writing, at least 120 days 
     before filing the complaint for judicial review, a decision 
     review meeting with the Administrator.
       ``(4) Remedies.--The Administrator may not be required or 
     permitted to refund any portion of a registration service fee 
     paid in response to a complaint that the Administrator has 
     failed to make a determination on the covered pesticide 
     registration application specified in paragraph (1) by the 
     end of the applicable decision review period.
       ``(h) Accounting.--The Administrator shall--
       ``(1) provide an annual accounting of the registration 
     service fees paid to the Administrator and disbursed from the 
     Fund, by providing financial statements in accordance with--
       ``(A) the Chief Financial Officers Act of 1990 (Public Law 
     101-576; 104 Stat. 2838) and amendments made by that Act; and
       ``(B) the Government Management Reform Act of 1994 (Public 
     Law 103-356; 108 Stat. 3410) and amendments made by that Act;
       ``(2) provide an accounting describing expenditures from 
     the Fund authorized under subsection (c); and
       ``(3) provide an annual accounting describing collections 
     and expenditures authorized under subsection (d).
       ``(i) Auditing.--
       ``(1) Financial statements of agencies.--For the purpose of 
     section 3515(c) of title 31, United States Code, the Fund 
     shall be considered a component of an executive agency.
       ``(2) Components.--The annual audit required under sections 
     3515(b) and 3521 of that title of the financial statements of 
     activities under this section shall include an analysis of--
       ``(A) the fees collected under subsection (b) and 
     disbursed;
       ``(B) compliance with subsection (f);
       ``(C) the amount appropriated to meet the requirements of 
     subsection (d)(1); and
       ``(D) the reasonableness of the allocation of the overhead 
     allocation of costs associated with the review and 
     decisionmaking pertaining to applications under this section.
       ``(3) Inspector general.--The Inspector General of the 
     Environmental Protection Agency shall--
       ``(A) conduct the annual audit required under this 
     subsection; and
       ``(B) report the findings and recommendations of the audit 
     to the Administrator and to the appropriate committees of 
     Congress.
       ``(j) Personnel Levels.--All full-time equivalent positions 
     supported by fees authorized and collected under this section 
     shall not be counted against the agency-wide personnel level 
     goals of the Environmental Protection Agency.
       ``(k) Reports.--
       ``(1) In general.--Not later than March 1, 2005, and each 
     March 1 thereafter through March 1, 2009, the Administrator 
     shall publish an annual report describing actions taken under 
     this section.
       ``(2) Contents.--The report shall include--
       ``(A) a review of the progress made in carrying out each 
     requirement of subsections (e) and (f), including--
       ``(i) the number of applications reviewed, including the 
     decision times for each application specified in subsection 
     (f);
       ``(ii) the number of actions pending in each category of 
     actions described in subsection (f)(3), as well as the number 
     of inert ingredients;
       ``(iii) to the extent determined appropriate by the 
     Administrator and consistent with the authorities of the 
     Administrator and limitations on delegation of functions by 
     the Administrator, recommendations for--

       ``(I) expanding the use of self-certification in all 
     appropriate areas of the registration process;
       ``(II) providing for accreditation of outside reviewers and 
     the use of outside reviewers to conduct the review of major 
     portions of applications; and
       ``(III) reviewing the scope of use of the notification 
     process to cover broader categories of registration actions; 
     and

       ``(iv) the use of performance-based contracts, other 
     contracts, and procurement to ensure that--

       ``(I) the goals of this Act for the timely review of 
     applications for registration are met; and
       ``(II) the registration program is administered in the most 
     productive and cost effective manner practicable;

       ``(B) a description of the staffing and resources relating 
     to the costs associated with the review and decisionmaking 
     pertaining to applications; and
       ``(C) a review of the progress in meeting the timeline 
     requirements of section 4(g).
       ``(3) Method.--The Administrator shall publish a report 
     required by this subsection by such method as the 
     Administrator determines to be the most effective for 
     efficiently disseminating the report, including publication 
     of the report on the Internet site of the Environmental 
     Protection Agency.
       ``(l) Savings Clause.--Nothing in this section affects any 
     other duties, obligations, or authorities established by any 
     other section of this Act, including the right to judicial 
     review of duties, obligations, or authorities established by 
     any other section of this Act.
       ``(m) Termination of Effectiveness.--
       ``(1) In general.--Except as provided in paragraph (2), the 
     authority provided by this section terminates on September 
     30, 2008.
       ``(2) Phase out.--
       ``(A) Fiscal year 2009.--During fiscal year 2009, the 
     requirement to pay and collect registration service fees 
     applies, except that the level of registration service fees 
     payable under this section shall be reduced 40 percent below 
     the level in effect on September 30, 2008.
       ``(B) Fiscal year 2010.--During fiscal year 2010, the 
     requirement to pay and collect registration service fees 
     applies, except that the level of registration service fees 
     payable under this section shall be reduced 70 percent below 
     the level in effect on September 30, 2008.
       ``(C) September 30, 2010.--Effective September 30, 2010, 
     the requirement to pay and collect registration service fees 
     terminates.
       ``(D) Decision review periods.--
       ``(i) Pending applications.--In the case of an application 
     received under this section before September 30, 2008, the 
     application shall be reviewed in accordance with subsection 
     (f).
       ``(ii) New applications.--In the case of an application 
     received under this section on or after September 30, 2008, 
     subsection (f) shall not apply to the application.''.
       (g) Conforming Amendments.--The table of contents in 
     section 1(b) of the Federal Insecticide, Fungicide, and 
     Rodenticide Act (7 U.S.C. prec. 136) is amended--
       (1) by striking the item relating to section 4(k)(3) and 
     inserting the following:

    ``(3) Review of inert ingredients; expedited processing of similar 
      applications.'';
     and
       (2) by striking the items relating to sections 30 and 31 
     and inserting the following:

``Sec. 30. Minimum requirements for training of maintenance applicators 
              and service technicians.
``Sec. 31. Environmental Protection Agency minor use program.
``Sec. 32. Department of Agriculture minor use program.
     ``(a) In general.
     ``(b)(1) Minor use pesticide data.
     ``(2) Minor Use Pesticide Data Revolving Fund.
``Sec. 33. Pesticide registration service fees.
     ``(a) Definition of costs.
     ``(b) Fees.
       ``(1) In general.
       ``(2) Covered pesticide registration applications.
       ``(3) Schedule of covered applications and registration 
     service fees.
       ``(4) Pending pesticide registration applications.
       ``(5) Resubmission of pesticide registration applications.
       ``(6) Fee adjustment.
       ``(7) Waivers and reductions.
       ``(8) Refunds.
     ``(c) Pesticide Registration Fund.
       ``(1) Establishment.
       ``(2) Transfers to Fund.
       ``(3) Expenditures from Fund.
       ``(4) Collections and appropriations Acts.
       ``(5) Unused funds.
     ``(d) Assessment of fees.
       ``(1) Definition of covered functions.
       ``(2) Minimum amount of appropriations.
       ``(3) Use of fees.
       ``(4) Compliance.
       ``(5) Subsequent authority.
     ``(e) Reforms to reduce decision time review periods.
     ``(f) Decision time review periods.
       ``(1) In general.
       ``(2) Report.
       ``(3) Applications subject to decision time review periods.
       ``(4) Start of decision time review period.
       ``(5) Extension of decision time review period.
     ``(g) Judicial review.
       ``(1) In general.
       ``(2) Scope.
       ``(3) Timing.
       ``(4) Remedies.
     ``(h) Accounting.
     ``(i) Auditing.
       ``(1) Financial statements of agencies.
       ``(2) Components.
       ``(3) Inspector General.
     ``(j) Personnel levels.
     ``(k) Reports.
       ``(1) In general.
       ``(2) Contents.
     ``(l) Savings clause.
     ``(m) Termination of effectiveness.
       ``(1) In general.
       ``(2) Phase out.
``Sec. 34. Severability.
``Sec. 35. Authorization for appropriations.''.
       (h) Effective Date.--Except as otherwise provided in this 
     section and the amendments made by this section, this section 
     and the amendments made by this section take effect on the 
     date that is 60 days after the date of enactment of this Act.
                                 ______
                                 
  SA 2159. Mr. DORGAN proposed an amendment to amendment SA 2158 
proposed by Mr. Craig (for himself, Mr.

[[Page 28923]]

Harkin, Mr. Cochran, Mr. Conrad, Mr. Chambliss, Mr. Coleman, Mr. Crapo, 
Mr. Lugar, Mr. Breaux, Mr. Roberts, Mr. Fitzgerald, and Mr. Pryor) to 
the amendment SA 2150 proposed by Mr. Bond (for himself and Ms. 
Mikulski) to the bill H.R. 2861, making appropriations for the 
Departments of Veterans Affairs and Housing and Urban Development, and 
for sundry independent agencies, boards, commissions, corporations, and 
offices for the fiscal year ending September 30, 2004, and for other 
purposes; as follows:

       At the appropriate place, insert the following:
       (__) Registration of Canadian Pesticides.--
       (1) In general.--Section 3 of the Federal Insecticide, 
     Fungicide, and Rodenticide Act (7 U.S.C. 136a) is amended by 
     adding at the end the following:
       ``(i) Registration of Canadian Pesticides.--
       ``(1) Definitions.--In this subsection:
       ``(A) Canadian pesticide.--The term `Canadian pesticide' 
     means a pesticide that--
       ``(i) is registered for use as a pesticide in Canada;
       ``(ii) is identical or substantially similar in its 
     composition to a comparable domestic pesticide registered 
     under this section; and
       ``(iii) is registered in Canada by the registrant of the 
     comparable domestic pesticide or by an affiliated entity of 
     the registrant.
       ``(B) Comparable domestic pesticide.--The term `comparable 
     domestic pesticide' means a pesticide--
       ``(i) that is registered under this section;
       ``(ii) the registration of which is not under suspension;
       ``(iii) that is not subject to--

       ``(I) a notice of intent to cancel or suspend under any 
     provision of this Act;
       ``(II) a notice for voluntary cancellation under section 
     6(f); or
       ``(III) an enforcement action under any provision of this 
     Act;

       ``(iv) that is used as the basis for comparison for the 
     determinations required under paragraph (4);
       ``(v) that is registered for use on each site of 
     application for which registration is sought under this 
     subsection;
       ``(vi) for which no use is the subject of a pending interim 
     administrative review under subsection (c)(8);
       ``(vii) that is not subject to any limitation on production 
     or sale agreed to by the Administrator and the registrant or 
     imposed by the Administrator for risk mitigation purposes; 
     and
       ``(viii) that is not classified as a restricted use 
     pesticide under subsection (d).
       ``(2) Authority to register canadian pesticides.--
       ``(A) In general.--The Administrator may register a 
     Canadian pesticide if the registration--
       ``(i) complies with this subsection;
       ``(ii) is consistent with this Act; and
       ``(iii) has not previously been disapproved by the 
     Administrator.
       ``(B) Production of another pesticide.--A pesticide 
     registered under this subsection shall not be used to produce 
     a pesticide registered under this section or section 24(c).
       ``(C) Registrant.--
       ``(i) In general.--The Administrator may register a 
     Canadian pesticide under this subsection on the application 
     of any person.
       ``(ii) Application.--If the Administrator registers a 
     Canadian pesticide under this subsection on application of 
     any person, the applicant shall be considered to be the 
     registrant of the Canadian pesticide for all purposes of this 
     Act.
       ``(D) Administrator.--Not later than 60 days after a person 
     submits a complete application for the registration of a 
     Canadian pesticide under this subsection, the Administrator 
     shall--
       ``(i) approve the application; or
       ``(ii)(I) disapprove the application; and
       ``(II) provide the applicant with a statement of the 
     reasons for the disapproval.
       ``(E) Delegation.--
       ``(i) In general.--Subject to clause (ii), the 
     Administrator may delegate a function of the Administrator 
     under this subsection.
       ``(ii) Approval.--The Administrator shall approve or 
     disapprove any final action taken under this subsection as 
     the result of a function delegated to a State.
       ``(3) Applicant requirements.--A person seeking 
     registration of a Canadian pesticide under this subsection 
     shall--
       ``(A) demonstrate to the Administrator that the Canadian 
     pesticide is identical or substantially similar in its 
     composition to a comparable domestic pesticide; and
       ``(B) submit to the Administrator a copy of--
       ``(i) the label approved by the Pesticide Management 
     Regulatory Agency for the Canadian pesticide; and
       ``(ii) the label approved by the Administrator for the 
     comparable domestic pesticide.
       ``(4) Criteria for registration.--The Administrator may 
     register a Canadian pesticide under this subsection if the 
     Administrator--
       ``(A) obtains the confidential statement of formula for the 
     Canadian pesticide;
       ``(B) determines that the Canadian pesticide is identical 
     or substantially similar in composition to a comparable 
     domestic pesticide;
       ``(C) for each food or feed use authorized by the 
     registration--
       ``(i) determines that there exists an adequate tolerance or 
     exemption under the Federal Food, Drug, and Cosmetic Act (21 
     U.S.C. 301 et seq.) that permits the residues of the 
     pesticide on the food or feed; and
       ``(ii) identifies the tolerances or exemptions in the 
     notification submitted under subparagraph (E);
       ``(D) obtains a label approved by the Administrator that--
       ``(i) includes all statements, other than the establishment 
     number, from the approved labeling of the comparable domestic 
     pesticide that are relevant to the uses registered by the 
     Administrator; and
       ``(ii) excludes all labeling statements relating to uses 
     that are not registered by the Administrator; and
       ``(E) not later than 10 business days after the issuance of 
     the registration, publish in the Federal Register a written 
     notification of the action of the Administrator that 
     includes--
       ``(i) a description of the determination made under this 
     paragraph; and
       ``(ii) a statement of the effective date of the 
     registration;
       ``(5) Labeling of canadian pesticides.--
       ``(A) In general.--Each container containing a Canadian 
     pesticide registered by the Administrator shall bear the 
     label that is approved by the Administrator under this 
     subsection.
       ``(B) Display of label.--The label shall be securely 
     attached to the container and shall be the only label visible 
     on the container.
       ``(C) Original canadian label.--The original Canadian label 
     on the container shall be preserved underneath the label 
     approved by the Administrator.
       ``(D) Preparation and use of labels.--After a Canadian 
     pesticide is registered under this subsection, the registrant 
     shall--
       ``(i) prepare labels approved by the Administrator for the 
     Canadian pesticide; and
       ``(ii) conduct or supervise all labeling of the Canadian 
     pesticide with the approved labeling.
       ``(E) Registered establishments.--Labeling of a Canadian 
     pesticide under this subsection shall be conducted at an 
     establishment registered by the registrant under section 7.
       ``(6) Revocation.--
       ``(A) In general.--After the registration of a Canadian 
     pesticide, if the Administrator finds that the Canadian 
     pesticide is not identical or substantially similar in 
     composition to a comparable domestic pesticide, the 
     Administrator may issue an emergency order revoking the 
     registration of the Canadian pesticide.
       ``(B) Terms of order.--The order--
       ``(i) shall be effective immediately;
       ``(ii) may prohibit the sale, distribution, and use of the 
     Canadian pesticide in a State; and
       ``(iii) may require the registrant of the Canadian 
     pesticide to purchase and dispose of any unopened product 
     subject to the order.
       ``(C) Request for hearing.--Not later than 10 days after 
     issuance of the order, the registrant of the Canadian 
     pesticide subject to the order may request a hearing on the 
     order.
       ``(D) Final order.--If a hearing is not requested in 
     accordance with subparagraph (C), the order shall become 
     final and shall not be subject to judicial review.
       ``(E) Judicial review.--If a hearing is requested on the 
     order, judicial review may be sought only at the conclusion 
     of the hearing on the order and following the issuance by the 
     Administrator of a final revocation order.
       ``(F) Procedure.--A final revocation order issued following 
     a hearing shall be reviewable in accordance with section 16.
       ``(7) Limits on liability.--No action for monetary damages 
     may be heard in any Federal or State court against--
       ``(A) the Administrator acting as a registering agency 
     under the authority of and consistent with this subsection 
     for injury or damage resulting from the use of a product 
     registered by the Administrator under this subsection; or
       ``(B) a registrant for damages resulting from adulteration 
     or compositional alteration of a Canadian pesticide 
     registered under this subsection if the registrant did not 
     have and could not reasonably have obtained knowledge of the 
     adulteration or compositional alteration.
       ``(8) Provision of information by registrants of comparable 
     domestic pesticides.--
       ``(A) In general.--On request by the Administrator the 
     registrant of a comparable domestic pesticide shall provide 
     to the Administrator that is seeking to register a Canadian 
     pesticide under this subsection information that is necessary 
     for the Administrator to make the determinations required by 
     paragraph (4).
       ``(B) Penalty for noncompliance.--
       ``(i) In general.--If the registrant of a comparable 
     domestic pesticide fails to provide to the Administrator, not 
     later than 15 days after receipt of a written request by the

[[Page 28924]]

     Administrator, information possessed by or reasonably 
     accessible to the registrant that is necessary to make the 
     determinations required by paragraph (4), the Administrator 
     may assess a penalty against the registrant of the comparable 
     pesticide.
       ``(ii) Amount.--The amount of the penalty shall be equal to 
     the product obtained by multiplying--

       ``(I) the difference between the per-acre cost of the 
     application of the comparable domestic pesticide and the 
     application of the Canadian pesticide, as determined by the 
     Administrator; and
       ``(II) the number of acres in the United States devoted to 
     the commodity for which the registration is sought.

       ``(C) Notice and opportunity for hearing.--No penalty under 
     this paragraph shall be assessed unless the registrant is 
     given notice and opportunity for a hearing in accordance with 
     section 14(a)(3).
       ``(D) Issues at hearing.--The only issues for resolution at 
     the hearing shall be--
       ``(i) whether the registrant of the comparable domestic 
     pesticide failed to timely provide to the Administrator the 
     information possessed by or reasonably accessible to the 
     registrant that was necessary to make the determinations 
     required by paragraph (4); and
       ``(ii) the amount of the penalty.
       ``(9) Penalty for disclosure.--
       ``(A) In general.--The Administrator shall not make public 
     information obtained under paragraph (8) that is privileged 
     and confidential and contains or relates to trade secrets or 
     commercial or financial information.
       ``(B) Disclosure.--Any employee of the Environmental 
     Protection Agency who willfully discloses information 
     described in subparagraph (A) shall be subject to penalties 
     described in section 10(f).
       ``(10) Data compensation.--The Administrator and a person 
     registering a Canadian pesticide under this subsection shall 
     not be liable for compensation for data supporting the 
     registration if the registration of the Canadian pesticide in 
     Canada and the registration of the comparable domestic 
     pesticide are held by the same registrant or by affiliated 
     entities.
       ``(11) Formulation changes.--
       ``(A) In general.--The registrant of a comparable domestic 
     pesticide shall notify the Administrator of any change in the 
     formulation of a comparable domestic pesticide or a Canadian 
     pesticide registered by the registrant or an affiliated 
     entity not later than 30 days before any sale or distribution 
     of the pesticide containing the new formulation.
       ``(B) Statement of formula.--The registrant of the 
     comparable domestic pesticide shall submit, with the notice 
     required under subparagraph (A), a confidential statement of 
     the formula for the new formulation if the registrant has 
     possession of or reasonable access to the information.
       ``(C) Suspension of registration for noncompliance.--
       ``(i) In general.--If the registrant fails to provide 
     notice or submit a confidential statement of formula as 
     required by this paragraph, the Administrator may issue a 
     notice of intent to suspend the registration of the 
     comparable domestic pesticide for a period of not less than 1 
     year.
       ``(ii) Effective date.--The suspension shall become final 
     not later than the end of the 30-day period beginning on the 
     date of the issuance by the Administrator of the notice of 
     intent to suspend the registration, unless during the period 
     the registrant requests a hearing.
       ``(iii) Hearing procedure.--If a hearing is requested, the 
     hearing shall be conducted in accordance with section 6(d).
       ``(iv) Issues.--The only issues for resolution at the 
     hearing shall be whether the registrant has failed to provide 
     notice or submit a confidential statement of formula as 
     required by this paragraph.''.
       (2) Technical and conforming amendment.--The table of 
     contents in section 1(b) of the Federal Insecticide, 
     Fungicide, and Rodenticide Act (7 U.S.C. prec. 121) is 
     amended by adding at the end of the items relating to section 
     3 the following:

  ``(4) Mixtures of nitrogen stabilizers and fertilizer products.
``(g) Registration review.
``(h) Registration requirements for antimicrobial pesticides.
  ``(1) Evaluation of process.
  ``(2) Review time period reduction goal.
  ``(3) Implementation.
  ``(4) Annual report.
``(i) Registration of Canadian pesticides.
  ``(1) Definitions.
  ``(2) Authority to register Canadian pesticides.
  ``(3) Applicant requirements.
  ``(4) Criteria for registration.
  ``(5) Labeling of Canadian pesticides.
  ``(6) Revocation.
  ``(7) Limits on liability.
  ``(8) Provision of information by registrants of comparable domestic 
              pesticides.
  ``(9) Penalty for disclosure.
  ``(10) Data compensation.
  ``(11) Formulation changes.''.

       (3) Effective date.--This subsection and the amendments 
     made by this subsection take effect on the date that is 180 
     days after the date of enactment of this Act.
                                 ______
                                 
  SA 2160. Mr. DeWINE (for himself and Mr. Voinovich) submitted an 
amendment intended to be proposed to amendment SA 2150 proposed by Mr. 
Bond (for himself and Ms. Mikulski) to the bill H.R. 2861, making 
appropriations for the Departments of Veterans Affairs and Housing and 
Urban Development, and for sundry independent agencies, boards, 
commissions, corporations, and offices for the fiscal year ending 
September 30, 2004, and for other purposes; which was ordered to lie on 
the table; as follows:

       On page 113, after line 22, add the following:
       The aggregate amount appropriated by this title under the 
     heading ``National Aeronautics and Space Administration'' is 
     hereby increased by $29,000,000, with the amount of the 
     increase to be available for commercial technology transfer 
     programs. The amount available under the preceding sentence 
     for commercial technology transfer programs is in addition to 
     any other amounts available under this Act for such programs.
       The amount appropriated by this title under the heading 
     ``science, aeronautics, and exploration'' is hereby reduced 
     by $29,000,000, with the amount of the reduction to be 
     allocated to the Beyond Einstein Initiative.
                                 ______
                                 
  SA 2161. Mr. DeWINE (for himself and Mr. Voinovich) submitted an 
amendment intended to be proposed to amendment SA 2150 proposed by Mr. 
Bond (for himself and Ms. Mikulski) to the bill H.R. 2861, making 
appropriations for the Departments of Veterans Affairs and Housing and 
Urban Development, and for sundry independent agencies, boards, 
commissions, corporations, and offices for the fiscal year ending 
September 30, 2004, and for other purposes; which was ordered to lie on 
the table; as follows:

       On page 111, line 6, insert before the period the 
     following: ``: Provided, That of the amounts available under 
     this heading, $4,000,000 shall be available for the purpose 
     of research and development relating to intelligence 
     propulsion and related advancements, and shall be in addition 
     to any other amounts available under this heading for that 
     purpose''.
                                 ______
                                 
  SA 2162. Mr. DeWINE (for himself, Mr. Levin, and Mr. Voinovich) 
submitted an amendment intended to be proposed to amendment SA 2150 
proposed by Mr. Bond (for himself and Ms. Mikulski) to the bill H.R. 
2861, making appropriations for the Departments of Veterans Affairs and 
Housing and Urban Development, and for sundry independent agencies, 
boards, commissions, corporations, and offices for the fiscal year 
ending September 30, 2004, and for other purposes; which was ordered to 
lie on the table; as follows:

       On page 97, line 24, after ``members;'', insert the 
     following: ``the Great Lakes Legacy Program of the 
     Environmental Protection Agency, in an amount that is not 
     less than $15,000,000;''.
                                 ______
                                 
  SA 2163. Mr. DeWINE (for himself and Mr. Voinovich) submitted an 
amendment intended to be proposed to amendment SA 2150 proposed by Mr. 
Bond (for himself and Ms. Mikulski) to the bill H.R. 2861, making 
appropriations for the Departments of Veterans Affairs and Housing and 
Urban Development, and for sundry independent agencies, boards, 
commissions, corporations, and offices for the fiscal year ending 
September 30, 2004, and for other purposes; which was ordered to lie on 
the table; as follows:

       At the appropriate place, insert the following:
       Sec. __. From amounts appropriated under this Act, there 
     shall be set aside $660,000 for the National Academy of 
     Sciences study proposal ``Health Risks to Children from 
     Residential Lead Contamination''.
                                 ______
                                 
  SA 2164. Ms. CANTWELL (for herself, Mr. Carper, Mr. Brownback, Mr. 
Hagel, Mr. Roberts, Mr. Nelson of Nebraska, and Mrs. Murray) submitted 
an amendment intended to be proposed to amendment SA 2150 proposed by 
Mr. Bond (for himself and Ms. Mikulski) to the bill H.R. 2861, making 
appropriations for the Departments of Veterans Affairs and Housing and 
Urban Development, and for sundry independent agencies, boards, 
commissions, corporations, and offices for the fiscal year ending 
September 30, 2004, and for other purposes; which was ordered to lie on 
the table; as follows:


[[Page 28925]]

       On page 125, between lines 7 and 8, insert the following:

     SEC. 418. EXTENSION OF CERTAIN PUBLIC HOUSING/SECTION 8 
                   MOVING TO WORK DEMONSTRATION AGREEMENTS.

       (a) Extension.--The Secretary of Housing and Urban 
     Development shall extend the term of the Moving to Work 
     Demonstration Agreement entered into between a public housing 
     agency and the Secretary under section 204, title V, of the 
     Omnibus Consolidated Rescissions and Appropriations Act of 
     1996 (Pub. L. 104-134, April 26, 1996) if--
       (1) the public housing agency requests such extension in 
     writing;
       (2) the public housing agency is not at the time of such 
     request for extension in default under its Moving to Work 
     Demonstration Agreement; and
       (3) the Moving to Work Demonstration Agreement to be 
     extended would otherwise expire on or before December 31, 
     2004.
       (b) Terms.--Unless the Secretary of Housing and Urban 
     Development and the public housing agency otherwise agree, 
     the extension under subsection (a) shall be upon the 
     identical terms and conditions set forth in the extending 
     agency's existing Moving to Work Demonstration Agreement, 
     except that for each public housing agency that has been or 
     will be granted an extension to its original Moving to Work 
     agreement, the Secretary shall require that data be collected 
     so that the effect of Moving to Work policy changes on 
     residents can be measured.
       (c) Extension Period.--The extension under subsection (a) 
     shall be for such period as is requested by the public 
     housing agency, not to exceed 3 years from the date of 
     expiration of the extending agency's existing Moving to Work 
     Demonstration Agreement.
       (d) Breach of Agreement.--Nothing contained in this section 
     shall limit the authority of the Secretary of Housing and 
     Urban Development to terminate any Moving to Work 
     Demonstration Agreement of a public housing agency if the 
     public housing agency is in breach of the provisions of such 
     agreement.

     SEC. 419. STUDY OF MOVING TO WORK PROGRAM.

       (a) In General.--The General Accounting Office shall 
     conduct a study of the Moving to Work demonstration program 
     to evaluate--
       (1) whether the statutory goals of the Moving to Work 
     demonstration program are being met;
       (2) the effects policy changes related to the Moving to 
     Work demonstration program have had on residents; and
       (3) whether public housing agencies participating in the 
     Moving to Work program are meeting the requirements of the 
     Moving to Work demonstration program under law and any 
     agreements with the Department of Housing and Urban 
     Development.
       (b) Report.--Not later than 18 months after the date of 
     enactment of this Act, the General Accounting Office shall 
     submit to Congress a report on the study conducted under 
     subsection (a).
                                 ______
                                 
  SA 2165. Mr. COLEMAN submitted an amendment intended to be proposed 
to amendment SA 2150 proposed by Mr. Bond (for himself and Ms. 
Mikulski) to the bill H.R. 2861, making appropriations for the 
Departments of Veterans Affairs and Housing and Urban Development, and 
for sundry independent agencies, boards, commissions, corporations, and 
offices for the fiscal year ending September 30, 2004, and for other 
purposes; which was ordered to lie on the table; as follows:

       On page 125, between lines 7 and 8, insert the following:
       Sec. 418. There are appropriated $1,060,000 to the 
     Neighborhood House in Saint Paul, Minnesota, for construction 
     costs of the Paul and Sheila Wellstone Center for Community 
     Building.
                                 ______
                                 
  SA 2166. Mr. DORGAN submitted an amendment intended to be proposed to 
amendment SA 2150 proposed by Mr. Bond (for himself and Ms. Mikulski) 
to the bill H.R. 2861, making appropriations for the Departments of 
Veterans Affairs and Housing and Urban Development, and for sundry 
independent agencies, boards, commissions, corporations, and offices 
for the fiscal year ending September 30, 2004, and for other purposes; 
which was ordered to lie on the table; as follows:

       On page 125, between lines 7 and 8, insert the following:
       Sec. __. (a) Section 45D(e) of the Internal Revenue Code of 
     1986 (relating to low-income community) is amended by adding 
     at the end the following new paragraph:
       ``(4) Modification of income requirement for census tracts 
     within high migration rural counties.--
       ``(A) In general.--In the case of a population census tract 
     located within a high migration rural county, paragraph 
     (1)(B)(i) shall be applied by substituting `85 percent' for 
     `80 percent'.
       ``(B) High migration rural county.--For purposes of this 
     paragraph, the term `high migration rural county' means any 
     county which, during the 20-year period ending on December 
     31, 2000, has a net out-migration of inhabitants from the 
     county of at least 10-percent of the population of the county 
     at the beginning of such period.''.
       (b) The amendment made by this section shall take effect as 
     if included in the amendment made by section 121(a) of the 
     Community Renewal Tax Relief Act of 2000.
                                 ______
                                 
  SA 2167. Mr. BOND proposed an amendment to amendment SA 150 proposed 
by Mr. Bond (for himself and Ms. Milkulski) to the bill H.R. 2861, 
making appropriations for the Departments of Veterans Affairs and 
Housing and Urban Development, and for sundry independent agencies, 
boards, commissions, corporations, and offices for the fiscal year 
ending September 30, 2004, and for other purposes; as follows:

       Beginning on page 9, line 20, strike ``: Provided, That'' 
     and all that follows through ``Congress'' on line 5, page 10.
                                 ______
                                 
  SA 2168. Mr. REED submitted an amendment intended to be proposed to 
amendment SA 2150 proposed by Mr. Bond (for himself and Ms. Mikulski) 
to the bill H.R. 2861, making appropriations for the Departments of 
Veterans Affairs and Housing and Urban Development, and for sundry 
independent agencies, boards, commissions, corporations, and offices 
for the fiscal year ending September 30, 2004, and for other purposes; 
which was ordered to lie on the table; as follows:

       On page 125, between lines 7 and 8, insert the following:
       Sec. 418. Funds made available under this Act or any other 
     Act that are awarded by the Secretary of Housing and Urban 
     Development to a public housing agency for replacement 
     housing needs arising from the demolition of public housing 
     units, and that are used by the public housing agency as 
     project-based assistance, shall not be included as tenant-
     based assistance that is attached to a structure for the 
     purposes of the 20 percent limitation under section 
     8(o)(13)(B) of the United States Housing Act of 1937 (42 
     U.S.C. 1437f), if the public housing agency certifies that 
     use of the funds as project-based assistance is necessary in 
     order to provide adequate replacement housing opportunities 
     consistent with the purposes of section 24 of that Act (42 
     U.S.C. 1437v).
                                 ______
                                 
  SA 2169. Mr. LEVIN (for himself, Ms. Collins, Ms. Stabenow, and Mr. 
Voinovich) submitted an amendment intended to be proposed to amendment 
SA 2150 proposed by Mr. Bond (for himself and Ms. Mikulski) to the bill 
H.R. 2861, making appropriations for the Departments of Veterans 
Affairs and Housing and Urban Development, and for sundry independent 
agencies, boards, commissions, corporations, and offices for the fiscal 
year ending September 30, 2004, and for other purposes; which was 
ordered to lie on the table; as follows:

       On page 125, between lines 7 and 8, insert the following:

     SEC. 4__. SEWER OVERFLOW CONTROL GRANTS.

       Section 221 of the Federal Water Pollution Control Act (33 
     U.S.C. 1301) is amended--
       (1) in subsection (f), by striking ``2002 and 2003'' and 
     inserting ``2005 and 2006'';
       (2) in subsection (g)(1)--
       (A) in the paragraph heading, by striking ``2002'' and 
     inserting ``2005''; and
       (B) by striking ``2002'' and inserting ``2005'';
       (3) in subsection (g)(2)--
       (A) in the paragraph heading, by striking ``2003'' and 
     inserting ``2006''; and
       (B) by striking ``2003'' and inserting ``2006''; and
       (4) in subsection (i), by striking ``2003'' and inserting 
     ``2006''.
                                 ______
                                 
  SA 2170. Mr. BOND (for Mr. Leahy (for himself and Mr. Brownback)) 
proposed an amendment to the bill S. 1685, to extend and expand the 
basic pilot program for employment eligibility verification, and for 
other purposes; as follows:

       At the end, add the following:

     SEC. 4. PILOT IMMIGRATION PROGRAM.

       (a) Processing Priority Under Pilot Immigration Program for 
     Regional Centers to Promote Economic Growth.--Section 610 of 
     the Departments of Commerce, Justice, and State, the 
     Judiciary, and Related Agencies Appropriations Act, 1993 (8 
     U.S.C. 1153 note) is amended--
       (1) by striking ``Attorney General'' each place such term 
     appears and inserting ``Secretary of Homeland Security''; and
       (2) by adding at the end the following:
       ``(d) In processing petitions under section 204(a)(1)(H) of 
     the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(H)) 
     for classification under section 203(b)(5) of such Act (8 
     U.S.C. 1153(b)(5)), the Secretary of Homeland Security may 
     give priority to petitions filed by aliens seeking admission 
     under the pilot program described in this section. 
     Notwithstanding section 203(e) of such Act (8 U.S.C. 
     1153(e)), immigrant visas made available

[[Page 28926]]

     under such section 203(b)(5) may be issued to such aliens in 
     an order that takes into account any priority accorded under 
     the preceding sentence.''.
       (b) Extension.--Section 610(b) of the Departments of 
     Commerce, Justice, and State, the Judiciary, and Related 
     Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) is 
     amended by striking ``10 years'' and inserting ``15 years''.

     SEC. 5. GAO STUDY.

       (a) In General.--Not later than 1 year after the date of 
     enactment of this Act, the General Accounting Office shall 
     report to Congress on the immigrant investor program created 
     under section 203(b)(5) of the Immigration and Nationality 
     Act (8 U.S.C. 1153(b)(5)).
       (b) Contents.--The report described in subsection (a) shall 
     include information regarding--
       (1) the number of immigrant investors that have received 
     visas under the immigrant investor program in each year since 
     the inception of the program;
       (2) the country of origin of the immigrant investors;
       (3) the localities where the immigrant investors are 
     settling and whether those investors generally remain in the 
     localities where they initially settle;
       (4) the number of immigrant investors that have sought to 
     become citizens of the United States;
       (5) the types of commercial enterprises that the immigrant 
     investors have established; and
       (6) the types and number of jobs created by the immigrant 
     investors.
                                 ______
                                 
  SA 2171. Mr. LAUTENBERG (for himself, Ms. Mikulski, Mr. Jeffords, 
Mrs. Boxer, Mr. Corzine, Mr. Schumer, Mr. Leahy, Mr. Lieberman, Mr. 
Kerry, Mr. Kennedy, Mr. Edwards, Ms. Cantwell, and Mr. Durbin) proposed 
an amendment to amendment SA 2150 proposed by Mr. Bond (for himself and 
Ms. Mikulski) to the bill H.R. 2861, making appropriations for the 
Departments of Veterans Affairs and Housing and Urban Development, and 
for sundry independent agencies, boards, commissions, corporations, and 
offices for the fiscal year ending September 30, 2004, and for other 
purposes; as follows:

       On page 98, line 5, before the period at the end, insert 
     the following: ``, of which, in addition to any other amounts 
     provided under this heading for the Office of Enforcement and 
     Compliance Assurance, $5,400,000 shall be made available for 
     that office''.
                                 ______
                                 
  SA 2172. Mr. BOND (for Mr. Graham of South Carolina (for himself and 
Mr. Hollings)) proposed an amendment to amendment SA 2150 proposed by 
Mr. Bond (for himself and Ms. Mikulski) to the bill H.R. 2861, making 
appropriations for the Departments of Veterans Affairs and Housing and 
Urban Development, and for sundry independent agencies, boards, 
commissions, corporations, and offices for the fiscal year ending 
September 30, 2004, and for other purposes; as follows:

       At the end of title I, add the following:
       Sec. 116. Notwithstanding paragraph (2) of section 8163(c) 
     of title 38, United States Code, the Secretary of Veterans 
     Affairs may enter into an enhanced-use lease with the Medical 
     University Hospital Authority, a public authority of the 
     State of South Carolina, for approximately 0.48 acres of 
     underutilized property at the Charleston Department of 
     Veterans Affairs Medical Center, Charleston, South Carolina, 
     at any time after 30 days after the date of the submittal of 
     the notice required by paragraph (1) of that section with 
     respect to such property. The Secretary is not required to 
     submit a report on the lease as otherwise required by 
     paragraph (4) of that section.
                                 ______
                                 
  SA 2173. Mr. BOND (for Ms. Mikulski (for herself and Mr. Bond)) 
proposed an amendment to amendment SA 2150 proposed by Mr. Bond (for 
himself and Ms. Mikulski) to the bill H.R. 2861, making appropriations 
for the Departments of Veterans Affairs and Housing and Urban 
Development, and for sundry independent agencies, boards, commissions, 
corporations, and offices for the fiscal year ending September 30, 
2004, and for other purposes; as follows:

       On page 92, line 22, strike the period and insert the 
     following:``: Provided further, That, for fiscal year 2004 
     and every year thereafter, the Corporation shall make any 
     significant changes to program requirements or policy only 
     through public notice and comment rulemaking:  Provided 
     further, That, for fiscal year 2004 and every year 
     thereafter, during any grant selection process, no officer or 
     employee of the Corporation shall knowingly disclose any 
     covered grant selection information regarding such selection, 
     directly or indirectly, to any person other than an officer 
     or employee of the Corporation that is authorized by the 
     Corporation to receive such information.''.
                                 ______
                                 
  SA 2174. Mr. BOND proposed an amendment to amendment SA 2150 proposed 
by Mr. Bond (for himself and Ms. Mikulski) to the bill H.R. 2861, 
making appropriations for the Departments of Veterans Affairs and 
Housing and Urban Development, and for sundry independent agencies, 
boards, commissions, corporations, and offices for the fiscal year 
ending September 30, 2004, and for other purposes; as follows:

       On page 61, beginning on line 7, strike out ``$32,415,00,'' 
     and all that follows through the period on line 16 and insert 
     in lieu thereof ``$39,915,000, to remain available until 
     expended, to be derived from the Federal Housing Enterprise 
     Oversight Fund: Provided, That not less than 60 percent of 
     total amount made available under this heading shall be used 
     to for licensed audit personnel and audit support: Provided 
     further, That an additional $10,000,000 shall be made 
     available until expended, to be derived from the Federal 
     Housing Enterprise Oversight Fund only upon a certification 
     by the Secretary of the Treasury that these funds are 
     necessary to meet an emergency need: Provided further, That 
     not to exceed such amounts shall be available from the 
     general fund of the Treasury to the extent necessary to incur 
     obligations and make expenditures pending the receipt of 
     collections to the Fund: Provided further, That the general 
     fund amount shall be reduced as collections are received 
     during the fiscal year so as to result in a final 
     appropriation from the general fund estimated at not more 
     than $0.''.
                                 ______
                                 
  SA 2175. Mr. BOND (for Mr. Stevens) proposed an amendment to 
amendment SA 2150 proposed by Mr. Bond (for himself and Ms. Mikulski) 
to the bill H.R. 2861, making appropriations for the Departments of 
Veterans Affairs and Housing and Urban Development, and for sundry 
independent agencies, boards, commissions, corporations, and offices 
for the fiscal year ending September 30, 2004, and for other purposes; 
as follows:

       On page 86, between lines 11 and 12, insert the following:

     SEC. 2__. NATIVE AMERICAN HOUSING.

       Allocation of Funding.--Of the amounts made available to 
     carry out the Native American Housing Assistance and Self-
     Determination Act of 1996 (25 U.S.C. 4101 et seq.) for fiscal 
     year 2004, there shall be made available to each grant 
     recipient the same percentage of funding as each recipient 
     received for fiscal year 2003.
                                 ______
                                 
  SA 2176. Mr. BOND (for Mr. Durbin (for himself and Mr. Fitzgerald)) 
proposed an amendment to amendment SA 2150 proposed by Mr. Bond (for 
himself and Ms. Mikulski) to the bill H.R. 2861, making appropriations 
for the Departments of Veterans Affairs and Hosing and Urban 
Development, and for sundry independent agencies, boards, commissions, 
corporations, and offices for the fiscal year ending September 30, 
2004, and for other purposes; as follows:

  At the appropriate place, insert the following:

       Sec. . Notwithstanding any other provision of law, the 
     Secretary of Veterans Affairs shall make the North Chicago VA 
     Medical Center available to the Navy to the maximum extent 
     feasible. The Secretary shall report to the Senate 
     Appropriations Committee by June 30, 2004, regarding the 
     progress in modifying North Chicago VA Medical Center's 
     surgical suite and emergency and urgent care centers for use 
     by veterans and Department of Defense beneficiaries. Further, 
     the Secretary shall consider having the new joint VA/Navy 
     ambulatory care center to serve both veterans and Department 
     of Defense beneficiaries sited on or adjacent to the North 
     Chicago VA Medical Center and shall consult with the 
     Secretary of the Navy to select the site for the center. The 
     Secretary of Veterans Affairs shall report to the Senate 
     Appropriations Committee on the site selection by June 30, 
     2004.
                                 ______
                                 
  SA 2177. Mr. BOND (for Ms. Murkowski) proposed an amendment to 
amendment SA 2150 proposed by Mr. Bond (for himself and Ms. Mikulski) 
to the bill H.R. 2861, making appropriations for the Departments of 
Veterans Affairs and Housing and Urban Development, and for sundry 
independent agencies, boards, commissions, corporations, and offices 
for the fiscal year ending September 30, 2004, and for other purposes; 
as follows:

       At the appropriate place, insert the following:

     SEC. __. RURAL TEACHER HOUSING.

       Section 307 of the Denali Commission Act of 1998 (42 U.S.C. 
     3121 note) is amended by adding at the end the following:
       ``(e) Rural Teacher Housing.--The Commission may make 
     grants and loans to public school districts serving remote 
     incorporated cities and unincorporated communities in Alaska 
     (including Alaska Native

[[Page 28927]]

     Villages) with a population of 6,500 or fewer persons for 
     expenses associated with the construction, purchase, lease, 
     and rehabilitation of housing units in such cities and 
     communities. Unless otherwise authorized by the Commission, 
     such units may be occupied only by teachers, school 
     administrators, and other school staff (including members of 
     their households).''.
                                 ______
                                 
  SA 2178. Ms. MIKULSKI proposed an amendment to amendment SA 2150 
proposed by Mr. Bond (for himself and Ms. Mikulski) to the bill H.R. 
2861, making appropriations for the Departments of Veterans Affairs and 
Housing and Urban Development, and for sundry independent agencies, 
boards, commissions, corporations, and offices for the fiscal year 
ending September 30, 2004, and for other purposes; as follows:

       On page 104, between lines 14 and 15, insert the following
       For an additional amount for capitalization grants for 
     State revolving funds, $3,000,000,000, to remain available 
     until expended, of which $1,850,000,000 shall be for 
     capitalization grants from State water pollution control 
     revolving funds established under title VI of the Federal 
     Water Pollution Control Act (33 U.S.C. 1381 et seq.) and 
     $1,150,000,000 shall be for capitalization grants from State 
     drinking water treatment revolving loan funds under section 
     1452 of the Safe Drinking Water Act (42 U.S.C. 300j-12): 
     Provided, That the entire amount made available under this 
     paragraph is designated by Congress as an emergency 
     requirement under section 502(c) of H. Con. Res. 95 (108th 
     Cong.).
                                 ______
                                 
  SA 2179. Mr. FITZGERALD submitted an amendment intended to be 
proposed to amendment SA 2150 proposed by Mr. Bond (for himself and Ms. 
Mikulski) to the bill H.R. 2861, making appropriations for the 
Departments of Veterans Affairs and Housing and Urban Development, and 
for sundry independent agencies, boards, commissions, corporations, and 
offices for the fiscal year ending September 30, 2004, and for other 
purposes; which was ordered to lie on the table; as follows:

       On page 125, between lines 7 and 8, insert the following:
       Sec. 418. (a) In general.--None of the funds appropriated 
     under this Act shall be used for the purpose of implementing 
     or carrying out the Mark-to-Market program established under 
     the Multifamily Assisted Housing Reform and Affordability Act 
     of 1997 (42 U.S.C. 1437f et seq.) with--
       (1) any for-profit entity with respect to the Evergreen 
     Terrace I and Evergreen Terrace II housing complexes located 
     in Joliet, Illinois; or
       (2) any entity, or its successors or assignees, that 
     signed, prior to October 1, 2003, a restructuring commitment 
     with the Department of Housing and Urban Development with 
     respect to the Evergreen Terrace I and Evergreen Terrace II 
     housing complexes located in Joliet, Illinois.
       (b) Rights of Residents.--Nothing in this section shall be 
     construed to alter the rights or eligibility of residents of 
     the Evergreen Terrace I and Evergreen Terrace II housing 
     complexes in Joliet, Illinois, to benefit from or to 
     participate in programs administered by the Secretary of 
     Housing and Urban Development.
                                 ______
                                 
  SA 2180. Mr. BOND proposed an amendment to amendment SA 2150 proposed 
by Mr. Bond (for himself and Ms. Mikulski) to the bill H.R. 2861, 
making appropriations for the Departments of Veterans Affairs and 
Housing and Urban Development, and for sundry independent agencies, 
boards, commissions, corporations, and offices for the fiscal year 
ending September 30, 2004, and for other purposes; as follows:

       On page 86, after line 11, insert the following new 
     section:
       Sec. 226. The Secretary of Housing and Urban Development 
     shall conduct negotiated rulemaking with representatives from 
     interested parties for purposes of any changes to the formula 
     governing the Public Housing Operating Fund. A final rule 
     shall be issued no later than July 31, 2004.
                                 ______
                                 
  SA 2181. Mr. BOND (for Ms. Murkowski) proposed an amendment to 
amendment SA 2150 proposed by Mr. Bond (for himself and Ms. Mikulski) 
to the bill H.R. 2861, making appropriations for the Departments of 
Veterans Affairs and Housing and Urban Development, and for sundry 
independent agencies, boards, commissions, corporations, and offices 
for the fiscal year ending September 30, 2004, and for other purposes; 
as follows:

       At the end of title I, add the following:
       Sec. 116. (a) Treatment of Pioneer Homes in Alaska as State 
     Home for Veterans.--The Secretary of Veterans Affairs may--
       (1) treat the Pioneer Homes in the State of Alaska 
     collectively as a single State home for veterans for purposes 
     of section 1741 of title 38, United States Code; and
       (2) make per diem payments to the State of Alaska for care 
     provided to veterans in the Pioneer Homes in accordance with 
     the provisions of that section.
       (b) Treatment Notwithstanding Non-Veteran Residency.--The 
     Secretary shall treat the Pioneer Homes as a State home under 
     subsection (a) notwithstanding the residency of non-veterans 
     in one or more of the Pioneer Homes.
       (c) Pioneer Homes Defined.--In this section, the term 
     ``Pioneer Homes'' means the six regional homes in the State 
     of Alaska known as Pioneer Homes, which are located in the 
     following:
       (1) Anchorage, Alaska.
       (2) Fairbanks, Alaska.
       (3) Juneau, Alaska.
       (4) Ketchikan, Alaska.
       (5) Palmer, Alaska.
       (6) Sitka, Alaska.
                                 ______
                                 
  SA 2182. Ms. MURKOWSKI (for Mr. Dorgan (for himself, Mr. Rockefeller, 
and Ms. Landrieu)) proposed an amendment to amendment SA 2150 proposed 
by Mr. Bond (for himself and Ms. Mikulski) to the bill H.R. 2861, 
making appropriations for the Departments of Veterans Affairs and 
Housing and Urban Development, and for sundry independent agencies, 
boards, commissions, corporations, and offices for the fiscal year 
ending September 30, 2004, and for other purposes; as follows:

       At the end of title I, add the following:
       Sec. 116. (a) Findings on Access to Primary Health Care of 
     Veterans in Rural Areas.--The Senate makes the following 
     findings:
       (1) The Secretary of Veterans Affairs has appointed a 
     commission, called the Capital Asset Realignment for Enhanced 
     Services (CARES) Commission, and directed it to make specific 
     recommendations regarding the realignment and allocation of 
     capital assets necessary to meet the demand for veterans 
     health care services over the next 20 years.
       (2) The Department of Veterans Affairs accessibility 
     standard for primary health care provides that at least 70 
     percent of the veterans enrolled in each of the regional 
     ``markets'' of the Department should live within a specified 
     driving time of a Department primary care facility. That 
     driving time is 30 minutes for veterans living in urban and 
     rural areas and 60 minutes for veterans living in highly 
     rural areas.
       (3) The Draft National CARES Plan issued by the Under 
     Secretary for Health would place veterans in 18 rural and 
     highly rural regional markets outside the Department 
     accessibility standard for primary health care until at least 
     fiscal year 2022, which means that thousands of veterans will 
     have to continuing traveling up to 3-4 hours each way to 
     visit a Department primary care facility.
       (4) The 18 rural and highly rural markets that will remain 
     outside the Department accessibility standard for primary 
     health care comprise all or parts of Arkansas, Idaho, 
     Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, 
     Minnesota, Mississippi, Missouri, Montana, Nebraska, North 
     Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, 
     Tennessee, Texas, Virginia, Washington, and West Virginia.
       (5) Health care facilities for veterans are 
     disproportionately needed in rural and highly rural areas 
     because the residents of such areas are generally older, 
     poorer, and sicker than their urban counterparts.
       (b) Sense of Senate.--It is the sense of the Senate that--
       (1) the CARES Commission should give as much attention to 
     solving the special needs of veterans who live in rural areas 
     as it does to providing for the health care needs of veterans 
     living in more highly populated areas;
       (2) the CARES Commission should reject the portions of the 
     Draft National CARES Plan that would prevent any regional 
     market of the Department from complying with the Department 
     accessibility standard for primary health care, which 
     provides that at least 70 percent of the veterans residing in 
     each market be within specified driving times of a Department 
     primary care facility; and
       (3) the CARES Commission should recommend to the Secretary 
     the investments and initiatives that are necessary to achieve 
     the Department accessibility standard for primary health care 
     in each of the rural and highly rural health care markets of 
     the Department.
                                 ______
                                 
  SA 2183. Mr. BOND (for Mr. Sarbanes (for himself, Ms. Collins, Mr. 
Byrd, Mr. Santorum, Mr. Reed, Ms. Snowe, Mr. Kennedy, Mr. Dodd, Mr. 
Kerry, Mr. Allen, Mr. Schumer, Mrs. Murray, Mrs. Clinton, Mr. Leahy, 
Mr. Chafee, Ms. Cantwell, Mrs. Feinstein, Mr. Lautenberg, Ms. Stabenow, 
Mr. Jeffords, Mr. Lieberman, Mr. Akaka, Mr. Dayton, and Mr. Nelson of 
Florida)) proposed and amendment to amendment SA 2150 proposed by Mr. 
Bond (for himself and Ms. Mikulski) to

[[Page 28928]]

the bill H.R. 2861, making appropriations for the Departments of 
Veterans Affairs and Housing and Urban Development, and for sundry 
independent agencies, boards, commissions, corporations, and offices 
for the fiscal year ending September 30, 2004, and for other purposes; 
as follows:

       On page 125, between lines 7 and 8, insert the following:

     SEC. 4__. SENSE OF THE SENATE.

       (a) Findings.--The Senate finds that--
       (1) 30 percent of American families have housing 
     affordability problems, with 14,300,000 families paying more 
     than half of their income for housing costs, and 17,300,000 
     families paying 30 to 50 percent of their income towards 
     housing costs;
       (2) 9,300,000 American families live in housing that is 
     overcrowded or distressed;
       (3) 3,500,000 households in the United States will 
     experience homelessness at some point this year, including 
     1,350,000 children;
       (4) the number of working families who are unable to afford 
     adequate housing is increasing, as the gap between wages and 
     housing costs grows;
       (5) there is no county or metropolitan area in the country 
     where a minimum wage earner can afford to rent a modest 2-
     bedroom apartment, and on average, a family must earn over 
     $15 an hour to afford modest rental housing, which is almost 
     3 times the minimum wage;
       (6) section 8 housing vouchers help approximately 2,000,000 
     families with children, senior citizens, and disabled 
     individuals afford a safe and decent place to live;
       (7) utilization of vouchers is at a high of 96 percent, and 
     is on course to rise to 97 percent in fiscal year 2004, 
     according to data provided by the Department of Housing and 
     Urban Development;
       (8) the average cost per voucher has also steadily 
     increased from just over $6400 in August of 2002, to $6,756 
     in April, 2003, due largely to rising rents in the private 
     market, and the Congressional Budget Office estimates that 
     the cost per voucher in fiscal year 2004 will be $7,028, $560 
     more per voucher than the estimate contained in the fiscal 
     year 2004 budget request; and
       (9) the congressionally appointed, bipartisan Millennial 
     Housing Commission found that housing vouchers are ``the 
     linchpin of a national housing policy providing very low-
     income renters access to privately-owned housing stock''.
       (b) Sense of the Senate.--It is the sense of the Senate 
     that--
       (1) housing vouchers are a critical resource in ensuring 
     that families in America can afford safe, decent, and 
     adequate housing;
       (2) public housing agencies must retain the ability to use 
     100 percent of their authorized vouchers to help house low-
     income families; and
       (3) the Senate expects the Department of Housing and Urban 
     Development to take all necessary actions to encourage full 
     utilization of vouchers, and to use all legally available 
     resources as needed to support full funding for housing 
     vouchers in fiscal year 2004, so that every voucher can be 
     used by a family in need.
                                 ______
                                 
  SA 2184. Mr. BOND (for Mrs. Clinton (for herself, Ms. Snowe, Mr. 
Kennedy, Mr. Chafee, Mrs. Murray, Mr. Reed, Mr. Harkin, and Mr. Dodd)) 
proposed an amendment to amendment SA 2150 proposed by Mr. Bond (for 
himself and Ms. Mikulski) to the bill H.R. 2861, making appropriations 
for the Departments of Veterans Affairs and Housing and Urban 
Development, and for sundry independent agencies, boards, commissions, 
corporations, and offices for the fiscal year ending September 30, 
2004, and for other purposes; as follows:

       On page 92, line 22, insert ``: Provided further, That the 
     Corporation shall offer any individual selected after October 
     31, 2002, for initial enrollment or reenrollment as a VISTA 
     volunteer under title I of the Domestic Volunteer Service Act 
     of 1973 (42 U.S.C. 4951 et seq.) the option of receiving a 
     national service educational award under subtitle D of title 
     I of the National and Community Service Act of 1990 (42 
     U.S.C. 12601 et seq.)'' after ``programs''.
                                 ______
                                 
  SA 2185. Mr. BOND (for Mr. Levin (for himself, Ms. Collins, and Ms. 
Stabenow)) proposed an amendment to amendment SA 2150 proposed by Mr. 
Bond (for himself and Ms. Mikulski) to the bill H.R. 2861, making 
appropriations for the Departments of Veterans Affairs and Housing and 
Urban Development, and for sundry independent agencies, boards, 
commissions, corporations, and offices for the fiscal year ending 
September 30, 2004, and for other purposes; as follows:

       On page 125, between lines 7 and 8, insert the following:

     SEC. 4__. SEWER OVERFLOW CONTROL GRANTS.

       Section 221 of the Federal Water Pollution Control Act (33 
     U.S.C. 1301) is amended--
       (1) in subsection (f), by striking ``2002 and 2003'' and 
     inserting ``2005 and 2006'';
       (2) in subsection (g)(1)--
       (A) in the paragraph heading, by striking ``2002'' and 
     inserting ``2005''; and
       (B) by striking ``2002'' and inserting ``2005'';
       (3) in subsection (g)(2)--
       (A) in the paragraph heading, by striking ``2003'' and 
     inserting ``2006''; and
       (B) by striking ``2003'' and inserting ``2006''; and
       (4) in subsection (i), by striking ``2003'' and inserting 
     ``2006''.
                                 ______
                                 
  SA 2186. Mr. BOND (for Mrs. Boxer) proposed an amendment to amendment 
SA 2150 proposed by Mr. Bond (for himself and Ms. Mikulski) to the bill 
H.R. 2861, making appropriations for the Departments of Veterans 
Affairs and Housing and Urban Development, and for sundry independent 
agencies, boards, commissions, corporations, and offices for the fiscal 
year ending September 30, 2004, and for other purposes; as follows:

       It is the sense of the Senate that human dosing studies of 
     pesticides raises ethical and health questions.
                                 ______
                                 
  SA 2187. Mr. McCAIN submitted an amendment intended to be proposed to 
amendment SA 2150 proposed by Mr. Bond (for himself and Ms. Mikulski) 
to the bill H.R. 2861, making appropriations for the Departments of 
Veterans Affairs and Housing and Urban Development, and for sundry 
independent agencies, boards, commissions, corporations, and offices 
for the fiscal year ending September 30, 2004, and for other purposes; 
which was ordered to lie on the table; as follows:

       On page 109, beginning with line 21, strike through 
     ``$7,730,507,000,'' in line 23 on page 110 and insert the 
     following:

     $7,663,700,000, to remain available until September 30, 2005, 
     of which no less than $3,968,000,000 shall be available for 
     activities related to the Space Shuttle and shall not be 
     available for transfer to any other program or account, and 
     no more than $1,588,600,000 shall be available for activities 
     related to the International Space Station, of which 
     $81,600,000 shall be derived from reductions in the following 
     amounts and for the following projects, as specified in 
     Senate Report 108-143, which amounts are unauthorized by law 
     or unrequested by the President:
       (1) $1,000,000 to Utah State University, Logan, Utah for 
     the Calibration Center.
       (2) $1,500,000 to Montana State University-Bozeman for the 
     Center for Studying Life in Extreme Environments.
       (3) $750,000 to Montana State University-Bozeman for the 
     Space Science and Engineering Lab.
       (4) $1,000,000 to the University of Idaho in Moscow, Idaho 
     for advanced microelectronics and biomolecular research.
       (5) $2,000,000 to New Mexico State University for the 
     ultra-long balloon program to augment planned flights and 
     technology development.
       (6) $2,000,000 to Texas Tech University in Lubbock, Texas, 
     for equipment at the Experimental Sciences Building.
       (7) $1,000,000 to the University of Texas, Austin for 
     nanomedicine.
       (8) $1,000,000 to Texas A&M University in College Station 
     for the Space Engineering Institute.
       (9) $1,400,000 to the University of New Orleans, Louisiana 
     for the Composites Research Center of Excellence and for the 
     development of advanced metallic joining technologies at 
     Michoud Space Center.
       (10) $2,500,000 to Marshall University, Bridgeport, West 
     Virginia for the Hubble Telescope Project.
       (11) $2,300,000 to the University of North Dakota, Grand 
     Forks, North Dakota for the Northern Great Plains Space 
     Science and Technology Center.
       (12) $2,000,000 for University of Maryland, Baltimore 
     County for photonics research.
       (13) $1,500,000 to George Mason University, Fairfax, 
     Virginia for the Center for Earth Observing and Space 
     Research Mid-Atlantic Geospatial Information Consortium.
       (14) $1,000,000 to Utah State University, Logan, Utah for 
     the Intermountain Region Digital Image Archive and Processing 
     Center.
       (15) $2,500,000 to the University of Mississippi for the 
     Enterprise for Innovative Geospatial Solutions.
       (16) $2,000,000 to Mississippi State University for the 
     Geospatial and Natural Resources Institute.
       (17) $1,600,000 to the University of New Mexico for the 
     Center for Rapid Environmental Assessment and Terrain 
     Evaluation.
       (18) $3,000,000 for the University of Alaska for weather 
     and ocean research.
       (19) $1,000,000 for the Pacific Northwest Collaboratory at 
     the Pacific Northwest National Laboratory to demonstrate 
     real-time applications of earth science data.
       (20) $1,000,000 to Glenn Research Center for the John Glenn 
     Biomedical Engineering Consortium.
       (21) $1,250,000 to Space Sciences Inc. in Montana for 
     microgravity related pharmaceutical development.

[[Page 28929]]

       (22) $2,000,000 for the University of Missouri 
     Bioinformatics Consortium for equipment purchase.
       (23) $1,500,000 for Truman State University Life Sciences 
     for laboratory equipment.
       (24) $5,000,000 for the development of an aeronautics 
     research budget covering the next 5 years allocated to the 
     National Institute for Aerospace located in Hampton, 
     Virginia, for contracting with industry and academia to 
     prepare such a budget plan no later than March 1, 2004.
       (25) $3,000,000 to Wichita State University, Wichita, 
     Kansas for the National Center for Composite Materials 
     Performance.
       (26) $1,000,000 to Wichita State University, Wichita, 
     Kansas, for the Critical Aircraft Icing project.
       (27) $1,000,000 to the Delaware Aerospace Education and 
     Foundation, Kent County, Delaware.
       (28) $2,000,000 to Wheeling Jesuit University for the 
     National Technology Transfer Center.
       (29) $600,000 to the Challenger Center in Kenai, Alaska.
       (30) $1,000,000 to the Virginia Commonwealth University, 
     Richmond, Virginia for advance research in batteries and fuel 
     cells.
       (31) $1,500,000 to the University of Montana in Missoula, 
     Montana for the National Space Privatization Program.
       (32) $2,000,000 for the Denver Museum of Nature and Science 
     in Denver, Colorado for equipment for the Space Sciences 
     Museum.
       (33) $1,500,000 for the Adventure Science Center in 
     Nashville, Tennessee for the Sudekum Planetarium.
       (34) $500,000 for the University of Northern Iowa in Cedar 
     Falls, Iowa for the Existing Business Enhancement Program.
       (35) $1,300,000 for Iowa State University for the PIPELINES 
     Project.
       (36) $1,000,000 for the Metropolitan School District of 
     Decatur Township Indiana for the Challenger Learning Center 
     Expansion.
       (37) $1,700,000 for Northern Kentucky University/University 
     of Louisville for a digital science center.
       (38) $2,000,000 for the University of Alabama in Huntsville 
     for the Center for Modeling Simulation and Analysis.
       (39) $1,000,000 for the Oregon Museum of Science and 
     Industry for the space science education distance learning 
     program.
       (40) $1,000,000 for Southeast Missouri State University for 
     the NASA ERSC Outreach Project.
       (41) $1,500,000 for Dominican University's Center for 
     Science and Technology for project based learning.
       (42) $200,000 to Wheeling Jesuit University in West 
     Virginia for Classroom of the Future.
       (43) $2,000,000 to the University of Connecticut for the 
     Center for Land Use Education and Research.
       (44) $2,000,000 to Iowa State University, Ames, Iowa for 
     non-destructive evaluation studies.
       (45) $500,000 to the Des Moines Science Center, Des Moines, 
     Iowa.
       (46) $2,000,000 for the School of Science and Mathematics 
     at the College of Charleston, Charleston, South Carolina.
       (47) $3,000,000 to the University of Hawaii, Hilo for the 
     Mauna Kea Astronomy Education Center.
       (48) $1,500,000 to Space Education Initiative, Wisconsin 
     for the Wisconsin Geoscience Education initiative.
       (49) $1,000,000 to the Youth Achievers Committee of New 
     Jersey, Burlington County, New Jersey for the Youth 
     Achievement Committee Science and Math Initiative.
       (50) $500,000 to the University of Vermont, Burlington, 
     Vermont for the Center for Advanced Computing.
       (51) $1,000,000 to Wayne State University, Detroit, 
     Michigan for the Center of Smart Sensors and Integrated 
     Microsystems.
       (52) $1,000,000 for Wellpinit School District in Wellpinit, 
     Washington for the Virtual Classroom Project.
       (53) $1,500,000 for the Mitchell Institute, Portland, 
     Maine, for science and engineering education.


                  Science, Aeronautics and Exploration

                     (Including Transfer of Funds)

       For necessary expenses, not otherwise provided for, in the 
     conduct and support of science, aeronautics and exploration 
     research and development activities, including research, 
     development, operations, support and services; maintenance; 
     construction of facilities including repair, rehabilitation, 
     revitalization, and modification of facilities, construction 
     of new facilities and additions to existing facilities, 
     facility planning and design, and restoration, and 
     acquisition or condemnation of real property, as authorized 
     by law; environmental compliance and restoration; space 
     flight, spacecraft control and communications activities 
     including operations, production, and services; program 
     management; personnel and related costs, including uniforms 
     or allowances therefor, as authorized by 5 U.S.C. 5901-5902; 
     travel expenses; purchase and hire of passenger motor 
     vehicles; not to exceed $35,000 for official reception and 
     representation expenses; and purchase, lease, charter, 
     maintenance and operation of mission and administrative 
     aircraft, $7,648,907,000,
                                 ______
                                 
  SA 2188. Mr. INHOFE submitted an amendment intended to be proposed to 
amendment SA 2150 proposed by Mr. Bond (for himself and Ms. Mikulski) 
to the bill H.R. 2861, making appropriations for the Departments of 
Veterans Affairs and Housing and Urban Development, and for sundry 
independent agencies, boards, commissions, corporations, and offices 
for the fiscal year ending September 30, 2004, and for other purposes; 
which was ordered to lie on the table; as follows:

       On page 125, between lines 7 and 8, insert the following:

            TITLE V--SECURITY OF WASTEWATER TREATMENT WORKS

     SEC. 501. SHORT TITLE.

       This title may be cited as the ``Wastewater Treatment Works 
     Security Act of 2003''.

     SEC. 502. WASTEWATER TREATMENT WORKS SECURITY.

       Title II of the Federal Water Pollution Control Act (33 
     U.S.C. 1281 et seq.) is amended by adding at the end the 
     following:

     ``SEC. 222. WASTEWATER TREATMENT WORKS SECURITY.

       ``(a) Definition of Vulnerability Assessment.--
       ``(1) In general.--In this section, the term `vulnerability 
     assessment' means an assessment of the vulnerability of a 
     treatment works to an unlawful action intended--
       ``(A) to substantially disrupt the ability of the treatment 
     works to safely and reliably operate; or
       ``(B) to have a substantial adverse effect on critical 
     infrastructure, public health or safety, or the environment.
       ``(2) Inclusions.--The term `vulnerability assessment' 
     includes--
       ``(A) a review of the vulnerabilities of the treatment 
     works that identifies, with respect to the treatment works--
       ``(i) facilities, systems, and devices used in the storage, 
     treatment, recycling, or reclamation of municipal sewage or 
     industrial wastes;
       ``(ii) intercepting sewers, outfall sewers, sewage 
     collection systems, and other constructed conveyances;
       ``(iii) electronic, computer, and other automated systems;
       ``(iv) pumping, power, and other equipment;
       ``(v) use, storage, and handling of various chemicals; and
       ``(vi) operation and maintenance procedures; and
       ``(B) the identification of procedures, countermeasures, 
     and equipment that a treatment works may implement or use to 
     reduce the vulnerabilities of the treatment works identified 
     in a review described in subparagraph (A).
       ``(b) Grants for Vulnerability Assessments and Security 
     Enhancements.--The Administrator may provide grants to a 
     State, municipality, or intermunicipal or interstate agency--
       ``(1) to conduct a vulnerability assessment of a publicly 
     owned treatment works; and
       ``(2) to implement security enhancements described in 
     subsection (c)(1) and other security enhancements to reduce 
     vulnerabilities identified in a vulnerability assessment.
       ``(c) Grants for Security Enhancements.--
       ``(1) Preapproved security enhancements.--Except as 
     provided in paragraph (3), on certification by an applicant 
     that a vulnerability assessment has been completed for a 
     treatment works, and that the security enhancement for which 
     assistance is sought is for the purpose of reducing 
     vulnerabilities of the treatment works identified in the 
     vulnerability assessment, the Administrator may provide 
     grants to the applicant under subsection (b)(2) for 1 or more 
     of the uses described in paragraph (2).
       ``(2) Uses of grant funds.--The uses referred to in 
     paragraph (1) are--
       ``(A) the purchase and installation of equipment for 
     materials and activities relating to access control, 
     intrusion prevention and delay, and detection of intruders 
     and hazardous or dangerous substances, including--
       ``(i) barriers, fencing, and gates;
       ``(ii) security lighting and cameras;
       ``(iii) metal grates, wire mesh, and outfall entry 
     barriers;
       ``(iv) securing of manhole covers and fill and vent pipes;
       ``(v) installation and rekeying of doors and locks; and
       ``(vi) smoke, chemical, and explosive mixture detection 
     systems;
       ``(B) the conduct of an activity to improve the security 
     for electronic, computer, or other automated systems and 
     remote security systems, including--
       ``(i) controlling access to those systems;
       ``(ii) intrusion detection and prevention; and
       ``(iii) system backup;
       ``(C) participation in a training program, and the purchase 
     of training manuals and guidance material, relating to 
     security; and
       ``(D) the conduct of security screening of employees or 
     contractor support services.
       ``(3) Additional security enhancements.--
       ``(A) Grants.--The Administrator may provide a grant under 
     subsection (b) to an applicant for additional security 
     enhancements not specified in paragraph (2).

[[Page 28930]]

       ``(B) Eligibility.--To be eligible for a grant under this 
     subsection, an applicant shall--
       ``(i) submit to the Administrator an application containing 
     a description of the security enhancement; and
       ``(ii) obtain approval of the application by the 
     Administrator.
       ``(4) Limitations.--
       ``(A) Use of funds.--A grant provided under subsection (b) 
     shall not be used for--
       ``(i) payment of personnel costs; or
       ``(ii) operation or maintenance of facilities, equipment, 
     or systems.
       ``(B) Disclosure of vulnerability assessment.--As a 
     condition of applying for or receiving a grant under this 
     subsection, the Administrator may not require an applicant to 
     provide the Administrator with a copy of a vulnerability 
     assessment.
       ``(d) Grant Amounts.--
       ``(1) Federal share.--The Federal share of the cost of an 
     activity funded by a grant under subsection (b) shall not 
     exceed 75 percent, as determined by the Administrator.
       ``(2) Maximum amount.--The total amount of grants made 
     under subsection (b) for any publicly owned treatment works 
     shall not exceed $150,000, as determined by the 
     Administrator.
       ``(e) Technical Assistance for Small Publicly Owned 
     Treatment Works.--
       ``(1) Definition of small publicly owned treatment works.--
     In this subsection, the term `small publicly owned treatment 
     works' means a publicly owned treatment works that services a 
     population of fewer than 20,000 individuals.
       ``(2) Security assessment and planning assistance.--
       ``(A) In general.--The Administrator, in coordination with 
     the States, may provide technical guidance and assistance to 
     small publicly owned treatment works for--
       ``(i) the conduct of a vulnerability assessment; and
       ``(ii) the implementation of security enhancements to 
     reduce vulnerabilities identified in a vulnerability 
     assessment.
       ``(B) Inclusions.--Technical guidance and assistance 
     provided under subparagraph (A) may include technical 
     assistance programs, training, and preliminary engineering 
     evaluations.
       ``(3) Participation by nonprofit organizations.--The 
     Administrator may provide grants to nonprofit organizations 
     to assist in accomplishing the purposes of this subsection.
       ``(f) Refinement of Vulnerability Assessment Methodology 
     for Publicly Owned Treatment Works.--
       ``(1) Grants.--The Administrator may provide to nonprofit 
     organizations 1 or more grants to be used in improving 
     vulnerability assessment methodologies and tools for publicly 
     owned treatment works, including publicly owned treatment 
     works that are part of a combined public wastewater treatment 
     and water supply system.
       ``(2) Eligible activities.--A grant provided under this 
     subsection may be used--
       ``(A) to develop and distribute vulnerability self-
     assessment methodology software upgrades;
       ``(B) to improve and enhance critical technical and user 
     support functions;
       ``(C) to expand libraries of information addressing threats 
     and countermeasures; and
       ``(D) to implement user training initiatives.
       ``(3) Cost.--A service described in paragraph (2) that is 
     funded by a grant under this subsection shall be provided at 
     no cost to the recipients of the service.
       ``(g) Authorization of Appropriations.--There is authorized 
     to be appropriated, to remain available until expended--
       ``(1) $200,000,000 for use in making grants under 
     subsection (b);
       ``(2) $15,000,000 for use in providing assistance under 
     subsection (e); and
       ``(3) to carry out subsection (f), $1,000,000 for each of 
     fiscal years 2003 through 2007.''.

     SEC. 503. RESEARCH AND REVIEW.

       Title II of the Federal Water Pollution Control Act (33 
     U.S.C. 1281 et seq.) (as amended by section 502) is amended 
     by adding at the end the following:

     ``SEC. 223. RESEARCH AND REVIEW.

       ``(a) Definitions.--In this section:
       ``(1) Covered treatment works.--The term `covered treatment 
     works' has the meaning given the term `treatment works' in 
     section 212.
       ``(2) Harmful intentional act.--The term `harmful 
     intentional act' means a terrorist attack or other 
     intentional act carried out with respect to a covered 
     treatment works that is intended--
       ``(A) to substantially disrupt the ability of the covered 
     treatment works to provide safe and reliable--
       ``(i) conveyance and treatment of wastewater;
       ``(ii) disposal of effluent; or
       ``(iii) storage of a potentially hazardous chemical used to 
     treat wastewater;
       ``(B) to damage critical infrastructure;
       ``(C) to have an adverse effect on the environment; or
       ``(D) to otherwise pose a significant threat to public 
     health or safety.
       ``(b) Review by Administrator.--Not later than 2 years 
     after the date of enactment of this section, the 
     Administrator, in coordination with appropriate Federal 
     agencies, shall research and review (or enter into a contract 
     or cooperative agreement to provide for research and review 
     of)--
       ``(1) means by which terrorists or other individuals or 
     groups could carry out harmful intentional acts; and
       ``(2) means by which alternative processes of conveying, 
     treating, and disposing of wastewater could be provided in 
     the event of the destruction, impairment, or disruption of 
     covered treatment works as the result of harmful intentional 
     acts.
       ``(c) Means of Carrying Out Harmful Intentional Acts.--
     Means referred to in subsection (b)(1) include--
       ``(1) means by which pipes and other constructed 
     conveyances used in covered treatment works could be 
     destroyed or otherwise prevented from providing adequate 
     conveyance, pretreatment, treatment, and disposal of 
     wastewater meeting applicable public health standards;
       ``(2) means by which conveyance, pretreatment, treatment, 
     storage, and disposal facilities used by, or in connection 
     with, covered treatment works could be destroyed or otherwise 
     prevented from providing adequate treatment of wastewater 
     meeting applicable public health standards;
       ``(3) means by which pipes, constructed conveyances, 
     pretreatment, treatment, storage, and disposal systems that 
     are used in connection with treatment works could be altered 
     or affected so as to pose a threat to public health, public 
     safety, or the environment;
       ``(4) means by which pipes, constructed conveyances, 
     pretreatment, treatment, storage, and disposal systems that 
     are used in connection with covered treatment works could be 
     reasonably protected from harmful intentional acts;
       ``(5) means by which pipes, constructed conveyances, 
     pretreatment, treatment, storage, and disposal systems could 
     be reasonably secured from use as a means of transportation 
     by terrorists or other individuals or groups who intend to 
     threaten public health or safety; and
       ``(6) means by which information systems, including process 
     controls and supervisory control, data acquisition, and cyber 
     systems, at covered treatment works could be disrupted by 
     terrorists or other individuals or groups.
       ``(d) Considerations.--In carrying out the review under 
     this section, the Administrator--
       ``(1) shall ensure that the review reflects the needs of 
     covered treatment works of various sizes and various 
     geographic areas of the United States; and
       ``(2) may consider the vulnerability of, or potential for 
     forced interruption of service for, a region or service area, 
     including the National Capital Area.
       ``(e) Information Sharing.--As soon as practicable after 
     the review carried out under this section has been evaluated 
     by the Administrator, the Administrator shall disseminate to 
     covered treatment works information on the results of the 
     review through the Information Sharing and Analysis Center or 
     other appropriate means.
       ``(f) Authorization of Appropriations.--There is authorized 
     to be appropriated to carry out this section $15,000,000 for 
     the period of fiscal years 2004 through 2008.''.

     SEC. 504. FUNDING.

       Notwithstanding any other provision of this Act, of the 
     amounts made available by this Act to the Administrator of 
     the Environmental Protection Agency for security purposes, 
     the Administrator may use such sums as are necessary to 
     provide grants under section 222(b) of the Federal Water 
     Pollution Control Act (as added by section 502).
                                 ______
                                 
  SA 2189. Mr. INHOFE submitted an amendment intended to be proposed to 
amendment SA 2150 proposed by Mr. Bond (for himself and Ms. Mikulski) 
to the bill H.R. 2861, making appropriations for the Departments of 
Veterans Affairs and Housing and Urban Development, and for sundry 
independent agencies, boards, commissions, corporations, and offices 
for the fiscal year ending September 30, 2004, and for other purposes; 
which was ordered to lie on the table; as follows:

       On page 106, between lines 20 and 21, insert the following:

     SEC. __. DESIGNATIONS OF AREAS FOR PM2.5 AND 
                   SUBMISSION OF IMPLEMENTATION PLANS FOR REGIONAL 
                   HAZE.

       (a) In General.--Section 107(d) of the Clean Air Act (42 
     U.S.C. 7407(d)) is amended by adding at the end the 
     following:
       ``(6) Designations.--
       ``(A) Submission.--Notwithstanding any other provision of 
     law, not later than February 15, 2004, the Governor of each 
     State shall submit designations referred to in paragraph (1) 
     for the July 1997 PM2.5 national ambient air 
     quality standards for each area within the State, based on 
     air quality monitoring data collected in accordance with any 
     applicable Federal reference methods for the relevant areas.
       ``(B) Promulgation.--Notwithstanding any other provision of 
     law, not later than December 31, 2004, the Administrator 
     shall, consistent with paragraph (1), promulgate the

[[Page 28931]]

     designations referred to in subparagraph (A) for each area of 
     each State for the July 1997 PM2.5 national 
     ambient air quality standards.
       ``(7) Implementation plan for regional haze.--
       ``(A) In general.--Notwithstanding any other provision of 
     law, not later than 3 years after the date on which the 
     Administrator promulgates the designations referred to in 
     paragraph (6)(B) for a State, the State shall submit, for the 
     entire State, the State implementation plan revisions to meet 
     the requirements promulgated by the Administrator under 
     section 169B(e)(1) (referred to in this paragraph as 
     `regional haze requirements').
       ``(B) No preclusion of other provisions.--Nothing in this 
     paragraph precludes the implementation of the agreements and 
     recommendations stemming from the Grand Canyon Visibility 
     Transport Commission Report dated June 1996, including the 
     submission of State implementation plan revisions by the 
     States of Arizona, California, Colorado, Idaho, Nevada, New 
     Mexico, Oregon, Utah, or Wyoming by December 31, 2003, for 
     implementation of regional haze requirements applicable to 
     those States.''.
       (b) Relationship to Transportation Equity Act for the 21st 
     Century.--Except as provided in paragraphs (6) and (7) of 
     section 107(d) of the Clean Air Act (as added by subsection 
     (a)), section 6101, subsections (a) and (b) of section 6102, 
     and section 6103 of the Transportation Equity Act for the 
     21st Century (42 U.S.C. 7407 note; 112 Stat. 463), as in 
     effect on the day before the date of enactment of this Act, 
     shall remain in effect.
                                 ______
                                 
  SA 2190. Mr. GRAHAM of Florida submitted an amendment intended to be 
proposed by him to the bill H.R. 2861, making appropriations for the 
Departments of Veterans Affairs and Housing and Urban Development, and 
for sundry independent agencies, boards, commissions, corporations, and 
offices for the fiscal year ending September 30, 2004, and for other 
purposes; which was ordered to lie on the table; as follows:

       At the end of title I, add the following:
       Sec. 116. Provision of Out-Patient Medication Benefit for 
     Medicare-Eligible Veterans.--Section 1712 of title 38, United 
     States Code, is amended--
       (1) by redesignating subsection (e) as subsection (f); and
       (2) by inserting after subsection (d) the following new 
     subsection (e):
       ``(e)(1) The Secretary shall furnish to any medicare-
     eligible veteran on an out-patient basis such drugs and 
     medicines as may be ordered on prescription of a duly 
     licensed physician as specific therapy in the treatment of 
     any illness or injury suffered by such veteran.
       ``(2) In this subsection, the term `medicare-eligible 
     veteran' means any veteran who--
       ``(A) is entitled to or enrolled in hospital insurance 
     benefits under part A of title XVIII of the Social Security 
     Act (42 U.S.C. 1395 et seq.); or
       ``(B) is enrolled in the supplementary medical insurance 
     program under part B of such title (42 U.S.C. 1395j et seq.).
       ``(3) The furnishing of drugs and medicines under this 
     subsection shall be subject to the provisions of section 
     1722A(b) of this title.''.
       (b) Copayment Requirements.--
       (1) In general.--Section 1722A of such title is amended--
       (A) in subsection (a)(1), by inserting ``(other than a 
     veteran covered by subsection (b))'' after ``require a 
     veteran'';
       (B) by redesignating subsections (b), (c), and (d), as 
     subsections (c), (d), and (e), respectively;
       (C) by inserting after subsection (a) the following new 
     subsection (b):
       ``(b)(1) In the case of a veteran who is furnished 
     medications on an out-patient basis under section 1712(e) of 
     this title, the Secretary shall require the veteran to pay, 
     at the election of the Secretary, one or more of the 
     following:
       ``(A) An annual enrollment fee in an amount determined 
     appropriate by the Secretary.
       ``(B) A copayment for each 30-day supply of such 
     medications in an amount determined appropriate by the 
     Secretary.
       ``(C) An amount equal to the cost to the Secretary of such 
     medications, as determined by the Secretary.
       ``(2)(A) In determining the amounts to be paid by a veteran 
     under paragraph (1), and the basis of payment under one or 
     more subparagraphs of that paragraph, the Secretary shall 
     ensure that the total amount paid by veterans for medications 
     under that paragraph in a year is not less than the costs of 
     the Department in furnishing medications to veterans under 
     section 1712(e) of this title during that year, including the 
     cost of purchasing and furnishing medications, and other 
     costs of administering that section.
       ``(B) The Secretary shall take appropriate actions to 
     ensure, to the maximum extent practicable, that amounts paid 
     by veterans under paragraph (1) in a year are equal to the 
     costs of the Department referred to in subparagraph (A) in 
     that year.
       ``(3) In determining amounts under paragraph (1), the 
     Secretary may take into account the following:
       ``(A) Whether or not the medications furnished are generic 
     medications or brand name medications.
       ``(B) Whether or not the medications are furnished by mail.
       ``(C) Whether or not the medications furnished are listed 
     on the National Prescription Drug Formulary of the 
     Department.
       ``(D) Any other matters the Secretary considers 
     appropriate.
       ``(4) The Secretary may from time to time adjust any amount 
     determined by the Secretary under paragraph (1), as 
     previously adjusted under this paragraph, in order to meet 
     the purpose specified in paragraph (2).''; and
       (D) in subsection (d), as so redesignated--
       (i) by striking ``subsection (a)'' and inserting 
     ``subsections (a) and (b)''; and
       (ii) by striking ``subsection (b)'' and inserting 
     ``subsection (c)''.
       (2) Deposit of collections in medical care collections 
     fund.--Paragraph (4) of section 1729A(b) of such title is 
     amended to read as follows:
       ``(4) Subsection (a) or (b) of section 1722A of this 
     title.''.
       (c) Clerical Amendments.--(1) The heading for section 1712 
     of such title is amended by striking ``for certain disabled 
     veterans''.
       (2) The table of sections at the beginning of chapter 17 of 
     such title is amended in the item relating to section 1712 by 
     striking ``for certain disabled veterans''.

                          ____________________




                      NOTICES OF HEARINGS/MEETINGS


               committee on energy and natural resources

  Mr. DOMENICI. Mr. President, I announce for the information of the 
Senate and the public that the hearing to conduct oversight of the 
implementation of the Energy Employees Occupational Illness 
Compensation Program previously scheduled before the Committee on 
Energy and Natural Resources on Friday, November 14 at 10 a.m. has been 
cancelled and will be rescheduled as soon as practicable.
  For further information regarding this hearing, please contact Pete 
Lyons of the Committee staff at 202-224-5861.


                subcommittee on public lands and forests

  Mr. CRAIG. Mr. President, I announce for the information of the 
Senate and the public that the Subcommittee on Public Lands and Forests 
of the Committee on Energy and Natural Resources will add two bills to 
the agenda of the hearing scheduled for November 18, 2003 at 2:30 p.m. 
in room SD-366 of the Dirksen Senate Office Building.
  The bills being added are S. 1167, which would resolve boundary 
conflicts in Barry and Stone Counties in the State of Missouri, and S. 
1848, which would amend the Bend Pine Nursery Land Conveyance Act to 
direct the Secretary of Agriculture to sell the Bend Pine Nursery 
Administrative Site in the State of Oregon.
  The other bills that will be considered at the hearing are S. 1467, a 
bill to establish the Rio Grande Outstanding Natural Area in the State 
of Colorado, and for other purposes, S. 1209, a bill to provide for the 
acquisition of property in Washington County, UT, for implementation of 
a desert tortoise habitat conservation plan, and H.R. 708, a bill to 
require the conveyance of certain National Forest System lands in 
Mendocino National Forest, CA, to provide for the use of the proceeds 
from such conveyance for National Forest purposes, and for other 
purposes.
  Because of the limited time available for the hearing, witnesses may 
testify by invitation only. However, those wishing to submit written 
testimony for the hearing record should send two copies of their 
testimony to the Committee on Energy and Natural Resources, United 
States Senate, SD-364, Washington, DC 20510-6150 prior to the hearing 
date.
  For further information, please contact Dick Bouts or Meghan Beal 
(202-224-7556).


               committee on energy and natural resources

  Mr. DOMENICI. Mr. President, I announce for the information of the 
Senate and the public that a hearing has been scheduled before the 
Committee on Energy and Natural Resources.
  The hearing will be held on Friday, November 21, at 9:30 a.m. in room 
SD-366 of the Dirksen Senate Office Building.
  The purpose of the hearing is to conduct oversight of the 
implementation of the Energy Employees Occupational Illness 
Compensation Program.

[[Page 28932]]

  Because of the limited time available for the hearings, witnesses may 
testify by invitation only. However, those wishing to submit written 
testimony for the hearing record should send two copies of their 
testimony to the Committee on Energy and Natural Resources, United 
States Senate, Washington, DC 20510-6150.

                          ____________________




                    AUTHORITY FOR COMMITTEES TO MEET


                      committee on armed services

  Mr. WARNER. Mr. President, I ask unanimous consent that the Committee 
on Armed Services be authorized to meet during the session of the 
Senate on Wednesday, November 12, 2003, at 4 p.m., in closed session to 
receive a classified operations/intelligence briefing regarding ongoing 
military operations and areas of key concern around the world.
  The PRESIDING OFFICER. Without objection, it is so ordered.


           committee on commerce, science, and transportation

  Mr. WARNER. Mr. President, I ask unanimous consent that the Committee 
on Commerce, Science, and Transportation be authorized to meet on 
Wednesday, November 12, 2003, at 9:30 a.m., on ``Tobacco: State Use of 
Settlement Funds.''
  The PRESIDING OFFICER. Without objection, it is so ordered.


               committee on environment and public works

  Mr. WARNER. Mr. President, I ask unanimous consent that the Committee 
on Environment and Public Works be authorized to meet on Wednesday, 
November 12, at 9:15 a.m., to conduct a business meeting to consider S. 
1072, a bill to authorize funds for Federal-aid highways, highway 
safety programs, and transit programs, and for other purposes, and the 
nomination of Rixio E. Medina to be a member of the U.S. Chemical 
Safety and Hazard Investigation Board.
  The hearing will take place in SD-406 (Hearing Room).
  The PRESIDING OFFICER. Without objection, it is so ordered.


                   Committee on Governmental Affairs

  Mr. WARNER. Mr. President, I ask unanimous consent that the Committee 
on Governmental Affairs be authorized to meet on Wednesday, November 
12, 2003, immediately following a 2 p.m., nomination hearing, for a 
hearing titled ``S. 1358, the Federal Employee Protection of 
Disclosures Act: Amendments to the Whistleblower Protection Act.''
  The PRESIDING OFFICER. Without objection, it is so ordered.


                   Committee on Governmental Affairs

  Mr. WARNER. Mr. President, I ask unanimous consent that the Committee 
on Governmental Affairs be authorized to meet on Wednesday, November 
12, 2003, at 2 p.m., for hearing to consider the nomination of Scott J. 
Bloch to be Special Counsel, Office of Special Counsel.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                       Committee on the Judiciary

  Mr. WARNER. Mr. President, I ask unanimous consent that the Committee 
on the Judiciary be authorized to meet to conduct a hearing on 
Wednesday, November 12, 2003, at 10 a.m., on ``Judicial Nominations,'' 
in the Dirksen Senate Office Building Room 226.

     Witness List

  Panel I: Senators.
  Panel II: Judith C. Herrera to be United States District Judge for 
the District of New Mexico; F. Dennis Saylor to be United States 
District Judge for the District of Massachusetts; and Sandra L. Townes 
to be United States District Judge for the Eastern District of New 
York.
  Panel III: Domingo S. Herraiz to be Director of the Bureau of Justice 
Assistance United States Department of Justice.
  The PRESIDING OFFICER. Without objection, it is so ordered.


               subcommittee on securities and Investment

  Mr. WARNER. Mr. President, I ask unanimous consent that the 
Subcommittee on Securities and Investment of the Committee on Banking, 
Housing, and Urban Affairs be authorized to meet during the session of 
the Senate on November 12, 2003, at 2 p.m., to conduct a hearing on 
``The Financial Accounting Standards Board and Small Business Growth.''
  The PRESIDING OFFICER. Without objection it is so ordered.


                       committee on the judiciary

  Mr. CORNYN. Mr. President, I ask unanimous consent that the Committee 
on the Judiciary be authorized to meet to conduct a markup on Friday, 
November 14, 2003, after the last cloture vote in Dirksen Room 226. 
Note: This markup was rescheduled from Thursday, November 13, 2003.

                                 Agenda

  I. Nominations: Henry W. Saad to be U.S. Circuit Judge for the Sixth 
Circuit; James B. Comey to be Deputy Attorney General; Michael J. 
Garcia to be Assistant Secretary of U.S. Immigration and Customs 
Enforcement; Claude A. Allen to be U.S. Circuit Judge for the Fourth 
Circuit; and Federico L. Rocha to be U.S. Marshal for the Northern 
District of California.
  II. Bills: H.R. 1437, To improve the United States Code 
[Sensenbrenner, Conyers] and S. Res. 253, To recognize the evolution 
and importance of motorsports [Campbell, Kyl].

                          ____________________




                        PRIVILEGES OF THE FLOOR

  Mrs. FEINSTEIN. Madam President, I ask unanimous consent that 
privilege of the floor be granted to Craig Harper, a fellow in my 
office, during consideration of the VA-HUD legislation.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HARKIN. Mr. President, I ask unanimous consent that Jason Eaton 
and Melissa Hall of my staff be granted floor privileges for the 
duration of the week.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALEXANDER. I ask unanimous consent that Bridget Lipscomb of my 
staff be permitted the privilege of the floor during the time I am on 
the floor until 9 o'clock.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent that Sharmila 
Matugama, from the Judiciary staff, be granted the privilege of the 
floor during consideration of the judicial nominations.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  Mr. CRAIG. Mr. President, I ask unanimous consent that privilege of 
the floor be granted to Lisa McGrath, a law fellow who is on my staff, 
during consideration of this judicial nomination debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ENZI. Mr. President, I ask unanimous consent that Joe Laird from 
my staff be allowed on the floor for the duration of this hour of 
debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, I ask unanimous consent that privilege of 
the floor be granted to Ursula Williams, an intern with Senator 
Santorum's office, during consideration of this debate on judicial 
nominations.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________




                    FOREIGN TRAVEL FINANCIAL REPORTS

  In accordance with the appropriate provisions of law, the Secretary 
of the Senate herewith submits the following reports for standing 
committees of the Senate, certain joint committee of the Congress, 
delegations and groups, and select and special committees of the 
Senate, relating to expenses incurred in the performance of authorized 
foreign travel:

[[Page 28933]]



      CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95-384--22 U.S.C. 1754(b), COMMITTEE ON
                                                          AGRICULTURE, NUTRITION AND FORESTRY FOR TRAVEL FROM JULY 1 TO SEPT. 30, 2003
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Per diem               Transportation             Miscellaneous                 Total
                                                                                         -------------------------------------------------------------------------------------------------------
                                                                                                       U.S. dollar               U.S. dollar               U.S. dollar               U.S. dollar
              Name and country                             Name of currency                 Foreign     equivalent    Foreign     equivalent    Foreign     equivalent    Foreign     equivalent
                                                                                            currency     or U.S.      currency     or U.S.      currency     or U.S.      currency     or U.S.
                                                                                                         currency                  currency                  currency                  currency
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Senator Thad Cochran:
    Mexico.................................  Dollar.....................................  ...........     2,178.00  ...........  ...........  ...........  ...........  ...........     2,178.00
Senator Mike Crapo:
    Mexico.................................  Dollar.....................................  ...........     2,178.00  ...........  ...........  ...........  ...........  ...........     2,178.00
Hunt Shipman:
    Mexico.................................  Dollar.....................................  ...........     2,038.00  ...........  ...........  ...........  ...........  ...........     2,038.00
Matthew O'Mara:
    Mexico.................................  Dollar.....................................  ...........     2,038.00  ...........  ...........  ...........  ...........  ...........     2,038.00
Mark Halverson:
    Mexico.................................  Dollar.....................................  ...........     2,038.00  ...........  ...........  ...........  ...........  ...........     2,038.00
Stephanie Mercier:
    Mexico.................................  Dollar.....................................  ...........     2,038.00  ...........  ...........  ...........  ...........  ...........     2,038.00
Senator Norm Coleman:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     6,822.00  ...........  ...........  ...........     6,822.00
    Cuba...................................  Dollar.....................................  ...........       700.00  ...........  ...........  ...........  ...........  ...........       700.00
Jeff Harrison:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     6,822.00  ...........  ...........  ...........     6,822.00
    Cuba...................................  Dollar.....................................  ...........       700.00  ...........  ...........  ...........  ...........  ...........       700.00
                                                                                         -------------------------------------------------------------------------------------------------------
      Total................................  Dollar.....................................  ...........    13,908.00  ...........    13,644.00  ...........  ...........  ...........    27,552.00
THAD COCHRAN,
Chairman, Committee on Agriculture,
 Nutrition and Forestry, Sept. 25, 2003.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


      CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95-384--22 U.S.C. 1754(b), COMMITTEE ON
                                                                     APPROPRIATIONS FOR TRAVEL FROM JULY 1 TO SEPT. 30, 2003
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Per diem               Transportation             Miscellaneous                 Total
                                                                                         -------------------------------------------------------------------------------------------------------
                                                                                                       U.S. dollar               U.S. dollar               U.S. dollar               U.S. dollar
              Name and country                             Name of currency                 Foreign     equivalent    Foreign     equivalent    Foreign     equivalent    Foreign     equivalent
                                                                                            currency     or U.S.      currency     or U.S.      currency     or U.S.      currency     or U.S.
                                                                                                         currency                  currency                  currency                  currency
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Dennis Ward:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     4,314.32  ...........  ...........  ...........     4,314.32
    South Korea............................  Won........................................  ...........     1,072.00  ...........  ...........  ...........  ...........  ...........     1,072.00
                                                                                         -------------------------------------------------------------------------------------------------------
      Total................................  ...........................................  ...........     1,072.00  ...........     4,314.32  ...........  ...........  ...........     5,386.32
TED STEVENS,
Chairman, Committee on Appropriations,
 Sept. 8, 2003.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


  AMENDED CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95-384--22 U.S.C. 1754(b), COMMITTEE ON
                                                                     APPROPRIATIONS FOR TRAVEL FROM APR. 1 TO JUNE 30, 2003.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Per diem               Transportation             Miscellaneous                 Total
                                                                                         -------------------------------------------------------------------------------------------------------
                                                                                                       U.S. dollar               U.S. dollar               U.S. dollar               U.S. dollar
              Name and country                             Name of currency                 Foreign     equivalent    Foreign     equivalent    Foreign     equivalent    Foreign     equivalent
                                                                                            currency     or U.S.      currency     or U.S.      currency     or U.S.      currency     or U.S.
                                                                                                         currency                  currency                  currency                  currency
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Senator Thad Cochran:
    France.................................  Euro.......................................  ...........       460.00  ...........  ...........  ...........  ...........  ...........       460.00
Senator Tom Harkin:
    France.................................  Euro.......................................  ...........       460.00  ...........  ...........  ...........  ...........  ...........       460.00
Sid Ashworth:
    France.................................  Euro.......................................  ...........       460.00  ...........  ...........  ...........  ...........  ...........       460.00
Charlie Houy:
    France.................................  Euro.......................................  ...........       460.00  ...........  ...........  ...........  ...........  ...........       460.00
Ellen Murray:
    France.................................  Euro.......................................  ...........       460.00  ...........  ...........  ...........  ...........  ...........       460.00
Kay Webber:
    France.................................  Euro.......................................  ...........       460.00  ...........  ...........  ...........  ...........  ...........       460.00
Mark Keenum:
    France.................................  Euro.......................................  ...........       460.00  ...........  ...........  ...........  ...........  ...........       460.00
Katherine Hennessey:
    Dominican Republic.....................  Peso.......................................  ...........       476.00  ...........  ...........  ...........  ...........  ...........       476.00
    Costa Rica.............................  Colon......................................  ...........       225.00  ...........  ...........  ...........  ...........  ...........       225.00
    Mexico.................................  Peso.......................................  ...........       646.00  ...........  ...........  ...........  ...........  ...........       646.00
Dennis Balkham:
    Dominican Republic.....................  Peso.......................................  ...........       476.00  ...........  ...........  ...........  ...........  ...........       476.00
    Costa Rica.............................  Colon......................................  ...........       225.00  ...........  ...........  ...........  ...........  ...........       225.00
    Mexico.................................  Peso.......................................  ...........       646.00  ...........  ...........  ...........  ...........  ...........       646.00
Jill Shapiro Long:
    Dominican Republic.....................  Peso.......................................  ...........       476.00  ...........  ...........  ...........  ...........  ...........       476.00
    Costa Rica.............................  Colon......................................  ...........       225.00  ...........  ...........  ...........  ...........  ...........       225.00
    Mexico.................................  Peso.......................................  ...........       646.00  ...........  ...........  ...........  ...........  ...........       646.00
Kate Eltrich:
    Dominican Republic.....................  Peso.......................................  ...........       476.00  ...........  ...........  ...........  ...........  ...........       476.00
    Costa Rica.............................  Colon......................................  ...........       225.00  ...........  ...........  ...........  ...........  ...........       225.00
    Mexico.................................  Peso.......................................  ...........       646.00  ...........  ...........  ...........  ...........  ...........       646.00
Chad Schulken:
    Dominican Republic.....................  Peso.......................................  ...........       476.00  ...........  ...........  ...........  ...........  ...........       476.00
    Costa Rica.............................  Colon......................................  ...........       225.00  ...........  ...........  ...........  ...........  ...........       225.00
    Mexico.................................  Peso.......................................  ...........       646.00  ...........  ...........  ...........  ...........  ...........       646.00
Senator Daniel Inouye:
    Japan..................................  Yen........................................  ...........       966.00  ...........  ...........  ...........  ...........  ...........       966.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     7,133.00  ...........  ...........  ...........     7,133.00
Charlie Houy:
    Japan..................................  Yen........................................  ...........       966.00  ...........  ...........  ...........  ...........  ...........       966.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     7,133.00  ...........  ...........  ...........     7,133.00
                                                                                         -------------------------------------------------------------------------------------------------------
      Total................................  ...........................................  ...........    11,887.00  ...........    14,266.00  ...........  ...........  ...........    26,153.00
TED STEVENS,
Chairman, Committee on Appropriations,
 Sept. 8, 2003.
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[[Page 28934]]


   AMENDED 2ND QUARTER CONSOLIDATED REPORT OF EXPENDITURE OF FOREIGN FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95-384--22 U.S.C.
                                                          1754(b), COMMITTEE ON ARMED SERVICES FOR TRAVEL FROM APR. 1 TO JUNE 30, 2003
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Per diem               Transportation             Miscellaneous                 Total
                                                                                         -------------------------------------------------------------------------------------------------------
                                                                                                       U.S. dollar               U.S. dollar               U.S. dollar               U.S. dollar
              Name and country                             Name of currency                 Foreign     equivalent    Foreign     equivalent    Foreign     equivalent    Foreign     equivalent
                                                                                            currency     or U.S.      currency     or U.S.      currency     or U.S.      currency     or U.S.
                                                                                                         currency                  currency                  currency                  currency
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Senator James M. Inhofe:
    Ghana..................................  Dollar.....................................  ...........       100.00  ...........  ...........  ...........  ...........  ...........       100.00
    Italy..................................  Euro.......................................  ...........        90.27  ...........  ...........  ...........  ...........  ...........        90.27
    Czech Republic.........................  Dollar.....................................  ...........       563.07  ...........  ...........  ...........  ...........  ...........       563.07
    United Kingdom.........................  Euro.......................................  ...........       299.60  ...........  ...........  ...........  ...........  ...........       229.60
Mark Powers:
    Ghana..................................  Dollar.....................................  ...........       172.00  ...........  ...........  ...........  ...........  ...........       172.00
    Italy..................................  Euro.......................................  ...........        74.00  ...........  ...........  ...........  ...........  ...........        74.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     5,172.46  ...........  ...........  ...........     5,172.46
                                                                                         -------------------------------------------------------------------------------------------------------
      Total................................  ...........................................  ...........     1,228.94  ...........     5,172.46  ...........  ...........  ...........     6,401.40
JOHN WARNER,
Chairman, Committee on Armed Services, Oct.
 20, 2003.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


   CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95-384--22 U.S.C. 1754(b), COMMITTEE ON ARMED
                                                                        SERVICES FOR TRAVEL FROM JULY 1 TO SEPT. 30, 2003
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Per diem               Transportation             Miscellaneous                 Total
                                                                                         -------------------------------------------------------------------------------------------------------
                                                                                                       U.S. dollar               U.S. dollar               U.S. dollar               U.S. dollar
              Name and country                             Name of currency                 Foreign     equivalent    Foreign     equivalent    Foreign     equivalent    Foreign     equivalent
                                                                                            currency     or U.S.      currency     or U.S.      currency     or U.S.      currency     or U.S.
                                                                                                         currency                  currency                  currency                  currency
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Maren R. Leed:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     5,157.68  ...........  ...........  ...........     5,157.68
    South Korea............................  Won........................................  ...........       219.70  ...........  ...........  ...........         8.90  ...........       228.60
Joseph T. Sixeas:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     5,157.68  ...........  ...........  ...........     5,157.68
    South Korea............................  Won........................................  ...........       219.70  ...........  ...........  ...........         8.90  ...........       228.60
Senator Bill Nelson:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     6,469.94  ...........  ...........  ...........     6,469.94
    Belgium................................  Euro.......................................  ...........       367.65  ...........  ...........  ...........  ...........  ...........       367.65
    Czech Republic.........................  Crown......................................  ...........       277.79  ...........  ...........  ...........  ...........  ...........       277.79
    Germany................................  Euro.......................................  ...........       419.73  ...........  ...........  ...........  ...........  ...........       419.73
    Denmark................................  Krone......................................  ...........       613.05  ...........  ...........  ...........  ...........  ...........       613.05
    Kuwait.................................  Dinar......................................  ...........       568.34  ...........  ...........  ...........  ...........  ...........       568.34
Daniel Shapiro:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     6,199.01  ...........  ...........  ...........     6,199.01
    Kuwait.................................  Dinar......................................  ...........       620.00  ...........        50.00  ...........        23.00  ...........       693.00
Barbara Strickland:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     4,890.94  ...........  ...........  ...........     4,890.94
    Belgium................................  Euro.......................................  ...........       203.39  ...........  ...........  ...........  ...........  ...........       203.39
    Czech Republic.........................  Crown......................................  ...........       377.70  ...........  ...........  ...........  ...........  ...........       377.70
    Germany................................  Euro.......................................  ...........       832.96  ...........  ...........  ...........  ...........  ...........       832.96
    Denmark................................  Krone......................................  ...........       685.95  ...........  ...........  ...........  ...........  ...........       685.95
Senator Jeff Sessions:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     5,384.06  ...........  ...........  ...........     5,384.06
    Kuwait.................................  Dollar.....................................  ...........       293.00  ...........  ...........  ...........  ...........  ...........       293.00
    Qatar..................................  Dollar.....................................  ...........       172.50  ...........  ...........  ...........  ...........  ...........       172.50
    Pakistan...............................  Dollar.....................................  ...........        40.00  ...........  ...........  ...........  ...........  ...........        40.00
    Germany................................  Dollar.....................................  ...........       298.50  ...........  ...........  ...........  ...........  ...........       298.50
Arch Galloway II:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     5,384.06  ...........  ...........  ...........     5,384.06
    Kuwait.................................  Dollar.....................................  ...........       273.00  ...........  ...........  ...........  ...........  ...........       273.00
    Qatar..................................  Dollar.....................................  ...........       179.00  ...........  ...........  ...........  ...........  ...........       179.00
    Pakistan...............................  Dollar.....................................  ...........        22.00  ...........  ...........  ...........  ...........  ...........        22.00
    Germany................................  Dollar.....................................  ...........       250.50  ...........  ...........  ...........  ...........  ...........       250.50
Ambrose R. Hock:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     5,384.06  ...........  ...........  ...........     5,384.06
    Kuwait.................................  Dollar.....................................  ...........       275.00  ...........  ...........  ...........  ...........  ...........       275.00
    Qatar..................................  Dollar.....................................  ...........       162.73  ...........  ...........  ...........  ...........  ...........       162.73
    Pakistan...............................  Dollar.....................................  ...........        28.50  ...........  ...........  ...........  ...........  ...........        28.50
    Germany................................  Dollar.....................................  ...........       294.41  ...........  ...........  ...........  ...........  ...........       294.41
Senator Lindsey Graham:
    Israel.................................  Dollar.....................................  ...........       552.20  ...........  ...........  ...........  ...........  ...........       552.20
    Kuwait.................................  Dollar.....................................  ...........       581.20  ...........  ...........  ...........  ...........  ...........       581.20
    Pakistan...............................  Dollar.....................................  ...........       313.20  ...........  ...........  ...........  ...........  ...........       313.20
    Turkey.................................  Dollar.....................................  ...........       248.20  ...........  ...........  ...........  ...........  ...........       248.20
    Cyprus.................................  Dollar.....................................  ...........       437.20  ...........  ...........  ...........  ...........  ...........       437.20
Senator John McCain:
    Israel.................................  Dollar.....................................  ...........       530.00  ...........  ...........  ...........  ...........  ...........       530.00
    Kuwait.................................  Dollar.....................................  ...........       593.00  ...........  ...........  ...........  ...........  ...........       593.00
    Pakistan...............................  Dollar.....................................  ...........       333.00  ...........  ...........  ...........  ...........  ...........       333.00
    Turkey.................................  Dollar.....................................  ...........       276.00  ...........  ...........  ...........  ...........  ...........       276.00
    Cyprus.................................  Dollar.....................................  ...........       481.00  ...........  ...........  ...........  ...........  ...........       481.00
Daniel C. Twining:
    Israel.................................  Dollar.....................................  ...........       724.00  ...........  ...........  ...........  ...........  ...........       724.00
    Kuwait.................................  Dollar.....................................  ...........       778.00  ...........  ...........  ...........  ...........  ...........       778.00
    Pakistan...............................  Dollar.....................................  ...........       526.00  ...........  ...........  ...........  ...........  ...........       526.00
    Turkey.................................  Dollar.....................................  ...........       276.00  ...........  ...........  ...........  ...........  ...........       276.00
    Cyprus.................................  Dollar.....................................  ...........       512.00  ...........  ...........  ...........  ...........  ...........       512.00
Senator James M. Inhofe:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     6,458.23  ...........  ...........  ...........     6,458.23
    Israel.................................  Dollar.....................................  ...........       209.00  ...........  ...........  ...........  ...........  ...........       209.00
    Bulgaria...............................  Dollar.....................................  ...........       140.00  ...........  ...........  ...........  ...........  ...........       140.00
John Bonsell:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     4,751.23  ...........  ...........  ...........     4,751.23
    Israel.................................  Dollar.....................................  ...........       227.75  ...........  ...........  ...........  ...........  ...........       227.75
    Bulgaria...............................  Dollar.....................................  ...........       158.75  ...........  ...........  ...........  ...........  ...........       158.75
    Germany................................  Dollar.....................................  ...........        66.75  ...........  ...........  ...........  ...........  ...........        66.75
    Netherlands............................  Dollar.....................................  ...........        35.73  ...........  ...........  ...........  ...........  ...........        35.73
Senator John Warner:
    Liberia................................  Dollar.....................................  ...........        64.00  ...........  ...........  ...........  ...........  ...........        64.00
    Ascension Island.......................  Dollar.....................................  ...........        22.00  ...........  ...........  ...........  ...........  ...........        22.00
    Qatar..................................  Dollar.....................................  ...........       218.71  ...........  ...........  ...........  ...........  ...........       218.71
    Kuwait.................................  Dollar.....................................  ...........       645.37  ...........  ...........  ...........  ...........  ...........       645.37
Senator Carl Levin:

[[Page 28935]]

 
    Qatar..................................  Dollar.....................................  ...........       199.39  ...........  ...........  ...........  ...........  ...........       199.39
    Kuwait.................................  Dollar.....................................  ...........       645.37  ...........  ...........  ...........  ...........  ...........       645.37
Senator Jack Reed:
    Qatar..................................  Dollar.....................................  ...........       232.12  ...........  ...........  ...........  ...........  ...........       232.12
    Kuwait.................................  Dollar.....................................  ...........       689.48  ...........  ...........  ...........  ...........  ...........       689.48
Senator Susan Collins:
    Qatar..................................  Dollar.....................................  ...........       245.80  ...........  ...........  ...........  ...........  ...........       245.80
    Kuwait.................................  Dollar.....................................  ...........       645.37  ...........  ...........  ...........  ...........  ...........       645.37
Senator E. Benjamin Nelson:
    Qatar..................................  Dollar.....................................  ...........       245.80  ...........  ...........  ...........  ...........  ...........       245.80
    Kuwait.................................  Dollar.....................................  ...........       645.37  ...........  ...........  ...........  ...........  ...........       645.37
Senator Pat Roberts:
    Qatar..................................  Dollar.....................................  ...........       234.00  ...........  ...........  ...........  ...........  ...........       234.00
    Kuwait.................................  Dollar.....................................  ...........       778.00  ...........  ...........  ...........  ...........  ...........       778.00
Senator John Cornyn:
    Qatar..................................  Dollar.....................................  ...........       278.71  ...........  ...........  ...........  ...........  ...........       278.71
    Kuwait.................................  Dollar.....................................  ...........       822.71  ...........  ...........  ...........  ...........  ...........       822.71
                                                                                         -------------------------------------------------------------------------------------------------------
      Total................................  ...........................................  ...........    22,306.28  ...........    55,286.89  ...........        40.80  ...........    77,633.97
JOHN WARNER,
Chairman, Committee on Armed Services, Oct.
 1, 2003.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


  CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95-384--22 U.S.C. 1754(b), COMMITTEE ON BANKING,
                                                               HOUSING, AND URBAN AFFAIRS FOR TRAVEL FROM JULY 1 TO SEPT. 30, 2003
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Per diem               Transportation             Miscellaneous                 Total
                                                                                         -------------------------------------------------------------------------------------------------------
                                                                                                       U.S. dollar               U.S. dollar               U.S. dollar               U.S. dollar
              Name and country                             Name of currency                 Foreign     equivalent    Foreign     equivalent    Foreign     equivalent    Foreign     equivalent
                                                                                            currency     or U.S.      currency     or U.S.      currency     or U.S.      currency     or U.S.
                                                                                                         currency                  currency                  currency                  currency
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Senator Richard Shelby:
    United Kingdom.........................  Pound......................................  ...........     1,230.00  ...........  ...........  ...........  ...........  ...........     1,230.00
    Belgium................................  Euro.......................................  ...........       341.00  ...........  ...........  ...........  ...........  ...........       341.00
    Germany................................  Euro.......................................  ...........     1,810.00  ...........  ...........  ...........  ...........  ...........     1,810.00
Senator Wayne Allard:
    United Kingdom.........................  Pound......................................  ...........     1,230.00  ...........  ...........  ...........  ...........  ...........     1,230.00
    Belgium................................  Euro.......................................  ...........       341.00  ...........  ...........  ...........  ...........  ...........       341.00
    Germany................................  Euro.......................................  ...........     1,810.00  ...........  ...........  ...........  ...........  ...........     1,810.00
Senator Paul S. Sarbanes:
    United Kingdom.........................  Pound......................................  ...........     1,230.00  ...........  ...........  ...........  ...........  ...........     1,230.00
    Belgium................................  Euro.......................................  ...........       341.00  ...........  ...........  ...........  ...........  ...........       341.00
Kathleen L. Casey:
    United Kingdom.........................  Pound......................................  ...........     1,190.00  ...........  ...........  ...........  ...........  ...........     1,190.00
    Belgium................................  Euro.......................................  ...........       321.00  ...........  ...........  ...........  ...........  ...........       321.00
    Germany................................  Euro.......................................  ...........     1,710.00  ...........  ...........  ...........  ...........  ...........     1,710.00
John M. Smith, III:
    United Kingdom.........................  Pound......................................  ...........     1,160.00  ...........  ...........  ...........  ...........  ...........     1,160.00
    Belgium................................  Euro.......................................  ...........       311.00  ...........  ...........  ...........  ...........  ...........       311.00
    Germany................................  Euro.......................................  ...........     1,660.00  ...........  ...........  ...........  ...........  ...........     1,660.00
Steven B. Harris:
    United Kingdom.........................  Pound......................................  ...........     1,047.00  ...........  ...........  ...........  ...........  ...........     1,047.00
    Belgium................................  Euro.......................................  ...........       249.00  ...........  ...........  ...........  ...........  ...........       249.00
    Germany................................  Euro.......................................  ...........     1,354.00  ...........  ...........  ...........  ...........  ...........     1,354.00
Stephen R. Kroll:
    United Kingdom.........................  Pound......................................  ...........       955.00  ...........  ...........  ...........  ...........  ...........       955.00
    Belgium................................  Euro.......................................  ...........       341.00  ...........  ...........  ...........  ...........  ...........       341.00
    Germany................................  Euro.......................................  ...........     1,560.00  ...........  ...........  ...........  ...........  ...........     1,560.00
                                                                                         -------------------------------------------------------------------------------------------------------
      Total................................  Euro.......................................  ...........    20,191.00  ...........  ...........  ...........  ...........  ...........    20,191.00
RICHARD SHELBY,
Chairman, Committee on Banking, Housing,
 and Urban Affairs, Oct. 3, 2003.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


 CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95-384--22 U.S.C. 1754(b), COMMITTEE ON COMMERCE,
                                                              SCIENCE, AND TRANSPORTATION FOR TRAVEL FROM JULY 1 TO SEPT. 30, 2003
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Per diem               Transportation             Miscellaneous                 Total
                                                                                         -------------------------------------------------------------------------------------------------------
                                                                                                       U.S. dollar               U.S. dollar               U.S. dollar               U.S. dollar
              Name and country                             Name of currency                 Foreign     equivalent    Foreign     equivalent    Foreign     equivalent    Foreign     equivalent
                                                                                            currency     or U.S.      currency     or U.S.      currency     or U.S.      currency     or U.S.
                                                                                                         currency                  currency                  currency                  currency
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Senator Maria Cantwell:
    Israel.................................  New Shekel.................................  ...........       563.00  ...........  ...........  ...........  ...........  ...........       563.00
    Kuwait.................................  Dinar......................................  ...........       543.00  ...........  ...........  ...........  ...........  ...........       543.00
    Pakistan...............................  Rupee......................................  ...........       305.00  ...........  ...........  ...........  ...........  ...........       305.00
    Turkey.................................  Lira.......................................  ...........       240.00  ...........  ...........  ...........  ...........  ...........       240.00
    Cyprus.................................  Pound......................................  ...........       440.00  ...........  ...........  ...........  ...........  ...........       440.00
                                                                                         -------------------------------------------------------------------------------------------------------
      Total................................  ...........................................  ...........     2,091.00  ...........  ...........  ...........  ...........  ...........     2,091.00
JOHN McCAIN,
Chairman, Committee on Commerce, Science,
 and Transportation,  Sept. 23, 2003.
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[[Page 28936]]


 CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95-384--22 U.S.C. 1754(b), COMMITTEE ON ENERGY AND
                                                                   NATURAL RESOURCES FOR TRAVEL FROM JULY 1 TO SEPT. 30, 2003
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Per diem               Transportation             Miscellaneous                 Total
                                                                                         -------------------------------------------------------------------------------------------------------
                                                                                                       U.S. dollar               U.S. dollar               U.S. dollar               U.S. dollar
              Name and country                             Name of currency                 Foreign     equivalent    Foreign     equivalent    Foreign     equivalent    Foreign     equivalent
                                                                                            currency     or U.S.      currency     or U.S.      currency     or U.S.      currency     or U.S.
                                                                                                         currency                  currency                  currency                  currency
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Peter B. Lyons:
    Japan..................................  Yen........................................  ...........       518.61  ...........       635.11  ...........        67.68  ...........     1,221.40
    United States..........................  Dollar.....................................  ...........  ...........  ...........     7,649.97  ...........        17.00  ...........     7,666.97
                                                                                         -------------------------------------------------------------------------------------------------------
      Total................................  ...........................................  ...........       518.61  ...........     8,285.08  ...........        84.68  ...........     8,888.37
PETE V. DOMENICI,
Chairman, Committee on Energy and Natural
 Resources, Sept. 6, 2003.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95-384--22 U.S.C. 1754(b), COMMITTEE ON FINANCE FOR
                                                                              TRAVEL FROM JULY 1 TO SEPT. 30, 2003
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Per diem               Transportation             Miscellaneous                 Total
                                                                                         -------------------------------------------------------------------------------------------------------
                                                                                                       U.S. dollar               U.S. dollar               U.S. dollar               U.S. dollar
              Name and country                             Name of currency                 Foreign     equivalent    Foreign     equivalent    Foreign     equivalent    Foreign     equivalent
                                                                                            currency     or U.S.      currency     or U.S.      currency     or U.S.      currency     or U.S.
                                                                                                         currency                  currency                  currency                  currency
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Senator Max Baucus:
    Mexico.................................  Dollar.....................................  ...........     1,895.00  ...........  ...........  ...........  ...........  ...........     1,895.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     1,316.62  ...........  ...........  ...........     1,316.62
Senator Craig Thomas:
    Mexico.................................  Dollar.....................................  ...........     1,470.00  ...........  ...........  ...........  ...........  ...........     1,470.00
Shara Aranoff:
    Mexico.................................  Dollar.....................................  ...........     1,405.00  ...........  ...........  ...........  ...........  ...........     1,405.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........       394.83  ...........  ...........  ...........       394.83
Everett Eissenstat:
    Mexico.................................  Dollar.....................................  ...........     1,530.00  ...........  ...........  ...........  ...........  ...........     1,530.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     1,840.65  ...........  ...........  ...........     1,840.65
John Gilliland:
    Mexico.................................  Dollar.....................................  ...........     1,865.00  ...........  ...........  ...........  ...........  ...........     1,865.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     1,114.65  ...........  ...........  ...........     1,114.65
Laura Hayes:
    Mexico.................................  Dollar.....................................  ...........     1,385.00  ...........  ...........  ...........  ...........  ...........     1,385.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........       201.42  ...........  ...........  ...........       201.42
Robert Holifield:
    Mexico.................................  Dollar.....................................  ...........     1,869.00  ...........  ...........  ...........  ...........  ...........     1,869.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........       378.65  ...........  ...........  ...........       378.65
David S. Johanson:
    Mexico.................................  Dollar.....................................  ...........     1,513.18  ...........  ...........  ...........  ...........  ...........     1,513.18
    United States..........................  Dollar.....................................  ...........  ...........  ...........     1,840.65  ...........  ...........  ...........     1,840.65
Tom Mahr:
    Mexico.................................  Dollar.....................................  ...........     1,333.00  ...........  ...........  ...........  ...........  ...........     1,333.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........       191.52  ...........  ...........  ...........       191.52
David A. Olson:
    Mexico.................................  Dollar.....................................  ...........     1,438.00  ...........  ...........  ...........  ...........  ...........     1,438.00
Brian Pomper:
    Mexico.................................  Dollar.....................................  ...........     1,380.00  ...........  ...........  ...........  ...........  ...........     1,380.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........       189.91  ...........  ...........  ...........       189.91
Tim Punke:
    Mexico.................................  Dollar.....................................  ...........     1,409.00  ...........  ...........  ...........  ...........  ...........     1,409.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........       201.42  ...........  ...........  ...........       201.42
Stephen Schaefer:
    Mexico.................................  Dollar.....................................  ...........     1,485.00  ...........  ...........  ...........  ...........  ...........     1,485.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     1.840.65  ...........  ...........  ...........     1,840.65
Bryn Stewart:
    Mexico.................................  Dollar.....................................  ...........     1,330.00  ...........  ...........  ...........  ...........  ...........     1,330.00
                                                                                         -------------------------------------------------------------------------------------------------------
      Total................................  ...........................................  ...........    21,307.18  ...........     9,510.97  ...........  ...........  ...........    30,818.15
CHUCK GRASSLEY,
Chairman, Committee on Finance, Oct. 20,
 2003.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


  CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95-384--22 U.S.C. 1754(b), COMMITTEE ON FOREIGN
                                                                       RELATIONS FOR TRAVEL FROM JULY 1 TO SEPT. 30, 2003
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Per diem               Transportation             Miscellaneous                 Total
                                                                                         -------------------------------------------------------------------------------------------------------
                                                                                                       U.S. dollar               U.S. dollar               U.S. dollar               U.S. dollar
              Name and country                             Name of currency                 Foreign     equivalent    Foreign     equivalent    Foreign     equivalent    Foreign     equivalent
                                                                                            currency     or U.S.      currency     or U.S.      currency     or U.S.      currency     or U.S.
                                                                                                         currency                  currency                  currency                  currency
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Senator John Sununu:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     3,063.85  ...........  ...........  ...........     3,063.85
Senator Lincoln Chafee:
    Israel.................................  Dollar.....................................  ...........     1,086.00  ...........  ...........  ...........  ...........  ...........     1,086.00
    Jordan.................................  Dollar.....................................  ...........       326.00  ...........  ...........  ...........  ...........  ...........       326.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     4,438.50  ...........  ...........  ...........     4,438.50
Senator Richard Lugar:
    Russia.................................  Dollar.....................................  ...........       866.66  ...........  ...........  ...........  ...........  ...........       866.66
    Kazakhstan.............................  Dollar.....................................  ...........       866.66  ...........  ...........  ...........  ...........  ...........       866.66
    Uzbekistan.............................  Dollar.....................................  ...........       866.67  ...........  ...........  ...........  ...........  ...........       866.67
    Turkey.................................  Dollar.....................................  ...........       562.00  ...........  ...........  ...........  ...........  ...........       562.00
    Germany................................  Dollar.....................................  ...........       724.00  ...........  ...........  ...........  ...........  ...........       724.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     6,027.99  ...........  ...........  ...........     6,027.99
Senator Sam Brownback:
    Israel.................................  Dollar.....................................  ...........     1,448.00  ...........  ...........  ...........  ...........  ...........     1,448.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     4,767.04  ...........  ...........  ...........     4,767.04
Heather Flynn:
    Ghana..................................  Dollar.....................................  ...........     1,030.00  ...........  ...........  ...........  ...........  ...........     1,030.00
    Sierra Leone...........................  Dollar.....................................  ...........       440.00  ...........  ...........  ...........  ...........  ...........       440.00
    Senegal................................  Dollar.....................................  ...........     1,058.00  ...........  ...........  ...........  ...........  ...........     1,058.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     7,417.00  ...........  ...........  ...........     7,417.00
Michael Phelan:
    Rwanda.................................  Dollar.....................................  ...........       321.00  ...........  ...........  ...........  ...........  ...........       321.00
    Tanzania...............................  Dollar.....................................  ...........        45.00  ...........  ...........  ...........  ...........  ...........        45.00

[[Page 28937]]

 
    Congo..................................  Dollar.....................................  ...........       450.00  ...........       172.00  ...........  ...........  ...........       622.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     7,634.47  ...........       115.00  ...........     7,749.47
Michael Haltzel:
    Bosnia.................................  Dollar.....................................  ...........       600.00  ...........  ...........  ...........  ...........  ...........       600.00
    Austria................................  Dollar.....................................  ...........       800.00  ...........  ...........  ...........  ...........  ...........       800.00
    Romania................................  Dollar.....................................  ...........       550.00  ...........  ...........  ...........  ...........  ...........       550.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     5,963.19  ...........  ...........  ...........     5,963.19
Andrew Fisher:
    Russia.................................  Dollar.....................................  ...........     1,040.00  ...........  ...........  ...........  ...........  ...........     1,040.00
    Kazakhstan.............................  Dollar.....................................  ...........       220.00  ...........  ...........  ...........  ...........  ...........       220.00
    Uzbekistan.............................  Dollar.....................................  ...........       154.00  ...........  ...........  ...........  ...........  ...........       154.00
    Turkey.................................  Dollar.....................................  ...........       562.00  ...........  ...........  ...........  ...........  ...........       562.00
    Germany................................  Dollar.....................................  ...........       600.00  ...........  ...........  ...........  ...........  ...........       600.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     6,027.99  ...........  ...........  ...........     6,027.99
Mark Helmke:
    Mexico.................................  Dollar.....................................  ...........       950.00  ...........        68.00  ...........       272.00  ...........     1,290.00
Daniel Shapiro:
    Qatar..................................  Dollar.....................................  ...........       204.00  ...........  ...........  ...........  ...........  ...........       204.00
    Kuwait.................................  Dollar.....................................  ...........       369.00  ...........  ...........  ...........  ...........  ...........       369.00
Carl Meacham:
    Brazil.................................  Dollar.....................................  ...........       630.00  ...........  ...........  ...........  ...........  ...........       630.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     6,628.77  ...........  ...........  ...........     6,628.77
Puneet Talwar:
    Sweden.................................  Dollar.....................................  ...........       891.00  ...........  ...........  ...........  ...........  ...........       891.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     4,900.60  ...........  ...........  ...........     4,900.60
Jennifer Simon:
    Brazil.................................  Dollar.....................................  ...........       630.00  ...........  ...........  ...........  ...........  ...........       630.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     6,662.40  ...........  ...........  ...........     6,662.40
Thomas Brady:
    Israel.................................  Dollar.....................................  ...........     1,448.00  ...........  ...........  ...........  ...........  ...........     1,448.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     4,612.54  ...........  ...........  ...........     4,612.54
Thomas Moore:
    Russia.................................  Dollar.....................................  ...........       465.33  ...........  ...........  ...........  ...........  ...........       465.33
    Kazakhstan.............................  Dollar.....................................  ...........       465.33  ...........  ...........  ...........  ...........  ...........       465.33
    Uzbekistan.............................  Dollar.....................................  ...........       465.33  ...........  ...........  ...........  ...........  ...........       465.33
    Turkey.................................  Dollar.....................................  ...........       562.00  ...........  ...........  ...........  ...........  ...........       562.00
    Germany................................  Dollar.....................................  ...........       824.00  ...........  ...........  ...........  ...........  ...........       824.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     6,027.99  ...........  ...........  ...........     6,027.99
Jonah Blank:
    Sri Lanka..............................  Dollar.....................................  ...........     1,330.00  ...........  ...........  ...........  ...........  ...........     1,330.00
    Thailand...............................  Dollar.....................................  ...........       380.00  ...........  ...........  ...........  ...........  ...........       380.00
    Malaysia...............................  Dollar.....................................  ...........       470.00  ...........  ...........  ...........  ...........  ...........       470.00
    Singapore..............................  Dollar.....................................  ...........       390.00  ...........  ...........  ...........  ...........  ...........       390.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     9,618.44  ...........  ...........  ...........     9,618.44
Frank Jannuzi:
    China..................................  Dollar.....................................  ...........     2,515.00  ...........  ...........  ...........  ...........  ...........     2,515.00
    North Korea............................  Dollar.....................................  ...........     1,178.00  ...........     1,905.70  ...........  ...........  ...........     3,083.70
    South Korea............................  Dollar.....................................  ...........       292.00  ...........  ...........  ...........  ...........  ...........       292.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     2,594.73  ...........  ...........  ...........     2,594.73
Kenneth Myers, Jr.:
    Russia.................................  Dollar.....................................  ...........       866.66  ...........  ...........  ...........  ...........  ...........       866.66
    Kazakhstan.............................  Dollar.....................................  ...........       866.66  ...........  ...........  ...........  ...........  ...........       866.66
    Uzbekistan.............................  Dollar.....................................  ...........       866.67  ...........  ...........  ...........  ...........  ...........       866.67
    Turkey.................................  Dollar.....................................  ...........       562.00  ...........  ...........  ...........  ...........  ...........       562.00
    Germany................................  Dollar.....................................  ...........       724.00  ...........  ...........  ...........  ...........  ...........       724.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     6,027.99  ...........  ...........  ...........     6,027.99
Kenneth Myers III:
    Russia.................................  Dollar.....................................  ...........       533.33  ...........  ...........  ...........  ...........  ...........       533.33
    Kazakhstan.............................  Dollar.....................................  ...........       533.33  ...........  ...........  ...........  ...........  ...........       533.33
    Uzbekistan.............................  Dollar.....................................  ...........       533.34  ...........  ...........  ...........  ...........  ...........       533.34
    Turkey.................................  Dollar.....................................  ...........       562.00  ...........  ...........  ...........  ...........  ...........       562.00
    Germany................................  Dollar.....................................  ...........       724.00  ...........  ...........  ...........  ...........  ...........       724.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     6,027.99  ...........  ...........  ...........     6,027.99
Keith Luse:
    Indonesia..............................  Dollar.....................................  ...........     1,285.04  ...........     1,236.85  ...........       304.20  ...........     2,826.09
    Singapore..............................  Dollar.....................................  ...........       134.16  ...........  ...........  ...........  ...........  ...........       134.16
    China..................................  Dollar.....................................  ...........       528.87  ...........  ...........  ...........  ...........  ...........       528.87
    North Korea............................  Dollar.....................................  ...........       437.50  ...........  ...........  ...........  ...........  ...........       437.50
    United States..........................  Dollar.....................................  ...........  ...........  ...........     7,020.09  ...........  ...........  ...........     7,020.09
John Seggerman:
    Israel.................................  Dollar.....................................  ...........       860.00  ...........  ...........  ...........  ...........  ...........       860.00
    Jordan.................................  Dollar.....................................  ...........       290.00  ...........  ...........  ...........  ...........  ...........       290.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     4,438.50  ...........  ...........  ...........     4,438.50
                                                                                         -------------------------------------------------------------------------------------------------------
      Total................................  ...........................................  ...........    45,410.53  ...........   113,282.62  ...........       691.20  ...........   153,356.36
RICHARD LUGAR,
Chairman, Committee on Foreign Relations,
 Oct. 6, 2003.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


2ND QUARTER CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95-384--22 U.S.C. 1754(b), COMMITTEE ON
                                                                    FOREIGN RELATIONS FOR TRAVEL FROM APR. 1 TO JUNE 30, 2003
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Per diem               Transportation             Miscellaneous                 Total
                                                                                         -------------------------------------------------------------------------------------------------------
                                                                                                       U.S. dollar               U.S. dollar               U.S. dollar               U.S. dollar
              Name and country                             Name of currency                 Foreign     equivalent    Foreign     equivalent    Foreign     equivalent    Foreign     equivalent
                                                                                            currency     or U.S.      currency     or U.S.      currency     or U.S.      currency     or U.S.
                                                                                                         currency                  currency                  currency                  currency
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Senator Richard Lugar:
    Jordan.................................  Dollar.....................................  ...........     1,350.00  ...........  ...........  ...........  ...........  ...........     1,350.00
Senator Chuck Hagel:
    Jordan.................................  Dollar.....................................  ...........     1,350.00  ...........  ...........  ...........  ...........  ...........     1,350.00
    Philippines............................  Dollar.....................................  ...........       294.00  ...........  ...........  ...........  ...........  ...........       294.00
    Singapore..............................  Dollar.....................................  ...........       622.00  ...........  ...........  ...........  ...........  ...........       622.00
    Japan..................................  Dollar.....................................  ...........       202.00  ...........  ...........  ...........  ...........  ...........       202.00
Jofi Joseph:
    Peru...................................  Dollar.....................................  ...........       689.00  ...........       172.28  ...........  ...........  ...........       861.28
    United States..........................  Dollar.....................................  ...........  ...........  ...........     4,054.90  ...........  ...........  ...........     4,054.90

[[Page 28938]]

 
Senator Norm Coleman:
    Colombia...............................  Dollar.....................................  ...........       675.00  ...........  ...........  ...........  ...........  ...........       675.00
Andrew Parasiliti:
    Kuwait.................................  Dollar.....................................  ...........     1,167.00  ...........  ...........  ...........  ...........  ...........     1,167.00
    Saudi Arabia...........................  Dollar.....................................  ...........       450.00  ...........  ...........  ...........  ...........  ...........       450.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     7,031.66  ...........  ...........  ...........     7,031.66
Puneet Talwar:
    Kuwait.................................  Dollar.....................................  ...........     1,167.00  ...........  ...........  ...........  ...........  ...........     1,167.00
    Saudi Arabia...........................  Dollar.....................................  ...........       450.00  ...........  ...........  ...........  ...........  ...........       450.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     7,031.66  ...........  ...........  ...........     7,031.66
Andrew Parsiliti:
    Jordan.................................  Dollar.....................................  ...........     1,350.00  ...........  ...........  ...........  ...........  ...........     1,350.00
    Iraq...................................  Dollar.....................................  ...........     1,666.00  ...........  ...........  ...........  ...........  ...........     1,666.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     1,677.00  ...........  ...........  ...........     1,677.00
Puneet Talwar:
    Jordan.................................  Dollar.....................................  ...........     1,350.00  ...........  ...........  ...........  ...........  ...........     1,350.00
    Iraq...................................  Dollar.....................................  ...........     1,666.00  ...........  ...........  ...........  ...........  ...........     1,666.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     1,677.00  ...........  ...........  ...........     1,677.00
Frank Zannuzi:
    Indonesia..............................  Dollar.....................................  ...........       382.00  ...........  ...........  ...........  ...........  ...........       382.00
    Thailand...............................  Dollar.....................................  ...........     1,442.00  ...........  ...........  ...........  ...........  ...........     1,442.00
    Laos...................................  Dollar.....................................  ...........       157.00  ...........  ...........  ...........  ...........  ...........       157.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     7,648.06  ...........  ...........  ...........     7,648.06
Michael Haltzel:
    Lithuania..............................  Dollar.....................................  ...........       235.00  ...........  ...........  ...........  ...........  ...........       235.00
    Latvia.................................  Dollar.....................................  ...........       414.00  ...........  ...........  ...........  ...........  ...........       414.00
    Estonia................................  Dollar.....................................  ...........       446.00  ...........  ...........  ...........  ...........  ...........       446.00
    Finland................................  Dollar.....................................  ...........       668.00  ...........  ...........  ...........  ...........  ...........       668.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     5,258.37  ...........  ...........  ...........     5,258.37
Kenneth Myers, Jr.:
    Jordan.................................  Dollar.....................................  ...........     1,350.00  ...........  ...........  ...........  ...........  ...........     1,350.00
Janice O'Connell:
    Mexico.................................  Dollar.....................................  ...........       336.00  ...........  ...........  ...........  ...........  ...........       336.00
    Haiti..................................  Dollar.....................................  ...........       634.00  ...........  ...........  ...........  ...........  ...........       634.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     2,630.30  ...........  ...........  ...........     2,630.30
Nancy Stetson:
    Haiti..................................  Dollar.....................................  ...........       646.00  ...........  ...........  ...........  ...........  ...........       646.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     1,162.00  ...........  ...........  ...........     1,162.00
Jennifer Simon:
    Mexico.................................  Dollar.....................................  ...........       504.00  ...........  ...........  ...........  ...........  ...........       504.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     2,045.40  ...........  ...........  ...........     2,045.40
Kim Savit:
    Jordan.................................  Dollar.....................................  ...........       635.00  ...........  ...........  ...........  ...........  ...........       635.00
Jennifer Simon:
    Venezuela..............................  Dollar.....................................  ...........       894.00  ...........  ...........  ...........  ...........  ...........       894.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     2,193.33  ...........  ...........  ...........     2,193.33
Michelle Gavin:
    Sierra Leone...........................  Dollar.....................................  ...........       750.00  ...........  ...........  ...........       145.00  ...........       895.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     8,377.73  ...........  ...........  ...........     8,377.73
Heather Flynn:
    Indonesia..............................  Dollar.....................................  ...........       382.00  ...........  ...........  ...........  ...........  ...........       382.00
    Thailand...............................  Dollar.....................................  ...........     1,442.00  ...........       115.00  ...........  ...........  ...........     1,557.00
    Laos...................................  Dollar.....................................  ...........       157.00  ...........  ...........  ...........  ...........  ...........       157.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........    11,414.78  ...........  ...........  ...........    11,414.78
Lou Ann Linehan:
    Philippines............................  Dollar.....................................  ...........       294.00  ...........  ...........  ...........  ...........  ...........       294.00
    Singapore..............................  Dollar.....................................  ...........       622.00  ...........  ...........  ...........  ...........  ...........       622.00
    Japan..................................  Dollar.....................................  ...........       202.00  ...........  ...........  ...........  ...........  ...........       202.00
Michael Phelan:
    Sierra Leone...........................  Dollar.....................................  ...........       150.00  ...........  ...........  ...........       100.00  ...........       250.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     9,772.79  ...........  ...........  ...........     9,772.79
Carl Meacham:
    Colombia...............................  Dollar.....................................  ...........       675.00  ...........  ...........  ...........  ...........  ...........       675.00
Lorianne Woodrow:
    Colombia...............................  Dollar.....................................  ...........       675.00  ...........  ...........  ...........  ...........  ...........       675.00
Carl Meacham:
    Mexico.................................  Dollar.....................................  ...........       504.00  ...........  ...........  ...........  ...........  ...........       504.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     2,045.40  ...........  ...........  ...........     2,045.40
Carl Meacham:
    Venezuela..............................  Dollar.....................................  ...........       744.00  ...........  ...........  ...........  ...........  ...........       744.00
    Chile..................................  Dollar.....................................  ...........       288.00  ...........  ...........  ...........  ...........  ...........       288.00
    United States..........................  Dollar.....................................  ...........  ...........  ...........     4,696.33  ...........  ...........  ...........     4,696.33
                                                                                         -------------------------------------------------------------------------------------------------------
      Total................................  ...........................................  ...........    30,076.00  ...........    79,003.99  ...........       245.00  ...........   109,324.99
RICHARD LUGAR,
Chairman, Committee on Foreign Relations,
 Oct. 6, 2003.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


      CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95-384--22 U.S.C. 1754(b), COMMITTEE ON
                                                                  GOVERNMENTAL AFFAIRS FOR TRAVEL FROM JULY 1 TO SEPT. 30, 2003
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Per diem               Transportation             Miscellaneous                 Total
                                                                                         -------------------------------------------------------------------------------------------------------
                                                                                                       U.S. dollar               U.S. dollar               U.S. dollar               U.S. dollar
              Name and country                             Name of currency                 Foreign     equivalent    Foreign     equivalent    Foreign     equivalent    Foreign     equivalent
                                                                                            currency     or U.S.      currency     or U.S.      currency     or U.S.      currency     or U.S.
                                                                                                         currency                  currency                  currency                  currency
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Raymond V. Shepherd III:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     1,028.54  ...........  ...........  ...........     1,028.54
    Germany................................  Euro.......................................  ...........     1,021.00  ...........  ...........  ...........  ...........  ...........     1,021.00
Laura Stuber:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     1,028.54  ...........  ...........  ...........     1,028.54
    Germany................................  Euro.......................................  ...........     1,021.00  ...........  ...........  ...........  ...........  ...........     1,021.00
                                                                                         -------------------------------------------------------------------------------------------------------
      Total................................  ...........................................  ...........     2,042.00  ...........     2,057.08  ...........  ...........  ...........     4,099.08
SUSAN COLLINS,
Chairman, Committee on Governmental
 Affairs, Oct. 22, 2003.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 28939]]


    CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95-384--22 U.S.C. 1754(b), COMMITTEE ON THE
                                                                       JUDICIARY FOR TRAVEL FROM JULY 1 TO SEPT. 30, 2003
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Per diem               Transportation             Miscellaneous                 Total
                                                                                         -------------------------------------------------------------------------------------------------------
                                                                                                       U.S. dollar               U.S. dollar               U.S. dollar               U.S. dollar
              Name and country                             Name of currency                 Foreign     equivalent    Foreign     equivalent    Foreign     equivalent    Foreign     equivalent
                                                                                            currency     or U.S.      currency     or U.S.      currency     or U.S.      currency     or U.S.
                                                                                                         currency                  currency                  currency                  currency
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Janice Kaguyutan:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     6,249.86  ...........  ...........  ...........     6,249.86
    Guinea.................................  Franc......................................  ...........       463.18  ...........  ...........  ...........       306.36  ...........       769.54
    Cote d'Ivoire..........................  CFA Franc..................................  ...........       875.31  ...........  ...........  ...........  ...........  ...........       875.31
    Sierra Leone...........................  Leone......................................  ...........       363.01  ...........  ...........  ...........  ...........  ...........       363.01
Christopher Campbell:
    Mexico.................................  Peso.......................................  ...........       372.50  ...........  ...........  ...........  ...........  ...........       372.50
Senator John Cornyn:
    Mexico.................................  Peso.......................................  ...........       105.00  ...........  ...........  ...........  ...........  ...........       105.00
Matthew Winslow:
    Mexico.................................  Peso.......................................  ...........        40.00  ...........  ...........  ...........  ...........  ...........        40.00
Senator Orrin Hatch:
    Mexico.................................  Peso.......................................  ...........       200.00  ...........  ...........  ...........  ...........  ...........       200.00
Bruce Artim:
    Mexico.................................  Peso.......................................  ...........        57.49  ...........  ...........  ...........  ...........  ...........        57.49
Marcia Lee:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     6,277.45  ...........  ...........  ...........     6,277.45
    Turkey.................................  Lira.......................................  ...........       899.00  ...........  ...........  ...........  ...........  ...........       899.00
    Uzbekistan.............................  S0M........................................  ...........       262.00  ...........  ...........  ...........        15.00  ...........       277.00
Jeffrey Miller:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     5,044.40  ...........  ...........  ...........     5,044.40
    Turkey.................................  Lira.......................................  ...........       877.04  ...........  ...........  ...........  ...........  ...........       877.04
    Uzbekistan.............................  SOM........................................  ...........       269.40  ...........  ...........  ...........  ...........  ...........       269.40
Jennifer Wagner:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     6,494.45  ...........  ...........  ...........     6,494.45
    Turkey.................................  Lira.......................................  ...........     1,041.00  ...........  ...........  ...........  ...........  ...........     1,041.00
    Uzbekistan.............................  SOM........................................  ...........       290.00  ...........  ...........  ...........  ...........  ...........       290.00
Senator John Cornyn:
    United States..........................  Dollar.....................................  ...........  ...........  ...........       710.00  ...........  ...........  ...........       710.00
    Mexico.................................  Peso.......................................  ...........       413.87  ...........  ...........  ...........  ...........  ...........       413.87
Matthew Winslow:
    United States..........................  Dollar.....................................  ...........  ...........  ...........       824.00  ...........  ...........  ...........       824.00
    Mexico.................................  Peso.......................................  ...........       412.19  ...........  ...........  ...........  ...........  ...........       412.19
                                                                                         -------------------------------------------------------------------------------------------------------
      Total................................  ...........................................  ...........     6,940.99  ...........    25,600.16  ...........       321.36  ...........    32,862.51
ORRIN HATCH,
Chairman, Committee on the Judiciary, Oct.
 29, 2003.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


      CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95-384--22 U.S.C. 1754(b), COMMITTEE ON
                                                                      INTELLIGENCE FOR TRAVEL FROM JULY 1 TO SEPT. 30, 2003
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Per diem               Transportation             Miscellaneous                 Total
                                                                                         -------------------------------------------------------------------------------------------------------
                                                                                                       U.S. dollar               U.S. dollar               U.S. dollar               U.S. dollar
              Name and country                             Name of currency                 Foreign     equivalent    Foreign     equivalent    Foreign     equivalent    Foreign     equivalent
                                                                                            currency     or U.S.      currency     or U.S.      currency     or U.S.      currency     or U.S.
                                                                                                         currency                  currency                  currency                  currency
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
William Duhnke.............................  ...........................................  ...........       879.42  ...........  ...........  ...........  ...........  ...........       879.42
Melvin Dubee...............................  ...........................................  ...........       877.00  ...........  ...........  ...........  ...........  ...........       877.00
Senator John Rockefeller...................  ...........................................  ...........     1,012.00  ...........  ...........  ...........  ...........  ...........     1,012.00
Randall Bookout............................  ...........................................  ...........     1,656.00  ...........  ...........  ...........  ...........  ...........     1,656.00
                                             Dollar.....................................  ...........  ...........  ...........     8,109.11  ...........  ...........  ...........     8,109.11
Richard Douglas............................  ...........................................  ...........     1,729.00  ...........  ...........  ...........  ...........  ...........     1,729.00
                                             Dollar.....................................  ...........  ...........  ...........     8,109.00  ...........  ...........  ...........     8,109.00
Jacqueline Russell.........................  ...........................................  ...........       638.00  ...........  ...........  ...........  ...........  ...........       638.00
                                             Dollar.....................................  ...........  ...........  ...........     4,857.37  ...........  ...........  ...........     4,857.37
Thomas Corcoran............................  ...........................................  ...........       638.00  ...........  ...........  ...........  ...........  ...........       638.00
                                             Dollar.....................................  ...........  ...........  ...........     4,862.70  ...........  ...........  ...........     4,862.70
Cynthia Bruno Wynkoop......................  ...........................................  ...........       232.00  ...........  ...........  ...........  ...........  ...........       232.00
                                             Dollar.....................................  ...........  ...........  ...........     4,907.37  ...........  ...........  ...........     4,907.37
Elizabeth O'Reilly.........................  ...........................................  ...........       232.00  ...........  ...........  ...........  ...........  ...........       232.00
                                             Dollar.....................................  ...........  ...........  ...........     4,769.00  ...........  ...........  ...........     4,769.00
                                                                                         -------------------------------------------------------------------------------------------------------
      Total................................  ...........................................  ...........     7,893.42  ...........    35,614.55  ...........  ...........  ...........    43,507.97
PAT ROBERTS,
Chairman, Committee on Intelligence, Oct.
 16, 2003.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


 CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95-384--22 U.S.C. 1754(b), CODEL FRIST FOR TRAVEL
                                                                                  FROM AUG. 19 TO AUG. 29, 2003
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Per diem               Transportation             Miscellaneous                 Total
                                                                                         -------------------------------------------------------------------------------------------------------
                                                                                                       U.S. dollar               U.S. dollar               U.S. dollar               U.S. dollar
              Name and country                             Name of currency                 Foreign     equivalent    Foreign     equivalent    Foreign     equivalent    Foreign     equivalent
                                                                                            currency     or U.S.      currency     or U.S.      currency     or U.S.      currency     or U.S.
                                                                                                         currency                  currency                  currency                  currency
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Senator Bill Frist:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     3,634.20  ...........  ...........  ...........     3,634.20
    South Africa...........................  Rand.......................................  ...........       697.00  ...........  ...........  ...........  ...........  ...........       697.00
    Mozambique.............................  Metical....................................  ...........       458.00  ...........  ...........  ...........  ...........  ...........       458.00
    Botswana...............................  Pula.......................................  ...........       421.00  ...........  ...........  ...........  ...........  ...........       421.00
Senator John Warner:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     5,266.88  ...........  ...........  ...........     5,266.88
    South Africa...........................  Rand.......................................  ...........       642.00  ...........  ...........  ...........  ...........  ...........       642.00
    Mozambique.............................  Metical....................................  ...........       417.00  ...........  ...........  ...........  ...........  ...........       417.00
    Botswana...............................  Pula.......................................  ...........       350.00  ...........  ...........  ...........  ...........  ...........       350.00
Senator Mike DeWine:
    South Africa...........................  Rand.......................................  ...........       630.00  ...........  ...........  ...........  ...........  ...........       630.00
    Mozambique.............................  Metical....................................  ...........       269.00  ...........  ...........  ...........  ...........  ...........       269.00
    Botswana...............................  Pula.......................................  ...........       325.00  ...........  ...........  ...........  ...........  ...........       325.00
    Namibia................................  Dollar.....................................  ...........       171.00  ...........  ...........  ...........  ...........  ...........       171.00
Senator Mike Enzi:
    South Africa...........................  Rand.......................................  ...........       571.00  ...........  ...........  ...........  ...........  ...........       571.00
    Mozambique.............................  Metical....................................  ...........       460.00  ...........  ...........  ...........  ...........  ...........       460.00

[[Page 28940]]

 
    Botswana...............................  Pula.......................................  ...........       421.00  ...........  ...........  ...........  ...........  ...........       421.00
    Namibia................................  Dollar.....................................  ...........       368.00  ...........  ...........  ...........  ...........  ...........       368.00
Senator Lamar Alexander:
    South Africa...........................  Rand.......................................  ...........       597.00  ...........  ...........  ...........  ...........  ...........       597.00
    Mozambique.............................  Metical....................................  ...........       460.00  ...........  ...........  ...........  ...........  ...........       460.00
    Botswana...............................  Pula.......................................  ...........       421.00  ...........  ...........  ...........  ...........  ...........       421.00
    Namibia................................  Dollar.....................................  ...........       368.00  ...........  ...........  ...........  ...........  ...........       368.00
Senator Norm Coleman:
    United States..........................  Dollar.....................................  ...........  ...........  ...........     4,809.89  ...........  ...........  ...........     4,809.89
    South Africa...........................  Rand.......................................  ...........       697.00  ...........  ...........  ...........  ...........  ...........       697.00
    Mozambique.............................  Metical....................................  ...........       458.00  ...........  ...........  ...........  ...........  ...........       458.00
    Botswana...............................  Pula.......................................  ...........       205.00  ...........  ...........  ...........  ...........  ...........       205.00
David Schiappa:
    South Africa...........................  Rand.......................................  ...........       597.00  ...........  ...........  ...........  ...........  ...........       597.00
    Mozambique.............................  Metical....................................  ...........       460.00  ...........  ...........  ...........  ...........  ...........       460.00
    Botswana...............................  Pula.......................................  ...........       421.00  ...........  ...........  ...........  ...........  ...........       421.00
    Namibia................................  Dollar.....................................  ...........       368.00  ...........  ...........  ...........  ...........  ...........       368.00
Steve Biegun:
    South Africa...........................  Rand.......................................  ...........       697.00  ...........  ...........  ...........  ...........  ...........       697.00
    Mozambique.............................  Metical....................................  ...........       460.00  ...........  ...........  ...........  ...........  ...........       460.00
    Botswana...............................  Pula.......................................  ...........       421.00  ...........  ...........  ...........  ...........  ...........       421.00
    Namibia................................  Dollar.....................................  ...........       368.00  ...........  ...........  ...........  ...........  ...........       368.00
Andy Olson:
    South Africa...........................  Rand.......................................  ...........       601.00  ...........  ...........  ...........  ...........  ...........       601.00
    Mozambique.............................  Metical....................................  ...........       460.00  ...........  ...........  ...........  ...........  ...........       460.00
    Botswana...............................  Pula.......................................  ...........       421.00  ...........  ...........  ...........  ...........  ...........       421.00
    Namibia................................  Dollar.....................................  ...........       368.00  ...........  ...........  ...........  ...........  ...........       368.00
Nick Smith:
    South Africa...........................  Rand.......................................  ...........       597.00  ...........  ...........  ...........  ...........  ...........       597.00
    Mozambique.............................  Metical....................................  ...........       460.00  ...........  ...........  ...........  ...........  ...........       460.00
    Botswana...............................  Pula.......................................  ...........       421.00  ...........  ...........  ...........  ...........  ...........       421.00
    Namibia................................  Dollar.....................................  ...........       368.00  ...........  ...........  ...........  ...........  ...........       368.00
George Tolbert:
    South Africa...........................  Rand.......................................  ...........       497.00  ...........  ...........  ...........  ...........  ...........       497.00
    Mozambique.............................  Metical....................................  ...........       360.00  ...........  ...........  ...........  ...........  ...........       360.00
    Botswana...............................  Pula.......................................  ...........       421.00  ...........  ...........  ...........  ...........  ...........       421.00
    Namibia................................  Dollar.....................................  ...........       312.00  ...........  ...........  ...........  ...........  ...........       312.00
Sally Walsh:
    South Africa...........................  Rand.......................................  ...........       697.00  ...........  ...........  ...........  ...........  ...........       697.00
    Mozambique.............................  Metical....................................  ...........       460.00  ...........  ...........  ...........  ...........  ...........       460.00
    Botswana...............................  Pula.......................................  ...........       421.00  ...........  ...........  ...........  ...........  ...........       421.00
    Namibia................................  Dollar.....................................  ...........       368.00  ...........  ...........  ...........  ...........  ...........       368.00
Delegation expenses*:
    South Africa...........................  Rand.......................................  ...........  ...........  ...........  ...........  ...........    29,129.59  ...........    29,129.59
    Mozambique.............................  Metical....................................  ...........  ...........  ...........  ...........  ...........    11,638.77  ...........    11,638.77
    Botswana...............................  Pula.......................................  ...........  ...........  ...........  ...........  ...........    11,941.09  ...........    11,941.09
    Namibia................................  Dollar.....................................  ...........  ...........  ...........  ...........  ...........    11,638.77  ...........    11,638.77
                                                                                         -------------------------------------------------------------------------------------------------------
      Total................................  ...........................................  ...........    20,430.00  ...........    13,710.97  ...........    64,348.22  ...........    98,489.19
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
*Delegation expenses include payments and reimbursements to the Department of State, and the Department of Defense under the authority of Sec. 502(b) of the Mutual Security Act of 1954, as
  amended by Sec. 22 of P.L. 95-384, and S. Res. 179 agreed to May 25, 1977.
BILL FRIST,
Majority Leader, Oct. 11, 2003.


  CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95-384--22 U.S.C. 1754(b), BILL FRIST, MAJORITY
                                                                         LEADER FOR TRAVEL FROM JULY 1 TO SEPT. 30, 2003
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Per diem               Transportation             Miscellaneous                 Total
                                                                                         -------------------------------------------------------------------------------------------------------
                                                                                                       U.S. dollar               U.S. dollar               U.S. dollar               U.S. dollar
              Name and country                             Name of currency                 Foreign     equivalent    Foreign     equivalent    Foreign     equivalent    Foreign     equivalent
                                                                                            currency     or U.S.      currency     or U.S.      currency     or U.S.      currency     or U.S.
                                                                                                         currency                  currency                  currency                  currency
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Rohit Kumar:
    Mexico.................................  Pesos......................................  ...........       708.00  ...........  ...........  ...........  ...........  ...........       708.00
                                                                                         -------------------------------------------------------------------------------------------------------
      Total................................  ...........................................  ...........       708.00  ...........  ...........  ...........  ...........  ...........       708.00
BILL FRIST,
Majority Leader, Nov. 5, 2003.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------



                          ____________________




                          ____________________


                             101ST AIRBORNE

  Mr. FRIST. Mr. President, ``Iraqi Destiny,'' which is the 101st 
Airborne Division's weekly newsletter, runs a feature on its last page 
called ``Man on the Street.'' The 101st Airborne is based in Tennessee 
and Kentucky, right on the border. I and my colleague, Lamar Alexander, 
and the distinguished colleagues from Kentucky have a particular 
interest in the men and the women with the 101st Airborne and their 
families and their support groups. It is fascinating to receive this 
weekly newsletter. In it was run a feature on the last page called 
``Man on the Street.'' It features the 101st soldiers and Iraqi 
citizens answering a question of the week. The questions range from 
light hearted to the much more serious, such as, ``What will you do 
with the extra money you are making?'' to, ``What do you think of the 
new schools that are opening?''
  A few weeks ago, soldiers were asked, ``What Arabic words have you 
learned while in Iraq?'' Most had conventional responses, things you 
would expect: ``Hello, how are you.'' But I was very interested to 
learn that a certain Screaming Eagle, Sergeant Thomas Baker, has 
learned the word, ``Habibi,'' Arabic for ``Sweetheart.'' Now, I won't 
speculate as to how or why Sergeant Baker has learned the word, 
``Habibi.'' But I do think we can take it as an encouraging sign of the 
progress that is being made in Iraq.
  I take special, home State pride in the 101st Airborne Division. It 
is based at Fort Campbell, 60 percent of which is located in Tennessee. 
It goes without saying that Fort Campbell is integral

[[Page 28941]]

to the Tennessee community, and especially to Clarksville where many of 
Fort Campbell's families reside.
  I've had the privilege of visiting Fort Campbell numerous times, 
actually staying overnight in the army barracks and traveling to Fort 
Campbell on another occasion with the President of the United States.
  Under the leadership of Major General David Petraeus, a friend and 
someone I had known prior to coming to the Senate, the 101st is doing 
extraordinary work. You may remember that it was the 101st that found 
and dispatched Uday and Qusay Hussein in Mosul. Since then, the 101st 
has moved more quickly than any other American unit in training guards 
and policeman for the new Iraqi Civil Defense Corps.
  They've also shown the Iraqi people tremendous generosity and heart 
in helping to rebuild Iraq's infrastructure, civic institutions and, 
even more fundamentally, the people's pride and hope in their future.
  Take for example the story of the Avgani Clinic. Located in the 
north, the clinic serves 60,000 Iraqis from the town of Avgani and 50 
outlaying villages. Under Saddam Hussein, the clinic was allowed to 
fall into disrepair. It had cracking walls, poor electricity, no 
bathroom. The clinic's director says that the clinic was ``a sad 
place.'' That, however, was before the arrival of First Lieutenant 
Michael Lefler and the Screaming Eagles.
  In 3 months time, with just $25,000--in America, the price of a mid-
size sedan--Lefler and his team led the renovation of the entire 
facility.
  They installed new desks, chairs, computers, curtains, and yard 
tiles. They constructed several new rooms and bathrooms. The clinic is 
now fully operational, with twice the funds it previously had. The 
director of the clinic says the facility is now a ``very happy place.''
  The 101st soldiers list among their values: ``Duty, Respect, 
Selfless-Service, Honor, Integrity, Personal Courage, and 
Professionalism.'' All of these virtues have been on sterling display. 
From organizing book drives for Iraqi schoolchildren, to restoring 
water and power, everyday the 101st is showing the Iraqi people 
exceptional character and America's commitment to Iraq's future.
  I'd like to close with a story about a soccer game, not too long ago, 
in the town of Al Qosh. With the help of the 101st, the Lady Virgin 
Orphanage of Al Qosh hosted the championship soccer tournament of the 
season. For the event, army engineers cleared an area adjacent to the 
orphanage to create a soccer field.
  Seven teams from around the region, along with their families, 
gathered at the new field, cheering and blowing kazoos as the Screaming 
Eagles faced off against the Iraqi Sharafeya team. The Screaming Eagles 
won 2 to 1, and the crowd of spectators ran onto the field with cheers 
and laughter.
  Among the happy fans were children from the orphanage wearing 
personalized soccer uniforms. Earlier in the summer, the 101st had 
given each child their own soccer uniform with the child's name printed 
across the back, and ``Screaming Eagles'' in Arabic emblazoned across 
the front. I suspect those uniforms will be treasured for years to 
come, and that is what this struggle is all about--the years to come. 
We have undertaken an extraordinary task to change the course of 
history, to bring peace and democracy to Iraq. We know that democracies 
do not export terror. Tyrannies do. So, we have toppled a despotic, 
terror-sponsoring regime and set out to transform a brutalized nation.
  It is an ambitious undertaking worthy of a great country. America is 
a great country, and through the noble efforts of men and women like 
those of the 101st, Iraq is on the road to freedom.
  Not too long ago, President Bush signed the historic $87 billion 
wartime supplemental that will help the Iraqis realize their dream. He 
also gave a very important speech to remind us of the fundamental 
nature of democracy, and America's role in the world.
  He said:

       The advance of freedom is the calling of our time; it is 
     the calling of our country. We believe that freedom is not 
     for us alone, it is the right and the capacity of all 
     mankind. The establishment of a free Iraq in the heart of the 
     Middle East will be a watershed event in the global 
     revolution.

  President Bush has set a brave and courageous course. And I am 
confident that twenty years from now, Iraqis will fondly recall 
moments, like the Al Qosh championship soccer match of 2003, with the 
special pride of having been there when the liberation came.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________




 VISION 100--CENTURY OF AVIATION REAUTHORIZATION ACT--CONFERENCE REPORT

  Mr. FRIST. Mr. President, I ask unanimous consent that the Senate 
proceed to consideration of the conference report to accompany H.R. 
2115, the Century of Aviation Reauthorization Act.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The committee of conference on the disagreeing votes of the 
     two Houses on the amendment of the Senate to the bill (H.R. 
     2115), to amend title 49, United States Code, to reauthorize 
     programs for the Federal Aviation Administration, and for 
     other purposes, having met, have agreed to recommend and do 
     recommend to their respective Houses as follows:
       That the House recede from its disagreement to the 
     amendment of the Senate and agree to the same with an 
     amendment and the Senate agree to the same, signed by a 
     majority of the conferees on the part of both Houses.

  (The text of the Conference Report is printed in the proceedings of 
the House in the Record of October 29, 2003.)


                             Cloture Motion

  Mr. FRIST. To my understanding, we are unable to reach a time 
agreement on this conference report. I now send a cloture motion to the 
desk.
  The PRESIDING OFFICER. The cloture motion having been presented under 
rule XXII, the Chair directs the clerk to report the motion to invoke 
cloture on the conference report to accompany H.R. 2115, the Vision 
100--Century of Aviation Reauthorization Act.
  The legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the conference 
     report to accompany H.R. 2115, the Flight 100--Century of 
     Aviation Reauthorization Act.
         Bill Frist, John McCain, Conrad Burns, Ben Nighthorse 
           Campbell, A. Wayne Allard, Jeff Sessions, M. Crapo, 
           Larry E. Craig, Kay Bailey Hutchison, John E. Sununu, 
           George Allen, Saxby Chambliss, Rick Santorum, Norm 
           Coleman, Craig Thomas, Pat Roberts, Trent Lott.

  The PRESIDING OFFICER. The minority leader.
  Mr. DASCHLE. Mr. President, if I could just intercede for a moment, I 
have been discussing this matter with the distinguished majority 
leader. It is regrettable that, at least at this point, we have not 
reached a time agreement on the FAA conference report. A lot of work 
has gone into the bill on both sides. A lot of negotiation has gone 
into the conference agreement itself.
  Because there is no public assurance on the part of the 
administration that they are not prepared to at least examine the 
impact of privatization, we are unable to reach agreement with regard 
to the time on the FAA conference report at this time. I am still 
hopeful that perhaps before the time we reach the cloture vote, the 
scheduled time for the cloture vote on Monday, the administration will 
at least give additional thought to a proposal that has been made now 
on both sides of the aisle that they simply join with us in examining 
more carefully the implications of privatization prior to the time it 
is decided.

[[Page 28942]]

  A 1-year moratorium, an examination of the ramifications of 
privatization is what we are seeking. With that assurance I think we 
could get a vote of 100 to 0, perhaps, on this bill. I am very hopeful 
that is still within the realm of possibility. If it were not for that, 
I think we would have agreement this afternoon. So I only note that, 
given the fact that we still have time before next Monday to come to 
some agreement with regard to how to proceed on privatization.
  I thank the majority leader for his intervention. I will await 
further word. I yield the floor.
  Mr. FRIST. Mr. President, the Democratic leader and I were just 
talking about that prior to my taking the floor. I will discuss this 
with the appropriate people, as well as Senator Lott, who has worked 
very hard on the conference report.
  Mr. DASCHLE. I thank the majority leader.
  Mr. FRIST. I now ask, notwithstanding rule XXII, this vote occur at 
5:30 on Monday, and that the time from 4:30 to 5:30 be equally divided 
between the two leaders or their designees for debate prior to the 
vote. Finally, I ask the quorum under rule XXII be waived.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________




                           EXECUTIVE SESSION

                                 ______
                                 

                           EXECUTIVE CALENDAR

  Mr. FRIST. I ask unanimous consent the Senate now proceed to 
executive session for the consideration of Calendar Nos. 237 and 238, 
en bloc.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The nominations will be stated.

                          ____________________




                       DEPARTMENT OF AGRICULTURE

  The legislative clerk read the nomination of Thomas C. Dorr, of Iowa, 
to be Under Secretary of Agriculture for Rural Development.
  The legislative clerk read the nomination of Thomas C. Dorr, of Iowa, 
to be a Member of the Board of Directors of the Commodity Credit 
Corporation.


                            Cloture Motions

  Mr. FRIST. This nomination was reported by the Agriculture Committee 
on June 18. We have been unable to reach a consent on its 
consideration. Therefore, I send two cloture motions to the desk and 
ask they be reported consecutively.
  The PRESIDING OFFICER. The cloture motions having been presented 
under rule XXII, the Chair directs the clerk to read the motions.
  The legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 237, the nomination of Thomas Dorr to be Under 
     Secretary of Agriculture for Rural Development:
         Bill Frist, Thad Cochran, Saxby Chambliss, Rick Santorum, 
           Norm Coleman, Craig Thomas, Jeff Sessions, Pat Roberts, 
           Kay Bailey Hutchison, George V. Voinovich, Charles 
           Grassley, Wayne Allard, Michael B. Enzi, Elizabeth 
           Dole, John E. Sununu, Sam Brownback, John Warner.

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 238, the nomination of Thomas C. Dorr, of Iowa, 
     to be a member of the Board of Directors of the Commodity 
     Credit Corporation:
         Bill Frist, Thad Cochran, Norm Coleman, Charles Grassley, 
           Wayne Allard, Jim Bunning, Conrad Burns, Mitch 
           McConnell, John Cornyn, Lamar Alexander, Larry Craig, 
           Richard G. Lugar, Peter Fitzgerald, George Allen, Don 
           Nickles, John Ensign, James M. Inhofe.

  Mr. FRIST. I ask unanimous consent the mandatory quorum under rule 
XXII be waived.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________




                          DEPARTMENT OF STATE

  Mr. FRIST. Mr. President, I ask unanimous consent that the Senate 
immediately proceed to the consideration of the following nomination on 
today's Executive Calendar: Calendar No. 461. I further ask unanimous 
consent that the nomination be confirmed, the motion to reconsider be 
laid upon the table, and the President be immediately notified of the 
Senate's action and the Senate then return to legislative session.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The nomination was considered and confirmed as follows:

       Zalmay Khalilzad, of Maryland, to be Ambassador 
     Extraordinary and Plenipotentiary of the United States of 
     America to the Transitional Islamic State of Afghanistan.

                          ____________________




                          LEGISLATIVE SESSION

  The PRESIDING OFFICER. Under the previous order, the Senate will 
return to Legislative Session.

                          ____________________




            ADOPTION INCENTIVES REAUTHORIZATION ACT OF 2003

  Mr. FRIST. Mr. President, I ask unanimous consent that the Finance 
Committee be discharged from further consideration of H.R. 3182 and the 
Senate proceed to its immediate consideration.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report the bill by title.
  The legislative clerk read as follows:

       A bill (H.R. 3182) to reauthorize the adoption incentive 
     payments program under part E of title IV of the Social 
     Security Act, and for other purposes.

  There being no objection, the Senate proceeded to consider the bill.
  Mr. ROCKEFELLER. Mr. President, today, the Senate is taking 
bipartisan action to pass the Adoption Promotion Act of 2003, which 
will extend and improve the adoption bonuses created as part of the 
1997 Adoption and Safe Families Act. For many years, the Senate has 
taken a bipartisan approach to adoption and child welfare policy. I am 
very proud to be one of the lead advocates for this legislation that 
rewards states which promote adoption and invest in child welfare.
  Throughout this year, a bipartisan group, led by Finance Chairman 
Grassley met to forge consensus on extending the adoption incentives, 
and doing more to focus attention on the needs of older children. 
President Bush highlighted the need to do more to promote adoptions for 
children nine years old or older, and Congress agreed. The list of 
cosponsors, including Senators Landrieu, Bunning, Craig, Baucus, 
DeWine, Levin, Inhofe, Nelson, Lincoln, Clinton, and Jeffords, 
demonstrates the broad coalition that can be achieved when we take a 
bipartisan approach.
  As I noted, our legislation builds on the foundation set with the 
1997 Adoption and Safe Families Act. Since its passage, adoptions from 
foster care have nearly doubled nationwide and over 900 West Virginia 
children have a permanent home. By extending and expanding this law, we 
hope to continue to promote permanent homes, and place a new focus on 
older children.
  Despite our success in recent years, across this nation 126,000 
children are waiting to be adopted. Children over the age of 9 
represent almost half of the children awaiting adoption yet these 
children spend the most time in the system and have a difficult time 
finding permanent homes. The Adoption Promotion Act of 2003 will 
especially help these children by offering incentives to states that 
successfully place older children in adoptive homes.
  This bill rewards states for moving children into permanent homes 
from the foster care system and further rewards states for moving 
special needs, and older children from foster care to permanent 
placements. This bill is particularly important for my state. In West 
Virginia, over 70 percent of the children in foster care are over age 
9. This act will help older children find much needed, permanent homes.
  This legislation is a positive way we can strengthen our child 
welfare system, but we also know that more must be done to help 
vulnerable children. The bipartisan spirit that helped ensure this 
legislation passage is the same spirit needed to deal with the rest

[[Page 28943]]

of the child welfare system as we continue to push the basic goal of a 
child's health and safety being paramount, and every child finding a 
permanent home.
  Mr. NELSON of Nebraska. Mr. President, I rise today in support of 
H.R. 3182, legislation to reauthorize the adoption incentive program. I 
would like to thank Senator Grassley for his leadership on this issue. 
He has been a friend to American families for his entire tenure in this 
body and his work has made it even easier for more families to come 
together through adoption.
  As an adoptive parent myself, I know firsthand how adoption can 
complete a family and how it can give new beginnings to both adoptive 
parents and children. And as a member of the Adoption Caucus, I have 
worked to make it easier for other families to experience the joy my 
family did through adoption.
  This legislation will help that process by removing financial 
obstacles to adopting a child. As anyone who has been through an 
adoption knows, it can often by a very long, expensive process and for 
some families; the costs are so high as to be prohibitive. This 
legislation will help ensure that a family is not prevented from 
adopting a child simply because of the high costs involved.
  The Adoption Incentives Program has already had been a tremendous 
success. Now this reauthorized and amended version of the program can 
help even more children and families for years to come. I stand 
wholeheartedly behind the goals of this bill and I look forward to 
working with Senator Grassley on this issue again in the future.


                     abused and neglected children

  Mrs. CLINTON. Mr. President, first I want to thank Senator Grassley 
for the leadership that he has shown in addressing the needs of abused 
and neglected children. Together with Senator Landrieu and Senator 
Bunning, Senator Grassley has worked tirelessly and I know that this 
work comes from the heart. It is not an issue that gets in the 
headlines unless something goes wrong. It's an issue that one champions 
only because he or she cares. I also want to acknowledge the 
longstanding commitment of my friend Senator Rockefeller who is well 
known as the greatest ally of needy children in this esteemed body.
  Mr. GRASSLEY. I too want to thank Senator Landrieu, and I would like 
to recognize Senator Bunning's efforts on this legislation.
  Today we are passing the Adoption Incentives Reauthorization Act of 
2003. It is particularly appropriate that we are doing so during 
National Adoption Month. Since the original Adoption Incentives Act was 
passed in 1997, the number of adoptions has doubled in 33 states. I am 
proud of this achievement and pleased that we are today continuing the 
authorization of this effective program.
  Mrs. CLINTON. I too am pleased to reach this milestone. When my 
husband and I worked to establish the program in 1997, we hoped that 
this program would become half the success that it has. My husband set 
a goal of doubling the number of children adopted out of foster care 
and last month we finally achieved that goal. In New York City, the 
number of children in foster care has plummeted by more than half since 
1997 due in large part to the increased focus on helping available 
children for adoption.
  Nevertheless we still have a long way to go. Over 580,000 children 
remain in foster care, 126,000 of them are ready and waiting to be 
adopted into a loving home. That is why this legislation is so 
important. And not only does it continue the incentives for States to 
help children with special needs be adopted out of foster care, it adds 
a new incentive to focus on older children--those over 9--whose chances 
of being adopted grow slimmer by the year. These vulnerable children 
face the greatest danger of aging out of foster care, a transition that 
is associated with lower educational outcomes, higher rates of teen 
pregnancy, higher rates of poverty, lower rates of employment, and many 
other negative factors.
  Mr. GRASSLEY. I am pleased that this bill focuses on older children, 
thanks to the leadership of President Bush, and I hope when we revisit 
this legislation during the next reauthorization we will have seen the 
same remarkable results that we have seen over the past 5 years.
  Mrs. CLINTON. Of course, as the number of children in foster care 
declines, as it has in New York City, it becomes increasingly difficult 
for states to qualify for adoption incentive awards. In order to 
receive such a bonus, states must exceed the highest number of 
adoptions they have achieved since the base year. Some have suggested 
that an alternative, and potentially more accurate, method for 
determining bonuses would be to look at the percentage of children in 
foster care who are adopted as opposed to the raw number.
  Mr. GRASSLEY. I am aware that that method has been put on the table. 
However by adjusting the base year to 2002 and adding a new category of 
older children, we made it much easier for states to qualify for an 
adoption incentive bonus. Throughout the course of this reauthorization 
we talked to child welfare advocates and listened to their concerns 
about the way the incentives are awarded. The method we arrived at was 
reached through consensus and we have received very strong bi-partisan, 
bi-cameral support for the bill before us today. In fact, the House has 
already passed this legislation without opposition. By passing the same 
language here in the Senate, we are ensuring that President Bush will 
sign this important legislation into law sooner rather than later.
  Mrs. CLINTON. I very much appreciate all the time that has gone into 
this act. And I am pleased that we are going to work together to have 
the General Accounting Office look into what is the best way to 
structure the adoption incentives formula so that when we consider this 
legislation in the future we will have thoroughly explored other 
methods for calculating bonuses.
  Mr. GRASSLEY. I am also looking forward to a through study of this 
issue that can inform the next reauthorization.
  Mrs. CLINTON. Now, there have been some news reports lately that have 
argued that the Adoption Incentives Program has put children in 
dangerous situations by creating a strong financial incentive to place 
children for adoption out of foster care without regard to their safety 
or well-being.
  Mr. GRASSLEY. I have seen those reports and I disagree with their 
premise. The primary goal of the Adoption and Safe Families Act is to 
make the safety and well-being of children paramount in child welfare 
decisions. In addition, in order to receive funds under the Promoting 
Safe and Stable Families Program, states must develop a plan to assure 
safety and permanency for children who enter the state's foster care 
system.
  Adoption assistance is minimal especially when you think about the 
cost of raising a child. Families who adopt are highly unlikely to 
adopt children for the financial benefit. Nationally payments made on 
behalf of an eight-year-old average only $14 per day. This is a 
fraction of what the Department of Agriculture suggests is needed to 
raise a child.
  Mrs. CLINTON. I absolutely agree. And I would build on your remarks 
by adding that if States are not making the safety and well-being of 
the child paramount they are endangering their Title-IV-E funds, which 
is a much larger pot of money than the small amount they receive as a 
bonus under the Adoption Incentives Program. However, I would also add 
that it becomes increasingly difficult to guarantee the safety of each 
child under the care of the State when caseworkers are responsible for 
excessive caseloads and do not have the training to effectively serve 
the children in the child welfare system.
  I would also add that I believe the next important step we need to 
take to make all adoptions out of foster care successful is to dedicate 
more resources to post-adoption services, including respite care, 
mental healthcare, and educational services.

[[Page 28944]]


  Mr. GRASSLEY. I agree that we have to focus on the full range of 
adoption services. We have not improved the lives of abused and 
neglected children if they are adopted only to be returned to foster 
care because the families that adopted them didn't have the support 
they needed to care for them. This is not good for these kids.
  Mrs. CLINTON. One way that we might consider to help States provide 
the full range of adoption services is to tap into the pot of unspent 
funds in the Adoption Incentives Program. Last year $45 million was 
appropriated for the purpose of awarding bonuses, but only $18 million 
was actually awarded. I believe these funds have been retained by HHS 
for the purpose of awarding future bonuses, but with the great need for 
child welfare funds, I believe these funds would be better spent this 
year on post-adoption services or in bonuses for States that have 
increased the percentage of children adopted out of foster care.
  Mr. GRASSLEY. I agree that funds appropriated for the Adoption 
Incentives Program should be spent on child welfare. While we may 
disagree about how exactly those funds should be spent, we are in 
agreement that they should be used to improve the lives of abused and 
neglected children. I know that there is interest among members of the 
Finance Committee to see that these unspent funds are used to improve 
the lives of children and I hope we can all work together to address 
this in the future.
  Mrs. CLINTON. I thank Senator Grassley for his leadership and his 
commitment to America's most vulnerable children. I look forward to 
working with him in the future.
  Mr. FRIST. Mr. President, I ask unanimous consent that the bill be 
read a third time and passed, the motion to reconsider be laid upon the 
table, and that any statements relating to the bill be printed in the 
Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The bill (H.R. 3182) was read for the third time and passed.

                          ____________________




     OVERSEAS PRIVATE INVESTMENT CORPORATION AMENDMENTS ACT OF 2003

  Mr. FRIST. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 36, S. 1824.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The legislative clerk read as follows:

       A bill (S. 1824) to amend the Foreign Assistance Act of 
     1961 to reauthorize the Overseas Private Investment 
     Corporation, and for other purposes.

  There being no objection, the Senate proceeded to consider the bill.
  Mr. FRIST. Mr. President, I ask unanimous consent that the bill be 
read for a third time and passed, the motion to reconsider be laid upon 
the table, and that any statements relating to the bill be printed in 
the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The bill (S. 1824) was read the third time and passed, as follows:

                                S. 1824

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Overseas Private Investment 
     Corporation Amendments Act of 2003''.

     SEC. 2. ISSUING AUTHORITY.

       Section 235(a)(2) of the Foreign Assistance Act of 1961 (22 
     U.S.C. 2195(a)(2)) is amended by striking ``November 1, 
     2000'' and inserting ``2007''.

     SEC. 3. TECHNICAL CORRECTIONS.

       (a) Administrative Costs.--Section 235(a)(1)(B) of the 
     Foreign Assistance Act of 1961 (22 U.S.C. 2195(a)(1)(B)) is 
     amended by striking ``subsidy cost'' and inserting ``subsidy 
     and administrative costs''.
       (b) Noncredit Account Revolving Fund.--Section 235(c) of 
     the Foreign Assistance Act of 1961 (22 U.S.C. 2195(c)) is 
     amended--
       (1) in the first sentence--
       (A) by striking ``an insurance and guaranty fund, which 
     shall have separate accounts to be known as the Insurance 
     Reserve and the Guaranty Reserve, which reserves'' and 
     inserting ``a noncredit account revolving fund, which''; and
       (B) by striking ``such reserves have'' and inserting ``of 
     the fund has'';
       (2) by striking the third sentence; and
       (3) in the last sentence, by striking ``reserves'' and 
     inserting ``fund''.
       (c) Payments To Discharge Liabilities.--Section 235(d) of 
     the Foreign Assistance Act of 1961 (22 U.S.C. 2195(d)) is 
     amended--
       (1) in the first sentence, by striking ``Insurance Reserve, 
     as long as such reserve'' and inserting ``noncredit account 
     revolving fund, as long as such fund''; and
       (2) in the second sentence, by striking ``or under similar 
     predecessor guaranty authority'' and all that follows through 
     ``subsection (f) of this section'' and inserting ``or 234(c) 
     shall be paid in accordance with the Federal Credit Reform 
     Act of 1990''.
       (d) Authorization of Appropriations.--Section 235(f) of the 
     Foreign Assistance Act of 1961 (22 U.S.C. 2195(f)) is 
     amended--
       (1) in the first sentence, by striking ``insurance and 
     guaranty fund'' and inserting ``noncredit account revolving 
     fund''; and
       (2) by striking ``Insurance Reserve'' each place it appears 
     and inserting ``noncredit account revolving fund''.
       (e) Board of Directors.--Section 233(b) of the Foreign 
     Assistance Act of 1961 (22 U.S.C. 2193(b)) is amended in the 
     second paragraph--
       (1) by striking ``officials'' and inserting ``principal 
     officers'';
       (2) by inserting ``whose duties relate to the programs of 
     the Corporation'' after ``Government of the United States''; 
     and
       (3) by striking ``an official'' and inserting ``one such 
     officer''.

     SEC. 4. INVESTMENT INSURANCE.

       (a) Expropriation or Confiscation.--Section 234(a)(1)(B) of 
     the Foreign Assistance Act of 1961 (22 U.S.C. 2194(a)(1)(B)) 
     is amended by inserting ``or any political subdivision 
     thereof'' after ``government''.
       (b) Definition of Expropriation.--Section 238(b) of the 
     Foreign Assistance Act of 1961 (22 U.S.C. 2198(b)) is amended 
     by inserting ``, a political subdivision of a foreign 
     government, or a corporation owned or controlled by a foreign 
     government,'' after ``government''.

     SEC. 5. LOCAL CURRENCY GUARANTY.

       (a) Local Currency Guaranty.--Section 234 of the Foreign 
     Assistance Act of 1961 (22 U.S.C. 2194) is amended by adding 
     at the end the following:
       ``(h) Local Currency Guaranties for Eligible Investors.--To 
     issue to--
       ``(1) eligible investors, or
       ``(2) local financial institutions, guaranties,

     denominated in currencies other than United States dollars, 
     of loans and other investments made to projects sponsored by 
     or significantly involving eligible investors, assuring 
     against loss due to such risks and upon such terms and 
     conditions as the Corporation may determine, for projects 
     that the Corporation determines to have significant 
     developmental effects or as the Corporation determines to be 
     necessary or appropriate to carry out the purposes of this 
     title.''.
       (b) Definition of Local Financial Institution.--Section 238 
     of the Foreign Assistance Act of 1961 (22 U.S.C. 2198) is 
     amended--
       (1) in subsection (d), by striking ``and'' after the 
     semicolon;
       (2) in subsection (f), by striking the period at the end 
     and inserting ``; and''; and
       (3) by adding at the end the following:
       ``(g) the term `local financial institution'--
       ``(1) means any bank or financial institution that is 
     organized under the laws of any country or area in which the 
     Corporation operates; but
       ``(2) does not include a branch, however organized, of a 
     bank or other financial institution that is organized under 
     the laws of a country in which the Corporation does not 
     operate.''.

     SEC. 6. OUTREACH TO MINORITY- AND WOMEN-OWNED BUSINESSES.

       (a) In General.--Section 240 of the Foreign Assistance Act 
     of 1961 (22 U.S.C. 2200) is amended--
       (1) in the first sentence, by striking ``The Corporation'' 
     and inserting:
       ``(a) In General.--The Corporation''; and
       (2) by adding at the end the following:
       ``(b) Outreach to Minority-Owned and Women-Owned 
     Businesses.--The Corporation shall collect data on the 
     involvement of minority- and women-owned businesses in 
     projects supported by the Corporation, including--
       ``(1) the amount of insurance and financing provided by the 
     Corporation to such businesses in connection with projects 
     supported by the Corporation; and
       ``(2) to the extent such information is available, the 
     involvement of such businesses in procurement activities 
     conducted or supported by the Corporation.
     The Corporation shall include, in its annual report submitted 
     to the Congress under section 240A, the aggregate data 
     collected under this paragraph, in such form as to quantify 
     the effectiveness of the Corporation's outreach activities to 
     minority- and women-owned businesses.''.

                          ____________________




              WORKFORCE INVESTMENT ACT AMENDMENTS OF 2003

  Mr. FRIST. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 366, S. 1627.
  The PRESIDING OFFICER. The clerk will report the bill by title.

[[Page 28945]]

  The legislative clerk read as follows:

       A bill (S. 1627) to reauthorize the Workforce Investment 
     Act of 1998, and for other purposes.

  There being no objection, the Senate proceeded to consider the bill 
which had been reported from the Committee on Health, Education, Labor, 
and Pensions, with an amendment to strike all after the enacting clause 
and inserting in lieu thereof the following:

       [Strike the part shown in black brackets and insert the 
     part shown in italic]

                                S. 1627

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     [SECTION 1. SHORT TITLE.

       [This Act may be cited as the ``Workforce Investment Act 
     Amendments of 2003''.

     [SEC. 2. TABLE OF CONTENTS.

       [The table of contents of this Act is as follows:

[Sec. 1. Short title.
[Sec. 2. Table of contents.
[Sec. 3. References.

[TITLE I--AMENDMENTS TO TITLE I OF THE WORKFORCE INVESTMENT ACT OF 1998

                        [Subtitle A--Definitions

[Sec. 101. Definitions.

     [Subtitle B--Statewide and Local Workforce Investment Systems

[Sec. 111. Purpose.
[Sec. 112. State workforce investment boards.
[Sec. 113. State plan.
[Sec. 114. Local workforce investment areas.
[Sec. 115. Local workforce investment boards.
[Sec. 116. Local plan.
[Sec. 117. Establishment of one-stop delivery systems.
[Sec. 118. Eligible providers of training services.
[Sec. 119. Eligible providers of youth activities.
[Sec. 120. Youth activities.
[Sec. 121. Adult and dislocated worker employment and training 
              activities.
[Sec. 122. Performance accountability system.
[Sec. 123. Authorization of appropriations.

                         [Subtitle C--Job Corps

[Sec. 131. Job Corps.

                     [Subtitle D--National Programs

[Sec. 141. Native American programs.
[Sec. 142. Migrant and seasonal farmworker programs.
[Sec. 143. Veterans' workforce investment programs.
[Sec. 144. Youth challenge grants.
[Sec. 145. Technical assistance.
[Sec. 146. Demonstration, pilot, multiservice, research, and multistate 
              projects.
[Sec. 147. National dislocated worker grants.
[Sec. 148. Authorization of appropriations for national activities.

                      [Subtitle E--Administration

[Sec. 151. Requirements and restrictions.
[Sec. 152. Cost principles.
[Sec. 153. Reports.
[Sec. 154. Administrative provisions.
[Sec. 155. Use of certain real property.

  [TITLE II--AMENDMENTS TO THE ADULT EDUCATION AND FAMILY LITERACY ACT

[Sec. 201. Short title; purpose.
[Sec. 202. Definitions.
[Sec. 203. Authorization of appropriations.
[Sec. 204. Reservation of funds; grants to eligible agencies; 
              allotments.
[Sec. 205. Performance accountability system.
[Sec. 206. State administration.
[Sec. 207. State distribution of funds; matching requirement.
[Sec. 208. State leadership activities.
[Sec. 209. State plan.
[Sec. 210. Programs for corrections education and other 
              institutionalized individuals.
[Sec. 211. Grants and contracts for eligible providers.
[Sec. 212. Local application.
[Sec. 213. Local administrative cost limits.
[Sec. 214. Administrative provisions.
[Sec. 215. National Institute for Literacy.
[Sec. 216. National leadership activities.
[Sec. 217. Integrated English literacy and civics education.
[Sec. 218. Transition.

           [TITLE III--AMENDMENTS TO OTHER PROVISIONS OF LAW

[Sec. 301. Wagner-Peyser Act.

                [TITLE IV--REHABILITATION ACT AMENDMENTS

[Sec. 401. Short title.
[Sec. 402. Technical amendments to table of contents.
[Sec. 403. Purpose.
[Sec. 404. Definitions.
[Sec. 405. Administration of the Act.
[Sec. 406. Carryover.

            [Subtitle A--Vocational Rehabilitation Services

[Sec. 411. Declaration of policy; authorization of appropriations.
[Sec. 412. State plans.
[Sec. 413. Eligibility and individualized plan for employment.
[Sec. 414. Vocational rehabilitation services.
[Sec. 415. State rehabilitation council.
[Sec. 416. Evaluation standards and performance indicators.
[Sec. 417. State allotments.
[Sec. 418. Client assistance program.
[Sec. 419. Incentive grants.
[Sec. 420. Vocational rehabilitation services grants.
[Sec. 421. GAO studies.

                   [Subtitle B--Research and Training

[Sec. 431. Authorization of appropriations.
[Sec. 432. National Institute on Disability and Rehabilitation 
              Research.
[Sec. 433. Research and other covered activities.
[Sec. 434. Rehabilitation research advisory council.

    [Subtitle C--Professional Development and Special Projects and 
                             Demonstrations

[Sec. 441. Training.
[Sec. 442. Demonstration and training programs.
[Sec. 443. Migrant and seasonal farmworkers.
[Sec. 444. Recreational programs.

              [Subtitle D--National Council on Disability

[Sec. 451. Authorization of appropriations.

                    [Subtitle E--Rights and Advocacy

[Sec. 461. Architectural and transportation barriers compliance board.
[Sec. 462. Protection and advocacy of individual rights.

[Subtitle F--Employment Opportunities for Individuals With Disabilities

[Sec. 471. Projects with industry authorization of appropriations.
[Sec. 472. Services for individuals with significant disabilities 
              authorization of appropriations.

 [Subtitle G--Independent Living Services and Centers for Independent 
                                 Living

[Sec. 481. State plan.
[Sec. 482. Statewide independent living council.
[Sec. 483. Independent living services authorization of appropriations.
[Sec. 484. Program authorization.
[Sec. 485. Grants to centers for independent living in States in which 
              Federal funding exceeds State funding.
[Sec. 486. Grants to centers for independent living in States in which 
              State funding equals or exceeds Federal funding.
[Sec. 487. Standards and assurances for centers for independent living.
[Sec. 488. Centers for independent living authorization of 
              appropriations.
[Sec. 489. Independent living services for older individuals who are 
              blind.
[Sec. 490. Program of grants.
[Sec. 491. Independent living services for older individuals who are 
              blind authorization of appropriations.

                       [Subtitle H--Miscellaneous

[Sec. 495. Helen Keller National Center Act.

                [TITLE V--TRANSITION AND EFFECTIVE DATE

[Sec. 501. Transition provisions.
[Sec. 502. Effective date.

     [SEC. 3. REFERENCES.

       [Except as otherwise expressly provided, wherever in this 
     Act an amendment or repeal is expressed in terms of an 
     amendment to, or repeal of, a section or other provision, the 
     amendment or repeal shall be considered to be made to a 
     section or other provision of the Workforce Investment Act of 
     1998 (29 U.S.C. 2801 et seq.).

[TITLE I--AMENDMENTS TO TITLE I OF THE WORKFORCE INVESTMENT ACT OF 1998

                        [Subtitle A--Definitions

     [SEC. 101. DEFINITIONS.

       [Section 101 (29 U.S.C. 2801) is amended--
       [(1) by striking paragraph (24);
       [(2) by redesignating paragraphs (1) through (4), (5) 
     through (16), (17), (18) through (23), (25) through (41), and 
     (42) through (53) as paragraphs (2) through (5), (7) through 
     (18), (20), (23) through (28), (29) through (45), and (47) 
     through (58), respectively;
       [(3) by inserting before paragraph (3) (as redesignated by 
     paragraph (2)) the following:
       [``(1) Accrued expenditures.--The term `accrued 
     expenditures' means charges incurred by recipients of funds 
     under this title for a given period requiring the provision 
     of funds for--
       [``(A) goods or other tangible property received;
       [``(B) services performed by employees, contractors, 
     subgrantees, subcontractors, and other payees; and
       [``(C) other amounts becoming owed under programs assisted 
     under this title for which no current services or performance 
     is required, such as annuities, insurance claims, and other 
     benefit payments.
       [(4) in paragraph (2) (as redesignated by paragraph (2)), 
     by striking ``Except in sections 127 and 132,'' and inserting 
     ``Except in section 132,'';
       [(5) by inserting after paragraph (5) (as redesignated by 
     paragraph (2)) the following:
       [``(6) Business intermediary.--The term `business 
     intermediary' means an entity that

[[Page 28946]]

     brings together various stakeholders with an expertise in an 
     industry or business sector.'';
       [(6) in paragraph (9) (as redesignated by paragraph (2)), 
     by inserting ``, including a faith-based organization,'' 
     after ``nonprofit organization'';
       [(7) in paragraph (10) (as redesignated by paragraph (2))--
       [(A) in subparagraph (B), by striking ``and'' after the 
     semicolon;
       [(B) in subparagraph (C)--
       [(i) by striking ``not less than 50 percent of the cost of 
     the training'' and inserting ``a significant portion of the 
     cost of training as determined by the local board, taking 
     into account the size of the employer and such other factors 
     as the local board determines to be appropriate''; and
       [(ii) by striking the period and inserting ``; and''; and
       [(C) by adding at the end the following:
       [``(D) for customized training with employers in various 
     parts of the State, a significant portion of the cost of the 
     training, as determined by the Governor, taking into account 
     the size of the employer and such other factors as the 
     Governor determines appropriate.'';
       [(8) in paragraph (11) (as redesignated by paragraph (2))--
       [(A) in subparagraph (A)(ii)(II), by striking ``section 
     134(c)'' and inserting ``section 121(e)'';
       [(B) in subparagraph (C), by striking ``or'' after the 
     semicolon;
       [(C) in subparagraph (D), by striking the period and 
     inserting ``; or''; and
       [(D) by adding at the end the following:
       [``(E)(i) is a member of the Armed Forces on active duty, 
     who has been involuntarily separated with an honorable 
     discharge, from the Armed Forces, or who has received notice 
     of such separation;
       [``(ii) is the spouse or adult dependent of a member of the 
     Armed Forces who has experienced the loss of employment as a 
     direct result of relocation to accommodate a change in duty 
     station of such member; or
       [``(iii) is the spouse of a member of the Armed Forces on 
     active duty who meets the criteria described in paragraph 
     (13)(B).'';
       [(9) in paragraph (12)(A) (as redesignated by paragraph 
     (2))--
       [(A) by striking ``and'' after the semicolon and inserting 
     ``or'';
       [(B) by striking ``(A)'' and inserting ``(A)(i)''; and
       [(C) by adding at the end the following:
       [``(ii) is the dependent spouse of a member of the Armed 
     Forces, whose family income is significantly reduced because 
     of a deployment, an activation, a transfer of duty station, 
     or the service-connected death or disability of the spouse; 
     and'';
       [(10) in paragraph (14)(A) (as redesignated by paragraph 
     (2)), by striking ``section 122(e)(3)'' and inserting 
     ``section 122'';
       [(11) by inserting after paragraph (18) (as redesignated by 
     paragraph (2)) the following:
       [``(19) Hard-to-serve populations.--The term `hard-to-serve 
     populations' means populations of individuals who are hard-
     to-serve, including displaced homemakers, low-income 
     individuals, Native Americans, individuals with disabilities, 
     older individuals, ex-offenders, homeless individuals, 
     individuals with limited English proficiency, individuals who 
     do not meet the definition of literacy in section 203, 
     individuals facing substantial cultural barriers, migrant and 
     seasonal farmworkers, individuals within 2 years of 
     exhausting lifetime eligibility under part A of title IV of 
     the Social Security Act (42 U.S.C. 601 et seq.), and such 
     other groups as the Governor determines to be hard-to-
     serve.'';
       [(12) by inserting after paragraph (20) (as redesignated by 
     paragraph (2)) the following:
       [``(21) Integrated training program.--The term `integrated 
     training program' means a program that combines occupational 
     skills training with language acquisition.
       [``(22) Institution of higher education.--The term 
     `institution of higher education' has the meaning given the 
     term in section 102(a)(1) (A) and (B) of the Higher Education 
     Act of 1965 (20 U.S.C. 1002(a)(1)).'';
       [(13) in paragraph (29) (as redesignated by paragraph 
     (2))--
       [(A) in subparagraph (B), by striking ``higher of--'' and 
     all that follows through ``level, for an equivalent period'' 
     and inserting ``poverty line for an equivalent period'';
       [(B) by redesignating subparagraphs (D) through (F) as 
     subparagraphs (E) through (G), respectively; and
       [(C) by inserting after subparagraph (C) the following:
       [``(D) receives or is eligible to receive a free or reduced 
     price lunch under the Richard B. Russell National School 
     Lunch Act (42 U.S.C. 1751 et seq.);'';
       [(14) in paragraph (34) (as redesignated by paragraph (2)), 
     by inserting ``, subject to section 121(b)(1)(C)'' after 
     ``121(b)(1)'';
       [(15) by striking paragraph (37) (as redesignated by 
     paragraph (2)) and inserting the following:
       [``(37) Out-of-school youth.--The term `out-of-school 
     youth' means an out-of-school youth as defined in section 
     129(a)(1)(B).'';
       [(16) in paragraph (45) (as redesignated by paragraph (2)), 
     by striking ``, and the term means such Secretary for 
     purposes of section 503'';
       [(17) by inserting after paragraph (45) (as redesignated by 
     paragraph (2)) the following:
       [``(46) Self-sufficiency.--The term `self-sufficiency' has 
     the meaning given the term in section 134(a)(3)(A)(4)(x) and 
     section 134(e)(1)(A)(ix).'';
       [(18) in paragraph (48) (as redesignated by paragraph (2)), 
     by striking ``clause (iii) or (v) of section 136(b)(3)(A)'' 
     and inserting ``section 136(b)(3)(A)(iii)'';
       [(19) in paragraph (57) (as redesignated by paragraph (2)), 
     by striking ``(or as described in section 129(c)(5))'' and 
     inserting ``(or as described in section 129(a)(2))''; and
       [(20) in paragraph (58) (as redesignated by paragraph (2)), 
     by striking ``established under section 117(h)'' and 
     inserting ``that may be established under section 
     117(h)(2)''.

     [Subtitle B--Statewide and Local Workforce Investment Systems

     [SEC. 111. PURPOSE.

       [Section 106 (29 U.S.C. 2811) is amended to read as 
     follows:

     [``SEC. 106. PURPOSES.

       [``The purposes of this subtitle are the following:
       [``(1)(A) Primarily, to provide workforce investment 
     activities, through statewide and local workforce investment 
     systems, that increase the employment, retention, self-
     sufficiency, and earnings of participants, and increase 
     occupational skill attainment by participants.
       [``(B) As a result of the provision of the activities, to 
     improve the quality of the workforce, reduce welfare 
     dependency, increase self-sufficiency, and enhance the 
     productivity and competitiveness of the Nation.
       [``(2) To enhance the workforce investment system of the 
     Nation by strengthening one-stop centers, providing for more 
     effective governance arrangements, promoting access to a more 
     comprehensive array of employment and training and related 
     services, establishing a targeted approach to serving youth, 
     improving performance accountability, and promoting State and 
     local flexibility.
       [``(3) To provide workforce investment activities in a 
     manner that promotes the informed choice of participants and 
     actively involves participants in decisions affecting their 
     participation in such activities.
       [``(4) To provide workforce investment systems that are 
     demand-driven and responsive to the needs of all employers, 
     including small employers.
       [``(5) To provide workforce investment systems that work in 
     all areas of the Nation, including urban and rural areas.
       [``(6) To allow flexibility to meet State, local, regional, 
     and individual workforce investment needs.
       [``(7) To recognize and reinforce the vital link between 
     economic development and workforce investment activities.
       [``(8) To provide for accurate data collection, reporting, 
     and performance measures that are not unduly burdensome.
       [``(9) To address the ongoing shortage of essential skills 
     in the United States workforce related to both manufacturing 
     and knowledge-based economies to ensure that the United 
     States remains competitive in the global economy.
       [``(10) To equip workers with higher skills and contribute 
     to lifelong education.
       [``(11) To eliminate training disincentives for hard-to-
     serve populations and minority workers, including effectively 
     utilizing community programs, services, and agencies.
       [``(12) To educate limited English proficient individuals 
     about skills and language so the individuals are employable.
       [``(13) To increase the employment, retention and earnings 
     of individuals with disabilities.''.

     [SEC. 112. STATE WORKFORCE INVESTMENT BOARDS.

       [(a) Membership.--
       [(1) In general.--Section 111(b) (29 U.S.C. 2821(b)) is 
     amended--
       [(A) in paragraph (1), by striking subparagraph (C) and 
     inserting the following:
       [``(C) representatives appointed by the Governor, who--
       [``(i) are the lead State agency officials with 
     responsibility for the programs and activities that are 
     described in section 121(b) and carried out by one-stop 
     partners, except that--

       [``(I) in any case in which no lead State agency official 
     has responsibility for such a program or activity, the 
     representative shall be a representative in the State with 
     expertise relating to such program or activity; and
       [``(II) in the case of the programs authorized under title 
     I of the Rehabilitation Act of 1973, the representative shall 
     be the head of the designated State unit, as defined in 
     section 7 of the Rehabilitation Act of 1973 (29 U.S.C. 705);

       [``(ii) are the State agency officials responsible for 
     economic development;
       [``(iii) are representatives of all business in the State, 
     including small businesses, who--

       [``(I) are owners of businesses, chief executive or 
     operating officers of businesses, or other business 
     executives or employers with optimum policymaking or hiring 
     authority;
       [``(II) represent businesses with employment opportunities 
     that reflect employment opportunities in the State; and

[[Page 28947]]

       [``(III) are appointed from among individuals nominated by 
     State business organizations, business trade associations, 
     and local boards;

       [``(iv) is a chief elected official (representing cities 
     and counties, where appropriate);
       [``(v) are representatives of labor organizations, who have 
     been nominated by State labor federations; and
       [``(vi) are such other State agency officials and other 
     representatives as the Governor may designate.''; and
       [(B) in paragraph (3), by striking ``paragraph (1)(C)(i)'' 
     and inserting ``paragraph (1)(C)(iii)''.
       [(2) Conforming amendment.--Section 111(c) (29 U.S.C. 
     2821(c)) is amended by striking ``subsection (b)(1)(C)(i)'' 
     and inserting ``subsection (b)(1)(C)(iii)''.
       [(b) Functions.--Section 111(d) (29 U.S.C. 2811(d)) is 
     amended--
       [(1) in paragraph (1), by striking ``development'' and 
     inserting ``development, implementation, and revision'';
       [(2) in paragraph (2), by striking ``section 134(c)'' and 
     inserting ``section 121(e)'';
       [(3) by striking paragraph (3) and inserting the following:
       [``(3) reviewing and providing comment on the State plans 
     of all one-stop partner programs, where applicable, in order 
     to provide effective strategic leadership in the development 
     of a high quality, comprehensive statewide workforce 
     investment system, including commenting at least once 
     annually on the measures taken pursuant to section 113(b)(3) 
     of the Carl D. Perkins Vocational and Technical Education Act 
     of 1998 (20 U.S.C 2323(b)(3)) and title II of this Act;'';
       [(4) by redesignating paragraphs (4) through (9) as 
     paragraphs (5) through (10), respectively;
       [(5) by inserting after paragraph (3) the following:
       [``(4) development and review of statewide policies 
     affecting the coordinated provision of services through the 
     one-stop delivery systems described in section 121(e) within 
     the State, including--
       [``(A) the development of objective procedures and criteria 
     for use by local boards in assessing the effectiveness and 
     continuous improvement of one-stop centers under section 
     121(g);
       [``(B) the development of guidance for the allocation of 
     one-stop center infrastructure funds under section 
     121(h)(1)(B);
       [``(C) the development of--
       [``(i) statewide policies relating to the appropriate roles 
     and contributions of one-stop partner programs within the 
     one-stop delivery system, including approaches to 
     facilitating equitable and efficient cost allocation in the 
     one-stop delivery system;
       [``(ii) statewide strategies for providing effective 
     outreach to individuals, including hard-to-serve populations, 
     and employers who could benefit from services provided 
     through the one-stop delivery system; and
       [``(iii) strategies for technology improvements to 
     facilitate access to services provided through the one-stop 
     delivery system, in remote areas, and for individuals with 
     disabilities, which may be utilized throughout the State;
       [``(D) identification and dissemination of information on 
     best practices for effective operation of one-stop centers, 
     including use of innovative business outreach, partnerships, 
     and service delivery strategies, including for hard-to-serve 
     populations; and
       [``(E) such other matters as may promote statewide 
     objectives for, and enhance the performance of, the one-stop 
     delivery systems;'';
       [(6) in paragraph (5) (as redesignated by paragraph (4)), 
     by inserting ``and the development of Statewide criteria to 
     be used by chief elected officials for the appointment of 
     local boards and for use in certification of local boards 
     consistent with section 117'' after ``section 116'';
       [(7) in paragraph (6) (as redesignated by paragraph (4)), 
     by striking ``sections 128(b)(3)(B) and 133(b)(3)(B)'' and 
     inserting ``sections 128(b)(3) and 133(b)(3)(B)'';
       [(8) in paragraph (8) (as redesignated by paragraph (4), by 
     striking ``and'' after the semicolon;
       [(9) in paragraph (10) (as redesignated by paragraph (4))--
       [(A) by striking ``section 503'' and inserting ``section 
     136(i)(1)''; and
       [(B) by striking the period and inserting ``; and''; and
       [(10) by adding at the end the following:
       [``(11) increasing the availability of skills training, 
     employment opportunities, and career advancement for hard-to-
     serve populations.''.
       [(c) Alternative Entity.--Section 111(e) (29 U.S.C. 
     2811(e)) is amended--
       [(1) in paragraph (1), by striking ``For'' and inserting 
     ``Subject to paragraph (3), for''; and
       [(2) by adding at the end the following:
       [``(3) Failure to meet performance measures.--If a State 
     fails to meet the State adjusted levels of performance 
     established pursuant to section 136, the Secretary may 
     require the State to establish a State board in accordance 
     with subsections (a), (b), and (c) in lieu of the alternative 
     entity established under paragraph (1).''.
       [(d) Sunshine Provision.--Section 111(g) (29 U.S.C. 
     2822(g)) is amended--
       [(1) by inserting ``, and modifications to the State 
     plan,'' before ``prior''; and
       [(2) by inserting ``, and modifications to the State plan'' 
     after ``the plan''.
       [(e) Authority To Hire Staff.--Section 111 (29 U.S.C. 
     2811)) is amended by adding at the end the following:
       [``(h) Authority To Hire Staff.--The State board may hire 
     staff to assist in carrying out the functions described in 
     subsection (d) using funds allocated under section 
     127(b)(1)(C) and section 132(b).''.

     [SEC. 113. STATE PLAN.

       [(a) Planning Cycle.--Section 112(a) (29 U.S.C. 2822(a)) is 
     amended--
       [(1) by striking ``5-year strategy'' and inserting ``4-year 
     strategy''; and
       [(2) by adding at the end the following: ``At the end of 
     the first 2-year period of the 4-year State plan, the State 
     board shall review and, as needed, amend the 4-year State 
     plan to reflect labor market and economic conditions. In 
     addition, the State shall submit a modification to the State 
     plan at the end of the first 2-year period of the State plan, 
     which may include redesignation of local areas pursuant to 
     section 116(a) and the levels of performance under sections 
     136 for the third and fourth years of the plan.''.
       [(b) Contents.--Section 112(b) (29 U.S.C. 2822(b)) is 
     amended--
       [(1) in paragraph (8)(A)--
       [(A) in clause (ix), by striking ``and'' after the 
     semicolon; and
       [(B) by adding at the end the following:
       [``(xi) programs authorized under title II of the Social 
     Security Act (42 U.S.C. 401 et seq.) (relating to Federal 
     old-age, survivors, and disability insurance benefits), title 
     XVI of such Act (42 U.S.C. 1381 et seq.) (relating to 
     supplemental security income), title XIX of such Act (42 
     U.S.C. 1396 et seq.) (relating to medicaid), and title XX of 
     such Act (relating to block grants to States for social 
     services), programs authorized under title VII of the 
     Rehabilitation Act of 1973 (29 U.S.C. 796 et seq.), and 
     programs carried out by State agencies relating to mental 
     retardation and developmental disabilities; and'';
       [(2) by striking paragraph (10) and inserting the 
     following:
       [``(10) a description of how the State will use funds the 
     State received under this subtitle to leverage other Federal, 
     State, local, and private resources, in order to maximize the 
     effectiveness of such resources, expand resources for the 
     provision of education and training services, and expand the 
     participation of businesses, employees, and individuals in 
     the Statewide workforce investment system, including a 
     description of incentives and technical assistance the State 
     will provide to local areas for such purposes;'';
       [(3) in paragraph (12)(A), by striking ``sections 
     128(b)(3)(B) and 133(b)(3)(B)'' and inserting ``sections 
     128(b)(3) and 133(b)(3)(B)'';
       [(4) in paragraph (14), by striking ``section 134(c)'' and 
     inserting ``section 121(e)'';
       [(5) in paragraph (17)--
       [(A) in subparagraph (A)--
       [(i) in clause (iii)--

       [(I) by inserting ``local'' before ``customized training''; 
     and
       [(II) by striking ``and'' at the end;

       [(ii) in clause (iv), by striking ``homemakers),'' and all 
     that follows through ``disabilities)'' and inserting ``hard-
     to-serve populations and individuals training for 
     nontraditional employment''; and
       [(iii) by adding after clause (iv) the following:
       [``(v) how the State will serve the employment and training 
     needs of individuals with disabilities, consistent with 
     section 188 and Executive Order 13217 (42 U.S.C. 12131 note; 
     relating to community-based alternatives for individuals with 
     disabilities), including the provision of outreach, intake, 
     the conduct of assessments, service delivery, the development 
     of performance measures, and the training of staff; and''; 
     and
       [(B) in subparagraph (B), by striking ``and'' at the end;
       [(6) in paragraph (18)(D)--
       [(A) by striking ``youth opportunity grants'' and inserting 
     ``youth challenge grants authorized under section 169 and 
     other federally funded youth programs''; and
       [(B) by striking the period and inserting a semicolon; and
       [(7) by adding at the end the following:
       [``(19) a description of how the State will utilize 
     technology to facilitate access to services in remote areas, 
     which may be utilized throughout the State;
       [``(20) a description of the State strategy for 
     coordinating workforce investment activities and economic 
     development activities;
       [``(21) a description of the State strategy and assistance 
     needed for ensuring regional cooperation;
       [``(22) a description of how the State will use funds the 
     State receives under this subtitle to--
       [``(A) implement innovative programs and strategies 
     designed to meet the needs of all businesses in the State, 
     including small businesses, which may include incumbent 
     worker training programs, sectoral and industry cluster 
     strategies, regional skills alliances, career ladder 
     programs, utilization of effective business intermediaries, 
     and other business services and strategies that better engage 
     employers in workforce activities and make the statewide 
     workforce investment

[[Page 28948]]

     system more relevant to the needs of State and local 
     businesses, consistent with the purposes of this Act; and
       [``(B) provide incentives and technical assistance to 
     assist local areas in more fully engaging large and small 
     employers in local workforce development activities, to make 
     the workforce investment system more relevant to the needs of 
     area businesses, and to better coordinate workforce 
     investment and economic development efforts to contribute to 
     the economic well being of the local area, as determined 
     appropriate by the local board;
       [``(23) a description of the State strategy for ensuring 
     cooperation between transportation providers, including 
     public transportation providers, and workforce investment 
     activities;
       [``(24) a description of how the State will assist local 
     areas in assuring physical and programmatic assessability for 
     individuals with disabilities at one-stop centers;
       [``(25) a description of the process and methodology that 
     will be used by the State board to--
       [``(A) review statewide policies and provide guidance on 
     the coordinated provision of services through the one-stop 
     delivery system described in section 121;
       [``(B) establish, in consultation with chief elected 
     officials and local boards, procedures and objective criteria 
     for use by local boards in periodically assessing the 
     effectiveness and continuous improvement of one-stop centers 
     and one-stop delivery systems as described in section 121(g); 
     and
       [``(C) determine one-stop partner program contributions 
     for--
       [``(i) the costs of the infrastructure of one-stop centers 
     under section 121(h)(2); and
       [``(ii) the formula for allocating the funds described in 
     section 121(h)(2) to local areas; and
       [``(26) a description of the State strategy for ensuring 
     that activities carried out under this title are placing men 
     and women in jobs, education, or training that lead to 
     comparable pay.''.
       [(c) Modifications to Plan.--Section 112(d) (29 U.S.C. 
     2822(d)) is amended--
       [(1) by striking ``5-year period'' and inserting ``4-year 
     period''; and
       [(2) by adding at the end the following: ``In addition, the 
     State shall submit the modifications to the State plan 
     required under subsection (a), and under circumstances 
     prescribed by the Secretary that are due to changes in 
     Federal law that significantly affect elements of the State 
     plan.''.

     [SEC. 114. LOCAL WORKFORCE INVESTMENT AREAS.

       [(a) Designation of Areas.--
       [(1) Considerations.--Section 116(a)(1)(B) (29 U.S.C. 
     2831(a)(1)(B)) is amended by adding at the end the following:
       [``(vi) The extent to which such local areas will promote 
     maximum effectiveness in the administration and provision of 
     services.''.
       [(2) Automatic designation.--Section 116(a)(2) (29 U.S.C. 
     2831(a)(2)) is amended to read as follows:
       [``(2) Automatic designation.--
       [``(A) In general.--The Governor shall approve a request 
     for designation as a local area that is submitted prior to 
     the submission of the State plan, or of a modification to the 
     State plan relating to area designation, from any area that--
       [``(i) is a unit of general local government with a 
     population of 500,000 or more, except that after the initial 
     2-year period following such designation pursuant to this 
     clause that occurs after the date of enactment of the 
     Workforce Investment Act Amendments of 2003, the Governor 
     shall only be required to approve a request for designation 
     from such area if such area--

       [``(I) performed successfully; and
       [``(II) sustained fiscal integrity;

       [``(ii) was a local area under this title for the preceding 
     2-year period, if such local area--

       [``(I) performed successfully; and
       [``(II) sustained fiscal integrity; or

       [``(iii) is served by a rural concentrated employment 
     program grant recipient, except that after the 2-year period 
     following any such designation under the initial State plan 
     submitted after the date of enactment of the Workforce 
     Investment Act Amendments of 2003, the Governor shall only be 
     required to approve a request for designation under this 
     clause if such area--

       [``(I) performed successfully; and
       [``(II) sustained fiscal integrity.

       [``(B) Definitions.--For purposes of this paragraph:
       [``(i) Performed successfully.--The term `performed 
     successfully' means that the local area involved is not 
     subject to sanctions under section 136(h)(2) due to the 
     failure to meet the levels of performance established under 
     section 136(c) for 2 consecutive years.
       [``(ii) Sustained fiscal integrity.--The term `sustained 
     fiscal integrity' means that the Secretary has not made a 
     formal determination during the preceding 2-year period that 
     either the grant recipient or the administrative entity of 
     the area misexpended funds provided under this title due to 
     willful disregard of the requirements of the Act involved, 
     gross negligence, or failure to comply with accepted 
     standards of administration.''.
       [(3) Conforming amendments.--Section 116(a) (29 U.S.C. 
     2831(a)) is amended--
       [(A) by striking paragraph (3);
       [(B) by redesignating paragraphs (4) and (5) as paragraph 
     (3) and (4), respectively;
       [(C) in paragraph (3) (as redesignated by subparagraph 
     (B))--
       [(i) by striking ``(including temporary designation)''; and
       [(ii) by striking ``(v)'' and inserting ``(vi)''; and
       [(D) in paragraph (4) (as redesignated by subparagraph 
     (B))--
       [(i) by striking ``under paragraph (2) or (3)'' and 
     inserting ``under paragraph (2)''; and
       [(ii) by striking the second sentence.
       [(b) Single Local Area States.--Section 116(b) (29 U.S.C. 
     2831(b)) is amended to read as follows:
       [``(b) Single Local Area States.--
       [``(1) Continuation of previous designation.--
     Notwithstanding subsection (a)(2), the Governor of any State 
     that was a single local area for purposes of this title as of 
     July 1, 2002, may continue to designate the State as a single 
     local area for purposes of this title if the Governor 
     identifies the State as a local area in the State plan under 
     section 112(b)(5).
       [``(2) Redesignation.--The Governor may redesignate the 
     State as a single local area if, prior to the submission of 
     the State plan or modification to such plan so designating 
     the State, no local area meeting the requirements for 
     automatic designation under subsection (a)(2) requests such 
     designation as a separate local area.
       [``(3) Effect on local plan.--In any case in which a State 
     is designated as a local area pursuant to this subsection, 
     the local plan epared under section 118 for the area shall be 
     submitted to the Secretary for approval as part of the State 
     plan under section 112.''.
       [(c) Regional Planning.--Section 116(c) (29 U.S.C. 2831(c)) 
     is amended--
       [(1) by striking paragraph (1) and inserting the following:
       [``(1) Planning.--
       [``(A) In general.--As part of the process for developing 
     the State plan, a State may require regional planning by 
     local boards for a designated region in the State. The State 
     may require the local boards for a designated region to 
     participate in a regional planning process that results in 
     the establishment of regional performance measures for 
     workforce investment activities authorized under this 
     subtitle. The State, after consultation with local boards and 
     chief elected officials, may require the local boards for the 
     designated region to prepare, submit, and obtain approval of 
     a single regional plan that incorporates local plans for each 
     of the local areas in the region, as required under section 
     118. The State may award regional incentive grants to the 
     designated regions that meet or exceed the regional 
     performance measures pursuant to section 134(a)(2)(C).
       [``(B) Technical assistance.--If the State requires 
     regional planning as provided in subparagraph (A), the State 
     shall provide technical assistance and labor market 
     information to such local areas in the designated regions to 
     assist with such regional planning and subsequent service 
     delivery efforts.'';
       [(2) in paragraph (2), by inserting ``information about the 
     skill requirements of existing and emerging industries and 
     industry clusters,'' after ``information about employment 
     opportunities and trends,''; and
       [(3) in paragraph (3), by adding at the end the following: 
     ``Such services may be required to be coordinated with 
     regional economic development services and strategies.''.

     [SEC. 115. LOCAL WORKFORCE INVESTMENT BOARDS.

       [(a) Composition.--Section 117(b) (29 U.S.C. 2832(b)) is 
     amended--
       [(1) in paragraph (2)(A)--
       [(A) in clause (i), by striking subclause (II) and 
     inserting the following:

       [``(II) collectively, represent businesses with employment 
     opportunities that reflect the employment opportunities of 
     the local area, and include representatives of businesses 
     that are in high-growth and emerging industries, and 
     representatives of all businesses, including small 
     businesses, in the local area; and'';

       [(B) by striking clause (ii) and inserting the following:
       [``(ii)(I) a superintendent representing the local school 
     districts involved or another high-level official from such 
     districts;
       [``(II) the president or highest ranking official of an 
     institution of higher education serving the local area; and
       [``(III) an administrator of local entities providing adult 
     education and literacy activities in the local area;'';
       [(C) in clause (iv), by inserting ``, hard-to-serve 
     populations,'' after ``disabilities''; and
       [(D) by striking clause (vi) and inserting the following:
       [``(vi) if the local board does not establish a youth 
     council, representatives with experience serving out-of-
     school youth, particularly out-of-school youth facing 
     barriers to employment.''; and
       [(2) by adding at the end the following:
       [``(6) Special rule.--In the case that there are multiple 
     school districts or institutions of higher education serving 
     a local area, the representatives described in paragraph

[[Page 28949]]

     (2)(A)(ii) shall be appointed from among individuals 
     nominated by regional or local educational agencies, 
     institutions, or organizations representing such agencies or 
     institutions.''.
       [(b) Authority of Board Members.--Section 117(b)(3) (29 
     U.S.C. 2832(b)(3)) is amended--
       [(1) in the heading, by inserting ``and representation'' 
     after ``Authority''; and
       [(2) by adding at the end the following: ``The members of 
     the board shall represent diverse geographic sections within 
     the local area.''.
       [(c) Conforming Amendment.--Section 117(c)(1)(C) (29 U.S.C. 
     2832 (c)(1)(C)) is amended by striking ``section 
     116(a)(2)(B)'' and inserting ``section 116(a)(2)(A)(ii)''.
       [(d) Functions.--Section 117(d) (29 U.S.C. 2832(d)) is 
     amended--
       [(1) in paragraph (2)--
       [(A) in subparagraph (B)--
       [(i) by inserting ``(except as provided in section 
     123(b))'' after ``basis''; and
       [(ii) by inserting ``where appropriate'' after ``youth 
     council''; and
       [(B) by adding at the end the following:
       [``(E) Consumer choice requirements.--Consistent with 
     section 134(d)(3) and (d)(4), the local board shall work to 
     ensure there are sufficient providers of intensive services 
     and training services serving the local area in a manner that 
     maximizes consumer choice, including providers with expertise 
     in assisting individuals with disabilities.'';
       [(2) in paragraph (4), by inserting ``, and shall ensure 
     the appropriate use and management of the funds provided 
     under this subtitle for such programs, activities, and 
     system'' after ``area'';
       [(3) in paragraph (8)--
       [(A) by inserting ``all'' before ``private sector'';
       [(B) by inserting ``, including small employers,'' after 
     ``private sector employers''; and
       [(C) by striking the period and inserting ``, taking into 
     account the unique needs of small businesses.''; and
       [(4) by adding at the end the following:
       [``(9) Technology improvements.--The local board shall 
     develop strategies for technology improvements to facilitate 
     access to services, in remote areas, for services authorized 
     under this subtitle and carried out in the local area.''.
       [(e) Conforming Amendment.--Section 117(f)(2) (29 U.S.C. 
     2832(f)(2)) is amended by striking ``described in section 
     134(c)''.
       [(f) Authority To Establish Councils and Elimination of 
     Requirement for Youth Councils.--Section 117(h) (29 U.S.C. 
     2832(h)) is amended to read as follows:
       [``(h) Councils.--The local board may establish or continue 
     councils to provide information and advice to assist the 
     local board in carrying out activities under this title. Such 
     councils may include--
       [``(1) a council composed of one-stop partners to advise 
     the local board on the operation of the one-stop delivery 
     system involved;
       [``(2) a youth council composed of experts and stakeholders 
     in youth programs to advise the local board on youth 
     activities; and
       [``(3) such other councils as the local board determines 
     are appropriate.''.
       [(g) Alternative Entity Provision.--Section 117(i)(1) (29 
     U.S.C. 2832(i)(1)) is amended--
       [(1) by striking subparagraph (B) and inserting the 
     following:
       [``(B) was in existence on August 7, 1998, pursuant to 
     State law; and'';
       [(2) by striking subparagraph (C); and
       [(3) by redesignating subparagraph (D) as subparagraph (C).

     [SEC. 116. LOCAL PLAN.

       [(a) Planning Cycle.--Section 118(a) (29 U.S.C. 2833(a)) is 
     amended--
       [(1) by striking ``5-year'' and inserting ``4-year''; and
       [(2) by adding at the end the following: ``At the end of 
     the first 2-year period of the 4-year plan, the local board 
     shall review and, as needed, amend the 4-year plan to reflect 
     labor market and economic conditions.''.
       [(b) Contents.--Section 118(b) (29 U.S.C. 2833(b)) is 
     amended--
       [(1) in paragraph (2)--
       [(A) in subparagraph (A), by striking ``and'' after the 
     semicolon;
       [(B) by striking subparagraph (B) and inserting the 
     following:
       [``(B) a description of how the local board will facilitate 
     access to services provided through the one-stop delivery 
     system, in remote areas, including facilitating access 
     through the use of technology; and''; and
       [(C) by adding at the end the following:
       [``(C) a description of how the local board will ensure 
     physical and programmatic assessability for individuals with 
     disabilities at one-stop centers;'';
       [(2) in paragraph (9), by striking ``; and'' and inserting 
     a semicolon;
       [(3) by redesignating paragraph (10) as paragraph (14); and
       [(4) by inserting after paragraph (9) the following:
       [``(10) a description of how the local board will 
     coordinate workforce investment activities carried out in the 
     local area with economic development activities carried out 
     in the local area;
       [``(11) a description of the strategies and services that 
     will be initiated in the local area to more fully engage all 
     employers, including small employers, in workforce 
     development activities, to make the workforce investment 
     system more relevant to the needs of area businesses, and to 
     better coordinate workforce investment and economic 
     development efforts, which may include the implementation of 
     innovative initiatives such as incumbent worker training 
     programs, sectoral and industry cluster strategies, regional 
     skills alliances, career ladder programs, utilization of 
     effective business intermediaries, and other business 
     services and strategies designed to meet the needs of area 
     employers and contribute to the economic well being of the 
     local area, as determined appropriate by the local board, 
     consistent with the purposes of this Act;
       [``(12) a description of how the local board will expand 
     access to education and training services for eligible 
     individuals who are in need of such services through--
       [``(A) the utilization of programs funded under this title; 
     and
       [``(B) the increased leveraging of resources other than 
     those provided under this title, including tax credits, 
     private sector-provided training, and other Federal, State, 
     local, and private funding sources that are brokered through 
     the one-stop centers for training;
       [``(13) a description of how the local board will 
     coordinate workforce investment activities carried out in the 
     local area with the provision of transportation, including 
     public transportation, in the local area; and''.

     [SEC. 117. ESTABLISHMENT OF ONE-STOP DELIVERY SYSTEMS.

       [(a) One-Stop Partners.--
       [(1) Required partners.--Section 121(b)(1) (29 U.S.C. 
     2841(b)(1)) is amended--
       [(A) by striking subparagraph (A) and inserting the 
     following:
       [``(A) Roles and responsibilities of one-stop partners.--
     Each entity that carries out a program or activities 
     described in subparagraph (B) shall--
       [``(i) provide access through the one-stop delivery system 
     to the programs and activities carried out by the entity, 
     including making the core services described in section 
     134(d)(2) that are applicable to the program of the entity 
     available at the comprehensive one-stop centers (in addition 
     to any other appropriate locations);
       [``(ii) use a portion of the funds available to the program 
     of the entity to maintain the one-stop delivery system, 
     including payment of the infrastructure costs of one-stop 
     centers in accordance with subsection (h);
       [``(iii) enter into the local memorandum of understanding 
     with the local board relating to the operation of the one-
     stop system that meets the requirements of subsection (c);
       [``(iv) participate in the operation of the one-stop system 
     consistent with the terms of the memorandum of understanding, 
     the requirements of this title, and the requirements of the 
     Federal laws authorizing the programs carried out by the 
     entity; and
       [``(v) provide representation on the State board to the 
     extent provided under section 111.'';
       [(B) in subparagraph (B)--
       [(i) by striking clause (v);
       [(ii) by redesignating clauses (vi) through (xii) as 
     clauses (v) through (xi), respectively;
       [(iii) in clause (x) (as redesignated by clause (ii)), by 
     striking ``and'' at the end;
       [(iv) in clause (xi) (as redesignated by clause (ii)), by 
     striking the period and inserting ``; and''; and
       [(v) by adding at the end the following:
       [``(xii) programs authorized under part A of title IV of 
     the Social Security Act (42 U.S.C. 601 et seq.), subject to 
     subparagraph (C).''; and
       [(C) by adding at the end the following:
       [``(C) Determination by the governor.--
       [``(i) In general.--An entity that carries out programs 
     referred to in subparagraph (B)(xii) shall be included in the 
     one-stop partners for the local area, as a required partner, 
     for purposes of this title unless the Governor of the State 
     provides the notification described in clause (ii).
       [``(ii) Notification.--The notification referred to in 
     clause (i) is a notification that--

       [``(I) is made in writing of a determination by the 
     Governor not to include such entity in the one-stop partners 
     described in clause (i); and
       [``(II) is provided to the Secretary and the Secretary of 
     Health and Human Services.''.

       [(2) Additional partners.--
       [(A) In general.--Section 121(b)(2)(A) (29 U.S.C. 
     2841(b)(2)(A)) is amended to read as follows:
       [``(A) In general.--With the approval of the local board 
     and chief elected official, in addition to the entities 
     described in paragraph (1), other entities that carry out a 
     human resource program described in subparagraph (B) may be a 
     one-stop partner and carry out the responsibilities described 
     in paragraph (1)(A).''.
       [(B) Additional partners.--Section 121(b)(2)(B) (29 U.S.C. 
     2841(b)(2)(B)) is amended--
       [(i) by redesignating clauses (iv) and (v) as clauses (v) 
     and (vi), respectively; and
       [(ii) by striking clauses (i) through (iii) and inserting 
     the following:
       [``(i) employment and training programs administered by the 
     Social Security Administration, including the Ticket to Work 
     and Self-Sufficiency program established under

[[Page 28950]]

     section 1148 of the Social Security Act (42 U.S.C. 1320b-19);
       [``(ii) programs carried out in the local area for 
     individuals with disabilities, including programs carried out 
     by State agencies relating to mental retardation and 
     developmental disabilities, Statewide Independent Living 
     Councils established under section 705 of the Rehabilitation 
     Act of 1973 (29 U.S.C. 796d), and centers for independent 
     living defined in section 702 of the Rehabilitation Act of 
     1973 (29 U.S.C. 796a);
       [``(iii) employment and training programs carried out by 
     the Small Business Administration;
       [``(iv) programs authorized under section 6(d)(4) of the 
     Food Stamp Act of 1977 (7 U.S.C. 2015(d)(4));''.
       [(b) Local Memorandum of Understanding.--
       [(1) Contents of memorandum.--Section 121(c)(2)(A) (29 
     U.S.C. 2841(c)(2)(A)) is amended to read as follows:
       [``(A) provisions describing--
       [``(i) the services to be provided through the one-stop 
     delivery system consistent with the requirements of this 
     section, including the manner in which the services will be 
     coordinated through such system;
       [``(ii) how the costs of such services and the operating 
     costs of such system will be funded to provide a stable and 
     equitable funding stream for ongoing one-stop system 
     operations, including the funding of the infrastructure costs 
     of one-stop centers in accordance with subsection (h);
       [``(iii) methods of referral of individuals between the 
     one-stop operator and the one-stop partners for appropriate 
     services and activities;
       [``(iv) methods to ensure the needs of hard-to-serve 
     populations are addressed in accessing services through the 
     one-stop system; and
       [``(v) the duration of the memorandum of understanding and 
     the procedures for amending the memorandum during the term of 
     the memorandum, and assurances that such memorandum shall be 
     reviewed not less than once every 2-year period to ensure 
     appropriate funding and delivery of services; and''.
       [(c) Conforming Amendment.--Section 121(d)(2) (29 U.S.C. 
     2841(d)(2)) is amended by striking ``section 134(c)'' and 
     inserting ``section 121(e)''.
       [(d) Provision of Services.--
       [(1) Elimination of provisions concerning established 
     systems.--Section 121 (29 U.S.C. 2841) is amended by striking 
     subsection (e).
       [(2) Redesignation.--Subtitle B of title I is amended--
       [(A) in section 134 (29 U.S.C. 2864), by redesignating 
     subsection (c) as subsection (e); and
       [(B) by transferring that subsection (e) so that the 
     subsection appears after subsection (d) of section 121.
       [(3) One-stop delivery systems.--Paragraph (1) of section 
     121(e) (29 U.S.C. 2841(e)) (as redesignated by paragraph (2)) 
     is amended--
       [(A) in subparagraph (A), by striking ``subsection (d)(2)'' 
     and inserting ``section 134(d)(2)'';
       [(B) in subparagraph (B)--
       [(i) by striking ``subsection (d)'' and inserting ``section 
     134(d)'';
       [(ii) by striking ``individual training accounts'' and 
     inserting ``career scholarship accounts''; and
       [(iii) by striking ``subsection (d)(4)(G)'' and inserting 
     ``section 134(d)(4)(G)'';
       [(C) in subparagraph (C), by striking ``subsection (e)'' 
     and inserting ``section 134(e)'';
       [(D) in subparagraph (D), by striking ``section 121(b)'' 
     and inserting ``subsection (b)''; and
       [(E) in subparagraph (E), by striking ``information 
     described in section 15'' and inserting ``data, information, 
     and analysis described in section 15(a)''.
       [(e) Continuous Improvement of One-Stop Centers.--Section 
     121 (29 U.S.C. 2841) is amended by adding at the end the 
     following:
       [``(g) Continuous Improvement of One-Stop Centers.--
       [``(1) In general.--The State board, in consultation with 
     chief local elected officials and local boards, shall 
     establish procedures and objective criteria for use by local 
     boards in periodically assessing the effectiveness, physical 
     and programmatic accessibility, and continuous improvement of 
     one-stop centers and one-stop delivery systems.
       [``(2) Criteria.--The procedures and criteria developed 
     under this subsection shall include minimum standards 
     relating to the scope and degree of service coordination 
     achieved by the one-stop delivery system with respect to the 
     programs administered by the one-stop partners at the one-
     stop centers, consistent with the guidance provided by the 
     Governor and by the State board, in consultation with the 
     chief elected official and local boards, for such partners' 
     participation under subsections (h)(1)(B) and subsection (i), 
     respectively, and such other factors relating to the quality, 
     accessibility, and effectiveness of the one-stop delivery 
     system as the State board determines appropriate.
       [``(3) Local boards.--Consistent with the criteria 
     developed by the State, the local board may develop 
     additional criteria of higher standards to respond to local 
     labor market and demographic conditions and trends.
       [``(h) Funding of One-Stop Infrastructure and Other 
     Costs.--
       [``(1) In general.--
       [``(A) Options for infrastructure funding.--
       [``(i) Local options.--The local board, chief elected 
     officials, and one-stop partners in a local area may choose 
     to fund the costs of the infrastructure of one-stop centers 
     through--

       [``(I) alternative methods described in the local 
     memorandum of understanding, if one-stop partners, the local 
     board, and chief elected official agree to such alternative 
     methods; or
       [``(II) the State infrastructure funding mechanism 
     described in paragraph (2).

       [``(ii) Failure to reach agreement on funding methods.--If, 
     as of July 1, 2004, the local board, chief elected official, 
     and one-stop partners in a local area fail to reach agreement 
     on methods of funding the infrastructure costs of one-stop 
     centers, the State infrastructure funding mechanism described 
     in paragraph (2) shall be applicable to such local area.''.
       [``(B) Guidance for infrastructure funding.--In addition to 
     carrying out the requirements relating to the State mechanism 
     for one-stop center infrastructure funding described in 
     paragraph (2), the Governor, after consultation with chief 
     local elected official, local boards, and the State board, 
     and consistent with the guidelines provided by the State 
     board under subsection (i), shall provide--
       [``(i) guidelines for State administered one-stop partner 
     programs in determining such program's contributions to and 
     participation in the one-stop delivery system, including 
     funding for the costs of infrastructure as described in 
     paragraph (4), negotiated pursuant to the local memorandum of 
     understanding under subsection (b); and
       [``(ii) guidance to assist local areas in identifying 
     equitable and stable alternative methods of funding of the 
     costs of the infrastructure of one-stop centers in local 
     areas.
       [``(2) State one-stop infrastructure funding.--
       [``(A) Partner contributions.--
       [``(i) In general.--Notwithstanding any other provision of 
     law, but subject to clause (iii), a portion determined under 
     clause (ii) of the Federal funds provided to the State and 
     areas within the State under the Federal laws authorizing the 
     programs described in subsection (b) and administered by one-
     stop partners for a fiscal year shall be provided to the 
     Governor from such programs to assist in paying the costs of 
     infrastructure of one-stop centers in those local areas of 
     the State not funded under the option described in paragraph 
     (1)(B)(i)(I).
       [``(ii) Determination of governor.--

       [``(I) In general.--Subject to subclause (II) and clause 
     (iii), the Governor, after consultation with chief local 
     elected officials, local boards, and the State board, shall 
     determine the portion of funds to be provided under clause 
     (i) by each one-stop partner from each program described in 
     clause (i). In making such determination, the Governor shall 
     consider the proportionate use of the one-stop centers 
     pursuant to clause (i)(II) or (ii) of paragraph (1)(A) by 
     each partner, the costs of administration for purposes not 
     related to one-stop centers for each partner, and other 
     relevant factors described in paragraph (3). The Governor 
     shall exclude from such determination the portion of funds 
     and use of one-stop centers attributable to the programs of 
     one-stop partners for those local areas of the State where 
     the infrastructure of one-stop centers is funded under the 
     option described in paragraph (1)(B)(i)(I).
       [``(II) Special rule.--In a State in which the State 
     constitution places policymaking authority that is 
     independent of the authority of the Governor in an entity or 
     official with respect to the funds provided for adult 
     education and literacy activities authorized under title II 
     and for postsecondary vocational and technical education 
     activities authorized under the Carl D. Perkins Vocational 
     and Technical Education Act of 1998 (20 U.S.C. 2301 et seq.), 
     or vocational rehabilitation services offered under the 
     Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), the 
     determination described in subclause (I) with respect to the 
     programs authorized under that title and that Act shall be 
     made by the Governor and the appropriate entity or official 
     with such independent policymaking authority.
       [``(III) Appeal by one-stop partners.--The Governor shall 
     establish a procedure for the one-stop partner administering 
     a program described in subsection (b) to appeal a 
     determination regarding the portion of funds to be 
     contributed under this paragraph on the basis that such 
     determination is inconsistent with the criteria described in 
     the State plan or with the requirements of this paragraph. 
     Such procedure shall ensure prompt resolution of the appeal.

       [``(iii) Limitations.--

       [``(I) Provision from administrative funds.--The funds 
     provided under this paragraph by each one-stop partner shall 
     be provided only from funds available for the costs of 
     administration under the program administered by such 
     partner, and shall be subject to the program limitations with 
     respect to the portion of funds under such program that may 
     be used for administration.

[[Page 28951]]

       [``(II) Cap on required contributions.--

       [``(aa) WIA formula programs and employment service.--The 
     portion of funds required to be contributed under this 
     paragraph by the programs authorized under chapters 4 and 5 
     of this title and under the Wagner-Peyser Act shall not be in 
     excess of 3 percent of the amount of Federal funds provided 
     to carry out each such program in the State for a fiscal 
     year.
       [``(bb) Other one-stop partners.--The portion of funds 
     required to be contributed under paragraph (1)(B)(ii) by a 
     one-stop partner from a program described in subsection 
     (b)(1) other than the programs described under item (aa) 
     shall not be in excess of 1 and \1/2\ percent of the amount 
     of Federal funds provided to carry out such program in the 
     State for a fiscal year.
       [``(cc) Special rule.--Notwithstanding items (aa) and (bb), 
     an agreement, including local memorandums of understanding, 
     entered into prior to the date of enactment of the Workforce 
     Investment Act Amendments of 2003 by an entity regarding 
     contributions under this title that permits the percentages 
     described in such items to be exceeded, may continue to be in 
     effect until terminated by the parties.
       [``(dd) Vocational rehabilitation.--Notwithstanding items 
     (aa) and (bb), an entity administering a program under title 
     I of the Rehabilitation Act of 1973 (29 U.S.C. 720 et seq.) 
     shall not be required to provide, for the purposes of this 
     paragraph, an amount in excess of--
       [``(AA) 0.75 percent of the amount provided for such 
     program in the State for the second program year that begins 
     after the date of enactment of the Workforce Investment Act 
     Amendments of 2003;
       [``(BB) 1.0 percent of the amount provided for such program 
     in the State for the third program year that begins after 
     such date;
       [``(CC) 1.25 percent of the amount provided for such 
     program in the State for the fourth program year that begins 
     after such date; and
       [``(DD) 1.5 percent of the amount provided for such program 
     in the State for the fifth and each succeeding program year 
     that begins after such date.

       [``(III) Federal direct spending programs.--An entity 
     administering a program funded with direct spending as 
     defined in section 250(c)(8) of the Balanced Budget and 
     Emergency Deficit Control Act of 1985 (2 U.S.C. 900(c)(8)) 
     shall not be required to provide, for purposes of this 
     paragraph, an amount in excess of the amount determined to be 
     equivalent to the cost of the proportionate use of the one-
     stop centers for such program in the State.
       [``(IV) Native american programs.--Native American programs 
     established under section 166 shall not be subject to the 
     provisions of this subsection or subsection (i). The method 
     for determining the appropriate portion of funds to be 
     provided by such Native American programs to pay for the 
     costs of infrastructure of a one-stop center certified under 
     subsection (g) shall be determined as part of the development 
     of the memorandum of understanding under subsection (c) for 
     the one-stop center and shall be stated in the memorandum.

       [``(B) Allocation by governor.--From the funds provided 
     under subparagraph (A), the Governor shall allocate the funds 
     to local areas in accordance with the formula established 
     under subparagraph (C) for the purposes of assisting in 
     paying the costs of infrastructure of one-stop centers.
       [``(C) Allocation formula.--The State board shall develop a 
     formula to be used by the Governor to allocate the funds 
     provided under subparagraph (A) to local areas not funding 
     infrastructure costs under the option described in paragraph 
     (1)(B)(i)(II). The formula shall be based on factors 
     including the number of one-stop centers in a local area, the 
     population served by such centers, the services provided by 
     such centers, and other factors relating to the performance 
     of such centers that the State board determines are 
     appropriate.
       [``(D) Costs of infrastructure.--In this subsection, the 
     term `costs of infrastructure', used with respect to a one-
     stop center, means the nonpersonnel costs that are necessary 
     for the general operation of the one-stop center, including 
     the rental costs of the facilities, the costs of utilities 
     and maintenance, equipment (including adaptive technology for 
     individuals with disabilities), and technology to facilitate 
     remote access to the one-stop center's strategic planning 
     activities, and common outreach activities.
       [``(i) Other Funds.--
       [``(1) In general.--In addition to the funds provided to 
     carry out subsection (h), a portion of funds made available 
     under Federal law authorizing the programs described in 
     subsection (b) and administered by one-stop partners, or the 
     noncash resources available under such programs, shall be 
     used to pay the additional costs relating to the operation of 
     the one-stop delivery system involved that are not paid from 
     the funds provided under subsection (h), as determined in 
     accordance with paragraph (2), to the extent not inconsistent 
     with the Federal law involved. Such costs shall include the 
     costs of the provision of core services described in section 
     134(d)(2) applicable to each program and may include--
       [``(A) costs of infrastructure, as defined in subsection 
     (h), that are in excess of the amount of funds provided under 
     subsection (h); and
       [``(B) common costs that are in addition to the costs of 
     infrastructure that are not paid from the funds provided 
     under subsection (h).
       [``(2) Determination and guidance.--The method for 
     determining the appropriate portion of funds and noncash 
     resources to be provided by each program under paragraph (1) 
     for a one-stop center shall be determined as part of the 
     development of the memorandum of understanding under 
     subsection (c) for the one-stop center and shall be stated in 
     the memorandum. The State board shall provide guidance to 
     facilitate the determination of an appropriate allocation of 
     the funds and noncash resources in local areas.''.

     [SEC. 118. ELIGIBLE PROVIDERS OF TRAINING SERVICES.

       [Section 122 (29 U.S.C. 2842) is amended to read as 
     follows:

     [``SEC. 122. IDENTIFICATION OF ELIGIBLE PROVIDERS OF TRAINING 
                   SERVICES.

       [``(a) In General.--The Governor, after consultation with 
     the State board, shall establish criteria and procedures 
     regarding the eligibility of providers of training services 
     described in section 134(d)(4) (referred to in this section 
     as `training services') to receive funds provided under 
     section 133(b) for the provision of training services.
       [``(b) Criteria.--
       [``(1) In general.--The criteria established by the 
     Governor pursuant to subsection (a) shall take into account--
       [``(A) the performance of providers of training services 
     with respect to the performance measures described in section 
     136 or other appropriate measures of performance outcomes for 
     those individuals receiving training services under this 
     subtitle (taking into consideration the characteristics of 
     the population served and relevant economic conditions);
       [``(B) the need to ensure access to training services 
     throughout the State, including any rural areas;
       [``(C) the information such providers are required to 
     report to State agencies with respect to Federal and State 
     programs (other than the program carried out under this 
     subtitle), including partner programs;
       [``(D) the requirements for State licensing of providers of 
     training services, and the licensing status of each provider 
     of training services if applicable;
       [``(E) to the extent practicable, encouraging the use of 
     industry recognized standards and certification;
       [``(F) the ability to provide training services to hard-to-
     serve populations, including individuals with disabilities; 
     and
       [``(G) such other factors as the Governor determines are 
     appropriate to ensure--
       [``(i) the quality of services provided;
       [``(ii) the accountability of the providers;
       [``(iii) that the one-stop centers in the State will ensure 
     that such providers meet the needs of local employers and 
     participants;
       [``(iv) the informed choice of participants under chapter 
     5; and
       [``(v) that the collection of information required is not 
     unduly burdensome or costly to providers.
       [``(2) Information and renewal.--The criteria established 
     by the Governor shall require that a provider of training 
     services submit appropriate, accurate, and timely information 
     to the State for purposes of carrying out subsection (d). The 
     criteria shall also provide for annual review and renewal of 
     eligibility under this section for providers of training 
     services.
       [``(3) Local criteria.--A local board in the State may 
     establish criteria in addition to the criteria established by 
     the Governor, or may require higher levels of performance 
     than required under the criteria established by the Governor, 
     for purposes of determining the eligibility of providers of 
     training services to receive funds described in subsection 
     (a) to provide the services in the local areas involved.
       [``(c) Procedures.--The procedures established under 
     subsection (a) shall identify the application process for a 
     provider of training services to become eligible to receive 
     funds provided under section 133(b) for the provision of 
     training services, and identify the respective roles of the 
     State and local areas in receiving and reviewing the 
     applications and in making determinations of such eligibility 
     based on the criteria established under this section. The 
     procedures shall also establish a process for a provider of 
     training services to appeal a denial or termination of 
     eligibility under this section, that includes an opportunity 
     for a hearing and prescribes appropriate time limits to 
     ensure prompt resolution of the appeal.
       [``(d) Information To Assist Participants in Choosing 
     Providers.--
       [``(1) In general.--In order to facilitate and assist 
     participants in choosing employment and training activities 
     under chapter 5 and in choosing providers of training 
     services, the Governor shall ensure that an appropriate list 
     of providers determined to be eligible under this section in 
     the State, accompanied by appropriate information provided by 
     providers of training in the State in accordance with 
     subsection (b) and such other information as the Governor 
     determines is appropriate, including information

[[Page 28952]]

     on program costs for participants in applicable programs, is 
     provided to the one-stop delivery system in the State. The 
     list and the information shall be made available to such 
     participants and to members of the public through the one-
     stop delivery system in the State.
       [``(2) Special rule.--An entity that carries out programs 
     under the Act of August 16, 1937 (commonly known as the 
     `National Apprenticeship Act', 50 Stat. 664, chapter 663; 29 
     U.S.C. 50 et seq.) shall be included on the list of eligible 
     providers described in paragraph (1) for so long as such 
     entity remains certified by the Department of Labor.
       [``(e) Enforcement.--
       [``(1) In general.--The criteria and procedures established 
     under this section shall provide the following:
       [``(A) Intentionally supplying inaccurate information.--
     Upon a determination that a provider of training services, or 
     individual providing information on behalf of the provider, 
     intentionally supplied inaccurate information under this 
     section, the eligibility of such provider to receive funds 
     under chapter 5 shall be terminated for a period of time that 
     is not less than 2 years.
       [``(B) Substantial violations.--Upon a determination that a 
     provider of training services substantially violated any 
     requirement under this title, the eligibility of such 
     provider to receive funds under the program involved may be 
     terminated, or other appropriate action may be taken.
       [``(C) Repayment.--A provider of training services whose 
     eligibility is terminated under subparagraph (A) or (B) shall 
     be liable for the repayment of funds received under chapter 5 
     during a period of noncompliance described in such paragraph.
       [``(2) Construction.--Paragraph (1) shall be construed to 
     provide remedies and penalties that supplement, but do not 
     supplant, other civil and criminal remedies and penalties.''.
       [``(f) Agreements With Other States.--States may enter into 
     agreements, on a reciprocal basis, to permit eligible 
     providers of training services to accept career scholarship 
     accounts provided in another State.
       [``(g) Opportunity To Submit Comments.--In establishing 
     criteria, procedures, and information required under this 
     section, the Governor shall provide an opportunity for 
     interested members of the public to make recommendations and 
     submit comments regarding such criteria, procedures, and 
     information.
       [``(h) Transition Period for Implementation.--The 
     requirements of this section shall be implemented not later 
     than December 31, 2004. In order to facilitate early 
     implementation of this section, the Governor may establish 
     transition procedures under which providers eligible to 
     provide training services under chapter 5 of this title as 
     such chapter was in effect on the day before the date of 
     enactment of the Workforce Investment Act Amendments of 2003 
     may continue to be eligible to provide such services until 
     December 31, 2004, or until such earlier date as the Governor 
     determines appropriate.
       [``(i) On-the-Job Training or Customized Training 
     Exception.--
       [``(1) In general.--Providers of on-the-job training or 
     customized training shall not be subject to the requirements 
     of subsections (a) through (h).
       [``(2) Collection and dissemination of information.--A one-
     stop operator in a local area shall collect such performance 
     information from on-the-job training and customized training 
     providers as the Governor may require, determine whether the 
     providers meet such performance criteria as the Governor may 
     require, and disseminate information identifying providers 
     that meet the criteria as eligible providers, and the 
     performance information, through the one-stop delivery 
     system. Providers determined to meet the criteria shall be 
     considered to be identified as eligible providers of training 
     services.''.

     [SEC. 119. ELIGIBLE PROVIDERS OF YOUTH ACTIVITIES.

       [Section 123 (29 U.S.C. 2843) is amended to read as 
     follows:

     [``SEC. 123. ELIGIBLE PROVIDERS OF YOUTH ACTIVITIES.

       [``(a) In General.--From the funds allocated under section 
     128(b) to a local area, the local board for such area shall 
     award grants or contracts on a competitive basis to providers 
     of youth activities identified based on the criteria in the 
     State plan described in section 112 and shall conduct 
     oversight with respect to such providers.
       [``(b) Exceptions.--A local board may award grants or 
     contracts on a sole-source basis if such board determines 
     there is an insufficient number of eligible providers of 
     youth activities in the local area involved (such as a rural 
     area) for grants and contracts to be awarded on a competitive 
     basis under subsection (a).''.

     [SEC. 120. YOUTH ACTIVITIES.

       [(a) State Allotments.--Section 127 (29 U.S.C. 2852) is 
     amended--
       [(1) in subsection (a)(1), by striking ``opportunity'' and 
     inserting ``challenge''; and
       [(2) by striking subsection (b) and inserting the 
     following:
       [``(b) Allotment Among States.--
       [``(1) Youth activities.--
       [``(A) Youth challenge grants.--
       [``(i) In general.--For each fiscal year in which the 
     amount appropriated under section 137(a) exceeds 
     $1,000,000,000, the Secretary shall reserve a portion of the 
     amount to provide youth challenge grants and other activities 
     under section 169 (relating to youth challenge grants) and 
     provide youth activities under section 167 (relating to 
     migrant and seasonal farmworker programs).
       [``(ii) Portion.--The portion referred to in clause (i) 
     shall equal, for a fiscal year--

       [``(I) except as provided in subclause (II), the difference 
     obtained by subtracting $1,000,000,000 from the amount 
     appropriated under section 137(a) for the fiscal year; or
       [``(II) for any fiscal year in which the amount is 
     $1,250,000,000 or greater, $250,000,000.

       [``(iii) Youth activities for farmworkers.--The Secretary 
     shall reserve the greater of $10,000,000 or 4 percent of the 
     portion described in clause (i) for a fiscal year to provide 
     youth activities under section 167.
       [``(iv) Native americans.--From the remainder of the amount 
     appropriated under section 137(a) for each fiscal year the 
     Secretary shall reserve not more than 1\1/2\ percent of such 
     amount to provide youth activities under section 166 
     (relating to native Americans).
       [``(B) Outlying areas.--
       [``(i) In general.--From the amount made available under 
     subsection (a)(2) for each fiscal year the Secretary shall 
     reserve not more than \1/4\ of 1 percent of the amount 
     appropriated under section 137(a) for the fiscal year to 
     provide assistance to the outlying areas to carry out youth 
     activities and statewide workforce investment activities.
       [``(ii) Limitation for freely associated states.--

       [``(I) Competitive grants.--The Secretary shall use funds 
     described in clause (i)(II) to award grants to Guam, American 
     Samoa, the Commonwealth of the Northern Mariana Islands, and 
     the Freely Associated States to carry out youth activities 
     and statewide workforce investment activities.
       [``(II) Award basis.--The Secretary shall award grants 
     pursuant to subclause (I) on a competitive basis and pursuant 
     to the recommendations of experts in the field of employment 
     and training, working through the Pacific Region Educational 
     Laboratory in Honolulu, Hawaii.
       [``(III) Assistance requirements.--Any Freely Associated 
     State that desires to receive assistance under this 
     subparagraph shall submit an application to the Secretary and 
     shall include in the application for assistance--

       [``(aa) information demonstrating that the Freely 
     Associated State will meet all conditions that apply to 
     States under this title;
       [``(bb) an assurance that, notwithstanding any other 
     provision of this title, the Freely Associated State will use 
     such assistance only for the direct provision of services; 
     and
       [``(cc) such other information and assurances as the 
     Secretary may require.

       [``(IV) Administrative costs.--The Secretary may provide 
     not more than 5 percent of the funds made available for 
     grants under subclause (I) to pay the administrative costs of 
     the Pacific Region Educational Laboratory in Honolulu, 
     Hawaii, regarding activities assisted under this clause.

       [``(iii) Additional requirement.--The provisions of Public 
     Law 95-134, permitting the consolidation of grants by the 
     outlying areas, shall not apply to assistance provided to 
     those areas, including the Freely Associated States, under 
     this subparagraph.
       [``(C) States.--
       [``(i) In general.--From the remainder of the amount 
     appropriated under section 137(a) for a fiscal year that 
     exists after the Secretary determines the amounts to be 
     reserved under subparagraphs (A) and (B), the Secretary shall 
     allot to the States--

       [``(I) an amount of the remainder that is less than or 
     equal to the total amount that was allotted to States for 
     fiscal year 2003 under section 127(b)(1)(C) of this Act (as 
     in effect on the day before the date of enactment of the 
     Workforce Investment Act Amendments of 2003), in accordance 
     with the requirements of such section 127(b)(1)(C); and
       [``(II) the amount of the remainder, if any, in excess of 
     the amount referred to in subclause (I), in accordance with 
     clause (ii).

       [``(ii) Formula.--Subject to clauses (iii) and (iv), of the 
     amount described in clause (i)(II)--

       [``(I) 33\1/3\ percent shall be allotted on the basis of 
     the relative number of individuals in the civilian labor 
     force who are ages 16 through 21 in each State, compared to 
     the total number of individuals in the civilian labor force 
     who are ages 16 through 21 in all States;
       [``(II) 33\1/3\ percent shall be allotted on the basis of 
     the relative number of unemployed individuals in each State, 
     compared to the total number of unemployed individuals in all 
     States; and
       [``(III) 33\1/3\ percent shall be allotted on the basis of 
     the relative number of disadvantaged youth who are ages 16 
     through 21 in each State, compared to the total number of 
     disadvantaged youth who are ages 16 through 21 in all States.

       [``(iii) Minimum and maximum percentages.--

       [``(I) Minimum percentage.--The Secretary shall ensure that 
     no State shall receive an allotment percentage under this

[[Page 28953]]

     subparagraph for a fiscal year that is less than 90 percent 
     of the allotment percentage of the State for the preceding 
     fiscal year.
       [``(II) Maximum percentage.--Subject to subclause (I), the 
     Secretary shall ensure that no State shall receive an 
     allotment percentage under this subparagraph for a fiscal 
     year that is more than 130 percent of the allotment 
     percentage of the State for the preceding fiscal year.

       [``(iv) Small state minimum allotment.--Subject to clause 
     (iii), the Secretary shall ensure that no State shall receive 
     an allotment under this subparagraph that is less than the 
     total of--

       [``(I) \3/10\ of 1 percent of $1,000,000,000 of the 
     remainder described in clause (i) for the fiscal year; and
       [``(II) if the remainder described in clause (i) for the 
     fiscal year exceeds $1,000,000,000, \2/5\ of 1 percent of the 
     excess.

       [``(2) Definitions.--For the purposes of paragraph (1):
       [``(A) Allotment percentage.--The term `allotment 
     percentage', used with respect to fiscal year 2004 or a 
     subsequent fiscal year, means a percentage of the remainder 
     described in paragraph (1)(C)(i) that is received by the 
     State involved through an allotment made under this 
     subsection for the fiscal year. The term, used with respect 
     to fiscal year 2003, means the percentage of the amounts 
     allotted to States under this chapter (as in effect on the 
     day before the date of enactment of the Workforce Investment 
     Act Amendments of 2003) that is received by the State 
     involved for fiscal year 2003.
       [``(B) Disadvantaged youth.--Subject to paragraph (3), the 
     term `disadvantaged youth' means an individual who is age 16 
     through 21 who received an income, or is a member of a family 
     that received a total family income, that, in relation to 
     family size, does not exceed the poverty line.
       [``(C) Freely associated states.--The term `Freely 
     Associated States' means the Republic of the Marshall 
     Islands, the Federated States of Micronesia, and the Republic 
     of Palau.
       [``(3) Special rule.--For purposes of the formula specified 
     in paragraph (1)(C), the Secretary shall, as appropriate and 
     to the extent practicable, exclude college students and 
     members of the Armed Forces from the determination of the 
     number of disadvantaged youth.''.
       [(b) Reallotment.--
       [(1) Amendment.--Section 127(c) (29 U.S.C. 2852(c)) is 
     amended--
       [(A) by striking paragraph (2) and inserting the following:
       [``(2) Amount.--The amount available for reallotment for a 
     program year is equal to the amount by which the unexpended 
     balance at the end of the program year prior to the program 
     year for which the determination is made exceeds 30 percent 
     of the total amount of funds available to the State under 
     this section during such prior program year (including 
     amounts allotted to the State in all prior program years that 
     remained available). For purposes of this paragraph, the 
     unexpended balance is the amount that is the difference 
     between--
       [``(A) the total amount of funds available to the State 
     under this section during the program year prior to the 
     program year for which the determination is made (including 
     amounts allotted to the State in all prior program years that 
     remained available); and
       [``(B) the accrued expenditures during such prior program 
     year.'';
       [(B) in paragraph (3)--
       [(i) by striking ``for the prior program year'' and 
     inserting ``for the program year for which the determination 
     is made''; and
       [(ii) by striking ``such prior program year'' and inserting 
     ``such program year'';
       [(C) by striking paragraph (4) and inserting the following:
       [``(4) Eligibility.--For purposes of this subsection, an 
     eligible State means a State that does not have an amount 
     available for reallotment under paragraph (2) for the program 
     year for which the determination under paragraph (2) is 
     made.''; and
       [(D) in paragraph (5), by striking ``obligation'' and 
     inserting ``expenditure''.
       [(2) Effective date.--The amendments made by paragraph 
     (1)(C) shall take effect for the later of--
       [(A) the program year that begins after the date of 
     enactment of this Act; or
       [(B) program year 2004.
       [(c) Within State Allocations.--
       [(1) Reservation for statewide activities.--Section 128(a) 
     (29 U.S.C. 2853(a)) is amended to read as follows:
       [``(a) Reservations for Statewide Activities.--
       [``(1) In general.--The Governor of a State shall reserve 
     not more than 15 percent of each of the amounts allotted to 
     the State under section 127(b)(1)(C) and paragraphs (1)(B) 
     and (2)(B) of section 132(b) for a fiscal year for statewide 
     workforce investment activities.
       [``(2) Use of funds.--Regardless of whether the reserved 
     amounts were allotted under section 127(b)(1)(C), or under 
     paragraph (1)(B) or (2)(B) of section 132(b), the Governor 
     may use the reserved amounts to carry out statewide youth 
     activities under section 129(b) or statewide employment and 
     training activities, for adults or dislocated workers, under 
     section 134(a).''.
       [(2) Within state allocation.--Section 128(b) (29 U.S.C. 
     2853(b)) is amended to read as follows:
       [``(b) Within State Allocations.--
       [``(1) In general.--Of the amount allotted to the State 
     under section 127(b)(1)(C) and not reserved under subsection 
     (a)(1)--
       [``(A) a portion equal to not less than 80 percent of such 
     amount shall be allocated by the Governor to local areas in 
     accordance with paragraph (2); and
       [``(B) a portion equal to not more than 20 percent of such 
     amount may be allocated by the Governor to local areas in 
     accordance with paragraph (3).
       [``(2) Established formula.--
       [``(A) In general.--Of the portion described in paragraph 
     (1)(A), the Governor shall allocate--
       [``(i) 33\1/3\ percent on the basis of the relative number 
     of individuals in the civilian labor force who are ages 16 
     through 21 in each local area, compared to the total number 
     of individuals in the civilian labor force who are ages 16 
     through 21 in all local areas in the State;
       [``(ii) 33\1/3\ percent on the basis of the relative number 
     of unemployed individuals in each local area, compared to the 
     total number of unemployed individuals in all local areas in 
     the State; and
       [``(iii) 33\1/3\ percent on the basis of the relative 
     number of disadvantaged youth who are ages 16 through 21 in 
     each local area, compared to the total number of 
     disadvantaged youth who are ages 16 through 21 in all local 
     areas in the State.
       [``(B) Minimum and maximum percentages.--
       [``(i) Minimum percentage.--The Governor shall ensure that 
     no local area shall receive an allocation percentage under 
     this paragraph for a fiscal year that is less than 90 percent 
     of the allocation percentage of the local area for the 
     preceding fiscal year.
       [``(ii) Maximum percentage.--Subject to clause (i), the 
     Governor shall ensure that no local area shall receive an 
     allocation percentage under this paragraph for a fiscal year 
     that is more than 130 percent of the allocation percentage of 
     the local area for the preceding fiscal year.
       [``(C) Definitions.--In this paragraph:
       [``(i) Allocation percentage.--The term `allocation 
     percentage', used with respect to fiscal year 2004 or a 
     subsequent fiscal year, means a percentage of the portion 
     described in paragraph (1)(A) that is received by the local 
     area involved through an allocation made under this paragraph 
     for the fiscal year. The term, used with respect to fiscal 
     year 2003, means the percentage of the amounts allocated to 
     local areas under this chapter (as in effect on the day 
     before the date of enactment of the Workforce Investment Act 
     Amendments of 2003) that is received by the local area 
     involved for fiscal year 2003.
       [``(ii) Disadvantaged youth.--The term `disadvantaged 
     youth' means an individual who--

       [``(I) is age 16 through 21;
       [``(II) is not a college student or member of the Armed 
     Forces; and
       [``(III) received an income, or is a member of a family 
     that received a total family income, that, in relation to 
     family size, does not exceed the poverty line.

       [``(3) Youth discretionary allocation.--The Governor may 
     allocate the portion described in paragraph (1)(B) to local 
     areas where there are a significant number of eligible youth, 
     after consultation with the State board and local board.
       [``(4) Local administrative cost limit.--
       [``(A) In general.--Of the amount allocated to a local area 
     under this subsection and section 133(b) for a fiscal year, 
     not more than 10 percent of the amount may be used by the 
     local board involved for the administrative costs of carrying 
     out local workforce investment activities under this chapter 
     or chapter 5.
       [``(B) Use of funds.--Funds made available for 
     administrative costs under subparagraph (A) may be used for 
     the administrative costs of any of the local workforce 
     investment activities described in this chapter or chapter 5, 
     regardless of whether the funds were allocated under this 
     subsection or section 133(b).''.
       [(3) Reallocation.--
       [(A) Amendment.--Section 128(c) (29 U.S.C. 2853(c)) is 
     amended--
       [(i) in paragraph (1), by striking ``paragraph (2)(A) or 
     (3) of'';
       [(ii) by striking paragraph (2) and inserting the 
     following:
       [``(2) Amount.--The amount available for reallocation for a 
     program year is equal to the amount by which the unexpended 
     balance at the end of the program year prior to the program 
     year for which the determination is made exceeds 30 percent 
     of the total amount of funds available to the local area 
     under this section during such prior program year (including 
     amounts allocated to the local area in all prior program 
     years that remained available). For purposes of this 
     paragraph, the unexpended balance is the amount that is the 
     difference between--
       [``(A) the total amount of funds available to the local 
     area under this section during the program year prior to the 
     program year for which the determination is made (including 
     amounts allocated to the local area in all

[[Page 28954]]

     prior program years that remained available); and
       [``(B) the accrued expenditures during such prior program 
     year.'';
       [(iii) by amending paragraph (3)--

       [(I) by striking ``subsection (b)(3)'' each place it 
     appears and inserting ``subsection (b)'';
       [(II) by striking ``for the prior program year'' and 
     inserting ``for the program year for which the determination 
     is made'';
       [(III) by striking ``such prior program year'' and 
     inserting ``such program year''; and
       [(IV) by striking the last sentence; and

       [(iv) by striking paragraph (4) and inserting the 
     following:
       [``(4) Eligibility.--For purposes of this subsection, an 
     eligible local area means a local area that does not have an 
     amount available for reallocation under paragraph (2) for the 
     program year for which the determination under paragraph (2) 
     is made.''.
       [(B) Effective date.--The amendments made by subparagraph 
     (A) shall take effect for the later of--
       [(i) the program year that begins after the date of 
     enactment of this Act; or
       [(ii) program year 2004.
       [(d) Youth Participant Eligibility.--Section 129(a) (29 
     U.S.C. 2854(a)) is amended to read as follows:
       [``(a) Youth Participant Eligibility.--
       [``(1) Eligibility.--
       [``(A) In general.--To be eligible to participate in 
     activities carried out under this chapter during any program 
     year an individual shall, at the time the eligibility 
     determination is made, be an out-of-school youth or an in-
     school youth.
       [``(B) Out-of-school youth.--In this section the term `out-
     of-school youth' means an individual who is--
       [``(i) not younger than age 16 (subject to paragraph (3)) 
     nor older than age 21; and
       [``(ii) one of the following:

       [``(I) A school dropout.
       [``(II) A youth who is within the age for compulsory school 
     attendance, but has not attended school for at least 1 school 
     year calendar quarter.
       [``(III) A recipient of a secondary school diploma or its 
     equivalent who is--

       [``(aa) deficient in basic skills, including limited 
     English proficiency;
       [``(bb) a low-income individual; and
       [``(cc) not attending any school; or

       [``(IV) Subject to the juvenile justice system or ordered 
     by a court to an alternative school.
       [``(V) A low-income individual who is pregnant or parenting 
     and not attending any school.
       [``(VI) A youth who is not attending school or a youth 
     attending an alternative school, who is homeless, a runaway, 
     a foster child, a child eligible for assistance under section 
     477 of the Social Security Act, or in an out-of-home 
     placement.

       [``(C) In-school youth.--In this section the term `in-
     school youth' means an individual who is--
       [``(i) not younger than age 14 nor older than age 21;
       [``(ii) a low-income individual; and
       [``(iii) one or more of the following:

       [``(I) Deficient in basic literacy skills, including 
     limited English proficiency.
       [``(II) Homeless, a runaway, a foster child, a child 
     eligible for assistance under section 477 of the Social 
     Security Act, or in an out-of-home placement.
       [``(III) Pregnant or parenting.
       [``(IV) An offender (other than an individual described in 
     subparagraph (B)(ii)(IV)).
       [``(V) An individual who requires additional assistance to 
     complete an educational program, or to secure or hold 
     employment.

       [``(2) Exception.--Not more than 5 percent of the 
     individuals assisted under this section in each local area 
     may be individuals who are not low-income with respect to 
     individuals for whom low-income is a requirement for 
     eligibility under this section.
       [``(3) Limitations on activities for in-school youth.--
       [``(A) In general.--For any program year, not more than 60 
     percent of the funds available for statewide activities that 
     serve youth under subsection (b), and not more than 60 
     percent of funds available to local areas under subsection 
     (c), may be used to provide activities for in-school youth 
     meeting the requirements of paragraph (1)(B).
       [``(B) Exception.--A State that receives a minimum 
     allotment under section 127(b)(1) in accordance with section 
     127(b)(1)(C)(iv)(II) or under section 132(b)(1) in accordance 
     with section 132(b)(1)(B)(iv)(II) may increase the percentage 
     described in subparagraph (A) for a local area in the State, 
     if--
       [``(i) after an analysis of the eligible youth population 
     in the local area, the State determines that the local area 
     will be unable to use at least 40 percent of the funds 
     available for activities that serve youth under subsection 
     (b) to serve out-of-school youth due to a low number of out-
     of-school youth; and
       [``(ii)(I) the State submits to the Secretary, for the 
     local area, a request including a proposed reduced percentage 
     for purposes of subparagraph (A), and the summary of the 
     eligible youth population analysis; and
       [``(II) the request is approved by the Secretary.
       [``(4) Consistency with compulsory school attendance 
     laws.--In providing assistance under this section to an 
     individual who is required to attend school under applicable 
     State compulsory school attendance laws, the priority in 
     providing such assistance shall be for the individual to 
     attend school regularly.''.
       [(e) Statewide Activities.--Section 129(b) (29 U.S.C. 
     2854(b)) is amended to read as follows:
       [``(b) Statewide Activities.--
       [``(1) In general.--Funds reserved by a Governor for a 
     State as described in sections 128(a) and 133(a)(1) shall be 
     used, regardless of whether the funds were allotted to the 
     State under section 127(b)(1)(C) or under paragraph (1) or 
     (2) of section 132(b) for statewide activities, which may 
     include--
       [``(A) conducting--
       [``(i) evaluations under section 136(e) of activities 
     authorized under this chapter and chapter 5 in coordination 
     with evaluations carried out by the Secretary under section 
     172;
       [``(ii) research; and
       [``(iii) demonstration projects;
       [``(B) providing incentive grants to local areas for 
     regional cooperation among local boards (including local 
     boards in a designated region as described in section 
     116(c)), for local coordination of activities carried out 
     under this title, and for exemplary performance by local 
     areas under section 136(i)(2);
       [``(C) providing technical assistance and capacity building 
     activities to local areas, one-stop operators, one-stop 
     partners, and eligible providers, including the development 
     and training of staff, the development of exemplary program 
     activities, the provision of technical assistance to local 
     areas that fail to meet local performance measures described 
     in section 136(c), and the provision of technology to 
     facilitate remote access to services provided through one-
     stop delivery systems;
       [``(D) operating a fiscal and management accountability 
     information system under section 136(f);
       [``(E) carrying out monitoring and oversight of activities 
     carried out under this chapter and chapter 5, which may 
     include a review comparing the services provided to male and 
     female youth;
       [``(F) providing additional assistance to local areas that 
     have high concentrations of eligible youth;
       [``(G) supporting the development of alternative programs 
     and other activities that enhance the choices available to 
     eligible youth and encourage such youth to reenter secondary 
     education, enroll in postsecondary education and advanced 
     training, and obtain career path employment; and
       [``(H) supporting the provision of core services described 
     in section 134(d)(2) in the one-stop delivery system in the 
     State;
       [``(2) Limitation.--Not more than 5 percent of the funds 
     allotted to a State under section 127(b)(1)(C) shall be used 
     by the State for administrative activities carried out under 
     this subsection or section 134(a).
       [``(3) Prohibition.--No funds described in this subsection 
     may be used to develop or implement education curricula for 
     school systems in the State.''.
       [(f) Local Elements and Requirements.--
       [(1) Program design.--Section 129(c)(1) (29 U.S.C. 
     2854(c)(1)) is amended--
       [(A) in the matter that precedes subparagraph (A), by 
     striking ``paragraph (2)(A) or (3), as appropriate, of'';
       [(B) in subparagraph (B), by inserting ``are directly 
     linked to 1 or more of the performance measures relating to 
     this chapter under section 136, and that'' after ``for each 
     participant that''; and
       [(C) in subparagraph (C)--
       [(i) by redesignating clauses (i) through (iv) as clauses 
     (ii) through (v), respectively;
       [(ii) by inserting before clause (ii) (as redesignated by 
     clause (i)) the following:
       [``(i) activities leading to the attainment of a secondary 
     school diploma or its equivalent, or another recognized 
     credential;'';
       [(iii) in clause (ii) (as redesignated by clause (i)), by 
     inserting ``and advanced training'' after ``opportunities'';
       [(iv) in clause (iii) (as redesignated by clause (i))--

       [(I) by inserting ``instruction based on State academic 
     content and student academic achievement standards 
     established under section 1111 of the Elementary and 
     Secondary Education Act of 1965 (20 U.S.C. 6311)'' after 
     ``academic''; and
       [(II) by inserting ``that lead to the attainment of 
     recognized credentials'' after ``learning''; and

       [(v) by striking clause (v) (as redesignated by clause (i)) 
     and inserting the following:
       [``(v) effective connections to all employers, including 
     small employers, in sectors of the local and regional labor 
     markets that are experiencing high growth in employment 
     opportunities.''.
       [(2) Program elements.--Section 129(c)(2) (29 U.S.C. 
     2854(c)(2)) is amended--
       [(A) in subparagraph (A), by striking ``secondary school, 
     including dropout prevention strategies'' and inserting ``the 
     requirements for a secondary school diploma or its recognized 
     equivalent (including recognized alternative standards for 
     individuals with disabilities) or for another recognized 
     credential, including dropout prevention strategies'';

[[Page 28955]]

       [(B) in subparagraph (B), by inserting ``, with a priority 
     on exposing youth to technology and nontraditional jobs'' 
     before the semicolon;
       [(C) in subparagraph (F), by striking ``during nonschool 
     hours'';
       [(D) in subparagraph (I), by striking ``and'' at the end;
       [(E) in subparagraph (J), by striking the period at the end 
     and inserting a semicolon; and
       [(F) by adding at the end the following:
       [``(K) on-the-job training opportunities;
       [``(L) opportunities to acquire financial literacy skills;
       [``(M) entrepreneurial skills training and microenterprise 
     services; and
       [``(N) information about average wages for a range of jobs 
     available in the local area, including technology jobs.''.
       [(3) Additional requirements.--Section 129(c)(3)(A) (29 
     U.S.C. 2854(c)(3)(A)) is amended in the matter preceding 
     clause (i) by striking ``or applicant who meets the minimum 
     income criteria to be considered an eligible youth''.
       [(4) Priority and exceptions.--Section 129(c) (29 U.S.C. 
     2854(c)) is amended by striking paragraphs (4) and (5).
       [(5) Prohibitions and linkages.--Section 129(c) (29 U.S.C. 
     2854(c)), as amended by paragraph (4), is further amended--
       [(A) by redesignating paragraphs (6), (7), and (8) as 
     paragraphs (4), (5), and (6), respectively;
       [(B) in paragraph (4) (as redesignated by subparagraph 
     (A))--
       [(i) by striking subparagraph (B); and
       [(ii) by redesignating subparagraph (C) as subparagraph 
     (B); and
       [(C) in paragraph (5) (as redesignated by subparagraph 
     (A)), by striking ``youth councils'' and inserting ``local 
     boards''.

     [SEC. 121. ADULT AND DISLOCATED WORKER EMPLOYMENT AND 
                   TRAINING ACTIVITIES.

       [(a) State Allotments.--
       [(1) Reservations.--Section 132(a)(2)(A) is amended by 
     striking ``national emergency grants'' and inserting 
     ``national dislocated worker grants''.
       [(2) Allotment among states.--Section 132(b) (29 U.S.C. 
     2862(b)) is amended--
       [(A) in paragraph (1)(A)(ii), by striking ``section 
     127(b)(1)(B)'' and all that follows and inserting ``section 
     127(b)(1)(D).'';
       [(B) by striking paragraph (1)(B)(ii) and inserting the 
     following:
       [``(ii) Formula.--Subject to clauses (iii) and (iv), of the 
     remainder--

       [``(I) 40 percent shall be allotted on the basis of the 
     relative number of unemployed individuals in areas of 
     substantial unemployment in each State, compared to the total 
     number of unemployed individuals in areas of substantial 
     unemployment in all States;
       [``(II) 25 percent shall be allotted on the basis of the 
     relative number of individuals in the civilian labor force in 
     each State, compared to the total number of such individuals 
     in all States; and
       [``(III) 35 percent shall be allotted on the basis of the 
     relative number of disadvantaged adults in each State, 
     compared to the total number of disadvantaged adults in all 
     States, except as described in clause (iii).'';

       [(C) in paragraph (1)(B)(iii), by striking ``section 
     116(a)(2)(B)'' and inserting ``section 116(a)(2)(A)(ii)''; 
     and
       [(D) in paragraph (2)(A)(ii), by striking ``section 
     127(b)(1)(B)'' and all that follows and inserting ``section 
     127(b)(1)(D).''.
       [(3) Reallotment.--Section 132(c) (29 U.S.C. 2862(c)) is 
     amended--
       [(A) by striking paragraph (2) and inserting the following:
       [``(2) Amount.--The amount available for reallotment for a 
     program year for programs funded under subsection (b)(1)(B) 
     (relating to adult employment and training) and subsection 
     (b)(2)(B) (relating to dislocated worker employment and 
     training), respectively, is equal to the amount by which the 
     unexpended balance at the end of the program year prior to 
     the program year for which the determination is made exceeds 
     30 percent of the total amount of funds available to the 
     State under subsection (b)(1)(B) or (b)(2)(B), respectively, 
     during such prior program year (including amounts allotted to 
     the State in all prior program years under such provisions 
     that remained available). For purposes of this paragraph, the 
     unexpended balance is the amount that is the difference 
     between--
       [``(A) the total amount of funds available to the State 
     under subsection (b)(1)(B) or (b)(2)(B), respectively, during 
     the program year prior to the program year for which the 
     determination is made (including amounts allotted to the 
     State in all prior program years under such provisions that 
     remained available); and
       [``(B) the accrued expenditures from such total amount of 
     funds available under subsection (b)(1)(B) or (b)(2)(B), 
     respectively, during such prior program year.'';
       [(B) in paragraph (3)--
       [(i) by striking ``under this section for such activities 
     for the prior program year'' and inserting ``under subsection 
     (b)(1)(B) or (b)(2)(B), as appropriate, for the program year 
     for which the determination is made''; and
       [(ii) by striking ``under this subsection for such 
     activities for such prior program year'' and inserting 
     ``under subsection (b)(1)(B) or (b)(2)(B), as appropriate, 
     for such program year'';
       [(C) by striking paragraph (4) and inserting the following:
       [``(4) Eligibility.--For purposes of this subsection, an 
     eligible State means--
       [``(A) with respect to funds allotted under subsection 
     (b)(1)(B), a State that does not have an amount of such funds 
     available for reallotment under paragraph (2) for the program 
     year for which the determination under paragraph (2) is made; 
     and
       [``(B) with respect to funds allotted under subsection 
     (b)(2)(B), a State that does not have an amount of such funds 
     available for reallotment under paragraph (2) for the program 
     year for which the determination under paragraph (2) is 
     made.''; and
       [(D) in paragraph (5), by striking ``obligation'' and 
     inserting ``expenditure''.
       [(4) Effective date.--The amendments made by paragraph (3) 
     shall take effect for the later of--
       [(A) the program year that begins after the date of 
     enactment of this Act; or
       [(B) program year 2004.
       [(b) Within State Allocations.--
       [(1) Allocation.--Section 133(b)(5)(B)(ii) (29 U.S.C. 
     2863(b)(5)(B)(ii)) is amended by striking ``section 134(c)'' 
     and inserting ``section 121(e)''.
       [(2) Reallocation.--Section 133(c) (29 U.S.C. 2863(c)) is 
     amended--
       [(A) in paragraph (1), by inserting ``, and under 
     subsection (b)(2)(B) for dislocated worker employment and 
     training activities,'' after ``activities'';
       [(B) by striking paragraph (2) and inserting the following:
       [``(2) Amount.--The amount available for reallocation for a 
     program year for programs funded under paragraphs (2)(A) and 
     (3) of subsection (b) (relating to adult employment and 
     training) and subsection (b)(2)(B) (relating to dislocated 
     worker employment and training), respectively, is equal to 
     the amount by which the unexpended balance at the end of the 
     program year prior to the program year for which the 
     determination is made exceeds 30 percent of the total amount 
     of funds available to the local area under paragraphs (2)(A) 
     and (3) of subsection (b), or subsection (b)(2)(B), 
     respectively, during such prior program year (including 
     amounts allocated to the local area in all prior program 
     years under such provisions that remained available). For 
     purposes of this paragraph, the unexpended balance is the 
     amount that is the difference between--
       [``(A) the total amount of funds available to the local 
     area under paragraphs (2)(A) and (3) of subsection (b), or 
     subsection (b)(2)(B), respectively, during the program year 
     prior to the program year for which the determination is made 
     (including amounts allotted to the local area in all prior 
     program years under such provisions that remained available); 
     and
       [``(B) the accrued expenditures from such total amount of 
     funds available under paragraphs (2)(A) and (3) of subsection 
     (b), or subsection (b)(2)(B), respectively, during such prior 
     program year.'';
       [(C) by striking paragraph (3) and inserting the following:
       [``(3) Reallocation.--In making reallocations to eligible 
     local areas of amounts available pursuant to paragraph (2) 
     for a program year, the Governor shall allocate to each 
     eligible local area within the State--
       [``(A) with respect to amounts that are available for 
     reallocation under paragraph (2) that were allocated under 
     paragraphs (2)(A) or (3) of subsection (b), an amount based 
     on the relative amount allocated to such local area under 
     paragraphs (2)(A) or (3) of subsection (b), as appropriate, 
     for the program year for which the determination is made, as 
     compared to the total amount allocated to all eligible local 
     areas under paragraphs (2)(A) or (3) of subsection (b), as 
     appropriate, of such program year; and
       [``(B) with respect to amounts that are available for 
     reallocation under paragraph (2) that were allocated under 
     subsection (b)(2)(B), an amount based on the relative amount 
     allocated to such local area under subsection (b)(2)(B) for 
     the program year for which the determination is made, as 
     compared to the total amount allocated to all eligible local 
     areas under subsection (b)(2)(B) for such program year.''; 
     and
       [(D) by striking paragraph (4) and inserting the following:
       [``(4) Eligibility.--For purposes of this subsection, an 
     eligible local area means--
       [``(A) with respect to funds allocated under paragraphs 
     (2)(A) or (3) of subsection (b), a local area that does not 
     have an amount of such funds available for reallocation under 
     paragraph (2) for the program year for which the 
     determination under paragraph (2) is made; and
       [``(B) with respect to funds allocated under subsection 
     (b)(2)(B), a local area that does not have an amount of such 
     funds available for reallocation under paragraph (2) for the 
     program year for which the determination under paragraph (2) 
     is made.''.
       [(3) Effective date.--The amendments made by paragraph (2) 
     shall take effect for the later of--
       [(A) the program year that begins after the date of 
     enactment of this Act; or
       [(B) program year 2004.
       [(c) Use of Funds for Employment and Training Activities.--

[[Page 28956]]

       [(1) Statewide employment and training activities.--
       [(A) Statewide rapid response activities.--Section 
     134(a)(2)(A) (29 U.S.C. 2864(a)(2)(A)) is amended to read as 
     follows:
       [``(A) Statewide rapid response activities.--
       [``(i) In general.--A State shall carry out statewide rapid 
     response activities using funds reserved by a Governor for a 
     State under section 133(a)(2). Such activities shall 
     include--

       [``(I) provision of rapid response activities, carried out 
     in local areas by the State or by an entity designated by the 
     State, working in conjunction with the local boards and the 
     chief elected officials for the local areas; and
       [``(II) provision of additional assistance to local areas 
     that experience disasters, mass layoffs, or plant closings, 
     or other events that precipitate substantial increases in the 
     number of unemployed individuals, carried out in local areas 
     by the State, working in conjunction with the local boards 
     and the chief elected officials for the local areas.

       [``(ii) Use of unexpended funds.--Funds reserved under 
     section 133(a)(2) to carry out this subparagraph that remain 
     unexpended after the first program year for which such funds 
     were allotted may be used by the Governor to carry out 
     statewide activities authorized under subparagraphs (B) and 
     (C) in addition to activities under this subparagraph.''.
       [(B) Statewide employment and training activities.--Section 
     134(a)(2) (29 U.S.C. 2864(a)(2)) is amended by striking 
     subparagraph (B) and inserting the following:
       [``(B) Statewide employment and training activities.--Funds 
     reserved by a Governor for a State under sections 128(a)(1) 
     and 133(a)(1) and not used under paragraph (1)(A) shall be 
     used for statewide employment and training activities, 
     including--
       [``(i) disseminating--

       [``(I) the State list of eligible providers of training 
     services, including eligible providers of nontraditional 
     training services;
       [``(II) information identifying eligible providers of on-
     the-job training and customized training;
       [``(III) performance information and program cost 
     information, as described in subsections (e) and (h) of 
     section 122; and
       [``(IV) information on physical and programmatic 
     assessability for individuals with disabilities;

       [``(ii) conducting evaluations under section 136(e) of 
     activities authorized under this chapter and chapter 5 in 
     coordination with evaluations carried out by the Secretary 
     under section 172;
       [``(iii) providing incentive grants to local areas in 
     recognition of exceptional achievement relating to--

       [``(I) regional cooperation among local boards (including 
     local boards in a designated region as described in section 
     116(c));
       [``(II) expanded local coordination of programs and 
     activities carried out as part of a comprehensive workforce 
     investment system, including--

       [``(aa) coordination of employment services under the 
     Wagner-Peyser Act and core activities under this title; and
       [``(bb) partner programs described in section 121;

       [``(III) exemplary performance by local areas as described 
     in section 136(i)(2); and
       [``(IV) providing expanded access to education and training 
     services, especially through increased leveraging of 
     resources other than those provided through programs under 
     this title;

       [``(iv) providing technical assistance and capacity 
     building to local areas, one-stop operators, one-stop 
     partners, and eligible providers, including the development 
     and training of staff, the development of exemplary program 
     activities, and the provision of technical assistance to 
     local areas that fail to meet local performance measures 
     described in section 136(c), which may include the 
     development and training of staff to provide opportunities 
     for hard-to-serve populations to enter high-wage, high-
     skilled, and nontraditional occupations;
       [``(v) operating a fiscal and management accountability 
     system under section 136(f); and
       [``(vi) carrying out monitoring and oversight of activities 
     carried out under this chapter and chapter 4.''.
       [(C) Allowable statewide employment and training 
     activities.--Section 134(a)(3)(A) (29 U.S.C. 2864(a)(3)(A) is 
     amended to read as follows:
       [``(A) In general.--A State may use funds reserved as 
     described in sections 128(a) and 133(a)(1) (regardless of 
     whether the funds were allotted to the State under section 
     127(b)(1) or paragraph (1) or (2) of section 132(b)) to carry 
     out additional statewide employment and training activities, 
     which may include--
       [``(i) implementing innovative programs and strategies 
     designed to meet the needs of all businesses in the State, 
     including small businesses, which may include incumbent 
     worker training programs, sectoral and industry cluster 
     strategies and partnerships, including regional skills 
     alliances, career ladder programs, micro-enterprise and 
     entrepreneurial training and support programs, utilization of 
     effective business intermediaries, activities to improve 
     linkages between the one-stop delivery systems in the State 
     and all employers (including small employers), in the State 
     and other business services and strategies that better engage 
     employers in workforce activities and make the workforce 
     investment system more relevant to the needs of State and 
     local businesses, consistent with the purposes of this Act;
       [``(ii) developing strategies for effectively serving hard-
     to-serve populations and for coordinating programs and 
     services among one-stop partners;
       [``(iii) implementing innovative programs for displaced 
     homemakers, which for purposes of this subparagraph may 
     include an individual who is receiving public assistance and 
     is within 2 years of exhausting lifetime eligibility under 
     part A of title IV of the Social Security Act (42 U.S.C. 601 
     et seq.);
       [``(iv) developing strategies for ensuring that activities 
     carried out under this section are placing men and women in 
     jobs, education, and training that lead to comparable pay;
       [``(v) implementing programs to increase the number of 
     individuals training for and placed in nontraditional 
     employment;
       [``(vi) carrying out activities to facilitate remote access 
     to services, including training services described in 
     subsection (d)(4), provided through a one-stop delivery 
     system, including facilitating access through the use of 
     technology;
       [``(vii) supporting the provision of core services 
     described in subsection (d)(2) in the one-stop delivery 
     system in the State;
       [``(viii) coordinating with the child welfare system to 
     facilitate services for children in foster care and those who 
     are eligible for assistance under section 477 of the Social 
     Security Act;
       [``(ix) activities--

       [``(I) to improve coordination between workforce investment 
     activities carried out within the State involved and economic 
     development activities;
       [``(II) to improve coordination between employment and 
     training assistance and child support services and assistance 
     provided by State and local agencies carrying out part D of 
     title IV of the Social Security Act (42 U.S.C. 651 et seq.);
       [``(III) to improve coordination between employment and 
     training assistance and cooperative extension programs 
     carried out by the Department of Agriculture; and
       [``(IV) to develop and disseminate workforce and labor 
     market information;

       [``(x) conducting--

       [``(I) research; and
       [``(II) demonstration projects; and

       [``(xi) adopting, calculating, or commissioning a minimum 
     self-sufficiency standard that specifies the income needs of 
     families, by family size, the number and ages of children in 
     the family, and sub-State geographical considerations.''.
       [(2) Required local employment and training activities.--
       [(A) Allocated funds.--Section 134(d)(1) (29 U.S.C. 
     2864(d)(1)) is amended--
       [(i) in clause (i), by striking ``described in subsection 
     (c)'';
       [(ii) in clause (iii), by striking ``and'' at the end;
       [(iii) in clause (iv), by striking the period and inserting 
     a semicolon; and
       [(iv) by adding at the end the following:
       [``(v) to designate a dedicated business liaison in the 
     local area who may be funded with funds provided under this 
     title or from other sources to establish and develop 
     relationships and networks with large and small employers and 
     their intermediaries; and
       [``(vi) in order to avoid duplication of services and 
     enhance coordination of services, to require the colocation 
     of employment services provided under the Wagner-Peyser Act 
     at the comprehensive one-stop centers.''.
       [(B) Core services.--Section 134(d)(2) (29 U.S.C. 
     2864(d)(2)) is amended--
       [(i) in the matter preceding subparagraph (A), by striking 
     ``paragraph (1)(A)'' and inserting ``paragraph (1)'';
       [(ii) in subparagraph (A), by striking ``under this 
     subtitle'' and inserting ``under the programs described in 
     section 121(b) and administered by one-stop partners, 
     consistent with the requirements of such programs'';
       [(iii) by striking subparagraph (D) and inserting the 
     following:
       [``(D) labor exchange services, including--
       [``(i) job search and placement assistance and, in 
     appropriate cases, career counseling, including--

       [``(I) exposure to high wage, high skill jobs; and
       [``(II) nontraditional employment; and

       [``(ii) appropriate recruitment and other business services 
     for all employers, including small employers, in the local 
     area, which may include services described in this 
     subsection, including information and referral to specialized 
     business services not traditionally offered through the one-
     stop delivery system;'';
       [(iv) in subparagraph (E)(iii)--

       [(I) by inserting ``, career ladders,'' after ``earnings''; 
     and
       [(II) by striking ``and'' at the end;

       [(v) in subparagraph (F)--

       [(I) by striking ``and program cost information''; and
       [(II) by striking ``described in section 123'';

[[Page 28957]]

       [(vi) by striking subparagraph (H) and inserting the 
     following:
       [``(H) provision of accurate information, in formats that 
     are usable and understandable to all one-stop customers, 
     relating to the availability of supportive services or 
     assistance, including childcare, child support, medical or 
     child health assistance under title XIX or XXI of the Social 
     Security Act, benefits under the Food Stamp Act of 1977, the 
     earned income tax credit under section 32 of the Internal 
     Revenue Code of 1986, and assistance under a State program 
     funded under part A of title IV of the Social Security Act 
     and other supportive services and transportation provided 
     through funds made available under such part, available in 
     the local area, and referral to such services or assistance 
     as appropriate;''; and
       [(vii) in subparagraph (J), by striking ``for--'' and all 
     that follows through ``(ii) programs'' and inserting ``for 
     programs''.
       [(C) Intensive services.--Section 134(d)(3) (29 U.S.C. 
     2864(d)(3)) is amended--
       [(i) by striking subparagraph (A) and inserting the 
     following:
       [``(A) In general.--
       [``(i) Eligibility.--Except as provided in clause (ii), 
     funds allocated to a local area for adults under paragraph 
     (2)(A) or (3), as appropriate, of section 133(b), and funds 
     allocated to the local area for dislocated workers under 
     section 133(b)(2)(B), shall be used to provide intensive 
     services to adults and dislocated workers, respectively--

       [``(I) who are unemployed and who, after an interview, 
     evaluation, or assessment, have been determined by a one-stop 
     operator or one-stop partner to be--

       [``(aa) unlikely or unable to obtain employment, that leads 
     to self-sufficiency or wages comparable to or higher than 
     previous employment, through core services described in 
     paragraph (2); and
       [``(bb) in need of intensive services in order to obtain 
     employment that leads to self-sufficiency or wages comparable 
     to or higher than previous employment; or

       [``(II) who are employed, but who, after an interview, 
     evaluation, or assessment are determined by a one-stop 
     operator or one-stop partner to be in need of intensive 
     services to obtain or retain employment that leads to self-
     sufficiency.

       [``(ii) Special rule.--A new interview, evaluation, or 
     assessment of a participant is not required under clause (i) 
     if the one-stop operator or one-stop partner determines that 
     it is appropriate to use a recent assessment of the 
     participant conducted pursuant to another education or 
     training program.''; and
       [(ii) in subparagraph (C)--

       [(I) in clause (v), by striking ``for participants seeking 
     training services under paragraph (4)''; and
       [(II) by adding at the end the following:

       [``(vii) Internships and work experience.
       [``(viii) Literacy activities relating to basic work 
     readiness, and financial literacy activities.
       [``(ix) Out-of-area job search assistance and relocation 
     assistance.
       [``(x) English language acquisition and integrated training 
     programs.''.
       [(D) Training services.--Section 134(d)(4) (29 U.S.C. 
     2864(d)(4)) is amended--
       [(i) by striking subparagraph (A) and inserting the 
     following:
       [``(A) In general.--
       [``(i) Eligibility.--Except as provided in clause (ii), 
     funds allocated to a local area for adults under paragraph 
     (2)(A) or (3), as appropriate, of section 133(b), and funds 
     allocated to the local area for dislocated workers under 
     section 133(b)(2)(B), shall be used to provide training 
     services to adults and dislocated workers, respectively--

       [``(I) who, after an interview, evaluation, or assessment, 
     and case management, have been determined by a one-stop 
     operator or one-stop partner, as appropriate, to--

       [``(aa) be unlikely or unable to obtain or retain 
     employment, that leads to self-sufficiency or wages 
     comparable to or higher than previous employment, through the 
     intensive services described in paragraph (3);
       [``(bb) be in need of training services to obtain or retain 
     employment that leads to self-sufficiency or wages comparable 
     to or higher than previous employment; and
       [``(cc) have the skills and qualifications to successfully 
     participate in the selected program of training services;

       [``(II) who select programs of training services that are 
     directly linked to the employment opportunities in the local 
     area or region involved or in another area to which the 
     adults or dislocated workers are willing to commute or 
     relocate;
       [``(III) who meet the requirements of subparagraph (B); and
       [``(IV) who are determined to be eligible in accordance 
     with the priority system in effect under subparagraph (E).

       [``(ii) Special rule.--A new interview, evaluation, or 
     assessment of a participant is not required under clause (i) 
     if the one-stop operator or one-stop partner determines that 
     it is appropriate to use a recent assessment of the 
     participant conducted pursuant to another education or 
     training program.'';
       [(ii) in subparagraph (B)(i), by striking ``Except'' and 
     inserting ``Notwithstanding section 479B of the Higher 
     Education Act of 1965 (20 U.S.C. 1087uu) and except'';
       [(iii) in subparagraph (D)--

       [(I) in clause (viii), by striking ``and'' after the 
     semicolon;
       [(II) in clause (ix), by striking the period and inserting 
     ``; and''; and
       [(III) by adding at the end the following:

       [``(x) English language acquisition and integrated training 
     programs.'';
       [(iv) in subparagraph (F)--

       [(I) in clause (ii), by striking ``referred to in 
     subsection (c), shall make available--'' and all that follows 
     and inserting ``shall make available a list of eligible 
     providers of training services, and accompanying information, 
     in accordance with section 122(d).'';
       [(II) in the heading of clause (iii), by striking 
     ``Individual training accounts'' and inserting ``Career 
     scholarship accounts'';
       [(III) in clause (iii)--

       [(aa) by striking ``identifying information'' and inserting 
     ``accompanying information'';
       [(bb) by striking ``clause (ii)(I)'' and inserting ``clause 
     (ii)''; and
       [(cc) by striking ``individual training account'' and 
     inserting ``career scholarship account''; and

       [(IV) by adding the following clause after clause (iii):

       [``(iv) Coordination.--Each local board may, through one-
     stop centers, coordinate career scholarship accounts with 
     other Federal, State, local, or private job training programs 
     or sources to assist the individual in obtaining training 
     services.''; and
       [(v) in subparagraph (G)--

       [(I) in the subparagraph heading, by striking ``individual 
     training accounts'' and inserting ``career scholarship 
     accounts'';
       [(II) in clause (i), by striking ``individual training 
     accounts'' and inserting ``career scholarship accounts'';
       [(III) in clause (ii)--

       [(aa) by striking ``individual training account'' and 
     inserting ``career scholarship account''; and
       [(bb) in subclause (II), by striking ``individual training 
     accounts'' and inserting ``career scholarship accounts'';
       [(cc) in subclause (II), by striking ``or'' after the 
     semicolon;
       [(dd) in subclause (III), by striking the period and 
     inserting '``; or''; and
       [(ee) by adding at the end the following:

       [``(IV) the local board determines that it would be most 
     appropriate to award a contract to an institution of higher 
     education in order to facilitate the training of multiple 
     individuals in high-demand occupations, if such contract does 
     not limit customer choice.''; and
       [(IV) in clause (iv)--

       [(aa) by redesignating subclause (IV) as subclause (V); and
       [(bb) by inserting after subclause (III) the following:

       [``(IV) Individuals with disabilities.''.

       [(3) Permissible activities.--Section 134(e) (29 U.S.C. 
     2864(e)) is amended--
       [(A) by striking the matter preceding paragraph (2) and 
     inserting the following:
       [``(e) Permissible Local Employment and Training 
     Activities.--
       [``(1) In general.--
       [``(A) Activities.--Funds allocated to a local area for 
     adults under paragraph (2)(A) or (3), as appropriate, of 
     section 133(b), and funds allocated to the local area for 
     dislocated workers under section 133(b)(2)(B), may be used to 
     provide, through the one-stop delivery system involved--
       [``(i) customized screening and referral of qualified 
     participants in training services described in subsection 
     (d)(4) to employment;
       [``(ii) customized employment-related services to employers 
     on a fee-for-service basis;
       [``(iii) customer support to enable members of hard-to-
     serve populations, including individuals with disabilities, 
     to navigate among multiple services and activities for such 
     populations;
       [``(iv) technical assistance and capacity building for 
     serving individuals with disabilities in local areas, and by 
     one-stop operators, one-stop partners, and eligible 
     providers, including the development and training of staff, 
     the provision of outreach, intake, assessments, and service 
     delivery, and the development of performance measures;
       [``(v) employment and training assistance provided in 
     coordination with child support enforcement activities of the 
     State and local agencies carrying out part D of title IV of 
     the Social Security Act (42 U.S.C. 601 et seq.);
       [``(vi) activities to improve coordination between 
     employment and training assistance and child support services 
     and assistance provided by State and local agencies carrying 
     out part D of title IV of the Social Security Act (42 U.S.C. 
     651 et seq.);
       [``(vii) activities to improve coordination between 
     employment and training assistance and cooperative extension 
     programs carried out by the Department of Agriculture;
       [``(viii) activities to facilitate remote access to 
     services provided through a one-stop delivery system, 
     including facilitating access through the use of technology;
       [``(ix) activities--

       [``(I) to improve coordination between workforce investment 
     activities carried out within the local area involved and 
     economic development activities; and
       [``(II) to improve services and linkages between the local 
     workforce investment system including the local one-stop 
     delivery

[[Page 28958]]

     system, and all employers, including small employers in the 
     local area, through services described under this section, 
     including subparagraph (B);

       [``(x) training programs for displaced homemakers and for 
     individuals training for nontraditional occupations, in 
     conjunction with programs operated in the local area;
       [``(xi) using a portion of the funds allocated under 
     section 133(b), activities to carry out business services and 
     strategies that meet the workforce development needs of local 
     area employers, as determined by the local board, consistent 
     with the local plan under section 118, which services--

       [``(I) may be provided through effective business 
     intermediaries working in conjunction with the local board, 
     and may also be provided on a fee for service basis or 
     through the leveraging of economic development and other 
     resources as determined appropriate by the local board; and
       [``(II) may include--

       [``(aa) identifying for and disseminating to business, 
     educators, and job seekers, information related to the 
     workforce, economic and community development needs, and 
     opportunities of the local economy;
       [``(bb) development and delivery of innovative workforce 
     investment services and strategies for area businesses, which 
     may include sectoral, industry cluster, regional skills 
     alliances, career ladder, skills upgrading, skill standard 
     development and certification, apprenticeship, and other 
     effective initiatives for meeting the workforce development 
     needs of area employers and workers;
       [``(cc) participation in seminars and classes offered in 
     partnership with relevant organizations focusing on the 
     workforce-related needs of area employers and job seekers;
       [``(dd) training consulting, needs analysis, and brokering 
     services for area businesses, including the organization and 
     aggregation of training (which may be paid for with funds 
     other than those provided under this title), for individual 
     employers and coalitions of employers with similar interests, 
     products, or workforce needs;
       [``(ee) assistance to area employers in the aversion of 
     layoffs and in managing reductions in force in coordination 
     with rapid response activities;
       [``(ff) the marketing of business services offered under 
     this Act, to appropriate area employers, including small and 
     mid-sized employers;
       [``(gg) information referral on concerns affecting local 
     employers; and
       [``(hh) other business services and strategies designed to 
     better engage employers in workforce development activities 
     and to make the workforce investment system more relevant to 
     the workforce development needs of area businesses, as 
     determined by the local board to be consistent with the 
     purposes of this Act; and
       [``(xii) activities to adjust the self-sufficiency 
     standards for local factors, or activities to adopt, 
     calculate, or commission a self-sufficiency standard that 
     specifies the income needs of families, by family size, the 
     number and ages of children in the family, and sub-State 
     geographical considerations.
       [``(B) Work support activities for low-wage workers.--
       [``(i) In general.--Funds allocated to a local area for 
     adults under paragraph (2)(A) or (3), as appropriate, of 
     section 133(b), and funds allocated to the local area for 
     dislocated workers under section 133(b)(2)(B), may be used to 
     provide, through the one-stop delivery system involved, work 
     support activities designed to assist low-wage workers in 
     retaining and enhancing employment. The one-stop partners 
     shall coordinate the appropriate programs and resources of 
     the partners with the activities and resources provided under 
     this subparagraph.
       [``(ii) Activities.--The activities described in clause (i) 
     may include the provision of activities described in this 
     section through the one-stop delivery system in a manner that 
     enhances the opportunities of such workers to participate in 
     the activities, such as the provision of activities described 
     in this section during nontraditional hours and the provision 
     of on-site child care while such activities are being 
     provided.'';
       [(B) in paragraph (2), by striking the matter preceding 
     subparagraph (A) and inserting the following:
       [``(2) Supportive services.--Funds allocated to a local 
     area for adults under paragraph (2)(A) or (3), as 
     appropriate, of section 133(b), and funds allocated to the 
     local area for dislocated workers under section 133(b)(2)(B), 
     may be used to provide supportive services to adults and 
     dislocated workers, respectively--''; and
       [(C) by adding at the end the following:
       [``(4) Incumbent worker training programs.--
       [``(A) In general.--The local board may use up to 10 
     percent of the funds allocated to the local area involved 
     under section 133(b) to pay for the Federal share of the cost 
     of providing training through an incumbent worker training 
     program carried out in accordance with this paragraph. The 
     Governor or State board may make recommendations to the local 
     board regarding incumbent worker training with statewide 
     impact.
       [``(B) Training activities.--The training program for 
     incumbent workers carried out under this paragraph shall be 
     carried out by the local board in conjunction with the 
     employers or groups of employers of such workers for the 
     purpose of assisting such workers in obtaining the skills 
     necessary to retain employment or avert layoffs.
       [``(C) Employer share required.--
       [``(i) In general.--Employers participating in the program 
     carried out under this paragraph shall be required to pay the 
     non-Federal share of the costs of providing the training to 
     incumbent workers of the employers. The local board shall 
     establish the non-Federal share of such costs, which may 
     include in kind contributions. The non-Federal share shall 
     not be less than--

       [``(I) 10 percent of the costs, for employers with 50 or 
     fewer employees;
       [``(II) 25 percent of the costs, for employers with more 
     than 50 employees but fewer than 100 employees; and
       [``(III) 50 percent of the costs, for employers with 100 or 
     more employees.

       [``(ii) Calculation of employer share.--The non-Federal 
     share paid by such an employer may include the amount of the 
     wages paid by the employer to a worker while the worker is 
     attending a training program under this paragraph.''.

     [SEC. 122. PERFORMANCE ACCOUNTABILITY SYSTEM.

       [(a) State Performance Measures.--
       [(1) Indicators of performance.--Section 136(b)(2)(A) (29 
     U.S.C. 2871(b)(2)(A)) is amended--
       [(A) in clause (i)--
       [(i) in the matter preceding subclause (I), by striking `` 
     and (for participants who are eligible youth age 19 through 
     21) for youth activities authorized under section 129'';
       [(ii) by striking subclause (III) and inserting the 
     following:

       [``(III) increases in earnings from unsubsidized 
     employment; and''; and

       [(iii) in subclause (IV), by striking ``, or by 
     participants'' and all that follows through ``unsubsidized 
     employment''; and
       [(B) by striking clause (ii) and inserting the following:
       [``(ii) Core indicators for eligible youth.--The core 
     indicators of performance for youth activities authorized 
     under section 129 shall consist of--

       [``(I) entry into employment, education or advanced 
     training, or military service;
       [``(II) attainment of secondary school diplomas or their 
     recognized equivalents, and postsecondary certificates; and
       [``(III) literacy or numeracy gains.''.

       [(2) Additional indicators.--Section 136(b)(2)(C) (29 
     U.S.C. 2871(b)(2)(C)) is amended to read as follows:
       [``(C) Additional indicators.--A State may identify in the 
     State plan additional indicators for workforce investment 
     activities under this subtitle, including indicators 
     identified in collaboration with State business and industry 
     associations, with employee representatives where applicable, 
     and with local boards, to measure the performance of the 
     workforce investment system in serving the workforce needs of 
     business and industry in the State.''.
       [(3) Levels of performance.--Section 136(b)(3)(A) (29 
     U.S.C. 2871(b)(3)(A)) is amended--
       [(A) in clause (iii)--
       [(i) in the heading, by striking ``for first 3 years'';
       [(ii) by striking ``and the customer satisfaction indicator 
     of performance, for the first 3'' and inserting ``described 
     in clauses (i) and (ii) of paragraph (2)(A) and the customer 
     satisfaction indicator of performance, for the first 2''; and
       [(iii) by inserting at the end the following: ``Agreements 
     on levels of performance for each of the core indicators of 
     performance for the third and fourth program years covered by 
     the State plan shall be reached prior to the beginning of the 
     third program year covered by the State plan, and 
     incorporated as a modification to the State plan.'';
       [(B) in clause (iv)--
       [(i) in subclause (II)--

       [(I) by striking ``taking into account'' and inserting 
     ``and shall ensure that the levels involved are adjusted, 
     using objective statistical methods, based on'';
       [(II) by inserting ``(such as differences in unemployment 
     rates and job losses or gains in particular industries)'' 
     after ``economic conditions'';
       [(III) by inserting ``(such as indicators of poor work 
     history, lack of work experience, educational or occupational 
     skills attainment, dislocation from high-wage and benefit 
     employment, low levels of literacy or English proficiency, 
     disability status, homelessness, and welfare dependency)'' 
     after ``program''; and
       [(IV) by striking ``and'' at the end;

       [(ii) in subclause (III), by striking the period and 
     inserting ``; and''; and
       [(iii) by adding at the end the following:

       [``(IV) the extent to which the levels involved will assist 
     the State in meeting the national goals described in clause 
     (v).'';

       [(C) by striking clause (v) and inserting the following:
       [``(v) Establishment of national goals.--In order to 
     promote enhanced performance outcomes on the performance 
     measures and to facilitate the process of reaching agreements 
     with the States under clause (iii) and to measure systemwide 
     performance for the

[[Page 28959]]

     one-stop delivery systems of the States, the Secretary shall 
     establish long-term national goals for the adjusted levels of 
     performance for that systemwide performance to be achieved by 
     the programs assisted under chapters 4 and 5 on the core 
     indicators of performance described in subparagraphs (A) and 
     (B) of subsection (b)(2). Such goals shall be established in 
     accordance with the Government Performance and Results Act of 
     1993 in consultation with the States and other appropriate 
     parties.''; and
       [(D) in clause (vi)--
       [(i) by striking ``or (v)''; and
       [(ii) by striking ``with the representatives described in 
     subsection (i)'' and inserting ``with the States and other 
     interested parties''.
       [(b) Local Performance Measures.--Section 136(c)(3) (29 
     U.S.C. 2871(c)(3))--
       [(1) by striking ``shall take into account'' and inserting 
     ``shall ensure such levels are adjusted based on'';
       [(2) by inserting ``(characteristics such as unemployment 
     rates and job losses or gains in particular industries)'' 
     after ``economic''; and
       [(3) by inserting ``(characteristics such as indicators of 
     poor work history, lack of work experience, educational and 
     occupational skills attainment, dislocation from high-wage 
     and benefit employment, low levels of literacy or English 
     proficiency, disability status, homelessness, and welfare 
     dependency)'' after ``demographic''.
       [(c) Report.--Section 136(d) (29 U.S.C. 2871(d)) is 
     amended--
       [(1) in paragraph (1), by adding at the end the following: 
     ``In the case of a State or local area that chooses to expend 
     funds under section 134(a)(3)(A)(i) or 134(e)(1)(A)(vii), 
     respectively, the report also shall include the amount of 
     such funds so expended and the percentage that such funds are 
     of the funds available under section 134;
       [(2) in paragraph (2)--
       [(A) in subparagraph (E)--
       [(i) by striking ``(excluding participants who received 
     only self-service and informational activities)''; and
       [(ii) by striking ``and'' after the semicolon;
       [(B) in subparagraph (F)--
       [(i) by inserting ``noncustodial parents with child support 
     obligations, homeless individuals,'' after ``displaced 
     homemakers,''; and
       [(ii) by striking the period and inserting a semicolon; and
       [(C) by adding at the end the following:
       [``(G) the number of participants served and the cost per 
     participant; and
       [``(H) the amount of adult and dislocated worker funds 
     spent on--
       [``(i) core, intensive, and training services, 
     respectively; and
       [``(ii) services provided under section 134(a)(3)(A)(i) or 
     134(e)(1)(A)(iii), if applicable.''; and
       [(3) by adding at the end the following:
       [``(4) Data validation.--In preparing the reports described 
     in this subsection, the States shall establish procedures, 
     consistent with guidelines issued by the Secretary, to ensure 
     that the information contained in the reports is valid and 
     reliable.''.
       [(d) Sanctions for State.--Section 136(g) is amended--
       [(1) in paragraph (1)(B), by striking ``If such failure 
     continues for a second consecutive year'' and inserting ``If 
     a State performs at less than 80 percent of the adjusted 
     level of performance for a core indicator of performance 
     described in subsection (b)(2)(A) for 2 consecutive years 
     with respect to the same indicator of performance''; and
       [(2) in paragraph (2), by striking ``section 503'' and 
     inserting ``subsection (i)(1)''.
       [(e) Sanctions for Local Area.--Section 136(h)(2)(A) (29 
     U.S.C. 2871(h)(2)(A)) is amended--
       [(1) in the matter preceding clause (i), by striking ``If 
     such failure continues for a second consecutive year'' and 
     inserting ``If a local area performs at less than 80 percent 
     of the adjusted level of performance for a core indicator of 
     performance described in subsection (b)(2)(A) for 2 
     consecutive years with respect to the same indicator of 
     performance'';
       [(2) in clause (ii), by striking ``or'' after the 
     semicolon;
       [(3) by redesignating clause (iii) as clause (iv); and
       [(4) by inserting after clause (ii) the following:
       [``(iii) redesignate the local area in accordance with 
     section 116(a)(2); or''.
       [(f) Incentive Grants.--Section 136(i) (29 U.S.C. 2871(i)) 
     is amended to read as follows:
       [``(i) Incentive Grants for States and Local Areas.--
       [``(1) Incentive grants for states.--
       [``(A) In general.--From funds appropriated under section 
     174(b) and made available under subsection (g)(2), the 
     Secretary may award incentive grants to States for exemplary 
     performance in carrying out programs under chapters 4 and 5.
       [``(B) Basis.--The Secretary shall award the grants on the 
     basis--
       [``(i) of the States meeting or exceeding the performance 
     measures established under subsection (b)(3)(A)(iii);
       [``(ii) of exemplary performance of the States in serving 
     hard-to-serve populations (including performance relating to 
     the levels of service provided and the performance outcomes 
     on such performance measures with respect to the 
     populations);
       [``(iii) of States that are effectively--

       [``(I) coordinating multiple systems into a more effective 
     workforce development system, including coordination of 
     employment services under the Wagner-Peyser Act and core 
     activities under this title as well as partner programs 
     described in section 121;

       [``(II) expanding access to training, including through 
     increased leveraging of resources other than those funded 
     through programs under this title; or
       [``(III) implementing innovative business and economic 
     development initiatives.

       [``(iv) of such other factors relating to the performance 
     of the States under this title as the Secretary determines 
     are appropriate.
       [``(C) Use of funds.--The funds awarded to a State under 
     this paragraph may be used to carry out any activities 
     authorized for States under chapters 4 and 5, title II of 
     this Act, and the Carl D. Perkins Vocational and Technical 
     Education Act of 1998, including demonstration projects and 
     innovative programs for hard-to-serve populations.
       [``(2) Incentive grants for local areas.--
       [``(A) In general.--From funds reserved under sections 
     128(a) and 133(a)(1), the Governor involved shall award 
     incentive grants to local areas for exemplary performance in 
     carrying out programs under chapters 4 and 5.
       [``(B) Basis.--The Governor shall award the grants on the 
     basis--
       [``(i) that the local areas met or exceeded the performance 
     measures established under subsection (c)(2) relating to 
     indicators described in subsection (b)(3)(A)(iii);
       [``(ii) of exemplary performance of the local areas in 
     serving hard-to-serve populations; or
       [``(iii) of States and local areas that are effectively--

       [``(I) coordinating multiple systems into a comprehensive 
     workforce development system, including coordination of 
     employment services under the Wagner-Peyser Act and core 
     activities under this title as well as partner programs 
     described in section 121;
       [``(II) expanding access to training, including through 
     increased leveraging of resources other than those funded 
     through programs under this title; or
       [``(III) implementing innovative business and economic 
     development initiatives.

       [``(C) Use of funds.--The funds awarded to a local area 
     under this paragraph may be used to carry out activities 
     authorized for local areas under chapters 4 and 5, and such 
     demonstration projects or innovative programs for hard-to-
     serve populations as may be approved by the Governor.''.
       [(g) Use of Core Measures in Other Department of Labor 
     Programs.--Section 136 (29 U.S.C. 2871) is amended by adding 
     at the end the following:
       [``(j) Use of Core Indicators for Other Programs.--In 
     addition to the programs carried out under chapters 4 and 5, 
     and consistent with the requirements of the applicable 
     authorizing laws, the Secretary shall use the indicators of 
     performance described in subparagraphs (A) and (B) of 
     subsection (b)(2) to assess the effectiveness of the programs 
     described in clauses (i), (ii), and (vi) of section 
     121(b)(1)(B) that are carried out by the Secretary.''.
       [(h) Previous Definitions of Core Indicators and Incentive 
     Grants.--Sections 502 and 503 (29 U.S.C. 9272 and 9273) are 
     repealed.

     [SEC. 123. AUTHORIZATION OF APPROPRIATIONS.

       [(a) Youth Activities.--Section 137(a) (29 U.S.C. 2872(a)) 
     is amended by striking ``such sums as may be necessary for 
     each of fiscal years 1999 through 2003'' and inserting `` 
     such sums as may be necessary for each of fiscal years 2004 
     through 2009''.
       [(b) Adult Employment and Training Activities.--Section 
     137(b) (29 U.S.C. 2872(b)) is amended by striking ``such sums 
     as may be necessary for each of fiscal years 1999 through 
     2003'' and inserting `` such sums as may be necessary for 
     each of fiscal years 2004 through 2009''.
       [(c) Dislocated Worker Employment and Training 
     Activities.--Section 137(c) (29 U.S.C. 2872(c)) is amended by 
     striking ``such sums as may be necessary for each of fiscal 
     years 1999 through 2003'' and inserting ``such sums as may be 
     necessary for each of fiscal years 2004 through 2009''.

                         [Subtitle C--Job Corps

     [SEC. 131. JOB CORPS.

       [(a) Eligibility.--Section 144(3) (29 U.S.C. 2884(3)) is 
     amended by adding at the end the following:
       [``(F) A child eligible for assistance under section 477 of 
     the Social Security Act.''.
       [(b) Implementation of Standards and Procedures.--Section 
     145(a)(3) (29 U.S.C. 2885(a)(3)) is amended--
       [(1) in subparagraph (B), by striking ``and'' after the 
     semicolon;
       [(2) in subparagraph (C), by striking the period and 
     inserting ``; and''; and
       [(3) by adding at the end the following:
       [``(D) child welfare agencies that are responsible for 
     children in foster care and children eligible for assistance 
     under section 477 of the Social Security Act.''.
       [(c) Industry Councils.--Section 154(b) (29 U.S.C. 2894(b)) 
     is amended--
       [(1) in paragraph (1)(A), by striking ``local and 
     distant''; and
       [(2) by adding at the end the following:

[[Page 28960]]

       [``(3) Employers outside of local area.--The industry 
     council may include, or otherwise provide for consultation 
     with, employers from outside the local area who are likely to 
     hire a significant number of enrollees from the Job Corps 
     center.
       [``(4) Special rule for single local area states.--In the 
     case of a single local area State designated under section 
     116(b), the industry council shall include a representative 
     of the State Board.''.
       [(d) Indicators of Performance.--Section 159 (29 U.S.C. 
     2983) is amended--
       [(1) in subsection (c)--
       [(A) by striking paragraph (1) and inserting the following:
       [``(1) Performance indicators.--The Secretary shall 
     annually establish expected levels of performance for Job 
     Corps centers and the Job Corps program relating to each of 
     the core indicators of performance for youth activities 
     identified in section 136(b)(2)(A)(ii).'';
       [(B) in paragraph (2), by striking ``measures'' each place 
     it appears and inserting ``indicators''; and
       [(C) in paragraph (3)--
       [(i) in the first sentence, by striking ``core performance 
     measures, as compared to the expected performance level for 
     each performance measure'' and inserting ``performance 
     indicators described in paragraph (1), as compared to the 
     expected level of performance established under paragraph (1) 
     for each performance measure''; and
       [(ii) in the second sentence, by striking ``measures'' each 
     place it appears and inserting ``indicators''; and
       [(2) in subsection (f)(2), in the first sentence, by 
     striking ``core performance measures'' and inserting 
     ``indicators of performance''.
       [(e) Authorization of Appropriations.--Section 161 (29 
     U.S.C. 2901) is amended by striking ``1999 through 2003'' and 
     inserting ``2004 through 2009''.

                     [Subtitle D--National Programs

     [SEC. 141. NATIVE AMERICAN PROGRAMS.

       [(a) Advisory Council.--Section 166(h)(4)(C) (29 U.S.C. 
     2911(h)(4)(C)) is amended to read as follows:
       [``(C) Duties.--The Council shall advise the Secretary on 
     the operation and administration of the programs assisted 
     under this section, including the selection of the individual 
     appointed as head of the unit established under paragraph 
     (1).''.
       [(b) Assistance to Unique Native Populations in Alaska and 
     Hawaii.--Section 166(j) (29 U.S.C. 2911(j)) is amended to 
     read as follows:
       [``(j) Assistance to Unique Native Populations in Alaska 
     and Hawaii.--
       [``(1) In general.--Notwithstanding any other provision of 
     law, the Secretary is authorized to provide assistance to 
     unique native populations who reside in Alaska or Hawaii to 
     improve job training and workforce investment activities.
       [``(2) Authorization of appropriations.--There are 
     authorized to be appropriated to carry out this subsection 
     such sums as may be necessary for fiscal year 2004.''.
       [(c) Performance Indicators.--Section 166 (29 U.S.C. 2911 
     is amended by adding at the end the following:
       [``(c) Performance Indicators.--
       [``(1) Development of indicators.--The Secretary, in 
     consultation with the Native American Employment and Training 
     Council, shall develop a set of performance indicators and 
     standards which shall be applicable to programs under this 
     section.
       [``(2) Special considerations.--Such performance indicators 
     and standards shall take into account--
       [``(A) the purposes of the programs under this section as 
     described in paragraph (a)(1);
       [``(B) the needs of the groups served by this section, 
     including the differences in needs among such groups in 
     various geographic service areas; and
       [``(C) the economic circumstances of the communities 
     served, including differences in circumstances among various 
     geographic service areas.''.

     [SEC. 142. MIGRANT AND SEASONAL FARMWORKER PROGRAMS.

       [Section 167(d) (29 U.S.C. 2912(d)) is amended by inserting 
     ``(including permanent housing)'' after ``housing''.

     [SEC. 143. VETERANS' WORKFORCE INVESTMENT PROGRAMS.

       [Section 168(a)(3)(C) (29 U.S.C. 2913(a)(3)(C)) is amended 
     by striking ``section 134(c)'' and inserting ``section 
     121(e)''.

     [SEC. 144. YOUTH CHALLENGE GRANTS.

       [Section 169 (29 U.S.C. 2914) is amended to read as 
     follows:

     [``SEC. 169. YOUTH CHALLENGE GRANTS.

       [``(a) In General.--Of the amounts reserved by the 
     Secretary under section 127(a)(1)(A) for a fiscal year--
       [``(1) the Secretary shall use not less than 80 percent to 
     award competitive grants under subsection (b); and
       [``(2) the Secretary may use not more than 20 percent to 
     award discretionary grants under subsection (c).
       [``(b) Competitive Grants to States and Local Areas.--
       [``(1) Establishment.--From the funds described in 
     subsection (a)(1), the Secretary shall award competitive 
     grants to eligible entities to carry out activities 
     authorized under this subsection to assist eligible youth in 
     acquiring the skills, credentials, and employment experience 
     necessary to achieve the performance outcomes for youth 
     described in section 136.
       [``(2) Eligible entity.--In this subsection, the term 
     `eligible entity' means--
       [``(A) a State or consortium of States;
       [``(B) a local board or consortium of local boards;
       [``(C) a recipient of a grant under section 166 (relating 
     to Native American programs); or
       [``(D) a public or private entity (including a consortium 
     of such entities) with expertise in the provision of youth 
     activities, applying in partnership with a local board or 
     consortium of local boards.
       [``(3) Applications.--To be eligible to receive a grant 
     under this subsection, an eligible entity shall submit an 
     application to the Secretary at such time, in such manner, 
     and containing such information as the Secretary may require, 
     including--
       [``(A) a description of the activities the eligible entity 
     will provide to eligible youth under this subsection, and how 
     the eligible entity will collaborate with State and local 
     workforce investments systems established under this title in 
     the provision of such activities;
       [``(B) a description of the programs of demonstrated 
     effectiveness on which the provision of the activities under 
     subparagraph (A) are based, and a description of how such 
     activities will expand the base of knowledge relating to the 
     provision of activities for youth;
       [``(C) a description of the State, local, and private 
     resources that will be leveraged to provide the activities 
     described under subparagraph (A) in addition to funds 
     provided under this subsection, and a description of the 
     extent of the involvement of employers in the activities;
       [``(D) the levels of performance the eligible entity 
     expects to achieve with respect to the indicators of 
     performance for youth specified in section 136(b)(2)(A)(ii); 
     and
       [``(E) an assurance that the State board of each State in 
     which the proposed activities are to be carried out had the 
     opportunity to review the application, and including the 
     comments, if any, of the affected State boards on the 
     application, except that this subparagraph shall not apply to 
     an eligible entity described in paragraph (2)(C).
       [``(4) Factors for award.--
       [``(A) In general.--In awarding grants under this 
     subsection the Secretary shall consider--
       [``(i) the quality of the proposed activities;
       [``(ii) the goals to be achieved;
       [``(iii) the likelihood of successful implementation;
       [``(iv) the extent to which the proposed activities are 
     based on proven strategies or the extent to which the 
     proposed activities will expand the base of knowledge 
     relating to the provision of activities for youth;
       [``(v) the extent of collaboration with the State and local 
     workforce investment systems in carrying out the proposed 
     activities;
       [``(vi) the extent of employer involvement in the proposed 
     activities;
       [``(vii) whether there are other Federal and non-Federal 
     funds available for similar activities to the proposed 
     activities, and the additional State, local, and private 
     resources that will be provided to carry out the proposed 
     activities; and
       [``(viii) the quality of proposed activities in meeting the 
     needs of the youth to be served.
       [``(B) Equitable geographic distribution.--In awarding 
     grants under this subsection the Secretary shall ensure an 
     equitable distribution of such grants across geographically 
     diverse areas.
       [``(5) Use of funds.--
       [``(A) In general.--An eligible entity that receives a 
     grant under this subsection shall use the grant funds to 
     carry out activities that are designed to assist youth in 
     acquiring the skills, credentials, and employment experience 
     that are necessary to succeed in the labor market, including 
     the activities identified in section 129.
       [``(B) Activities.--The activities carried out pursuant to 
     subparagraph (A) may include the following:
       [``(i) Training and internships for out-of-school youth in 
     sectors of the economy experiencing, or projected to 
     experience, high growth.
       [``(ii) Dropout prevention activities for in-school youth.
       [``(iii) Activities designed to assist special youth 
     populations, such as court-involved youth and youth with 
     disabilities.
       [``(iv) Activities combining remediation of academic 
     skills, work readiness training, and work experience, and 
     including linkages to postsecondary education, 
     apprenticeships, and career-ladder employment.
       [``(v) Activities, including work experience, paid 
     internships, and entrepreneurial training, in areas where 
     there is a migration of youth out of the areas.
       [``(C) Participant eligibility.--Youth who are 14 years of 
     age through 21 years of age, as of the time the eligibility 
     determination is made, may be eligible to participate in 
     activities carried out under this subsection.
       [``(6) Grant period.--The Secretary shall make a grant 
     under this subsection for a period of 2 years and may renew 
     the grant, if

[[Page 28961]]

     the eligible entity has performed successfully, for a period 
     of not more than 3 succeeding years.
       [``(7) Matching funds required.--The Secretary shall 
     require that an eligible entity that receives a grant under 
     this subsection provide non-Federal matching funds in an 
     amount to be determined by the Secretary that is not less 
     than 10 percent of the cost of activities carried out under 
     the grant. The Secretary may require that such non-Federal 
     matching funds be provided in cash resources, noncash 
     resources, or a combination of cash and noncash resources.
       [``(8) Evaluation.--The Secretary shall reserve not more 
     than 3 percent of the funds described in subsection (a)(1) to 
     provide technical assistance to, and conduct evaluations of 
     (using appropriate techniques as described in section 
     172(c)), the projects funded under this subsection.
       [``(c) Discretionary Grants for Youth Activities.--
       [``(1) In general.--From the funds described in subsection 
     (a)(2), the Secretary may award grants to eligible entities 
     to provide activities that will assist youth in preparing 
     for, and entering and retaining, employment.
       [``(2) Eligible entity.--In this subsection, the term 
     `eligible entity' means a public or private entity that the 
     Secretary determines would effectively carry out activities 
     relating to youth under this subsection.
       [``(3) Equitable distribution to rural areas.--In awarding 
     grants under this subsection the Secretary shall ensure an 
     equitable distribution of such grants to rural areas.
       [``(4) Applications.--To be eligible to receive a grant 
     under this subsection, an eligible entity shall submit an 
     application to the Secretary at such time, in such manner, 
     and containing such information as the Secretary may require.
       [``(5) Use of funds.--
       [``(A) In general.--An eligible entity that receives a 
     grant under this subsection shall use the grant funds to 
     carry out--
       [``(i) activities that will assist youth in preparing for, 
     and entering and retaining, employment, including the 
     activities described in section 129 for out-of-school youth;
       [``(ii) activities designed to assist in-school youth to 
     stay in school and gain work experience;
       [``(iii) activities designed to assist youth in 
     economically distressed areas; and
       [``(iv) such other activities that the Secretary determines 
     are appropriate to ensure that youth entering the workforce 
     have the skills needed by employers.
       [``(B) Participant eligibility.--Youth who are 14 years of 
     age through 21 years of age, as of the time the eligibility 
     determination is made, may be eligible to participate in 
     activities carried out under this subsection.
       [``(6) Matching funds required.--The Secretary shall 
     require that an eligible entity that receives a grant under 
     this subsection provide non-Federal matching funds in an 
     amount to be determined by the Secretary that is not less 
     than 10 percent of the cost of activities carried out under 
     the grant. The Secretary may require that such non-Federal 
     matching funds be provided in cash resources, noncash 
     resources, or a combination of cash and noncash resources.
       [``(7) Evaluations.--The Secretary may require that an 
     eligible entity that receives a grant under this subsection 
     participate in an evaluation of activities carried out under 
     this subsection, including an evaluation using the techniques 
     described in section 172(c).''.

     [SEC. 145. TECHNICAL ASSISTANCE.

       [Section 170 (29 U.S.C. 2915) is amended--
       [(1) in subsection (a)(1), by--
       [(A) inserting ``the training of staff providing rapid 
     response services, the training of other staff of recipients 
     of funds under this title, the training of members of State 
     boards and local boards, peer review activities under this 
     title,'' after ``localities,''; and
       [(B) striking ``from carrying out activities'' and all that 
     follows through the period and inserting ``to implement the 
     amendments made by the Workforce Investment Act Amendments of 
     2003.'';
       [(2) in subsection (a)(2), by adding at the end the 
     following: ``The Secretary shall also hire staff qualified to 
     provide the assistance described in paragraph (1).'';
       [(3) in subsection (b)(2), by striking the last sentence 
     and inserting ``Such projects shall be administered by the 
     Employment and Training Administration.''; and
       [(4) by adding at the end the following:
       [``(c) Best Practices Coordination.--The Secretary shall--
       [``(1) establish a system through which States may share 
     information regarding best practices with regard to the 
     operation of workforce investment activities under this Act;
       [``(2) evaluate and disseminate information regarding best 
     practices and identify knowledge gaps; and
       [``(3) commission research under section 172 to address 
     knowledge gaps identified under paragraph (2).''.

     [SEC. 146. DEMONSTRATION, PILOT, MULTISERVICE, RESEARCH, AND 
                   MULTISTATE PROJECTS.

       [(a) Demonstration and Pilot Projects.--Section 171(b) (29 
     U.S.C. 2916(b)) is amended--
       [(1) in paragraph (1)--
       [(A) by striking ``Under a'' and inserting ``Consistent 
     with the priorities specified in the'';
       [(B) by striking subparagraphs (A) through (E) and 
     inserting the following:
       [``(A) projects that assist national employers in 
     connecting with the workforce investment system established 
     under this title in order to facilitate the recruitment and 
     employment of needed workers for career ladder jobs and to 
     provide information to such system on skills and occupations 
     in demand;
       [``(B) projects that promote the development of systems 
     that will improve the maximum effectiveness of programs 
     carried out under this title;
       [``(C) projects that focus on opportunities for employment 
     in industries and sectors of industries that are 
     experiencing, or are likely to experience, high rates of 
     growth and jobs with wages leading to self-sufficiency;
       [``(D) projects that establish and implement innovative 
     integrated systems training programs targeted to dislocated, 
     disadvantaged incumbent workers that utilize equipment and 
     curriculum designed in partnership with local, regional, or 
     national industries that is computerized, individualized, 
     self-paced, and interactive that delivers skills and 
     proficiencies that are measurable to train workers for 
     employment in the operations, repair, and maintenance of 
     high-tech equipment that is used in integrated systems 
     technology;
       [``(E) projects carried out by States and local areas to 
     test innovative approaches to delivering employment-related 
     services;'';
       [(C) in subparagraph (G), by striking ``and'' after the 
     semicolon; and
       [(D) by striking subparagraph (H) and inserting the 
     following:
       [``(H) projects that provide retention grants to qualified 
     job training programs upon placement or retention of a low-
     income individual trained by the program in employment with a 
     single employer for a period of 1 year, if such employment 
     provides the low-income individual with an annual salary that 
     is not less than twice the poverty line applicable to the 
     individual;
       [``(I) targeted innovation projects that improve access to 
     and delivery of employment and training services, with 
     emphasis given to projects that incorporate advanced 
     technologies to facilitate the connection of individuals to 
     the information and tools they need to upgrade skills; and
       [``(J) projects that promote the use of distance learning, 
     enabling students to take courses through the use of media 
     technology such as videos, teleconferencing computers, and 
     the Internet.''; and
       [(2) in paragraph (2)--
       [(A) by striking subparagraph (B); and
       [(B) by redesignating subparagraph (C) as subparagraph (B).
       [(b) Multiservice Projects.--Section 171(c)(2)(B) (29 
     U.S.C. 2916(c)(2)(B)) is amended to read as follows:
       [``(B) Studies and reports.--
       [``(i) Net impact studies and reports.--

       [``(I) In general.--The Secretary shall conduct studies to 
     determine the net impacts of programs, services, and 
     activities carried out under this title.
       [``(II) Reports.--The Secretary shall prepare and 
     disseminate to the public reports containing the results of 
     the studies conducted under subclause (I).

       [``(ii) Study on resources available to assist out-of-
     school youth.--The Secretary, in coordination with the 
     Secretary of Education, may conduct a study examining the 
     resources available at the Federal, State, and local levels 
     to assist out-of-school youth in obtaining the skills, 
     credentials, and work experience necessary to become 
     successfully employed, including the availability of funds 
     provided through average daily attendance and other 
     methodologies used by States and local areas to distribute 
     funds.
       [``(iii) Study of industry-based certification and 
     credentials.--

       [``(I) In general.--The Secretary shall conduct a study 
     concerning the role and benefits of credentialing and 
     certification to businesses and workers in the economy and 
     the implications of certification to the services provided 
     through the workforce investment system. The study may 
     examine issues such as--

       [``(aa) the characteristics of successful credentialing and 
     certification systems that serve business and individual 
     needs;
       [``(bb) the relative proportions of certificates and 
     credentials attained with assistance from the public sector, 
     with private-sector training of new hires or incumbent 
     workers, and by individuals on their own initiative without 
     other assistance, respectively;
       [``(cc) the return on human capital investments from 
     occupational credentials and industry-based skill 
     certifications, including the extent to which acquisition of 
     such credentials or certificates enhances outcomes such as 
     entry into employment, retention, earnings (including the 
     number and amount of wage increases), career advancement, and 
     layoff aversion;
       [``(dd) the implications of the effects of skill 
     certifications and credentials to the types and delivery of 
     services provided through the workforce investment system;

[[Page 28962]]

       [``(ee) the role that Federal and State governments play in 
     fostering the development of and disseminating credentials 
     and skill standards; and
       [``(ff) the use of credentials by businesses to achieve 
     goals for workforce skill upgrading and greater operating 
     efficiency.

       [``(II) Report to congress.--The Secretary shall prepare 
     and submit to Congress a report containing the results of the 
     study conducted pursuant to subclause (I). Such report may 
     include any recommendations that the Secretary determines are 
     appropriate to include in such report relating to promoting 
     the acquisition of industry-based certification and 
     credentials, and the appropriate role of the Department of 
     Labor and the workforce investment system in supporting the 
     needs of business and individuals with respect to such 
     certification and credentials.

       [``(iv) Study of effectiveness of workforce investment 
     system in meeting business needs.--

       [``(I) In general.--Using funds available to carry out this 
     section jointly with funds available to the Secretary of 
     Commerce and Administrator of the Small Business 
     Administration, the Secretary, in coordination with the 
     Secretary of Commerce and the Administrator of the Small 
     Business Administration, may conduct a study of the 
     effectiveness of the workforce investment system in meeting 
     the needs of business, with particular attention to the needs 
     of small business, including in assisting workers to obtain 
     the skills needed to utilize emerging technologies. In 
     conducting the study, the Secretary, in coordination with the 
     Secretary of Commerce and the Administrator of the Small 
     Business Administration, may examine issues such as--

       [``(aa) methods for identifying the workforce needs of 
     businesses and how the requirements of small businesses may 
     differ from larger establishments;
       [``(bb) business satisfaction with the workforce investment 
     system, with particular emphasis on the satisfaction of small 
     businesses;
       [``(cc) the extent to which business is engaged as a 
     collaborative partner in the workforce investment system, 
     including the extent of business involvement as members of 
     State boards and local boards, and the extent to which such 
     boards and one-stop centers effectively collaborate with 
     business and industry leaders in developing workforce 
     investment strategies, including strategies to identify high 
     growth opportunities;
       [``(dd) ways in which the workforce investment system 
     addresses changing skill needs of business that result from 
     changes in technology and work processes;
       [``(ee) promising practices for serving small businesses;
       [``(ff) the extent and manner in which the workforce 
     investment system uses technology to serve business and 
     individual needs, and how uses of technology could enhance 
     efficiency and effectiveness in providing services; and
       [``(gg) the extent to which various segments of the labor 
     force have access to and utilize technology to locate job 
     openings and apply for jobs, and characteristics of 
     individuals utilizing such technology (such as age, gender, 
     race or ethnicity, industry sector, and occupational groups).

       [``(II) Report to congress.--The Secretary shall prepare 
     and submit to Congress a report containing the results of the 
     study described in clause (I). Such report may include any 
     recommendations the Secretary determines are appropriate to 
     include in such report, including ways to enhance the 
     effectiveness of the workforce investment system in meeting 
     the needs of business for skilled workers.''.

       [(c) Conforming Amendment.--Section 171(d) (29 U.S.C. 
     2916(d)) is amended by striking the last sentence.
       [(d) Waiver Authority To Carry Out Demonstrations and 
     Evaluations.--Section 171 (29 U.S.C. 2916) is amended by 
     adding at the end the following:
       [``(d) Waiver Authority.--In carrying out demonstration, 
     pilot, multiservice, research, and multistate projects under 
     this section and evaluations under section 172, the Secretary 
     may waive any provisions of this section that the Secretary 
     determines would prevent the Secretary from carrying out such 
     projects and evaluations, except for provisions relating to 
     wage and labor standards such as nondisplacement protections, 
     grievance procedures and judicial review, and 
     nondiscrimination provisions.''.
       [(e) Next Generation Technologies.--Section 171 (29 U.S.C. 
     2916) is amended further by adding at the end the following:
       [``(e) Skill Certification Pilot Projects.--
       [``(1) Pilot projects.--In accordance with subsection (b) 
     and from funds appropriated pursuant to paragraph (10), the 
     Secretary of Labor shall establish and carry out not more 
     than 10 pilot projects to establish a system of industry-
     validated national certifications of skills, including--
       [``(A) not more than 8 national certifications of skills in 
     high-technology industries, including biotechnology, 
     telecommunications, highly automated manufacturing (including 
     semiconductors), nanotechnology, and energy technology; and
       [``(B) not more than 2 cross-disciplinary national 
     certifications of skills in homeland security technology.
       [``(2) Grants to eligible entities.--In carrying out the 
     pilot projects, the Secretary of Labor shall make grants to 
     eligible entities, for periods of not less than 36 months and 
     not more than 48 months, to carry out the authorized 
     activities described in paragraph (7) with respect to the 
     certifications described in paragraph (1). In awarding grants 
     under this subsection the Secretary of Labor shall take into 
     consideration awarding grants to eligible entities from 
     diverse geographic areas, including rural areas.
       [``(3) Eligible entities.--
       [``(A) Definition of eligible entity.--In this subsection 
     the term `eligible entity' means an entity that shall work in 
     conjunction with a local board and shall include as a 
     principal participant one or more of the following:
       [``(i) A community college or consortium of community 
     colleges.
       [``(ii) An advanced technology education center.
       [``(iii) A local workforce investment board.
       [``(iv) A representative of a business in a target industry 
     for the certification involved.
       [``(v) A representative of an industry association, labor 
     organization, or community development organization.
       [``(B) History of demonstrated capability required.--To be 
     eligible to receive a grant under this subsection, an 
     eligible entity shall have a history of demonstrated 
     capability for effective collaboration with industry on 
     workforce development activities that is consistent with the 
     goals of this Act.
       [``(4) Applications.--To be eligible to receive a grant 
     under this subsection, an eligible entity shall submit an 
     application to the Secretary of Labor at such time, in such 
     manner, and containing such information as the Secretary may 
     require.
       [``(5) Criteria.--The Secretary of Labor shall establish 
     criteria, consistent with paragraph (6), for awarding grants 
     under this subsection.
       [``(6) Priority.--In selecting eligible entities to receive 
     grants under this subsection, the Secretary of Labor shall 
     give priority to eligible entities that demonstrate the 
     availability of and ability to provide matching funds from 
     industry or nonprofit sources. Such matching funds may be 
     provided in cash or in kind.
       [``(7) Authorized activities.--
       [``(A) In general.--An eligible entity that receives a 
     grant under this subsection shall use the funds made 
     available through the grant--
       [``(i) to facilitate the establishment of certification 
     requirements for a certification described in paragraph (1) 
     for an industry;
       [``(ii) to develop and initiate a certification program 
     that includes preparatory courses, course materials, 
     procedures, and examinations, for the certification; and
       [``(iii) to collect and analyze data related to the program 
     at the program's completion, and to identify best practices 
     (consistent with paragraph (8)) that may be used by local and 
     State workforce investment boards in the future.
       [``(B) Basis for requirements.--The certification 
     requirements shall be based on applicable skill standards for 
     the industry involved that have been developed by or linked 
     to national centers of excellence under the National Science 
     Foundation's Advanced Technological Education Program. The 
     requirements shall require an individual to demonstrate an 
     identifiable set of competencies relevant to the industry in 
     order to receive certification. The requirements shall be 
     designed to provide evidence of a transferable skill set that 
     allows flexibility and mobility of workers within a high 
     technology industry.
       [``(C) Relationship to training and education programs.--
     The eligible entity shall ensure that--
       [``(i) a training and education program related to 
     competencies for the industry involved, that is flexible in 
     mode and timeframe for delivery and that meets the needs of 
     those seeking the certification, is offered; and
       [``(ii) the certification program is offered at the 
     completion of the training and education program.
       [``(D) Relationship to the associate degree.--The eligible 
     entity shall ensure that the certification program is 
     consistent with the requirements for a 2-year associate 
     degree.
       [``(E) Availability.--The eligible entity shall ensure that 
     the certification program is open to students pursuing 
     associate degrees, employed workers, and displaced workers.
       [``(8) Consultation.--The Secretary of Labor shall consult 
     with the Director of the National Science Foundation to 
     ensure that the pilot projects build on the expertise and 
     information about best practices gained through the 
     implementation of the National Science Foundation's Advanced 
     Technological Education Program.
       [``(9) Core components; guidelines; reports.--After 
     collecting and analyzing the data obtained from the pilot 
     programs, the Secretary of Labor shall--
       [``(A) establish the core components of a model high-
     technology certification program;

[[Page 28963]]

       [``(B) establish guidelines to assure development of a 
     uniform set of standards and policies for such programs;
       [``(C) submit and prepare a report on the pilot projects to 
     the Committee on Health, Education, Labor, and Pensions of 
     the Senate and the Committee on Education and the Workforce 
     of the House of Representatives; and
       [``(D) make available to the public both the data and the 
     report.
       [``(10) Authorization of appropriations.--In addition to 
     amounts authorized to be appropriated under section 174(b), 
     there is authorized to be appropriated $30,000,000 for fiscal 
     year 2004 to carry out this subsection.''.
       [(f) Integrated Workforce Training Programs for Adults With 
     Limited English Proficiency.--Section 171 (29 U.S.C. 2916) is 
     amended further by adding at the end the following:
       [``(f) Integrated Workforce Training Programs for Adults 
     With Limited English Proficiency.--
       [``(1) Definitions.--In this subsection:
       [``(A) Integrated workforce training.--The term `integrated 
     workforce training' means training that integrates 
     occupational skills training with language acquisition.
       [``(B) Secretary.--The term `Secretary' means the Secretary 
     of Labor in consultation with the Secretary of Education.
       [``(2) Demonstration project.--In accordance with 
     subsection (b) and from funds appropriated pursuant to 
     paragraph (11), the Secretary shall establish and implement a 
     national demonstration project designed to both analyze and 
     provide data on workforce training programs that integrate 
     English language acquisition and occupational training.
       [``(3) Grants.--
       [``(A) In general.--In carrying out the demonstration 
     project, the Secretary shall make not less than 10 grants, on 
     a competitive basis, to eligible entities to provide the 
     integrated workforce training programs. In awarding grants 
     under this subsection the Secretary shall take into 
     consideration awarding grants to eligible entities from 
     diverse geographic areas, including rural areas.
       [``(B) Periods.--The Secretary shall make the grants for 
     periods of not less than 24 months and not more than 48 
     months.
       [``(4) Eligible entities.--
       [``(A) In general.--To be eligible to receive a grant under 
     this subsection, an eligible entity shall work in conjunction 
     with a local board and shall include as a principal 
     participant one or more of the following:
       [``(i) An employer or employer association.
       [``(ii) A nonprofit provider of English language 
     instruction.
       [``(iii) A provider of occupational or skills training.
       [``(iv) A community-based organization.
       [``(v) An educational institution, including a 2- or 4-year 
     college, or a technical or vocational school.
       [``(vi) A labor organization.
       [``(vii) A local board.
       [``(B) Expertise.--To be eligible to receive a grant under 
     this subsection, an eligible entity shall have proven 
     expertise in--
       [``(i) serving individuals with limited English 
     proficiency, including individuals with lower levels of oral 
     and written English; and
       [``(ii) providing workforce programs with training and 
     English language instruction.
       [``(5) Applications.--
       [``(A) In general.--To be eligible to receive a grant under 
     this subsection, an eligible entity shall submit an 
     application to the Secretary at such time, in such manner, 
     and containing such information as the Secretary may require.
       [``(B) Contents.--Each application submitted under 
     subparagraph (A) shall--
       [``(i) contain information, including capability 
     statements, that demonstrates that the eligible entity has 
     the expertise described in paragraph (4)(B); and
       [``(ii) include an assurance that the program to be 
     assisted shall--

       [``(I) establish a generalized adult bilingual workforce 
     training and education model that integrates English language 
     acquisition and occupational training, and incorporates the 
     unique linguistic and cultural factors of the participants;
       [``(II) establish a framework by which the employer, 
     employee, and other relevant members of the eligible entity 
     can create a career development and training plan that 
     assists both the employer and the employee to meet their 
     long-term needs;

       [``(III) ensure that this framework takes into 
     consideration the knowledge, skills, and abilities of the 
     employee with respect to both the current and economic 
     conditions of the employer and future labor market conditions 
     relevant to the local area; and
       [``(IV) establish identifiable measures so that the 
     progress of the employee and employer and the relative 
     efficacy of the program can be evaluated and best practices 
     identified.

       [``(6) Criteria.--The Secretary of Labor shall establish 
     criteria for awarding grants under this subsection.
       [``(7) Integrated workforce training programs.--
       [``(A) Program components.--
       [``(i) Required components.--Each program that receives 
     funding under this subsection shall--

       [``(I) test an individual's English language proficiency 
     levels to assess oral and literacy gains from the beginning 
     and throughout program enrollment;
       [``(II) combine training specific to a particular 
     occupation or occupational cluster, with--

       [``(aa) English language instruction, such as instruction 
     through English as a Second Language program, or English for 
     Speakers of Other Languages;
       [``(bb) basic skills instruction; and
       [``(cc) supportive services;

       [``(III) effectively integrate public and private sector 
     entities, including the local workforce investment system and 
     its functions, to achieve the goals of the program; and
       [``(IV) require matching or in-kind resources from private 
     and nonprofit entities.

       [``(ii) Permissible components.--The program may offer 
     other services, as necessary to promote successful 
     participation and completion, including work-based learning, 
     substance abuse treatment, and mental health services.
       [``(B) Goal.--Each program that receives funding under this 
     subsection shall be designed to prepare limited English 
     proficient adults for and place such adults in employment in 
     growing industries with identifiable career ladder paths.
       [``(C) Program types.--In selecting programs to receive 
     funding under this subsection, the Secretary shall select 
     programs that meet 1 or more of the following criteria:
       [``(i) A program that--

       [``(I) serves unemployed, limited English proficient 
     individuals with significant work experience or substantial 
     education but persistently low wages; and
       [``(II) aims to prepare such individuals for and place such 
     individuals in higher paying employment, defined for purposes 
     of this subparagraph as employment that provides at least 75 
     percent of the median wage in the local area.

       [``(ii) A program that--

       [``(I) serves limited English proficient individuals with 
     lower levels of oral and written fluency, who are working but 
     at persistently low wages; and
       [``(II) aims to prepare such individuals for and place such 
     individuals in higher paying employment, through services 
     provided at the worksite, or at a location central to several 
     worksites, during work hours.

       [``(iii) A program that--

       [``(I) serves unemployed, limited English proficient 
     individuals with lower levels of oral and written fluency, 
     who have little or no work experience; and
       [``(II) aims to prepare such individuals for and place such 
     individuals in employment through services that include 
     subsidized employment, in addition to the components required 
     in subparagraph (A)(i).

       [``(iv) A program that includes funds from private and 
     nonprofit entities.
       [``(D) Program approaches.--In selecting programs to 
     receive funding under this subsection, the Secretary shall 
     select programs with different approaches to integrated 
     workforce training, in different contexts, in order to obtain 
     comparative data on multiple approaches to integrated 
     workforce training and English language instruction, to 
     ensure programs are tailored to characteristics of 
     individuals with varying skill levels and to assess how 
     different curricula work for limited English proficient 
     populations. Such approaches may include--
       [``(i) bilingual programs in which the workplace language 
     component and the training are conducted in a combination of 
     an individual's native language and English;
       [``(ii) integrated workforce training programs that combine 
     basic skills, language instruction, and job specific skills 
     training; or
       [``(iii) sequential programs that provide a progression of 
     skills, language, and training to ensure success upon an 
     individual's completion of the program.
       [``(8) Evaluation by eligible entity.--Each eligible entity 
     that receives a grant under this subsection for a program 
     shall carry out a continuous program evaluation and an 
     evaluation specific to the last phase of the program 
     operations.
       [``(9) Evaluation by secretary.--
       [``(A) In general.--The Secretary shall conduct an 
     evaluation of program impacts of the programs funded under 
     the demonstration project, with a random assignment, 
     experimental design impact study done at each worksite at 
     which such a program is carried out.
       [``(B) Data collection and analysis.--The Secretary shall 
     collect and analyze the data from the demonstration project 
     to determine program effectiveness, including gains in 
     language proficiency, acquisition of skills, and job 
     advancement for program participants.
       [``(C) Report.--The Secretary shall prepare and submit to 
     the Committee on Health, Education, Labor, and Pensions of 
     the Senate and the Committee on Education and the Workforce 
     of the House of Representatives, and make available to the 
     public, a report on the demonstration project, including the 
     results of the evaluation.
       [``(10) Technical assistance.--The Secretary shall provide 
     technical assistance to

[[Page 28964]]

     recipients of grants under this subsection throughout the 
     grant periods.
       [``(11) Authorization of appropriations.--In addition to 
     amounts authorized to be appropriated under section 174(b), 
     there is authorized to be appropriated $10,000,000 for fiscal 
     year 2004 to carry out this subsection.''.

     [SEC. 147. NATIONAL DISLOCATED WORKER GRANTS.

       [(a) In General.--Section 173 (29 U.S.C. 2918) is amended--
       [(1) by striking the heading and inserting the following:

     [``SEC. 173. NATIONAL DISLOCATED WORKER GRANTS.'';

       [and
       [(2) in subsection (a)--
       [(A) by striking ``national emergency grants'' and 
     inserting ``national dislocated worker grants'';
       [(B) in paragraph (1), by striking ``subsection (c)'' and 
     inserting ``subsection (b)'';
       [(C) in paragraph (3), by striking ``and'' after the 
     semicolon; and
       [(D) by striking paragraph (4) and inserting the following:
       [``(4) to a State or entity (as defined in subsection 
     (b)(1)(B)) to carry out subsection (d), including providing 
     assistance to eligible individuals;
       [``(5) to a State or entity (as defined in subsection 
     (b)(1)(B)) to carry out subsection (e), including providing 
     assistance to eligible individuals; and
       [``(6) to provide additional assistance to a State board or 
     local board where a higher than average demand for employment 
     and training services for dislocated members of the Armed 
     Forces, or spouses of members of the Armed Forces as 
     described in subsection (c)(2)(A)(iv), exceeds State and 
     local resources for providing such services, and where such 
     programs are to be carried out in partnership with the 
     Departments of Defense and Veterans Affairs transition 
     assistance programs.''.
       [(b) Administration and Additional Assistance.--Section 173 
     (29 U.S.C. 2918) is amended--
       [(1) by striking subsection (b);
       [(2) by redesignating subsections (c) through (g) as 
     subsections (b) through (f), respectively;
       [(3) by striking subsection (d) (as redesignated by 
     paragraph (2)) and inserting the following:
       [``(d) Additional Assistance.--
       [``(1) In general.--From the amount appropriated and made 
     available to carry out this section for any program year, the 
     Secretary shall use not more than $20,000,000 to make grants 
     to States to provide employment and training activities under 
     section 134, in accordance with subtitle B.
       [``(2) Eligible states.--The Secretary shall make a grant 
     under paragraph (1) to a State for a program year if--
       [``(A) the amount of the allotment that would be made to 
     the State for the program year 2003 under the formula 
     specified in section 132(b)(1)(B) as such section was in 
     effect on July 1, 2003, is greater than
       [``(B) the amount of the allotment that would be made to 
     the State for the program year under the formula specified in 
     section 132(b)(1)(B).
       [``(3) Amount of grants.--Subject to paragraph (1), the 
     amount of the grant made under paragraph (1) to a State for a 
     program year shall be based on the difference between--
       [``(A) the amount of the allotment that would be made to 
     the State for the program year 2003 under the formula 
     specified in section 132(b)(1)(B) as such section was in 
     effect on July 1, 2003; and
       [``(B) the amount of the allotment that would be made to 
     the State for the program year under the formula specified in 
     section 132(b)(1)(B).'';
       [(4) in subsection (e) (as redesignated by paragraph (2))--
       [(A) in paragraph (1), by striking ``paragraph (4)(A)'' and 
     inserting ``paragraph (4)'';
       [(B) in paragraph (2), by striking ``subsection (g)'' and 
     inserting ``subsection (e)'';
       [(C) in paragraph (4), by striking ``subsection (g)'' and 
     inserting ``subsection (e)'';
       [(D) in paragraph (5), by striking ``subsection (g)'' and 
     inserting ``subsection (e)''; and
       [(E) in paragraph (6)--
       [(i) by striking ``subsection (g)'' and inserting 
     ``subsection (e)''; and
       [(ii) by striking ``subsection (c)(1)(B)'' and inserting 
     ``subsection (b)(1)(B)''; and
       [(5) in subsection (f)(1) (as redesignated by paragraph 
     (2))--
       [(A) by striking ``paragraph (4)(B)'' and inserting 
     ``paragraph (4)''; and
       [(B) by striking ``subsection (f)(1)(A)'' and inserting 
     ``subsection (d)(1)(A)''.

     [SEC. 148. AUTHORIZATION OF APPROPRIATIONS FOR NATIONAL 
                   ACTIVITIES.

       [(a) In General.--Section 174(a)(1) (29 U.S.C. 2919(a)(1)) 
     is amended by striking ``1999 through 2003'' and inserting 
     ``2004 through 2009''.
       [(b) Reservations.--Section 174(b) (29 U.S.C. 2919(b)) is 
     amended to read as follows:
       [``(b) Technical Assistance; Demonstration and Pilot 
     Projects, Evaluations, Incentive Grants.--There are 
     authorized to be appropriated to carry out sections 170 
     through 172 and section 136(i) such sums as may be necessary 
     for each of fiscal years 2004 through 2009.''.

                      [Subtitle E--Administration

     [SEC. 151. REQUIREMENTS AND RESTRICTIONS.

       [Section 181(e) (29 U.S.C. 2931(e)) is amended by striking 
     ``economic development activities,''.

     [SEC. 152. COST PRINCIPLES.

       [The matter preceding clause (i) of section 184(a)(2)(B) 
     (29 U.S.C. 2934(a)(2)(B)) is amended by striking ``section 
     134(a)(3)(B)'' and inserting ``section 134(a)(4)''.

     [SEC. 153. REPORTS.

       [Section 185(c) (29 U.S.C. 2935(c)) is amended--
       [(1) in paragraph (2), by striking ``and'' after the 
     semicolon``
       [(2) in paragraph (3), by striking the period and inserting 
     ``; and''; and
       [(3) by adding at the end the following:
       [``(4) shall have the option to submit or disseminate 
     electronically any reports, records, plans, or any other data 
     that are required to be collected or disseminated under this 
     Act.''.

     [SEC. 154. ADMINISTRATIVE PROVISIONS.

       [(a) Annual Report.--Section 189(d) (29 U.S.C. 2939(d)) is 
     amended--
       [(1) in paragraph (3), by striking ``and'' after the 
     semicolon;
       [(2) by redesignating paragraph (4) as paragraph (5); and
       [(3) by inserting after paragraph (3) the following:
       [``(4) the negotiated levels of performance of the States, 
     the States' requests for adjustments of such levels, and the 
     adjustments of such levels that are made; and''.
       [(b) Program Year.--Section 189(g)(1)(B) (29 U.S.C. 
     2939(g)(1)(B)) is amended--
       [(1) by striking ``The'' and inserting ``For fiscal years 
     preceding fiscal year 2005, the''; and
       [(2) by inserting ``such'' after ``any''.
       [(c) Availability.--Section 189(g)(2) (29 U.S.C. 
     2939(g)(2)) is amended, in the first sentence--
       [(1) by striking ``Funds'' and inserting ``Except as 
     otherwise provided in this paragraph, funds''; and
       [(2) by striking ``each State receiving'' and inserting 
     ``each recipient of''.
       [(d) General Waivers.--Section 189(i)(4) (29 U.S.C. 
     2939(i)(4)) is amended by adding at the end the following:
       [``(D) Expedited requests.--The Secretary shall expedite 
     requests for waivers of statutory or regulatory requirements 
     that have been approved for a State pursuant to subparagraph 
     (B), provided the requirements of this section have been 
     satisfied.''.

     [SEC. 155. USE OF CERTAIN REAL PROPERTY.

       [Section 193 (29 U.S.C. 2943) is amended to read as 
     follows:

     [``SEC. 193. TRANSFER OF FEDERAL EQUITY IN STATE EMPLOYMENT 
                   SECURITY AGENCY REAL PROPERTY TO THE STATES.

       [``(a) Transfer of Federal Equity.--Notwithstanding any 
     other provision of law, any Federal equity acquired in real 
     property through grants to States awarded under title III of 
     the Social Security Act (42 U.S.C. 501 et seq.) or under the 
     Wagner-Peyser Act is transferred to the States that used the 
     grants for the acquisition of such equity. The portion of any 
     real property that is attributable to the Federal equity 
     transferred under this section shall be used to carry out 
     activities authorized under title III of the Social Security 
     Act or the Wagner-Peyser Act. Any disposition of such real 
     property shall be carried out in accordance with the 
     procedures prescribed by the Secretary and the portion of the 
     proceeds from the disposition of such real property that is 
     attributable to the Federal equity transferred under this 
     section shall be used to carry out activities authorized 
     under title III of the Social Security Act or the Wagner-
     Peyser Act.
       [``(b) Limitation on Use.--A State shall not use funds 
     awarded under title III of the Social Security Act or the 
     Wagner-Peyser Act to amortize the costs of real property that 
     is purchased by any State on or after the effective date of 
     this provision.''.

     [SEC. 156. TABLE OF CONTENTS.

       [Section 1(b) (29 U.S.C. 9201 note) is amended--
       [(1) by striking the item relating to section 123 and 
     inserting the following:

[``Sec. 123. Eligible providers of youth activities.'';

       [(2) by striking the item relating to section 169 and 
     inserting the following:

[``Sec. 169. Youth challenge grants.'';

       [(3) by striking the item relating to section 193 and 
     inserting the following:

[``Sec. 193. Transfer of Federal equity in State employment security 
              agency real property to the States.'';

       [(4) by striking the item relating to section 173 and 
     inserting the following:

[``Sec. 173. National dislocated worker grants.'';

       [(5) by inserting after the item relating to section 212 
     the following:

[``Sec. 213. Incentive grants for States.'';

     and
       [(6) by inserting after the item relating to section 243 
     the following:

[``Sec. 244. Integrated english literacy and civics education.''.

[[Page 28965]]



  [TITLE II--AMENDMENTS TO THE ADULT EDUCATION AND FAMILY LITERACY ACT

     [SEC. 201. SHORT TITLE; PURPOSE.

       [(a) Short Title.--This title may be cited as the ``Adult 
     Education and Family Literacy Act Amendments of 2003''.
       [(b) Purpose.--Section 202 of the Adult Education and 
     Family Literacy Act (20 U.S.C. 9201) is amended--
       [(1) in paragraph (2), by striking ``and'' after the 
     semicolon;
       [(2) in paragraph (3), by striking ``education.'' and 
     inserting ``education and in the transition to postsecondary 
     education; and''; and
       [(3) by adding at the end the following:
       [``(4) assist immigrants and other individuals with limited 
     English proficiency in improving their reading, writing, 
     speaking, and mathematics skills and acquiring an 
     understanding of the American free enterprise system, 
     individual freedom, and the responsibilities of 
     citizenship.''.

     [SEC. 202. DEFINITIONS.

       [Section 203 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9202) is amended--
       [(1) in paragraph (1)--
       [(A) in the matter preceding subparagraph (A), by striking 
     ``services or instruction below the postsecondary level'' and 
     inserting ``academic instruction and education services below 
     the postsecondary level that increase an individual's ability 
     to read, write, and speak in English and perform mathematics 
     skills''; and
       [(B) by striking subparagraph (C)(i) and inserting the 
     following:
       [``(i) are basic skills deficient as defined in section 
     101;'';
       [(2) in paragraph (2), by striking ``activities described 
     in section 231(b)'' and inserting ``programs and services 
     which include reading, writing, speaking, or mathematics 
     skills, workplace literacy activities, family literacy 
     activities, English language acquisition activities, or other 
     activities necessary for the attainment of a secondary school 
     diploma or its State recognized equivalent'';
       [(3) in paragraph (5)--
       [(A) by inserting ``an organization that has demonstrated 
     effectiveness in providing adult education, that may 
     include'' after ``means'';
       [(B) in subparagraph (B), by striking ``of demonstrated 
     effectiveness'';
       [(C) in subparagraph (C), by striking ``of demonstrated 
     effectiveness''; and
       [(D) in subparagraph (I), by inserting ``or coalition'' 
     after ``consortium'';
       [(4) in paragraph (6)--
       [(A) by striking ``literacy program'' and inserting 
     ``language acquisition program'';
       [(B) by striking ``literacy program'' and inserting 
     ``language acquisition program''; and
       [(C) by inserting ``reading, writing, and speaking'' after 
     ``competence in'';
       [(5) by redesignating paragraphs (7) through (18) as 
     paragraphs (8) through (19), respectively;
       [(6) by inserting after paragraph (6) the following:
       [``(7) Essential components of reading instruction.--The 
     term `essential components of reading instruction' has the 
     meaning given the term in section 1208 of the Elementary and 
     Secondary Education Act of 1965 (20 U.S.C. 6368).''; and
       [(7) by striking paragraph (19), as redesignated by 
     paragraph (4), and inserting the following:
       [``(19) Workplace literacy program.--The term `workplace 
     literacy program' means an educational program designed to 
     improve the productivity of the workforce through the 
     improvement of literacy skills that is offered by an eligible 
     provider in collaboration with an employer or an employee 
     organization at a workplace, at an off-site location, or in a 
     simulated workplace environment.''.

     [SEC. 203. AUTHORIZATION OF APPROPRIATIONS.

       [Section 205 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9204) is amended--
       [(1) by striking ``1999'' and inserting ``2004''; and
       [(2) by striking ``2003'' and inserting ``2009''.

     [SEC. 204. RESERVATION OF FUNDS; GRANTS TO ELIGIBLE AGENCIES; 
                   ALLOTMENTS.

       [Section 211 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9211) is amended--
       [(1) by striking subsection (a) and inserting the 
     following:
       [``(a) Reservation of Funds.--From the sum appropriated 
     under section 205 for a fiscal year, the Secretary--
       [``(1) shall reserve 1.5 percent to carry out section 242, 
     except that the amount so reserved shall not exceed 
     $10,000,000;
       [``(2) shall reserve 1.5 percent to carry out section 243, 
     except that the amount so reserved shall not exceed 
     $8,000,000;
       [``(3) shall make available, to the Secretary of Labor, 
     1.72 percent for incentive grants under section 136(i); and
       [``(4) shall reserve 12 percent of the amount that remains 
     after reserving funds under paragraphs (1), (2) and (3) to 
     carry out section 244.'';
       [(2) by striking subsection (d) and inserting the 
     following:
       [``(d) Qualifying Adult.--For the purpose of subsection 
     (c)(2), the term `qualifying adult' means an adult who--
       [``(1) is not less than 16 years of age;
       [``(2) is beyond the age of compulsory school attendance 
     under the law of the State or outlying area;
       [``(3) does not have a secondary school diploma or its 
     recognized equivalent (including recognized alternative 
     standards for individuals with disabilities); and
       [``(4) is not enrolled in secondary school.'';
       [(3) in subsection (e)--
       [(A) by striking paragraph (2) and inserting the following:
       [``(2) Award basis.--The Secretary shall award grants 
     pursuant to paragraph (1) on a competitive basis and pursuant 
     to recommendations from the Pacific Region Educational 
     Laboratory in Honolulu, Hawaii.''; and
       [(B) in paragraph (3), by striking ``shall'' and all that 
     follows through the period and inserting ``shall be eligible 
     to receive a grant under this title until the date when an 
     agreement for the extension of the United States education 
     assistance under the Compact of Free Association for each of 
     the Freely Associated States becomes effective.''; and
       [(4) in subsection (f)--
       [(A) in the heading, by inserting ``Provisions'' after 
     ``Hold-Harmless'';
       [(B) by redesignating paragraph (2) as paragraph (3); and
       [(C) by striking paragraph (1) and inserting the following:
       [``(1) In general.--Notwithstanding subsection (c) and 
     subject to paragraphs (2) and (3), for fiscal year 2004 and 
     each succeeding fiscal year, no eligible agency shall receive 
     an allotment under this title that is less than 90 percent of 
     the allotment the eligible agency received for the preceding 
     fiscal year under this title.
       [``(2) 100 percent allotment.--An eligible agency shall 
     receive an allotment under this title that is equal to 100 
     percent of the allotment the eligible agency received for the 
     preceding fiscal year under this title if the eligible agency 
     received, for the preceding fiscal year, only an initial 
     allotment under subsection (c)(1) and did not receive an 
     additional allotment under subsection (c)(2).''.

     [SEC. 205. PERFORMANCE ACCOUNTABILITY SYSTEM.

       [Section 212 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9212) is amended--
       [(1) in subsection (b)--
       [(A) in paragraph (1)(A)(ii), by striking ``additional 
     indicators of performance (if any)'' and inserting 
     ``employment performance indicators'';
       [(B) in paragraph (2)--
       [(i) in subparagraph (A)--

       [(I) in clause (i), by striking ``Demonstrated'' and 
     inserting ``Measurable'';

       [(II) by striking clause (ii) and inserting the following:

       [``(ii) Placement in, retention in, or completion of, 
     postsecondary education or other training programs.''; and

       [(III) in clause (iii), by inserting ``(including 
     recognized alternative standards for individuals with 
     disabilities)'' after ``equivalent'';

       [(ii) by redesignating subparagraph (B) as subparagraph 
     (C);
       [(iii) by inserting after subparagraph (A), the following:
       [``(B) Employment performance indicators.--An eligible 
     agency shall identify in the State plan individual 
     participant employment performance indicators, including 
     entry into unsubsidized employment, retention in unsubsidized 
     employment, and career advancement. The State workforce 
     investment board shall assist the eligible agency in 
     obtaining and using quarterly wage records to collect data 
     for such indicators, consistent with applicable Federal and 
     State privacy laws.'';
       [(iv) in subparagraph (C), as redesignated by clause (ii), 
     by inserting ``relevant'' after ``additional''; and
       [(v) by adding at the end the following:
       [``(D) Indicators for workplace literacy programs.--Special 
     accountability measures may be negotiated for workplace 
     literacy programs.''; and
       [(C) in paragraph (3)--
       [(i) in subparagraph (A)--

       [(I) in clause (i)(II), by striking ``in performance'' and 
     inserting ``the agency's performance outcomes in an 
     objective, quantifiable, and measurable form'';
       [(II) in clause (ii), by striking ``3 programs years'' and 
     inserting ``2 program years'';
       [(III) in clause (iii), by striking ``first 3 years'' and 
     inserting ``first 2 years'';
       [(IV) in clause (iii), by striking ``first 3 program 
     years'' and inserting ``first 2 program years'';
       [(V) in clause (v), by striking ``4th and 5th'' and 
     inserting ``3rd and 4th'';
       [(VI) in clause (v), by striking ``to the fourth'' and 
     inserting ``to the third'';
       [(VII) in clause (v), by striking ``fourth and fifth'' and 
     inserting ``third and fourth''; and
       [(VIII) in clause (vi), by striking ``(II)'' and inserting 
     ``(I)'';

       [(ii) in subparagraph (B)--

       [(I) by striking the heading and inserting ``Levels of 
     employment performance'';
       [(II) by striking ``may'' and inserting ``shall''; and
       [(III) by striking ``additional'' and inserting 
     ``employment''; and

[[Page 28966]]

       [(iii) by adding at the end the following:
       [``(C) Alternative assessment systems.--Eligible agencies 
     may approve the use of assessment systems that are not 
     commercially available standardized systems if such systems 
     meet the Standards for Educational and Psychological Testing 
     issued by the Joint Committee on Standards for Educational 
     and Psychological Testing of the American Educational 
     Research Association, the American Psychological Association, 
     and the National Council on Measurement in Education.'';
       [(2) in subsection (c)--
       [(A) in paragraph (1)--
       [(i) by inserting ``the Governor, the State legislature, 
     and the State workforce investment board'' after 
     ``Secretary''; and
       [(ii) by striking ``including'' and all that follows 
     through the period and inserting ``including the following:
       [``(A) Information on the levels of performance achieved by 
     the eligible agency with respect to the core indicators of 
     performance, and employment performance indicators.
       [``(B) The number and type of each eligible provider that 
     receives funding under such grant.
       [``(C) The number of enrollees 16 to 18 years of age who 
     enrolled in adult education not later than 1 year after 
     participating in secondary school education.'';
       [(B) in paragraph (2)(A), by inserting ``eligible providers 
     and'' after ``available to''; and
       [(C) by adding at the end the following:
       [``(3) Data access.--The report made available under 
     paragraph (2) shall indicate which eligible agencies did not 
     have access to State unemployment insurance wage data in 
     measuring employment performance indicators.''; and
       [(3) by adding at the end the following:
       [``(d) Program Improvement.--
       [``(1) In general.--If the Secretary determines that an 
     eligible agency did not meet its adjusted levels of 
     performance for the core indicators of performance described 
     in subsection (b)(2)(A) for any program year, the eligible 
     agency shall--
       [``(A) work with the Secretary to develop and implement a 
     program improvement plan for the 2 program years succeeding 
     the program year in which the eligible agency did not meet 
     its adjusted levels of performance; and
       [``(B) revise its State plan under section 224, if 
     necessary, to reflect the changes agreed to in the program 
     improvement plan.
       [``(2) Further assistance.--If, after the period described 
     in paragraph (1)(A), the Secretary has provided technical 
     assistance to the eligible agency but determines that the 
     eligible agency did not meet its adjusted levels of 
     performance for the core indicators of performance described 
     in subsection (b)(2)(A), the Secretary may require the 
     eligible agency to make further revisions to the program 
     improvement plan described in paragraph (1). Such further 
     revisions shall be accompanied by further technical 
     assistance from the Secretary.''.

     [SEC. 206. STATE ADMINISTRATION.

       [Section 221(1) of the Adult Education and Family Literacy 
     Act (20 U.S.C. 9221(1)) is amended by striking ``and 
     implementation'' and inserting ``implementation, and 
     monitoring''.

     [SEC. 207. STATE DISTRIBUTION OF FUNDS; MATCHING REQUIREMENT.

       [Section 222 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9222) is amended--
       [(1) in subsection (a)--
       [(A) in paragraph (1)--
       [(i) by striking ``82.5'' the first place such term appears 
     and inserting ``80''; and
       [(ii) by striking ``the 82.5 percent'' and inserting ``such 
     amount'';
       [(B) in paragraph (2), by striking ``not more than 12.5 
     percent'' and inserting ``not more than 15 percent''; and
       [(C) in paragraph (3), by striking ``$65,000'' and 
     inserting ``$75,000''; and
       [(2) in subsection (b)(1), by striking ``equal to'' and 
     inserting ``that is not less than''.

     [SEC. 208. STATE LEADERSHIP ACTIVITIES.

       [Section 223 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9223) is amended--
       [(1) in subsection (a)--
       [(A) in the matter preceding paragraph (1), by inserting 
     ``to develop or enhance the adult education system of the 
     State'' after ``activities'';
       [(B) in paragraph (1), by striking ``instruction 
     incorporating'' and all that follows through the period and 
     inserting ``instruction incorporating the essential 
     components of reading instruction and instruction provided by 
     volunteers or by personnel of a State or outlying area.'';
       [(C) in paragraph (2), by inserting ``, including 
     development and dissemination of instructional and 
     programmatic practices based on the most rigorous research 
     available in reading, writing, speaking, mathematics, English 
     language acquisition programs, distance learning and staff 
     training'' after ``activities'';
       [(D) in paragraph (5), by striking ``monitoring and'';
       [(E) by striking paragraph (6) and inserting the following:
       [``(6) The development and implementation of technology 
     applications, translation technology, or distance learning, 
     including professional development to support the use of 
     instructional technology.''; and
       [(F) by striking paragraph (7) through paragraph (11) and 
     inserting the following:
       [``(7) Coordination with--
       [``(A) other partners carrying out activities authorized 
     under this Act; and
       [``(B) existing support services, such as transportation, 
     child care, mental health services, and other assistance 
     designed to increase rates of enrollment in, and successful 
     completion of adult education and literacy activities, for 
     adults enrolled in such activities.
       [``(8) Developing and disseminating curricula, including 
     curricula incorporating the essential components of reading 
     instruction as they relate to adults.
       [``(9) The provision of assistance to eligible providers in 
     developing, implementing, and reporting measurable progress 
     in achieving the objectives of this subtitle.
       [``(10) The development and implementation of a system to 
     assist in the transition from adult basic education to 
     postsecondary education, including linkages with 
     postsecondary educational institutions.
       [``(11) Integration of literacy and English language 
     instruction with occupational skill training, and promoting 
     linkages with employers.
       [``(12) Activities to promote workplace literacy programs.
       [``(13) Activities to promote and complement local outreach 
     initiatives described in section 243(c)(2)(H).
       [``(14) In cooperation with efforts funded under sections 
     242 and 243, the development of curriculum frameworks and 
     rigorous content standards that--
       [``(A) specify what adult learners should know and be able 
     to do in the areas of reading and language arts, mathematics, 
     and English language acquisition; and
       [``(B) take into consideration the following:
       [``(i) State academic standards established under section 
     1111(b) of the Elementary and Secondary Education Act of 
     1965.
       [``(ii) The current adult skills and literacy assessments 
     used in the State.
       [``(iii) The core indicators of performance established 
     under section 212(b)(2)(A).
       [``(iv) Standards and academic requirements for enrollment 
     in non-remedial, for-credit, courses in State supported 
     postsecondary education institutions.
       [``(v) Where appropriate, the basic and literacy skill 
     content of occupational and industry skill standards widely 
     used by business and industry in the State.
       [``(15) In cooperation with efforts funded under sections 
     242 and 243, development and piloting of--
       [``(A) new assessment tools and strategies that identify 
     the needs and capture the gains of students at all levels, 
     with particular emphasis on--
       [``(i) students at the lowest achievement level;
       [``(ii) students who have limited English proficiency; and
       [``(iii) adults with learning disabilities;
       [``(B) options for improving teacher quality and retention; 
     and
       [``(C) assistance in converting research into practice.
       [``(16) The development and implementation of programs and 
     services to meet the needs of adult learners with learning 
     disabilities or limited English proficiency.
       [``(17) Other activities of statewide significance that 
     promote the purpose of this title.''; and
       [(2) in subsection (c), by striking ``being State- or 
     outlying area-imposed'' and inserting ``being imposed by the 
     State or outlying area''.

     [SEC. 209. STATE PLAN.

       [Section 224 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9224) is amended--
       [(1) in subsection (a)--
       [(A) by striking the heading and inserting ``4-Year 
     Plans''; and
       [(B) in paragraph (1), by striking ``5'' and inserting 
     ``4'';
       [(2) in subsection (b)--
       [(A) in paragraph (1), by inserting ``and the role of 
     provider and cooperating agencies in preparing the 
     assessment'' after ``serve'';
       [(B) by striking paragraph (2) and inserting the following:
       [``(2) a description of how the eligible agency will 
     address the adult education and literacy needs identified 
     under paragraph (1) in each workforce development area of the 
     State, using funds received under this subtitle, as well as 
     other Federal, State, or local funds received in partnership 
     with other agencies for the purpose of adult literacy as 
     applicable;'';
       [(C) in paragraph (3)--
       [(i) by inserting ``and measure'' after ``evaluate'';
       [(ii) by inserting ``and improvement'' after 
     ``effectiveness''; and
       [(iii) by striking ``212'' and inserting ``212, including--
       [``(A) how the eligible agency will evaluate and measure 
     annually such effectiveness on a grant-by-grant basis; and
       [``(B) how the eligible agency--
       [``(i) will hold eligible providers accountable regarding 
     the progress of such providers in improving the academic 
     achievement of

[[Page 28967]]

     participants in adult education programs under this subtitle 
     and regarding the core indicators of performance described in 
     section 212(b)(2)(A); and
       [``(ii) will use technical assistance, sanctions, and 
     rewards (including allocation of grant funds based on 
     performance and termination of grant funds based on 
     performance)'';
       [(D) in paragraph (4), by striking ``will ensure the 
     improvement of'' and inserting ``improved'';
       [(E) by redesignating paragraphs (5) through (12) as 
     paragraphs (6) through (13), respectively;
       [(F) by inserting after paragraph (4) the following:
       [``(5) a description of how the eligible agency will 
     improve teacher quality, the professional development of 
     eligible providers, and instruction;'';
       [(G) in paragraph (6) (as redesignated by subparagraph 
     (E)), by striking ``who'' and all that follows through the 
     semicolon and inserting ``that--
       [``(A) offers flexible schedules and coordinates with 
     necessary Federal, State, and local support services (such as 
     child care, transportation, mental health services, and case 
     management) to enable individuals, including individuals with 
     disabilities or individuals with other special needs, to 
     participate in adult education and literacy activities; and
       [``(B) attempts to coordinate with support services that 
     are not provided under this subtitle prior to using funds for 
     adult education and literacy activities provided under this 
     subtitle for support services;'';
       [(H) in paragraph (10) (as redesignated by subparagraph 
     (E)), by striking ``plan'' and inserting ``plan, which 
     process--
       [``(A) shall include the State Workforce Investment Board, 
     the Governor, State officials representing public schools, 
     community colleges, welfare agencies, agencies that provide 
     services to individuals with disabilities, other State 
     agencies that promote or operate adult education and literacy 
     activities, and direct providers of such adult literacy 
     services; and
       [``(B) may include consultation with the State agency for 
     higher education, institutions responsible for professional 
     development of adult education and literacy education program 
     instructors, institutions of higher education, 
     representatives of business and industry, refugee assistance 
     programs, and community-based organizations, as defined in 
     section 101;'';
       [(I) in paragraph (11) (as redesignated by subparagraph 
     (E))--
       [(i) by inserting ``assess potential population needs and'' 
     after ``will'';
       [(ii) in subparagraph (A), by striking ``students'' and 
     inserting ``individuals'';
       [(iii) in subparagraph (C), by striking ``and'' after the 
     semicolon; and
       [(iv) by adding at the end the following:
       [``(E) the unemployed; and
       [``(F) those who are employed, but at levels below self-
     sufficiency, as defined in section 101.'';
       [(J) in paragraph (12) (as redesignated by subparagraph 
     (E))--
       [(i) by inserting ``and how the plan submitted under this 
     subtitle is coordinated with the plan submitted by the State 
     under title I'' after ``eligible agency''; and
       [(ii) by striking ``and'' after the semicolon;
       [(K) in paragraph (13) (as redesignated by subparagraph 
     (E)), by striking ``231(c)(1).'' and inserting ``231(c)(1), 
     including--
       [``(A) how the State will build the capacity of 
     organizations that provide adult education and literacy 
     activities; and
       [``(B) how the State will increase the participation of 
     business and industry in adult education and literacy 
     activities;''; and
       [(L) by adding at the end the following:
       [``(14) a description of how the eligible agency will 
     consult with any State agency responsible for postsecondary 
     education to develop adult education programs and services 
     (including academic skill development and support services) 
     that prepare students to enter postsecondary education upon 
     completion of secondary school programs or their recognized 
     equivalent;
       [``(15) a description of how the eligible agency will 
     consult with the State agency responsible for workforce 
     development to develop adult education programs and services 
     that are designed to prepare students to enter the workforce; 
     and
       [``(16) a description of how the eligible agency will 
     improve the professional development of eligible providers of 
     adult education and literacy activities.'';
       [(3) in subsection (c), by adding at the end the following: 
     ``At a minimum, such revision shall occur every 2 years.''; 
     and
       [(4) in subsection (d)--
       [(A) in paragraph (1), by inserting ``, the chief State 
     school officer, the State officer responsible for 
     administering community and technical colleges, and the State 
     Workforce Investment Board'' after ``Governor''; and
       [(B) in paragraph (2), by striking ``comments'' and all 
     that follows through the period and inserting ``comments 
     regarding the State plan by the Governor, the chief State 
     school officer, the State officer responsible for 
     administering community and technical colleges, and the State 
     Workforce Investment Board, and any revision to the State 
     plan, are submitted to the Secretary.''.

     [SEC. 210. PROGRAMS FOR CORRECTIONS EDUCATION AND OTHER 
                   INSTITUTIONALIZED INDIVIDUALS.

       [Section 225 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9225) is amended--
       [(1) in subsection (b)--
       [(A) in paragraph (1), by striking ``basic education'' and 
     inserting ``adult education and literacy activities'';
       [(B) in paragraph (2) by inserting ``and'' after the 
     semicolon;
       [(C) by striking paragraph (3); and
       [(D) by redesignating paragraph (4) as paragraph (3); and
       [(2) in subsection (d), by striking ``Definition of 
     Criminal Offender.--'' and inserting ``Definitions.--In this 
     section:''.

     [SEC. 211. GRANTS AND CONTRACTS FOR ELIGIBLE PROVIDERS.

       [Section 231 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9241) is amended--
       [(1) in subsection (b)--
       [(A) in paragraph (1), by striking ``workplace literacy 
     services'' and inserting ``workplace literacy programs''; and
       [(B) in paragraph (3), by striking ``literacy'' and 
     inserting ``language acquisition'';
       [(2) in subsection (e)--
       [(A) in paragraph (1), by inserting ``to be achieved 
     annually on the core indicators of performance and employment 
     performance indicators described in section 212(b)(2)'' after 
     ``outcomes'';
       [(B) by striking paragraph (3) and inserting the following:
       [``(3) the commitment of the eligible provider to be 
     responsive to local needs and to serve individuals in the 
     community who were identified by the assessment as most in 
     need of adult literacy services, including individuals who 
     are low-income, have minimal literacy skills, have learning 
     disabilities, or have limited English proficiency;'';
       [(C) in paragraph (4)(B), by striking ``, such as'' and all 
     that follows through the semicolon and inserting ``that 
     include the essential components of reading instruction;'';
       [(D) in paragraph (5), by striking ``research'' and 
     inserting ``the most rigorous research available'';
       [(E) in paragraph (7), by inserting ``, when appropriate 
     and based on the most rigorous research available,'' after 
     ``real life contexts'';
       [(F) in paragraph (9), by inserting ``education, job-
     training, and social service'' after ``other available'';
       [(G) in paragraph (10)--
       [(i) by inserting ``coordination with Federal, State, and 
     local'' after ``schedules and''; and
       [(ii) by striking ``and transportation'' and inserting ``, 
     transportation, mental health services, and case 
     management'';
       [(H) in paragraph (11)--
       [(i) by inserting ``measurable'' after ``report'';
       [(ii) by striking ``eligible agency'';
       [(iii) by inserting ``established by the eligible agency'' 
     after ``performance measures''; and
       [(iv) by striking ``and'' after the semicolon;
       [(I) in paragraph (12), by striking ``literacy programs.'' 
     and inserting ``language acquisition programs and civics 
     education programs;''; and
       [(J) by adding at the end the following:
       [``(13) the capacity of the eligible provider to produce 
     information on performance results, including enrollments and 
     measurable participant outcomes;
       [``(14) whether reading, writing, speaking, mathematics, 
     and English language acquisition instruction provided by the 
     eligible provider are based on the best practices derived 
     from the most rigorous research available;
       [``(15) whether the eligible provider's applications of 
     technology and services to be provided are sufficient to 
     increase the amount and quality of learning and lead to 
     measurable learning gains within specified time periods; and
       [``(16) the capacity of the eligible provider to serve 
     adult learners with learning disabilities.''.

     [SEC. 212. LOCAL APPLICATION.

       [Section 232 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9242) is amended--
       [(1) in paragraph (1)--
       [(A) by inserting ``consistent with the requirements of 
     this subtitle'' after ``spent''; and
       [(B) by striking ``and'' after the semicolon;
       [(2) in paragraph (2), by striking the period at the end 
     and inserting ``; and''; and
       [(3) by adding at the end the following:
       [``(3) each of the demonstrations required under section 
     231(e).''.

     [SEC. 213. LOCAL ADMINISTRATIVE COST LIMITS.

       [Section 233 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9243) is amended--
       [(1) in subsection (a)(2)--
       [(A) by inserting ``and professional'' after ``personnel''; 
     and
       [(B) by inserting ``development of measurable goals in 
     reading, writing, and speaking the English language, and in 
     mathematical computation,'' after ``development,''; and

[[Page 28968]]

       [(2) in subsection (b)--
       [(A) by inserting ``and professional'' after ``personnel''; 
     and
       [(B) by inserting ``development of measurable goals in 
     reading, writing, and speaking the English language, and in 
     mathematical computation,'' after ``development,''.

     [SEC. 214. ADMINISTRATIVE PROVISIONS.

       [Section 241(b) of the Adult Education and Family Literacy 
     Act (20 U.S.C. 9251(b)) is amended--
       [(1) in paragraph (1)(A)--
       [(A) by striking ``adult education and literacy 
     activities'' both places such terms appear and inserting 
     ``activities under this subtitle''; and
       [(B) by striking ``was'' and inserting ``were''; and
       [(2) in paragraph (4)--
       [(A) by inserting ``not more than'' after ``this subsection 
     for''; and
       [(B) by striking ``only''.

     [SEC. 215. NATIONAL INSTITUTE FOR LITERACY.

       [Section 242 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9252) is amended--
       [(1) in subsection (a)--
       [(A) in paragraph (1), by striking ``literacy'' and 
     inserting ``effective literacy programs for children, youth, 
     adults, and families'';
       [(B) in paragraph (2), by inserting ``and disseminates 
     information on'' after ``coordinates''; and
       [(C) by striking paragraph (3)(A) and inserting the 
     following:
       [``(A) coordinating and participating in the Federal effort 
     to identify and disseminate information on literacy that is 
     derived from scientifically based research, or the most 
     rigorous research available and effective programs that serve 
     children, youth, adults, and families.'';
       [(2) by striking subsection (b)(3) and inserting the 
     following:
       [``(3) Recommendations.--The Interagency Group, in 
     consultation with the National Institute for Literacy 
     Advisory Board (in this section referred to as the `Board') 
     established under subsection (e), shall plan the goals of the 
     Institute and the implementation of any programs to achieve 
     the goals. The Board may also request a meeting of the 
     Interagency Group to discuss any recommendations the Board 
     may make.'';
       [(3) in subsection (c)--
       [(A) in paragraph (1)--
       [(i) in subparagraph (A)--

       [(I) by striking ``to establish'' and inserting ``to 
     maintain'';
       [(II) in clause (i), by striking ``phonemic awareness, 
     systematic phonics, fluency, and reading comprehension'' and 
     inserting ``the essential components of reading 
     instruction'';
       [(III) in clause (iii), by striking ``and'' after the 
     semicolon;
       [(IV) in clause (iv), by inserting ``and'' after the 
     semicolon; and
       [(V) by adding at the end the following:

       [``(v) a list of local adult education and literacy 
     programs;'';
       [(ii) in subparagraph (C)--

       [(I) by striking ``reliable and replicable research'' and 
     inserting ``reliable and replicable research as defined by 
     the Institute of Education Sciences''; and
       [(II) by striking ``especially with the Office of 
     Educational Research and Improvement in the Department of 
     Education,'';

       [(iii) in subparagraph (D), by striking ``phonemic 
     awareness, systematic phonics, fluency, and reading 
     comprehension based on'' and inserting ``the essential 
     components of reading instruction and'';
       [(iv) in subparagraph (H), by striking ``and'' after the 
     semicolon;
       [(v) in subparagraph (I), by striking the period at the end 
     and inserting a semicolon; and
       [(vi) by adding at the end the following:
       [``(J) to work cooperatively with the Department of 
     Education to assist States that are pursuing the 
     implementation of standards-based educational improvements 
     for adults through the dissemination of training, technical 
     assistance, and related support and through the development 
     and dissemination of related standards-based assessment 
     instruments; and
       [``(K) to identify rigorous research on the effectiveness 
     of instructional practices and organizational strategies 
     relating to literacy programs on the acquisition of skills in 
     reading, writing, English acquisition, and mathematics.''; 
     and
       [(B) by adding at the end the following:
       [``(3) Coordination.--In identifying the reliable and 
     replicable research the Institute will support, the Institute 
     shall use standards for research quality that are consistent 
     with those of the Institute of Education Sciences.'';
       [(4) in subsection (e)--
       [(A) in paragraph (1)(B)--
       [(i) in clause (i), by striking ``literacy programs'' and 
     inserting ``language acquisition programs'';
       [(ii) in clause (ii), by striking ``literacy programs'' and 
     inserting ``or have participated in or partnered with 
     workplace literacy programs'';
       [(iii) in clause (iv), by inserting ``, including adult 
     literacy research'' after ``research'';
       [(iv) in clause (vi), by striking ``and'' after the 
     semicolon;
       [(v) in clause (vii), by striking the period at the end and 
     inserting ``; and''; and
       [(vi) by adding at the end the following:
       [``(viii) institutions of higher education.'';
       [(B) in paragraph (2)--
       [(i) in subparagraph (B), by striking ``and'' after the 
     semicolon;
       [(ii) in subparagraph (C), by striking the period at the 
     end and inserting ``; and''; and
       [(iii) by adding at the end the following:
       [``(D) review the biennial report submitted to Congress 
     pursuant to subsection (k).''; and
       [(C) in paragraph (5), by striking the second sentence and 
     inserting the following: ``A recommendation of the Board may 
     be passed only by a majority of the Board's members present 
     at a meeting for which there is a quorum.''; and
       [(5) in subsection (k)--
       [(A) by striking ``Labor and Human Resources'' and 
     inserting ``Health, Education, Labor, and Pensions''; and
       [(B) by striking ``The Institute shall submit a report 
     biennially to'' and inserting ``Not later than 1 year after 
     the date of enactment of the Adult Education and Family 
     Literacy Act Amendments of 2003, and biennially thereafter, 
     the Institute shall submit a report to''.

     [SEC. 216. NATIONAL LEADERSHIP ACTIVITIES.

       [Section 243 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9253) is amended to read as follows:

     [``SEC. 243. NATIONAL LEADERSHIP ACTIVITIES.

       [``(a) In General.--The Secretary shall establish and carry 
     out a program of national leadership activities to enhance 
     the quality of adult education and literacy programs 
     nationwide.
       [``(b) Permissive Activities.--The national leadership 
     activities described in subsection (a) may include the 
     following:
       [``(1) Technical assistance, including--
       [``(A) assistance provided to eligible providers in 
     developing and using performance measures for the improvement 
     of adult education and literacy activities, including family 
     literacy services;
       [``(B) assistance related to professional development 
     activities, and assistance for the purposes of developing, 
     improving, identifying, and disseminating the most successful 
     methods and techniques for providing adult education and 
     literacy activities, including family literacy services, 
     based on scientific evidence where available;
       [``(C) assistance in distance learning and promoting and 
     improving the use of technology in the classroom;
       [``(D) assistance in developing valid, measurable, and 
     reliable performance data, including data around employment 
     and employment outcome, and using performance information for 
     the improvement of adult education and literacy programs; and
       [``(E) assistance to help States, particularly low-
     performing States, meet the requirements of section 212.
       [``(2) A program of grants, contracts, or cooperative 
     agreements awarded on a competitive basis to national, 
     regional, or local networks of private nonprofit 
     organizations, public libraries, or institutions of higher 
     education to build the capacity of such networks' members to 
     meet the performance requirements of eligible providers under 
     this title and involve adult learners in program improvement.
       [``(3) Funding national leadership activities that are not 
     described in paragraph (1), either directly or through 
     grants, contracts, or cooperative agreements awarded on a 
     competitive basis to or with postsecondary educational 
     institutions, public or private organizations or agencies, or 
     consortia of such institutions, organizations, or agencies, 
     such as--
       [``(A) developing, improving, and identifying the most 
     successful methods and techniques for addressing the 
     education needs of adults, including instructional practices 
     using the essential components of reading instruction based 
     on the work of the National Institute of Child Health and 
     Human Development;
       [``(B) increasing the effectiveness of, and improving the 
     quality of, adult education and literacy activities, 
     including family literacy services;
       [``(C) carrying out research on national literacy basic 
     skill acquisition for adult learning, including estimating 
     the number of adults functioning at the lowest levels of 
     literacy proficiency;
       [``(D)(i) carrying out demonstration programs;
       [``(ii) disseminating best practices information, including 
     information regarding promising practices resulting from 
     federally funded demonstration programs; and
       [``(iii) developing and replicating best practices and 
     innovative programs, including--
       [``(I) the development of models for basic skill 
     certificates;
       [``(II) the identification of effective strategies for 
     working with adults with learning disabilities and with 
     adults with limited English proficiency;
       [``(III) integrated basic and workplace skills education 
     programs;
       [``(IV) coordinated literacy and employment services; and

[[Page 28969]]

       [``(V) postsecondary education transition programs;
       [``(E) providing for the conduct of an independent 
     evaluation and assessment of adult education and literacy 
     activities through studies and analyses conducted 
     independently through grants and contracts awarded on a 
     competitive basis, which evaluation and assessment shall 
     include descriptions of--
       [``(i) the effect of performance measures and other 
     measures of accountability on the delivery of adult education 
     and literacy activities, including family literacy services;
       [``(ii) the extent to which the adult education and 
     literacy activities, including family literacy services, 
     increase the literacy skills of adults (and of children, in 
     the case of family literacy services), lead the participants 
     in such activities to involvement in further education and 
     training, enhance the employment and earnings of such 
     participants, and, if applicable, lead to other positive 
     outcomes, such as reductions in recidivism in the case of 
     prison-based adult education and literacy activities;
       [``(iii) the extent to which the provision of support 
     services to adults enrolled in adult education and family 
     literacy programs increase the rate of enrollment in, and 
     successful completion of, such programs; and
       [``(iv) the extent to which different types of providers 
     measurably improve the skills of participants in adult 
     education and literacy programs;
       [``(F) supporting efforts aimed at capacity building of 
     programs at the State and local levels such as technical 
     assistance in program planning, assessment, evaluation, and 
     monitoring of activities carried out under this subtitle;
       [``(G) collecting data, such as data regarding the 
     improvement of both local and State data systems, through 
     technical assistance and development of model performance 
     data collection systems;
       [``(H) supporting the development of an entity that would 
     produce and distribute technology-based programs and 
     materials for adult education and literacy programs using an 
     interconnection system (as defined in section 397 of the 
     Communications Act of 1934 (47 U.S.C. 397)) and expand the 
     effective outreach and use of such programs and materials to 
     adult education eligible providers;
       [``(I) determining how participation in adult education and 
     literacy activities prepares individuals for entry into 
     postsecondary education and employment and, in the case of 
     prison-based services, has an effect on recidivism; and
       [``(J) other activities designed to enhance the quality of 
     adult education and literacy activities nationwide.''.

     [SEC. 217. INTEGRATED ENGLISH LITERACY AND CIVICS EDUCATION.

       [Chapter 4 of subtitle A of title II (29 U.S.C. 9251 et 
     seq.) is amended by adding at the end the following:

     [``SEC. 244. INTEGRATED ENGLISH LITERACY AND CIVICS 
                   EDUCATION.

       [``(a) In General.--From funds made available under section 
     211(a)(4) for each fiscal year the Secretary shall award 
     grants to States, from allotments under subsection (b), for 
     integrated English literacy and civics education.
       [``(b) Allotment.--
       [``(1) In general.--Subject to paragraph (2), from amounts 
     made available under section 211(a)(4) for a fiscal year the 
     Secretary shall allocate--
       [``(A) 65 percent to the States on the basis of a State's 
     need for integrated English literacy and civics education as 
     determined by calculating each State's share of a 10-year 
     average of the Immigration and Naturalization Service data 
     for immigrants admitted for legal permanent residence for the 
     10 most recent years; and
       [``(B) 35 percent to the States on the basis of whether the 
     State experienced growth as measured by the average of the 3 
     most recent years for which Immigration and Naturalization 
     Service data for immigrants admitted for legal permanent 
     residence are available.
       [``(2) Minimum.--No State shall receive an allotment under 
     paragraph (1) in an amount that is less than $60,000.''.

     [SEC. 218. TRANSITION.

       [The Secretary shall take such steps as the Secretary 
     determines to be appropriate to provide for the orderly 
     transition to the authority of the Adult Education and Family 
     Literacy Act (as amended by this title) from any authority 
     under provisions of the Adult Education and Family Literacy 
     Act (as such Act was in effect on the day before the date of 
     enactment of the Adult Education and Family Literacy Act 
     Amendments of 2003).

           [TITLE III--AMENDMENTS TO OTHER PROVISIONS OF LAW

     [SEC. 301. WAGNER-PEYSER ACT.

       [(a) Conforming Amendment.--Section 2(3) of the Wagner-
     Peyser Act (29 U.S.C. 49a(3)) is amended by striking 
     ``section 134(c)'' and inserting ``section 121(e)''.
       [(b) Colocation.--Section 3 of the Wagner-Peyser Act (29 
     U.S.C. 49b) is amended by adding at the end the following:
       [``(d) In order to avoid duplication of services and 
     enhance integration of services, employment services offices 
     in each State shall be colocated with comprehensive one-stop 
     centers established under title I of the Workforce Investment 
     Act of 1998.''.
       [(c) Cooperative Statistical Program.--Section 14 of the 
     Wagner-Peyser Act (29 U.S.C. 49l-1) is amended by striking 
     the section heading and all that follows through ``There'' 
     and inserting the following:

     [``SEC. 14. COOPERATIVE STATISTICAL PROGRAM.

       [``There''.
       [(d) Workforce and Labor Market Information System.--
     Section 15 of the Wagner-Peyser Act (29 U.S.C. 49l-2) is 
     amended--
       [(1) by striking the section heading and inserting the 
     following:

     [``SEC. 15. WORKFORCE AND LABOR MARKET INFORMATION SYSTEM.'';

       [(2) by striking ``employment statistics system'' each 
     place it appears and inserting ``workforce and labor market 
     information system'';
       [(3) in subsection (a)(1), by striking ``of employment 
     statistics'';
       [(4) in subsection (b)(2)(E)--
       [(A) in clause (i), by adding ``and'' at the end;
       [(B) in clause (ii), by striking ``; and'' and inserting a 
     period; and
       [(C) by striking clause (iii);
       [(5) by striking subsections (c) and (d) and inserting the 
     following:
       [``(c) National Electronic Tools To Provide Services.--The 
     Secretary, in consultation with States, is authorized to 
     assist in the development of national electronic tools that 
     may be used to improve access to workforce information for 
     individuals through--
       [``(1) the one-stop delivery systems established under 
     section 121(e); and
       [``(2) such other delivery systems as the Secretary 
     determines to be appropriate.
       [``(d) Two-Year Plan.--The Secretary, working through the 
     Bureau of Labor Statistics, and in cooperation with the 
     States and with the assistance of the Employment and Training 
     Administration and other appropriate Federal agencies, shall 
     prepare a 2-year plan which shall be the mechanism for 
     achieving cooperative management of the nationwide workforce 
     and labor market information system described in subsection 
     (a) and the statewide workforce and labor market information 
     systems that comprise the nationwide system. The plan shall--
       [``(1) describe the steps to be taken in the following 2 
     years to carry out the duties described in subsection (b)(2);
       [``(2) evaluate the performance of the system and recommend 
     needed improvements, with particular attention to the 
     improvements needed at the State and local levels; and
       [``(3) describe the involvement of States in the 
     development of the plan, pursuant to a process established by 
     the Secretary in cooperation with the States in accordance 
     with subsection (d).
       [``(e) Coordination With the States.--The Secretary, 
     working though the Bureau of Labor Statistics and in 
     coordination with the Employment and Training Administration, 
     shall consult at least annually with representatives of each 
     of the 10 Federal regions of the Department of Labor, elected 
     (pursuant to a process established by the Secretary) by and 
     from the State workforce and labor market information 
     directors affiliated with the State agencies that perform the 
     duties described in subsection (e)(2).'';
       [(6) in subsection (e)(2)--
       [(A) in subparagraph (G), by adding ``and'' at the end;
       [(B) by striking subparagraph (H); and
       [(C) by redesignating subparagraph (I) as subparagraph (H); 
     and
       [(7) in subsection (g), by striking ``1999 through 2004'' 
     and inserting ``2004 through 2009 to enable the Secretary to 
     carry out the provisions of this section through grants or 
     cooperative agreements with the States''.

                [TITLE IV--REHABILITATION ACT AMENDMENTS

     [SEC. 401. SHORT TITLE.

       [This title may be cited as the ``Rehabilitation Act 
     Amendments of 2003''.

     [SEC. 402. TECHNICAL AMENDMENTS TO TABLE OF CONTENTS.

       [(a) Incentive Grants.--Section 1(b) of the Rehabilitation 
     Act of 1973 (29 U.S.C. 701 note) is amended by inserting 
     after the item relating to section 112 the following:

[``Sec. 113. Incentive grants.''.

       [(b) Independent Living Services for Older Individuals Who 
     Are Blind.--Section 1(b) of the Rehabilitation Act of 1973 
     (29 U.S.C. 701 note) is amended by striking the items 
     relating to sections 752 and 753 and inserting the following:

[``Sec. 752. Training and technical assistance.
[``Sec. 753. Program of grants.
[``Sec. 754. Authorization of appropriations.''.

     [SEC. 403. PURPOSE.

       [Section 2(b) of the Rehabilitation Act of 1973 (29 U.S.C. 
     701(b)) is amended--
       [(1) in paragraph (1)(F), by striking ``and'' after the 
     semicolon;
       [(2) in paragraph (2), by striking the period at the end 
     and inserting ``; and''; and
       [(3) by adding at the end the following:
       [``(3) to provide opportunities for employers and 
     rehabilitation service providers to provide meaningful input 
     at all levels of government to ensure successful employment 
     of individuals with disabilities.''.

[[Page 28970]]



     [SEC. 404. DEFINITIONS.

       [Section 7 of the Rehabilitation Act of 1973 (29 U.S.C. 
     705) is amended--
       [(1) in paragraph (2)(B)--
       [(A) in the matter preceding clause (i), by inserting ``and 
     literacy services'' after ``supported employment''; and
       [(B) in clause (iii), by inserting ``and literacy skills'' 
     after ``educational achievements'';
       [(2) in paragraph (17)--
       [(A) in subparagraph (C), by striking ``and'' after the 
     semicolon;
       [(B) in subparagraph (D), by striking the period at the end 
     and inserting ``; and''; and
       [(C) by adding at the end the following:
       [``(E) maintaining individuals with disabilities in, or 
     transitioning individuals with disabilities to, community-
     based living.'';
       [(3) by redesignating paragraphs (24) through (28), (29) 
     through (34), and (35) through (39), as paragraphs (25) 
     through (29), (31) through (36), and (38) through (42), 
     respectively;
       [(4) by inserting after paragraph (23) the following:
       [``(24) Literacy.--The term `literacy' has the meaning 
     given the term in section 203 of the Adult Education and 
     Family Literacy Act (20 U.S.C. 9202).'';
       [(5) by inserting after paragraph (29), as redesignated by 
     paragraph (3), the following:
       [``(30) Post-employment service.--The term `post-
     employment' service means a service identified in section 
     103(a) that is--
       [``(A) provided subsequent to the achievement of an 
     employment outcome; and
       [``(B) necessary for an individual to maintain, regain, or 
     advance in employment, consistent with the individual's 
     strengths, resources, priorities, concerns, abilities, 
     capabilities, interests, and informed choice.'';
       [(6) by inserting after paragraph (36), as redesignated by 
     paragraph (3), the following:
       [``(37) Student with a disability.--
       [``(A) In general.--The term `student with a disability' 
     means an individual with a disability who attends an 
     elementary school or secondary school and who--
       [``(i) is not younger than 14 years of age;
       [``(ii) is not older than 21 years of age;
       [``(iii) has been determined to be eligible under section 
     102(a) for assistance under title I; and
       [``(iv)(I) is eligible for, and receiving, special 
     education and related services under part B of the 
     Individuals with Disabilities Education Act (20 U.S.C. 1411 
     et seq.); or
       [``(II) is an individual with a disability, for purposes of 
     section 504.
       [``(B) Students with disabilities.--The term `students with 
     disabilities' means more than 1 student with a disability.''; 
     and
       [(7) in paragraph (38)(A)(ii), as redesignated by paragraph 
     (3), by striking ``paragraph (36)(C)'' and inserting 
     ``paragraph (39)(C)''.

     [SEC. 405. ADMINISTRATION OF THE ACT.

       [Section 12(a)(1) of the Rehabilitation Act of 1973 (29 
     U.S.C. 709(a)(1)) is amended--
       [(1) by inserting ``(A)'' after ``(1)'';
       [(2) by striking the semicolon and inserting ``; and''; and
       [(3) by adding at the end the following:
       [``(B) provide technical assistance to the designated State 
     units on developing successful partnerships with 
     employers;''.

     [SEC. 406. CARRYOVER.

       [Section 19 of the Rehabilitation Act of 1973 (29 U.S.C. 
     716) is amended--
       [(1) in subsection (a)(1)--
       [(A) by striking ``, section 509 (except as provided in 
     section 509(b))'';
       [(B) by striking ``or (C)''; and
       [(C) by striking ``752(b)'' and inserting ``753(b)''; and
       [(2) by adding at the end the following:
       [``(c) Protection and Advocacy of Individual Rights.--
       [``(1) Appropriated amounts.--Notwithstanding any other 
     provision of law, any funds appropriated for a fiscal year to 
     carry out a grant program under section 509 (except as 
     provided in section 509(b)), including any funds reallotted 
     under such grant program, that are not obligated and expended 
     by recipients prior to the beginning of the succeeding fiscal 
     year shall remain available for obligation and expenditure by 
     such recipients during such succeeding fiscal year.
       [``(2) Program income.--Notwithstanding any other provision 
     of law, any amounts of program income received by recipients 
     under a grant program under section 509 that are not 
     obligated and expended by recipients prior to the beginning 
     of the fiscal year succeeding the fiscal year in which such 
     amounts were received, shall remain available for obligation 
     and expenditure by such recipients during any of the 4 
     succeeding fiscal years.''.

            [Subtitle A--Vocational Rehabilitation Services

     [SEC. 411. DECLARATION OF POLICY; AUTHORIZATION OF 
                   APPROPRIATIONS.

       [Section 100(b)(1) of the Rehabilitation Act of 1973 (29 
     U.S.C. 720(b)(1)) is amended by striking ``fiscal years 1999 
     through 2003'' and inserting ``fiscal years 2004 through 
     2009''.

     [SEC. 412. STATE PLANS.

       [Section 101(a) of the Rehabilitation Act of 1973 (29 
     U.S.C. 721(a)) is amended--
       [(1) in paragraph (6)(B), by striking ``to employ and 
     advance in employment'' and inserting ``to recruit, employ, 
     and advance in employment'';
       [(2) in paragraph (8)(A), by adding at the end the 
     following:
       [``(iii) Services identified in individualized work plan.--
     For purposes of clause (i), for an individual who receives 
     assistance under the Ticket to Work and Self-Sufficiency 
     Program established under section 1148 of the Social Security 
     Act (42 U.S.C. 1320b-19), comparable benefits and services 
     available under such program only include those benefits and 
     services identified in the individual's individualized work 
     plan developed by an employment network pursuant to such 
     section.'';
       [(3) in paragraph (11)--
       [(A) by striking subparagraph (D)(ii) and inserting the 
     following:
       [``(ii) transition planning by personnel of the designated 
     State agency and the State educational agency that will 
     facilitate the development and completion of the 
     individualized education programs under section 614(d) of the 
     Individuals with Disabilities Education Act (20 U.S.C. 
     1414(d)) and, as appropriate, the development and completion 
     of the individualized plan for employment, in order to 
     achieve post-school employment outcomes of students with 
     disabilities;''; and
       [(B) by adding at the end the following:
       [``(G) Coordination with ticket to work and self-
     sufficiency program.--The State plan shall provide that the 
     designated State unit will coordinate activities with any 
     other State agency that administers a Ticket to Work and 
     Self-Sufficiency Program established under section 1148 of 
     the Social Security Act (42 U.S.C. 1320b-19).''; and
       [(4) in paragraph (20)--
       [(A) by redesignating subparagraph (B) as subparagraph (D);
       [(B) by inserting after subparagraph (A) the following:
       [``(B) Information on assistance for beneficiaries of 
     assistance under title ii or xvi of the social security 
     act.--The State plan shall include an assurance that the 
     designated State agency will make available to individuals 
     entitled to benefits under title II or XVI of the Social 
     Security Act (42 U.S.C. 401 et seq., 1381 et seq.) on the 
     basis of a disability or blindness, information on the 
     availability of--
       [``(i) medical assistance under the State medicaid program 
     under title XIX of the Social Security Act (42 U.S.C. 1396 et 
     seq.);
       [``(ii) benefits under the medicare program under title 
     XVIII of the Social Security Act (42 U.S.C. 1395 et seq.);
       [``(iii) assistance through benefits planning and 
     assistance programs under section 1149 of the Social Security 
     Act (42 U.S.C. 1320b-20) and protection and advocacy programs 
     under section 1150 of the Social Security Act (42 U.S.C. 
     1320b-21); and
       [``(iv) medical assistance under other federally-funded 
     programs.
       [``(C) Information for individuals under the ticket to work 
     program.--The State plan shall include an assurance that the 
     designated State agency will make available to individuals 
     entitled to benefits under title II or XVI of the Social 
     Security Act (42 U.S.C. 401 et seq., 1381 et seq.) on the 
     basis of a disability or blindness and eligible for 
     assistance under the Ticket to Work and Self-Sufficiency 
     Program established under section 1148 of the Social Security 
     Act (42 U.S.C. 1320b-19), general information regarding the 
     Ticket to Work and Self-Sufficiency Program and specific 
     information on how to contact the program manager of the 
     Ticket to Work and Self-Sufficiency Program to obtain 
     information on approved employment networks.''; and
       [(C) in subparagraph (D)(ii), as redesignated by 
     subparagraph (A)--
       [(i) in subclause (II), by inserting ``, to the maximum 
     extent possible,'' after ``point of contact''; and
       [(ii) in subclause (III), by striking ``or regain'' and 
     inserting ``regain, or advance in''.

     [SEC. 413. ELIGIBILITY AND INDIVIDUALIZED PLAN FOR 
                   EMPLOYMENT.

       [Section 102 of the Rehabilitation Act of 1973 (29 U.S.C. 
     722) is amended--
       [(1) in subsection (b)--
       [(A) in paragraph (1)--
       [(i) in subparagraph (A), by striking the semicolon at the 
     end and inserting ``, including a listing of all the 
     community resources (including resources from organizations 
     of individuals with disabilities), to the maximum extent 
     possible, to assist in the development of such individual's 
     individualized plan for employment to enable the individual 
     to make informed and effective choices in developing the 
     individualized plan for employment;''; and
       [(ii) in subparagraph (D)--

       [(I) in clause (i), by striking ``and'' after the 
     semicolon;
       [(II) in clause (ii), by striking the period at the end and 
     inserting a semicolon; and
       [(III) by adding at the end the following:

       [``(iii) for individuals entitled to benefits under title 
     II or XVI of the Social Security Act (42 U.S.C. 401 et seq., 
     1381 et seq.) on the basis of a disability or blindness, 
     information on the availability of--
       [``(I) medical assistance under the State medicaid program 
     under title XIX of the Social Security Act (42 U.S.C. 1396 et 
     seq.);
       [``(II) benefits under the medicare program under title 
     XVIII of the Social Security Act (42 U.S.C. 1395 et seq.);
       [``(III) assistance through benefits planning and 
     assistance programs under section

[[Page 28971]]

     1149 of the Social Security Act (42 U.S.C. 1320b-20) and 
     protection and advocacy programs under section 1150 of the 
     Social Security Act (42 U.S.C. 1320b-21); and
       [``(IV) medical assistance under other federally-funded 
     programs; and
       [``(iv) for individuals entitled to benefits under title II 
     or XVI of the Social Security Act (42 U.S.C. 401 et seq., 
     1381 et seq.) on the basis of a disability or blindness and 
     eligible for assistance under the Ticket to Work and Self-
     Sufficiency Program established under section 1148 of the 
     Social Security Act (42 U.S.C. 1320b-19), information--
       [``(I) on the options under the Ticket to Work and Self-
     Sufficiency Program; and
       [``(II) on how to contact the program manager of the Ticket 
     to Work and Self-Sufficiency Program who has contact 
     information on approved employment networks, the benefits 
     planning and assistance programs in the area, and the 
     protection and advocacy programs in the area.'';
       [(B) in paragraph (2)(E)--
       [(i) in clause (i)(II), by striking ``and'' after the 
     semicolon;
       [(ii) in clause (ii), by striking the period at the end and 
     inserting ``; and''; and
       [(iii) by adding at the end the following:
       [``(iii) amended, as necessary, to include the post-
     employment services and service providers that are necessary 
     for the individual to maintain, regain, or advance in 
     employment, consistent with the individual's strengths, 
     resources, priorities, concerns, abilities, capabilities, 
     interests, and informed choice.''; and
       [(C) in paragraph (3)--
       [(i) in subparagraph (B)(i)(I), by striking ``and personal 
     assistance services'' and inserting ``mentoring services, and 
     personal assistance services'';
       [(ii) in subparagraph (F)(ii), by striking ``and'' after 
     the semicolon;
       [(iii) in subparagraph (G), by striking the period at the 
     end and inserting a semicolon; and
       [(iv) by adding at the end the following:
       [``(H) for a student with a disability, the description--
       [``(i) in paragraph (3)(A), may be a description of the 
     student's projected post-school employment outcome; and
       [``(ii) in paragraph (3)(B), shall include the specific 
     transition services (including, as appropriate, work 
     experience and mentoring activities) needed to achieve the 
     student's employment outcome or projected employment outcome; 
     and
       [``(I) for an individual who is receiving assistance under 
     the Ticket to Work and Self-Sufficiency Program established 
     under section 1148 of the Social Security Act (42 U.S.C. 
     1320b-19), a list of services such individual receives from 
     an employment network other than the designated State 
     unit.''; and
       [(2) in subsection (c)(7), by inserting ``that take into 
     consideration the informed choice of the individual,'' after 
     ``plan development,''.

     [SEC. 414. VOCATIONAL REHABILITATION SERVICES.

       [Section 103(a) of the Rehabilitation Act of 1973 (29 
     U.S.C. 723(a)) is amended--
       [(1) in paragraph (5), by inserting ``literacy services,'' 
     after ``vocational adjustment services,'';
       [(2) in paragraph (17), by striking ``and'' after the 
     semicolon;
       [(3) in paragraph (18), by striking the period at the end 
     and inserting ``; and''; and
       [(4) by adding at the end the following:
       [``(19) mentoring services.''.

     [SEC. 415. STATE REHABILITATION COUNCIL.

       [Section 105(b)(1)(A)(ix) of the Rehabilitation Act of 1973 
     (29 U.S.C. 725(b)(1)(A)(ix)) is amended to read as follows:
       [``(ix) in a State in which 1 or more projects provide 
     services under section 121, not less than 1 representative of 
     the directors of the projects;''.

     [SEC. 416. EVALUATION STANDARDS AND PERFORMANCE INDICATORS.

       [Section 106(b)(2)(B)(i) of the Rehabilitation Act of 1973 
     (29 U.S.C. 726(b)(2)(B)(i)) is amended by striking ``, if 
     necessary'' and all that follows through the semicolon and 
     inserting ``if the State has not improved its performance to 
     acceptable levels, as determined by the Commissioner, direct 
     the State to make further revisions to the plan to improve 
     performance, which may include allocating a higher proportion 
     of the State's resources for services to individuals with 
     disabilities if the State's spending on such services is low 
     in comparison to spending on such services in comparable 
     agencies in other States;''.

     [SEC. 417. STATE ALLOTMENTS.

       [Section 110 of the Rehabilitation Act of 1973 (29 U.S.C. 
     730) is amended--
       [(1) by striking subsection (b) and inserting the 
     following:
       [``(b) Reallotment.--
       [``(1) Determination.--Not later than 45 days prior to the 
     end of the fiscal year, the Commissioner shall determine, 
     after reasonable opportunity for the submission to the 
     Commissioner of comments by the State agency administering or 
     supervising the program established under this title, that 
     any payment of an allotment to a State under section 111(a) 
     for any fiscal year will not be utilized by such State in 
     carrying out the purposes of this title.
       [``(2) Formula.--
       [``(A) In general.--As soon as practicable but not later 
     than the end of the fiscal year, the Commissioner shall 
     reallot the amount available under paragraph (1) to other 
     States, consistent with subparagraphs (B) and (C), for 
     carrying out the purposes of this title to the extent the 
     Commissioner determines such other State will be able to use 
     such additional amount during that fiscal year or the 
     subsequent fiscal year for carrying out such purposes.
       [``(B) Formula.--
       [``(i) Eligible states.--The Commissioner shall reallot the 
     amount available under paragraph (1) for a fiscal year to 
     each State whose allotment under subsection (a) for such 
     fiscal year is less than such State's allotment under 
     subsection (a) for the immediately preceding fiscal year 
     increased by the percentage change in the funds available for 
     subsection (a) from the immediately preceding fiscal year.
       [``(ii) Amount.--

       [``(I) In general.--A State that is eligible to receive a 
     reallotment under clause (i) shall receive an amount for a 
     fiscal year from the amount available for reallotment under 
     paragraph (1) that is equal to the difference between--

       [``(aa) the amount such State received for such fiscal 
     year; and
       [``(bb) the amount such State was allotted under subsection 
     (a) for the immediately preceding fiscal year adjusted by the 
     percentage change in the funds available for subsection (a) 
     from the immediately preceding fiscal year.

       [``(II) Insufficient funds.--If the amount available for 
     reallotment under paragraph (1) is insufficient to provide 
     each State eligible to receive a reallotment with the amount 
     described in subclause (I), the amount reallotted to each 
     eligible State shall be determined by the Commissioner.

       [``(C) Remaining funds.--If there are funds remaining after 
     each State eligible to receive a reallotment under 
     subparagraph (B)(i) receives the amount described in 
     subparagraph (B)(ii), the Commissioner shall reallot the 
     remaining funds among the States requesting a reallotment.
       [``(3) Non-federal share.--The Commissioner shall reallot 
     an amount to a State under this subsection only if the State 
     will be able to make sufficient payments from non-Federal 
     sources to pay for the non-Federal share of the cost of 
     vocational rehabilitation services under the State plan for 
     the fiscal year for which the amount was appropriated.
       [``(4) Increase in allotment.--For the purposes of this 
     part, any amount made available to a State for any fiscal 
     year pursuant to this subsection shall be regarded as an 
     increase of such State's allotment (as determined under the 
     preceding provisions of this section) for such year.''; and
       [(2) by striking subsection (c)(2) and inserting the 
     following:
       [``(2)(A) In this paragraph:
       [``(i) The term `appropriated amount' means the amount 
     appropriated under section 100(b)(1) for allotment under this 
     section.
       [``(ii) The term `covered year' means a fiscal year--
       [``(I) that begins after September 30, 2003; and
       [``(II) for which the appropriated amount exceeds the total 
     of--
       [``(aa) the appropriated amount for the preceding fiscal 
     year; and
       [``(bb) 0.1 percent of the appropriated amount for the 
     preceding fiscal year.
       [``(B) For each covered year, the sum referred to in 
     paragraph (1) shall be, as determined by the Secretary, the 
     lesser of--
       [``(i) the total of the sum reserved under this subsection 
     for the preceding fiscal year and 0.1 percent of the 
     appropriated amount for the covered year; and
       [``(ii) 1.5 percent of the appropriated amount for the 
     covered year.''.

     [SEC. 418. CLIENT ASSISTANCE PROGRAM.

       [Section 112 of the Rehabilitation Act of 1973 (29 U.S.C. 
     732) is amended--
       [(1) in subsection (a), by striking ``States'' and 
     inserting ``agencies designated under subsection (c)'';
       [(2) in subsection (e)--
       [(A) in paragraph (1)--
       [(i) in subparagraph (A), by striking ``The Secretary'' and 
     all that follows through the period and inserting the 
     following: ``After reserving funds under subparagraphs (E) 
     and (F), the Secretary shall allot the remainder of the sums 
     appropriated for each fiscal year under this section among 
     the agencies designated under subsection (c) within the 
     States on the basis of relative population of each State, 
     except that no such agency shall receive less than 
     $50,000.'';
       [(ii) in subparagraph (B), by inserting ``the designated 
     agencies located in'' after ``each to'';
       [(iii) in subparagraph (D)(i)--

       [(I) by inserting ``the designated agencies located in'' 
     after ``$100,000 for''; and
       [(II) by inserting ``the designated agencies located in'' 
     after ``$45,000 for''; and

       [(iv) by adding at the end the following:
       [``(E)(i) Beginning on October 1, 2004, for any fiscal year 
     for which the amount appropriated to carry out this section 
     equals or exceeds $13,000,000, the Secretary shall reserve 
     funds appropriated under this section

[[Page 28972]]

     to make grants to the protection and advocacy system serving 
     the American Indian Consortium to provide client assistance 
     services in accordance with this section. The amount of such 
     grants shall be the same amount as provided to territories 
     under subparagraph (B), as increased under clauses (i) and 
     (ii) of subparagraph (D).
       [``(ii) In this subparagraph:
       [``(I) The term `American Indian Consortium' has the 
     meaning given the term in section 102 of the Developmental 
     Disabilities Assistance and Bill of Rights Act of 2000 (42 
     U.S.C. 15002).
       [``(II) The term `protection and advocacy system' means a 
     protection and advocacy system established under subtitle C 
     of title I of the Developmental Disabilities Assistance and 
     Bill of Rights Act of 2000 (42 U.S.C. 15041 et seq.).
       [``(F) For any fiscal year for which the amount 
     appropriated to carry out this section equals or exceeds 
     $14,000,000, the Secretary shall reserve not less than 1.8 
     percent and not more than 2.2 percent of such amount to 
     provide training and technical assistance to the programs 
     established under this section. Such training and technical 
     assistance shall be coordinated with funds available under 
     section 509(c)(1)(A).'';
       [(B) in paragraph (2)--
       [(i) by striking ``State'' each place such term appears and 
     inserting ``designated agency''; and
       [(ii) by striking ``States'' each place such term appears 
     and inserting ``designated agencies''; and
       [(C) in paragraph (3), by striking ``Except as specifically 
     prohibited by or as otherwise provided in State law, the 
     Secretary shall pay'' and inserting ``The Secretary shall pay 
     directly'';
       [(3) in subsection (f), by striking ``State'' and inserting 
     ``agency designated under subsection (c)''; and
       [(4) in subsection (h), by striking ``fiscal years 1999 
     through 2003'' and inserting ``fiscal years 2004 through 
     2009''.

     [SEC. 419. INCENTIVE GRANTS.

       [Part B of title I of the Rehabilitation Act of 1973 (29 
     U.S.C. 730 et seq.) is amended by adding at the end the 
     following:

     [``SEC. 113. INCENTIVE GRANTS.

       [``(a) Authority.--The Commissioner is authorized to make 
     incentive grants to States that, based on the criteria 
     established under subsection (b)(1), demonstrate--
       [``(1) a high level of performance; or
       [``(2) a significantly improved level of performance as 
     compared to the previous reporting period or periods.
       [``(b) Criteria.--
       [``(1) Establishment.--Not later than 180 days after the 
     date of enactment of this section, the Commissioner shall 
     establish, and publish in the Federal Register, criteria for 
     making grant awards under subsection (a).
       [``(2) Development and evaluation standards.--The criteria 
     under paragraph (1) shall--
       [``(A) be developed with input from State vocational 
     rehabilitation agencies and other vocational rehabilitation 
     stakeholders, including vocational rehabilitation consumers 
     and consumer organizations; and
       [``(B) be based upon the evaluation standards and 
     performance indicators established under section 106 and 
     other performance related measures that the Commissioner 
     determines to be appropriate.
       [``(c) Use of Funds.--A State that receives a grant under 
     subsection (a) shall use the grant funds for any approved 
     activities in the State's State plan submitted under section 
     101.
       [``(d) No Non-Federal Share Requirement.--The provisions of 
     sections 101(a)(3) and 111(a)(2) shall not apply to this 
     section.
       [``(e) Authorization of Appropriations.--There are 
     authorized to be appropriated to carry out this section such 
     sums as may be necessary for each of fiscal years 2004 
     through 2009.''.

     [SEC. 420. VOCATIONAL REHABILITATION SERVICES GRANTS.

       [Section 121 of the Rehabilitation Act of 1973 (29 U.S.C. 
     741) is amended--
       [(1) in subsection (a), in the first sentence, by inserting 
     ``, consistent with such individuals' strengths, resources, 
     priorities, concerns, abilities, capabilities, interests, and 
     informed choice, so that such individuals may prepare for, 
     and engage in, gainful employment'' before the period at the 
     end; and
       [(2) in subsection (b)--
       [(A) in paragraph (1)--
       [(i) in subparagraph (B), by striking ``and'' after the 
     semicolon;
       [(ii) in subparagraph (C), by striking the period at the 
     end and inserting ``; and''; and
       [(iii) by adding at the end the following:
       [``(D) contains assurances that--
       [``(i) all decisions affecting eligibility for vocational 
     rehabilitation services, the nature and scope of available 
     services, and the provision of such services, will be made by 
     a representative of the tribal vocational rehabilitation 
     program; and
       [``(ii) such decisions will not be delegated to another 
     agency or individual.'';
       [(B) in paragraph (3), by striking the first sentence and 
     inserting the following: ``An application approved under this 
     part that complies with the program requirements set forth in 
     the regulations promulgated to carry out this part shall be 
     effective for 5 years and shall be renewed for additional 5-
     year periods if the Commissioner determines that the grantee 
     demonstrated acceptable past performance and the grantee 
     submits a plan, including a proposed budget, to the 
     Commissioner that the Commissioner approves that identifies 
     future performance criteria, goals, and objectives.''; and
       [(C) by striking paragraph (4) and inserting the following:
       [``(4) In allocating funds under this part, the Secretary 
     shall give priority to paying the continuation costs of 
     existing projects and may provide for increases in funding 
     for such projects as determined necessary.''.

     [SEC. 421. GAO STUDIES.

       [(a) Study on Title I and Ticket to Work.--
       [(1) In general.--The Comptroller General of the United 
     States shall conduct a study on the interaction of title I of 
     the Rehabilitation Act of 1973 (29 U.S.C. 720 et seq.) with 
     the Ticket to Work and Self-Sufficiency Program established 
     under section 1148 of the Social Security Act (42 U.S.C. 
     1320b-19), including the impact of the interaction on 
     beneficiaries, community rehabilitation programs, and State 
     vocational rehabilitation agencies.
       [(2) Conduct of study.--In conducting the study under 
     paragraph (1), the Comptroller General of the United States 
     shall consult with all participants in the Ticket to Work and 
     Self-Sufficiency Program, including the Social Security 
     Administration, the Rehabilitation Services Administration, 
     ticketholders, State agencies, community rehabilitation 
     programs (including employment networks and nonemployment 
     networks), protection and advocacy agencies, MAXIMUS, and 
     organizations representing the interests of ticketholders.
       [(3) Report to congress.--Not later than 18 months after 
     the date of enactment of this title, the Comptroller General 
     of the United States shall submit the study conducted 
     pursuant to this subsection to the appropriate committees of 
     Congress.
       [(b) Study on the Allotment Formula.--
       [(1) In general.--The Comptroller General of the United 
     States shall conduct a study on the relationship between the 
     State allotment formula under section 110 of the 
     Rehabilitation Act of 1973 (29 U.S.C. 730) and the ability of 
     States to provide vocational rehabilitation services in 
     accordance with the State's State plan under section 101 of 
     such Act.
       [(2) Conduct of study.--In conducting the study under 
     paragraph (1), the Comptroller General of the United States 
     shall consult with appropriate entities.
       [(3) Report to congress.--Not later than 12 months after 
     the date of enactment of this title, the Comptroller General 
     of the United States shall submit the study conducted 
     pursuant to this subsection to the appropriate committees of 
     Congress.

                   [Subtitle B--Research and Training

     [SEC. 431. AUTHORIZATION OF APPROPRIATIONS.

       [Section 201(a) of the Rehabilitation Act of 1973 (29 
     U.S.C. 761(a)) is amended--
       [(1) in paragraph (1), by striking ``fiscal years 1999 
     through 2003'' and inserting ``fiscal years 2004 through 
     2009''; and
       [(2) in paragraph (2), by striking ``fiscal years 1999 
     through 2003'' and inserting ``fiscal years 2004 through 
     2009''.

     [SEC. 432. NATIONAL INSTITUTE ON DISABILITY AND 
                   REHABILITATION RESEARCH.

       [Section 202(f)(1) of the Rehabilitation Act of 1973 (29 
     U.S.C. 762(f)(1)) is amended by striking ``Federal 
     employees'' and inserting ``Department of Education 
     employees''.

     [SEC. 433. RESEARCH AND OTHER COVERED ACTIVITIES.

       [Section 204(c)(2) of the Rehabilitation Act of 1973 (29 
     U.S.C. 764(c)(2)) is amended by striking ``$500,000'' and 
     inserting ``$750,000''.

     [SEC. 434. REHABILITATION RESEARCH ADVISORY COUNCIL.

       [Section 205(c) of the Rehabilitation Act of 1973 (29 
     U.S.C. 765(c)) is amended by adding at the end the following: 
     ``The Council also shall include a representative from the 
     business community who has experience with the vocational 
     rehabilitation system and hiring individuals with 
     disabilities.''.

    [Subtitle C--Professional Development and Special Projects and 
                             Demonstrations

     [SEC. 441. TRAINING.

       [Section 302 of the Rehabilitation Act of 1973 (29 U.S.C. 
     772) is amended--
       [(1) in subsection (b)(1)(B)(i), by striking ``or 
     prosthetics and orthotics'' and inserting ``prosthetics and 
     orthotics, rehabilitation for the blind, or orientation and 
     mobility instruction''; and
       [(2) in subsection (i), by striking ``fiscal years 1999 
     through 2003'' and inserting ``fiscal years 2004 through 
     2009''.

     [SEC. 442. DEMONSTRATION AND TRAINING PROGRAMS.

       [Section 303 of the Rehabilitation Act of 1973 (29 U.S.C. 
     773) is amended--
       [(1) by redesignating subsection (e) as subsection (f);
       [(2) in subsection (f), as redesignated by paragraph (1), 
     by striking ``fiscal years 1999 through 2003'' and inserting 
     ``fiscal years 2004 through 2009''; and
       [(3) by inserting after subsection (d) the following:
       [``(e) Access to Telework.--
       [``(1) Definition of telework.--In this subsection, the 
     term `telework' means to work from home and other telework 
     sites with the assistance of a computer and with

[[Page 28973]]

     reasonable accommodations, including the necessary equipment 
     to facilitate successful work from home and other telework 
     sites.
       [``(2) Authorization of program.--The Commissioner is 
     authorized to make grants to States and governing bodies of 
     American Indian tribes located on Federal and State 
     reservations (and consortia of such governing bodies) to pay 
     for the Federal share of the cost of establishing or 
     expanding a telework program.
       [``(3) Application.--A State that desires to receive a 
     grant under this subsection shall submit an application to 
     the Commissioner at such time, in such manner, and containing 
     such information as the Commissioner may require.
       [``(4) Use of funds.--A State that receives a grant under 
     this subsection shall establish or expand a telework program 
     that shall provide loans or other alternative financing 
     mechanisms to individuals with disabilities to enable such 
     individuals to purchase computers or other equipment, 
     including adaptive equipment, that facilitates work from home 
     and other telework sites so that such individuals are able to 
     telework.
       [``(5) Annual report.--
       [``(A) In general.--A State that receives a grant under 
     this subsection shall submit an annual report to the 
     Commissioner.
       [``(B) Contents.--The report under subparagraph (A) shall 
     include the following:
       [``(i) The characteristics of each individual with a 
     disability that receives a loan or other alternative 
     financing mechanism under the program, including information 
     about the individual such as the following:

       [``(I) Age.
       [``(II) Ethnicity.
       [``(III) Type of disability.
       [``(IV) Employment status at the time of application for a 
     loan or other alternative financing mechanism under this 
     subsection.
       [``(V) Whether the individual attempted to secure financial 
     support from other sources to enable the individual to 
     telework and, if so, a description of such sources.
       [``(VI) Whether the individual is working and, if so, 
     whether the individual teleworks, the occupation in which the 
     individual is working, the hourly salary the individual 
     receives, and the hourly salary of the individual prior to 
     receiving a loan or other alternative financing mechanism 
     under the program.
       [``(VII) Whether the individual has repaid the loan or 
     other alternative financing mechanism received under the 
     program, is in repayment status, is delinquent on repayments, 
     or has defaulted on the loan or other alternative financing 
     mechanism.

       [``(ii) Any other information that the Commissioner may 
     require.
       [``(6) Federal share.--The Federal share of the cost of 
     establishing a telework program shall be 10 percent of the 
     cost.''.

     [SEC. 443. MIGRANT AND SEASONAL FARMWORKERS.

       [Section 304(b) of the Rehabilitation Act of 1973 (29 
     U.S.C. 774(b)) is amended by striking ``fiscal years 1999 
     through 2003'' and inserting ``fiscal years 2004 through 
     2009''.

     [SEC. 444. RECREATIONAL PROGRAMS.

       [Section 305 of the Rehabilitation Act of 1973 (29 U.S.C. 
     775) is amended--
       [(1) in subsection (a)(1)(B), by striking ``construction of 
     facilities for aquatic rehabilitation therapy,''; and
       [(2) in subsection (b), by striking ``fiscal years 1999 
     through 2003'' and inserting ``fiscal years 2004 through 
     2009''.

              [Subtitle D--National Council on Disability

     [SEC. 451. AUTHORIZATION OF APPROPRIATIONS.

       [Section 405 of the Rehabilitation Act of 1973 (29 U.S.C. 
     785) is amended by striking ``fiscal years 1999 through 
     2003'' and inserting ``fiscal years 2004 through 2009''.

                    [Subtitle E--Rights and Advocacy

     [SEC. 461. ARCHITECTURAL AND TRANSPORTATION BARRIERS 
                   COMPLIANCE BOARD.

       [Section 502(j) of the Rehabilitation Act of 1973 (29 
     U.S.C. 792(j)) is amended by striking ``fiscal years 1999 
     through 2003'' and inserting ``fiscal years 2004 through 
     2009''.

     [SEC. 462. PROTECTION AND ADVOCACY OF INDIVIDUAL RIGHTS.

       [Section 509 of the Rehabilitation Act of 1973 (29 U.S.C. 
     794e) is amended--
       [(1) in subsection (g)(2), by striking ``was paid'' and 
     inserting ``was paid, except that program income generated 
     from the amount paid to an eligible system shall remain 
     available to such system for obligation during any succeeding 
     fiscal year''; and
       [(2) in subsection (l), by striking ``fiscal years 1999 
     through 2003'' and inserting ``fiscal years 2004 through 
     2009''.

[Subtitle F--Employment Opportunities for Individuals With Disabilities

     [SEC. 471. PROJECTS WITH INDUSTRY AUTHORIZATION OF 
                   APPROPRIATIONS.

       [Section 612 of the Rehabilitation Act of 1973 (29 U.S.C. 
     795a) is amended by striking ``fiscal years 1999 through 
     2003'' and inserting ``fiscal years 2004 through 2009''.

     [SEC. 472. SERVICES FOR INDIVIDUALS WITH SIGNIFICANT 
                   DISABILITIES AUTHORIZATION OF APPROPRIATIONS.

       [Section 628 of the Rehabilitation Act of 1973 (29 U.S.C. 
     795n) is amended by striking ``fiscal years 1999 through 
     2003'' and inserting ``fiscal years 2004 through 2009''.

 [Subtitle G--Independent Living Services and Centers for Independent 
                                 Living

     [SEC. 481. STATE PLAN.

       [Section 704 of the Rehabilitation Act of 1973 (42 U.S.C. 
     795c) is amended by adding at the end the following:
       [``(o) Promoting Full Access to Community Life.--The plan 
     shall describe how the State will provide independent living 
     services that promote full access to community life for 
     individuals with significant disabilities. The services shall 
     include, as appropriate, facilitating transitions from 
     nursing homes and other institutions, including institutions 
     serving individuals with cognitive disabilities, to 
     community-based residences, assisting individuals with 
     significant disabilities at risk of entering institutions to 
     remain in the community, and promoting home ownership among 
     individuals with significant disabilities.''.

     [SEC. 482. STATEWIDE INDEPENDENT LIVING COUNCIL.

       [Section 705(b)(5) of the Rehabilitation Act of 1973 (29 
     U.S.C. 796d(b)(5)) is amended to read as follows:
       [``(5) Chairperson.--The Council shall select a chairperson 
     from among the voting membership of the Council.''.

     [SEC. 483. INDEPENDENT LIVING SERVICES AUTHORIZATION OF 
                   APPROPRIATIONS.

       [Section 714 of the Rehabilitation Act of 1973 (29 U.S.C. 
     796e-3) is amended by striking ``fiscal years 1999 through 
     2003'' and inserting ``fiscal years 2004 through 2009''.

     [SEC. 484. PROGRAM AUTHORIZATION.

       [Section 721 of the Rehabilitation Act of 1973 (42 U.S.C. 
     796f) is amended--
       [(1) by striking subsection (c) and inserting the 
     following:
       [``(c) Allotments to States.--
       [``(1) Definitions.--In this subsection:
       [``(A) Additional appropriation.--The term `additional 
     appropriation' means the amount (if any) by which the 
     appropriation for a fiscal year exceeds the total of--
       [``(i) the amount reserved under subsection (b) for that 
     fiscal year; and
       [``(ii) the appropriation for fiscal year 2003.
       [``(B) Appropriation.--The term `appropriation' means the 
     amount appropriated to carry out this part.
       [``(C) Base appropriation.--The term `base appropriation' 
     means the portion of the appropriation for a fiscal year that 
     is equal to the lesser of--
       [``(i) an amount equal to 100 percent of the appropriation, 
     minus the amount reserved under subsection (b) for that 
     fiscal year; or
       [``(ii) the appropriation for fiscal year 2003.
       [``(2) Allotments to states from base appropriation.--After 
     the reservation required by subsection (b) has been made, the 
     Commissioner shall allot to each State whose State plan has 
     been approved under section 706 an amount that bears the same 
     ratio to the base appropriation as the amount the State 
     received under this subsection for fiscal year 2003 bears to 
     the total amount that all States received under this 
     subsection for fiscal year 2003.
       [``(3) Allotments to states of additional appropriation.--
     From any additional appropriation for each fiscal year, the 
     Commissioner shall allot to each State whose State plan has 
     been approved under section 706 an amount equal to the sum 
     of--
       [``(A) an amount that bears the same ratio to 50 percent of 
     the additional appropriation as the population of the State 
     bears to the population of all States; and
       [``(B) \1/56\ of 50 percent of the additional 
     appropriation.''; and
       [(2) by adding at the end the following:
       [``(e) Carryover Authority.--Any amount paid to an agency 
     to operate a center for independent living under this chapter 
     for a fiscal year and any amount of program income that 
     remains unobligated at the end of such year shall remain 
     available to such agency for obligation during the next 2 
     fiscal years for the purposes for which such amount was 
     paid.''.

     [SEC. 485. GRANTS TO CENTERS FOR INDEPENDENT LIVING IN STATES 
                   IN WHICH FEDERAL FUNDING EXCEEDS STATE FUNDING.

       [Section 722(c) of the Rehabilitation Act of 1973 (29 
     U.S.C. 796f-1(c)) is amended by striking ``by September 30, 
     1997'' and inserting ``during the preceding year''.

     [SEC. 486. GRANTS TO CENTERS FOR INDEPENDENT LIVING IN STATES 
                   IN WHICH STATE FUNDING EQUALS OR EXCEEDS 
                   FEDERAL FUNDING.

       [Section 723(c) of the Rehabilitation Act of 1973 (29 
     U.S.C. 796f-2(c)) is amended by striking ``by September 30, 
     1997'' and inserting ``during the preceding year''.

     [SEC. 487. STANDARDS AND ASSURANCES FOR CENTERS FOR 
                   INDEPENDENT LIVING.

       [Section 725(b) of the Rehabilitation Act of 1973 (29 
     U.S.C. 796f-4(b)) is amended--
       [(1) in paragraph (4), by striking ``disabilities.'' and 
     inserting ``disabilities, including maintaining individuals 
     with disabilities in, or transitioning individuals with 
     disabilities to, community-based living.''; and
       [(2) by adding at the end the following:
       [``(8) Promoting full access to community life.--The center 
     shall provide independent living services that promote full 
     access to community life for individuals with significant 
     disabilities. The services shall include, as appropriate, 
     facilitating transitions

[[Page 28974]]

     from nursing homes and other institutions, including 
     institutions serving individuals with cognitive disabilities, 
     to community-based residences, assisting individuals with 
     significant disabilities at risk of entering institutions to 
     remain in the community, and promoting home ownership among 
     individuals with significant disabilities.''.

     [SEC. 488. CENTERS FOR INDEPENDENT LIVING AUTHORIZATION OF 
                   APPROPRIATIONS.

       [Section 727 of the Rehabilitation Act of 1973 (29 U.S.C. 
     796f-6) is amended by striking ``fiscal years 1999 through 
     2003'' and inserting ``fiscal years 2004 through 2009''.

     [SEC. 489. INDEPENDENT LIVING SERVICES FOR OLDER INDIVIDUALS 
                   WHO ARE BLIND.

       [Chapter 2 of title VII of the Rehabilitation Act of 1973 
     (29 U.S.C. 796j et seq.) is amended--
       [(1) by redesignating sections 752 and 753 as sections 753 
     and 754, respectively; and
       [(2) by inserting after section 751 the following:

     [``SEC. 752. TRAINING AND TECHNICAL ASSISTANCE.

       [``(a) Grants; Contracts; Other Arrangements.--For any 
     fiscal year for which the funds appropriated to carry out 
     this chapter exceed the funds appropriated to carry out this 
     chapter for fiscal year 2003, the Commissioner shall first 
     reserve from such excess, to provide training and technical 
     assistance to eligible entities for such fiscal year, not 
     less than 1.8 percent, and not more than 2 percent, of the 
     funds appropriated to carry out this chapter for the fiscal 
     year involved.
       [``(b) Allocation.--From the funds reserved under 
     subsection (a), the Commissioner shall make grants to, and 
     enter into contracts and other arrangements with, entities 
     that demonstrate expertise in the provision of services to 
     older individuals who are blind to provide training and 
     technical assistance with respect to planning, developing, 
     conducting, administering, and evaluating independent living 
     programs for older individuals who are blind.
       [``(c) Funding Priorities.--The Commissioner shall conduct 
     a survey of designated State agencies that receive grants 
     under section 753 regarding training and technical assistance 
     needs in order to determine funding priorities for grants, 
     contracts, and other arrangements under this section.
       [``(d) Review.--To be eligible to receive a grant or enter 
     into a contract or other arrangement under this section, an 
     eligible entity shall submit an application to the 
     Commissioner at such time, in such manner, containing a 
     proposal to provide such training and technical assistance, 
     and containing such additional information as the 
     Commissioner may require.
       [``(e) Prohibition on Combined Funds.--No funds reserved by 
     the Commissioner under this section may be combined with 
     funds appropriated under any other Act or part of this Act if 
     the purpose of combining funds is to make a single 
     discretionary grant or a single discretionary payment, unless 
     such funds appropriated under this chapter are separately 
     identified in such grant or payment and are used for the 
     purposes of this chapter.''.

     [SEC. 490. PROGRAM OF GRANTS.

       [Section 753 of the Rehabilitation Act of 1973, as 
     redesignated by section 489, is amended--
       [(1) in subsection (g), by inserting ``, or contracts 
     with,'' after ``grants to'';
       [(2) by striking subsection (h);
       [(3) by redesignating subsections (i) and (j) as 
     subsections (h) and (i), respectively;
       [(4) in subsection (b), by striking ``section 753'' and 
     inserting ``section 754'';
       [(5) in subsection (c)--
       [(A) in paragraph (1), by striking ``section 753'' and 
     inserting ``section 754''; and
       [(B) in paragraph (2)--
       [(i) by striking ``subsection (i)'' and inserting 
     ``subsection (h)''; and
       [(ii) by striking ``subsection (j)'' and inserting 
     ``subsection (i)'';
       [(6) in subsection (h), as redesignated by paragraph (3)--
       [(A) in paragraph (1), by striking ``subsection (j)(4)'' 
     and inserting ``subsection (i)(4)''; and
       [(B) in paragraph (2)--
       [(i) in subparagraph (A)(vi), by adding ``and'' after the 
     semicolon;
       [(ii) in subparagraph (B)(ii)(III), by striking ``; and'' 
     and inserting a period; and
       [(iii) by striking subparagraph (C); and
       [(7) in subsection (i), as redesignated by paragraph (3)--
       [(A) by striking paragraph (2) and inserting the following:
       [``(2) Minimum allotment.--
       [``(A) States.--In the case of the several States, the 
     District of Columbia, and the Commonwealth of Puerto Rico, 
     the amount referred to in paragraph (1)(A) for a fiscal year 
     is the greater of--
       [``(i) $350,000;
       [``(ii) an amount equal to the amount the State, the 
     District of Columbia, or the Commonwealth of Puerto Rico 
     received to carry out this chapter for fiscal year 2003; or
       [``(iii) an amount equal to \1/3\ of 1 percent of the 
     amount appropriated under section 754, and not reserved under 
     section 752, for the fiscal year and available for allotments 
     under subsection (a).
       [``(B) Certain territories.--In the case of Guam, American 
     Samoa, the United States Virgin Islands, and the Commonwealth 
     of the Northern Mariana Islands, the amount referred to in 
     paragraph (1)(A) for a fiscal year is $60,000.'';
       [(B) in paragraph (3)(A), by striking ``section 753'' and 
     inserting ``section 754, and not reserved under section 
     752,''; and
       [(C) in paragraph (4)(B)(i), by striking ``subsection (i)'' 
     and inserting ``subsection (h)''.

     [SEC. 491. INDEPENDENT LIVING SERVICES FOR OLDER INDIVIDUALS 
                   WHO ARE BLIND AUTHORIZATION OF APPROPRIATIONS.

       [Section 754 of the Rehabilitation Act of 1973, as 
     redesignated by section 489, is amended by striking ``fiscal 
     years 1999 through 2003'' and inserting ``fiscal years 2004 
     through 2009''.

                       [Subtitle H--Miscellaneous

     [SEC. 495. HELEN KELLER NATIONAL CENTER ACT.

       [(a) General Authorization of Appropriations.--The first 
     sentence of section 205(a) of the Helen Keller National 
     Center Act (29 U.S.C. 1904(a)) is amended by striking ``1999 
     through 2003'' and inserting ``2004 through 2009''.
       [(b) Helen Keller National Center Federal Endowment Fund.--
     The first sentence of section 208(h) of the Helen Keller 
     National Center Act (29 U.S.C. 1907(h)) is amended by 
     striking ``1999 through 2003'' and inserting ``2004 through 
     2009''.

                [TITLE V--TRANSITION AND EFFECTIVE DATE

     [SEC. 501. TRANSITION PROVISIONS.

       [The Secretary of Labor shall, at the discretion of the 
     Secretary, take such actions as the Secretary determines to 
     be appropriate to provide for the orderly implementation of 
     this Act.

     [SEC. 502. EFFECTIVE DATE.

       [Except as otherwise provided in this Act, this Act and the 
     amendments made by this Act, shall take effect on the date of 
     enactment of this Act.]

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Workforce Investment Act 
     Amendments of 2003''.

     SEC. 2. TABLE OF CONTENTS.

       The table of contents of this Act is as follows:

Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. References.

 TITLE I--AMENDMENTS TO TITLE I OF THE WORKFORCE INVESTMENT ACT OF 1998

                        Subtitle A--Definitions

Sec. 101. Definitions.

      Subtitle B--Statewide and Local Workforce Investment Systems

Sec. 111. Purpose.
Sec. 112. State workforce investment boards.
Sec. 113. State plan.
Sec. 114. Local workforce investment areas.
Sec. 115. Local workforce investment boards.
Sec. 116. Local plan.
Sec. 117. Establishment of one-stop delivery systems.
Sec. 118. Eligible providers of training services.
Sec. 119. Eligible providers of youth activities.
Sec. 120. Youth activities.
Sec. 121. Adult and dislocated worker employment and training 
              activities.
Sec. 122. Performance accountability system.
Sec. 123. Authorization of appropriations.

                         Subtitle C--Job Corps

Sec. 131. Job Corps.

                     Subtitle D--National Programs

Sec. 141. Native American programs.
Sec. 142. Migrant and seasonal farmworker programs.
Sec. 143. Veterans' workforce investment programs.
Sec. 144. Youth challenge grants.
Sec. 145. Technical assistance.
Sec. 146. Demonstration, pilot, multiservice, research, and multistate 
              projects.
Sec. 147. National dislocated worker grants.
Sec. 148. Authorization of appropriations for national activities.

                       Subtitle E--Administration

Sec. 151. Requirements and restrictions.
Sec. 152. Reports.
Sec. 153. Administrative provisions.
Sec. 154. Use of certain real property.
Sec. 155. Table of contents.

                      Subtitle F--Incentive Grants

Sec. 161. Incentive grants.

  TITLE II--AMENDMENTS TO THE ADULT EDUCATION AND FAMILY LITERACY ACT

Sec. 201. Short title; purpose.
Sec. 202. Definitions.
Sec. 203. Authorization of appropriations.
Sec. 204. Home schools.
Sec. 205. Reservation of funds; grants to eligible agencies; 
              allotments.
Sec. 206. Performance accountability system.
Sec. 207. State administration.
Sec. 208. State distribution of funds; matching requirement.
Sec. 209. State leadership activities.
Sec. 210. State plan.
Sec. 211. Programs for corrections education and other 
              institutionalized individuals.
Sec. 212. Grants and contracts for eligible providers.
Sec. 213. Local application.
Sec. 214. Local administrative cost limits.

[[Page 28975]]

Sec. 215. Administrative provisions.
Sec. 216. National Institute for Literacy.
Sec. 217. National leadership activities.
Sec. 218. Integrated English literacy and civics education.
Sec. 219. Transition.

            TITLE III--AMENDMENTS TO OTHER PROVISIONS OF LAW

Sec. 301. Wagner-Peyser Act.

                TITLE IV--REHABILITATION ACT AMENDMENTS

Sec. 401. Short title.
Sec. 402. Technical amendments to table of contents.
Sec. 403. Purpose.
Sec. 404. Definitions.
Sec. 405. Administration of the Act.
Sec. 406. Carryover.

             Subtitle A--Vocational Rehabilitation Services

Sec. 411. Declaration of policy; authorization of appropriations.
Sec. 412. State plans.
Sec. 413. Eligibility and individualized plan for employment.
Sec. 414. Vocational rehabilitation services.
Sec. 415. State rehabilitation council.
Sec. 416. Evaluation standards and performance indicators.
Sec. 417. State allotments.
Sec. 418. Client assistance program.
Sec. 419. Incentive grants.
Sec. 420. Vocational rehabilitation services grants.
Sec. 421. GAO studies.

                   Subtitle B--Research and Training

Sec. 431. Authorization of appropriations.
Sec. 432. National Institute on Disability and Rehabilitation Research.
Sec. 433. Research and other covered activities.
Sec. 434. Rehabilitation research advisory council.

     Subtitle C--Professional Development and Special Projects and 
                             Demonstrations

Sec. 441. Training.
Sec. 442. Demonstration and training programs.
Sec. 443. Migrant and seasonal farmworkers.
Sec. 444. Recreational programs.

               Subtitle D--National Council on Disability

Sec. 451. Authorization of appropriations.

                    Subtitle E--Rights and Advocacy

Sec. 461. Architectural and transportation barriers compliance board.
Sec. 462. Protection and advocacy of individual rights.

 Subtitle F--Employment Opportunities for Individuals With Disabilities

Sec. 471. Projects with industry authorization of appropriations.
Sec. 472. Services for individuals with significant disabilities 
              authorization of appropriations.

  Subtitle G--Independent Living Services and Centers for Independent 
                                 Living

Sec. 481. State plan.
Sec. 482. Statewide independent living council.
Sec. 483. Independent living services authorization of appropriations.
Sec. 484. Program authorization.
Sec. 485. Grants to centers for independent living in States in which 
              Federal funding exceeds State funding.
Sec. 486. Grants to centers for independent living in States in which 
              State funding equals or exceeds Federal funding.
Sec. 487. Standards and assurances for centers for independent living.
Sec. 488. Centers for independent living authorization of 
              appropriations.
Sec. 489. Independent living services for older individuals who are 
              blind.
Sec. 490. Program of grants.
Sec. 491. Independent living services for older individuals who are 
              blind authorization of appropriations.

                       Subtitle H--Miscellaneous

Sec. 495. Helen Keller National Center Act.

                 TITLE V--TRANSITION AND EFFECTIVE DATE

Sec. 501. Transition provisions.
Sec. 502. Effective date.

     SEC. 3. REFERENCES.

       Except as otherwise expressly provided, wherever in this 
     Act an amendment or repeal is expressed in terms of an 
     amendment to, or repeal of, a section or other provision, the 
     reference shall be considered to be made to a section or 
     other provision of the Workforce Investment Act of 1998 (29 
     U.S.C. 2801 et seq.).

 TITLE I--AMENDMENTS TO TITLE I OF THE WORKFORCE INVESTMENT ACT OF 1998

                        Subtitle A--Definitions

     SEC. 101. DEFINITIONS.

       Section 101 (29 U.S.C. 2801) is amended--
       (1) by redesignating paragraphs (1) through (4), (5) 
     through (16), (17), (18) through (41), and (42) through (53) 
     as paragraphs (2) through (5), (7) through (18), (20), (23) 
     through (46), and (48) through (59), respectively;
       (2) by inserting before paragraph (2) (as redesignated by 
     paragraph (1)) the following:
       ``(1) Accrued expenditures.--The term `accrued 
     expenditures' means charges incurred by recipients of funds 
     under this title for a given period requiring the provision 
     of funds for--
       ``(A) goods or other tangible property received;
       ``(B) services performed by employees, contractors, 
     subgrantees, subcontractors, and other payees; and
       ``(C) other amounts becoming owed under programs assisted 
     under this title for which no current services or performance 
     is required, such as annuities, insurance claims, and other 
     benefit payments.'';
       (3) in paragraph (2) (as redesignated by paragraph (1)), by 
     striking ``Except in sections 127 and 132,'' and inserting 
     ``Except in section 132,'';
       (4) by striking paragraph (5) (as redesignated by paragraph 
     (1)) and inserting the following:
       ``(5) Basic skills deficient.--The term `basic skills 
     deficient' means, with respect to an individual, that the 
     individual--
       ``(A) has English reading, writing, or computing skills at 
     or below the 8th grade level on a generally accepted 
     standardized test or a comparable score on a criterion-
     referenced test; or
       ``(B) is unable to compute or solve problems, read, write, 
     or speak English at a level necessary to function on the job, 
     in the individual's family, or in society.'';
       (5) by inserting after paragraph (5) (as redesignated by 
     paragraph (1)) the following:
       ``(6) Business intermediary.--The term `business 
     intermediary' means an entity that brings together various 
     stakeholders with an expertise in an industry or business 
     sector.'';
       (6) in paragraph (9) (as redesignated by paragraph (1)), by 
     inserting ``, including a faith-based organization,'' after 
     ``nonprofit organization'';
       (7) in paragraph (10) (as redesignated by paragraph (1))--
       (A) in subparagraph (B), by striking ``and'' after the 
     semicolon;
       (B) in subparagraph (C)--
       (i) by striking ``for not less than 50 percent of the cost 
     of the training.'' and inserting ``for--
       ``(i) a significant portion of the cost of training as 
     determined by the local board, taking into account the size 
     of the employer and such other factors as the local board 
     determines to be appropriate; and
       ``(ii) for customized training (as defined in subparagraphs 
     (A) and (B)) with an employer in multiple local areas in the 
     State, a significant portion of the cost of the training, as 
     determined by the Governor, taking into account the size of 
     the employer and such other factors as the Governor 
     determines to be appropriate.'';
       (8) in paragraph (11) (as redesignated by paragraph (1))--
       (A) in subparagraph (A)(ii)(II), by striking ``section 
     134(c)'' and inserting ``section 121(e)'';
       (B) in subparagraph (C), by striking ``or'' after the 
     semicolon;
       (C) in subparagraph (D), by striking the period and 
     inserting ``; or''; and
       (D) by adding at the end the following:
       ``(E)(i) is the spouse of a member of the Armed Forces on 
     active duty for a period of more than 30 days (as defined in 
     section 101(d)(2) of title 10, United States Code) who has 
     experienced a loss of employment as a direct result of 
     relocation to accommodate a permanent change in duty station 
     of such member; or
       ``(ii) is the spouse of a member of the Armed Forces on 
     active duty who meets the criteria described in paragraph 
     (12)(B).'';
       (9) in paragraph (12)(A) (as redesignated by paragraph 
     (1))--
       (A) by striking ``and'' after the semicolon and inserting 
     ``or'';
       (B) by striking ``(A)'' and inserting ``(A)(i)''; and
       (C) by adding at the end the following:
       ``(ii) is the dependent spouse of a member of the Armed 
     Forces on active duty for a period of more than 30 days (as 
     defined in section 101(d)(2) of title 10, United States Code) 
     whose family income is significantly reduced because of a 
     deployment (as defined in section 991(b) of title 10, United 
     States Code, or pursuant to paragraph (4) of such section), a 
     call or order to active duty pursuant to a provision of law 
     referred to in section 101(a)(13)(B) of title 10, United 
     States Code, a permanent change of station, or the service-
     connected (as defined in section 101(16) of title 38, United 
     States Code) death or disability of the member; and'';
       (10) in paragraph (14)(A) (as redesignated by paragraph 
     (1)), by striking ``section 122(e)(3)'' and inserting 
     ``section 122'';
       (11) by inserting after paragraph (18) (as redesignated by 
     paragraph (1)) the following:
       ``(19) Hard-to-serve populations.--The term `hard-to-serve 
     populations' means populations of individuals who are hard to 
     serve, including displaced homemakers, low-income 
     individuals, Native Americans, individuals with disabilities, 
     older individuals, ex-offenders, homeless individuals, 
     individuals with limited English proficiency, individuals who 
     do not meet the definition of literacy in section 203, 
     individuals facing substantial cultural barriers, migrant and 
     seasonal farmworkers, individuals within 2 years of 
     exhausting lifetime eligibility under part A of title IV of 
     the Social Security Act (42 U.S.C. 601 et seq.), and such 
     other groups as the Governor determines to be hard to 
     serve.'';
       (12) by inserting after paragraph (20) (as redesignated by 
     paragraph (1)) the following:
       ``(21) Integrated training program.--The term `integrated 
     training program' means a program that combines occupational 
     skills training with English language acquisition.
       ``(22) Institution of higher education.--The term 
     `institution of higher education' has the meaning given the 
     term in section 101(a), and subparagraphs (A) and (B) of 
     section 102(a)(1), of the Higher Education Act of 1965 (20 
     U.S.C. 1001(a), 1002(a)(1)).'';
       (13) in paragraph (30) (as redesignated by paragraph (1))--
       (A) by redesignating subparagraphs (D) through (F) as 
     subparagraphs (E) through (G), respectively; and

[[Page 28976]]

       (B) by inserting after subparagraph (C) the following:
       ``(D) receives or is eligible to receive a free or reduced 
     price lunch under the Richard B. Russell National School 
     Lunch Act (42 U.S.C. 1751 et seq.);'';
       (14) in paragraph (35) (as redesignated by paragraph (1)), 
     by inserting ``, subject to section 121(b)(1)(C)'' after 
     ``121(b)(1)'';
       (15) by striking paragraph (38) (as redesignated by 
     paragraph (1)) and inserting the following:
       ``(38) Out-of-school youth.--The term `out-of-school youth' 
     means an out-of-school youth as defined in section 
     129(a)(1)(B).'';
       (16) in paragraph (46) (as redesignated by paragraph (1)), 
     by striking ``, and the term means such Secretary for 
     purposes of section 503'';
       (17) by inserting after paragraph (46) (as redesignated by 
     paragraph (1)) the following:
       ``(47) Self-sufficiency.--The term `self-sufficiency' means 
     self-sufficiency within the meaning of subsections 
     (a)(3)(A)(x) and (e)(1)(A)(xii) of section 134.'';
       (18) in paragraph (49) (as redesignated by paragraph (1)), 
     by striking ``clause (iii) or (v) of section 136(b)(3)(A)'' 
     and inserting ``section 136(b)(3)(A)(iii)'';
       (19) in paragraph (58) (as redesignated by paragraph (1)), 
     by striking ``(or as described in section 129(c)(5))'' and 
     inserting ``(or as described in section 129(a)(2))''; and
       (20) in paragraph (59) (as redesignated by paragraph (1)), 
     by striking ``established under section 117(h)'' and 
     inserting ``that may be established under section 
     117(h)(2)''.

      Subtitle B--Statewide and Local Workforce Investment Systems

     SEC. 111. PURPOSE.

       Section 106 (29 U.S.C. 2811) is amended to read as follows:

     ``SEC. 106. PURPOSES.

       ``The purposes of this subtitle are the following:
       ``(1)(A) Primarily, to provide workforce investment 
     activities, through statewide and local workforce investment 
     systems, that increase the employment, retention, self-
     sufficiency, and earnings of participants, and increase 
     occupational skill attainment by participants.
       ``(B) As a result of the provision of the activities, to 
     improve the quality of the workforce, reduce welfare 
     dependency, increase self-sufficiency, and enhance the 
     productivity and competitiveness of the Nation.
       ``(2) To enhance the workforce investment system of the 
     Nation by strengthening one-stop centers, providing for more 
     effective governance arrangements, promoting access to a more 
     comprehensive array of employment and training and related 
     services, establishing a targeted approach to serving youth, 
     improving performance accountability, and promoting State and 
     local flexibility.
       ``(3) To provide workforce investment activities in a 
     manner that promotes the informed choice of participants and 
     actively involves participants in decisions affecting their 
     participation in such activities.
       ``(4) To provide workforce investment systems that are 
     demand-driven and responsive to the needs of all employers, 
     including small employers.
       ``(5) To provide workforce investment systems that work in 
     all areas of the Nation, including urban and rural areas.
       ``(6) To allow flexibility to meet State, local, regional, 
     and individual workforce investment needs.
       ``(7) To recognize and reinforce the vital link between 
     economic development and workforce investment activities.
       ``(8) To provide for accurate data collection, reporting, 
     and performance measures that are not unduly burdensome.
       ``(9) To address the ongoing shortage of essential skills 
     in the United States workforce related to both manufacturing 
     and knowledge-based economies to ensure that the United 
     States remains competitive in the global economy.
       ``(10) To equip workers with higher skills and contribute 
     to lifelong education.
       ``(11) To eliminate training disincentives for hard-to-
     serve populations and minority workers, including effectively 
     utilizing community programs, services, and agencies.
       ``(12) To educate limited English proficient individuals 
     about skills and language so the individuals are employable.
       ``(13) To increase the employment, retention and earnings 
     of individuals with disabilities.''.

     SEC. 112. STATE WORKFORCE INVESTMENT BOARDS.

       (a) Membership.--
       (1) In general.--Section 111(b) (29 U.S.C. 2821(b)) is 
     amended--
       (A) in paragraph (1), by striking subparagraph (C) and 
     inserting the following:
       ``(C) representatives appointed by the Governor, who--
       ``(i) are the lead State agency officials with 
     responsibility for the programs and activities that are 
     described in section 121(b) and carried out by one-stop 
     partners, except that--

       ``(I) in any case in which no lead State agency official 
     has responsibility for such a program or activity, the 
     representative shall be a representative in the State with 
     expertise relating to such program or activity; and
       ``(II) in the case of the programs authorized under title I 
     of the Rehabilitation Act of 1973, the representative shall 
     be the director of the designated State unit, as defined in 
     section 7 of the Rehabilitation Act of 1973 (29 U.S.C. 705);

       ``(ii) are the State agency officials responsible for 
     economic development;
       ``(iii) are representatives of business in the State, 
     including small businesses, who--

       ``(I) are owners of businesses, chief executive or 
     operating officers of businesses, or other business 
     executives or employers with optimum policymaking or hiring 
     authority;
       ``(II) represent businesses with employment opportunities 
     that reflect employment opportunities in the State; and
       ``(III) are appointed from among individuals nominated by 
     State business organizations, business trade associations, 
     and local boards;

       ``(iv) are chief elected officials (representing cities and 
     counties, where appropriate);
       ``(v) are representatives of labor organizations, who have 
     been nominated by State labor federations; and
       ``(vi) are such other State agency officials and other 
     representatives as the Governor may designate.''; and
       (B) in paragraph (3), by striking ``paragraph (1)(C)(i)'' 
     and inserting ``paragraph (1)(C)(iii)''.
       (2) Conforming amendment.--Section 111(c) (29 U.S.C. 
     2821(c)) is amended by striking ``subsection (b)(1)(C)(i)'' 
     and inserting ``subsection (b)(1)(C)(iii)''.
       (b) Functions.--Section 111(d) (29 U.S.C. 2811(d)) is 
     amended--
       (1) in paragraph (1), by striking ``development'' and 
     inserting ``development, implementation, and revision'';
       (2) in paragraph (2), by striking ``section 134(c)'' and 
     inserting ``section 121(e)'';
       (3) by striking paragraph (3) and inserting the following:
       ``(3) reviewing and providing comment on the State plans of 
     all one-stop partner programs, where applicable, in order to 
     provide effective strategic leadership in the development of 
     a high quality, comprehensive statewide workforce investment 
     system, including commenting at least once annually on the 
     measures taken pursuant to section 113(b)(3) of the Carl D. 
     Perkins Vocational and Technical Education Act of 1998 (20 
     U.S.C 2323(b)(3)) and title II of this Act;
       (4) by redesignating paragraphs (4) through (9) as 
     paragraphs (5) through (10), respectively;
       (5) by inserting after paragraph (3) the following:
       ``(4) development and review of statewide policies 
     affecting the coordinated provision of services through the 
     one-stop delivery systems described in section 121(e) within 
     the State, including--
       ``(A) the development of objective criteria and procedures 
     for use by local boards in assessing the effectiveness and 
     continuous improvement of one-stop centers under section 
     121(g);
       ``(B) the development of guidance for the allocation of 
     one-stop center infrastructure funds under section 
     121(h)(1)(B);
       ``(C) the development of--
       ``(i) statewide policies relating to the appropriate roles 
     and contributions of one-stop partner programs within the 
     one-stop delivery system, including approaches to 
     facilitating equitable and efficient cost allocation in the 
     one-stop delivery system;
       ``(ii) statewide strategies for providing effective 
     outreach to individuals, including hard-to-serve populations, 
     and employers who could benefit from services provided 
     through the one-stop delivery system; and
       ``(iii) strategies for technology improvements to 
     facilitate access to services provided through the one-stop 
     delivery system, in remote areas, and for individuals with 
     disabilities, which may be utilized throughout the State;
       ``(D) identification and dissemination of information on 
     best practices for effective operation of one-stop centers, 
     including use of innovative business outreach, partnerships, 
     and service delivery strategies, including for hard-to-serve 
     populations; and
       ``(E) conduct of such other matters as may promote 
     statewide objectives for, and enhance the performance of, the 
     one-stop delivery systems;'';
       (6) in paragraph (5) (as redesignated by paragraph (4)), by 
     inserting ``and the development of statewide criteria to be 
     used by chief elected officials for the appointment of local 
     boards consistent with section 117'' after ``section 116'';
       (7) in paragraph (6) (as redesignated by paragraph (4)), by 
     striking ``sections 128(b)(3)(B) and 133(b)(3)(B)'' and 
     inserting ``sections 128(b)(3) and 133(b)(3)(B)'';
       (8) in paragraph (9) (as redesignated by paragraph (4)), by 
     striking ``and'' after the semicolon;
       (9) in paragraph (10) (as redesignated by paragraph (4))--
       (A) by striking ``section 503'' and inserting ``section 
     136(i)(1)''; and
       (B) by striking the period and inserting ``; and''; and
       (10) by adding at the end the following:
       ``(11) increasing the availability of skills training, 
     employment opportunities, and career advancement, for hard-
     to-serve populations.''.
       (c) Alternative Entity.--Section 111(e) (29 U.S.C. 2811(e)) 
     is amended--
       (1) in paragraph (1), by striking ``For'' and inserting 
     ``Subject to paragraph (3), for''; and
       (2) by adding at the end the following:
       ``(3) Failure to meet performance measures.--If a State 
     fails to have performed successfully, as defined in section 
     116(a)(2), the Secretary may require the State to establish a 
     State board in accordance with subsections (a), (b), and (c) 
     in lieu of the alternative entity established under paragraph 
     (1).''.
       (d) Sunshine Provision.--Section 111(g) (29 U.S.C. 2822(g)) 
     is amended--
       (1) by inserting ``, and modifications to the State plan,'' 
     before ``prior''; and
       (2) by inserting ``, and modifications to the State plan'' 
     after ``the plan''.

[[Page 28977]]

       (e) Authority To Hire Staff.--Section 111 (29 U.S.C. 2811)) 
     is amended by adding at the end the following:
       ``(h) Authority To Hire Staff.--The State board may hire 
     staff to assist in carrying out the functions described in 
     subsection (d) using funds allocated under sections 
     127(b)(1)(C) and 132(b).''.

     SEC. 113. STATE PLAN.

       (a) Planning Cycle.--Section 112(a) (29 U.S.C. 2822(a)) is 
     amended--
       (1) by striking ``5-year strategy'' and inserting ``4-year 
     strategy''; and
       (2) by adding at the end the following: ``At the end of the 
     first 2-year period of the 4-year State plan, the State board 
     shall review and, as needed, amend the 4-year State plan to 
     reflect labor market and economic conditions. In addition, 
     the State shall submit a modification to the State plan at 
     the end of the first 2-year period of the State plan, which 
     may include redesignation of local areas pursuant to section 
     116(a) and specification of the levels of performance under 
     sections 136 for the third and fourth years of the plan.''.
       (b) Contents.--Section 112(b) (29 U.S.C. 2822(b)) is 
     amended--
       (1) in paragraph (8)(A)--
       (A) in clause (ix), by striking ``and'' after the 
     semicolon; and
       (B) by adding at the end the following:
       ``(xi) programs authorized under title II of the Social 
     Security Act (42 U.S.C. 401 et seq.) (relating to Federal 
     old-age, survivors, and disability insurance benefits), title 
     XVI of such Act (42 U.S.C. 1381 et seq.) (relating to 
     supplemental security income), title XIX of such Act (42 
     U.S.C. 1396 et seq.) (relating to medicaid), and title XX of 
     such Act (relating to block grants to States for social 
     services), programs authorized under title VII of the 
     Rehabilitation Act of 1973 (29 U.S.C. 796 et seq.), and 
     programs carried out by State agencies relating to mental 
     retardation and developmental disabilities; and'';
       (2) by striking paragraph (10) and inserting the following:
       ``(10) a description of how the State will use funds the 
     State received under this subtitle to leverage other Federal, 
     State, local, and private resources, in order to maximize the 
     effectiveness of such resources, expand resources for the 
     provision of education and training services, and expand the 
     participation of businesses, employees, and individuals in 
     the statewide workforce investment system, including a 
     description of incentives and technical assistance the State 
     will provide to local areas for such purposes;'';
       (3) in paragraph (12)(A), by striking ``sections 
     128(b)(3)(B) and 133(b)(3)(B)'' and inserting ``sections 
     128(b)(3) and 133(b)(3)(B)'';
       (4) in paragraph (14), by striking ``section 134(c)'' and 
     inserting ``section 121(e)'';
       (5) in paragraph (17)--
       (A) in subparagraph (A)--
       (i) in clause (iii)--

       (I) by inserting ``local'' before ``customized training''; 
     and
       (II) by striking ``and'' at the end;

       (ii) in clause (iv), by striking ``(including displaced 
     homemakers),'' and all that follows through ``disabilities)'' 
     and inserting ``, hard-to-serve populations and individuals 
     training for nontraditional employment''; and
       (iii) by adding after clause (iv) the following:
       ``(v) how the State will serve the employment and training 
     needs of individuals with disabilities, consistent with 
     section 188 and Executive Order 13217 (42 U.S.C. 12131 note; 
     relating to community-based alternatives for individuals with 
     disabilities), including the provision of outreach, intake, 
     the conduct of assessments, service delivery, the development 
     of adjustments to performance measures established under 
     section 136, and the training of staff; and''; and
       (B) in subparagraph (B), by striking ``and'' at the end;
       (6) in paragraph (18)(D)--
       (A) by striking ``youth opportunity grants'' and inserting 
     ``youth challenge grants authorized under section 169 and 
     other federally funded youth programs''; and
       (B) by striking the period and inserting a semicolon; and
       (7) by adding at the end the following:
       ``(19) a description of how the State will utilize 
     technology to facilitate access to services in remote areas, 
     which may be utilized throughout the State;
       ``(20) a description of the State strategy for coordinating 
     workforce investment activities and economic development 
     activities;
       ``(21) a description of the State strategy and assistance 
     to be provided for ensuring regional cooperation within the 
     State and across State borders as appropriate;
       ``(22) a description of how the State will use funds the 
     State receives under this subtitle to--
       ``(A) implement innovative programs and strategies designed 
     to meet the needs of all businesses in the State, including 
     small businesses, which may include incumbent worker training 
     programs, sectoral and industry cluster strategies, regional 
     skills alliances, career ladder programs, utilization of 
     effective business intermediaries, and other business 
     services and strategies that better engage employers in 
     workforce investment activities and make the statewide 
     workforce investment system more relevant to the needs of 
     State and local businesses, consistent with the objectives of 
     this title; and
       ``(B) provide incentives and technical assistance to assist 
     local areas in more fully engaging all employers, including 
     small employers, in local workforce investment activities, to 
     make the workforce investment system more relevant to the 
     needs of area businesses, and to better coordinate workforce 
     investment and economic development efforts to contribute to 
     the economic well-being of the local area, as determined 
     appropriate by the local board;
       ``(23) a description of the State strategy--
       ``(A) for ensuring cooperation between transportation 
     providers, including public transportation providers, and 
     providers of workforce investment activities; and
       ``(B) for ensuring coordination among appropriate State 
     agencies and programs to make available skills training, 
     employment services and opportunities, and career advancement 
     activities, that will assist ex-offenders in reentering the 
     workforce;
       ``(24) a description of how the State will assist local 
     areas in assuring physical and programmatic accessibility for 
     individuals with disabilities at one-stop centers;
       ``(25) a description of the process and methodology that 
     will be used by the State board to--
       ``(A) review statewide policies and provide guidance on the 
     coordinated provision of services through the one-stop 
     delivery system described in section 121;
       ``(B) establish, in consultation with chief elected 
     officials and local boards, objective criteria and procedures 
     for use by local boards in periodically assessing the 
     effectiveness, physical and programmatic accessibility, and 
     continuous improvement of one-stop centers and one-stop 
     delivery systems as described in section 121(g); and
       ``(C) determine--
       ``(i) one-stop partner program contributions for the costs 
     of the infrastructure of one-stop centers under section 
     121(h)(2); and
       ``(ii) the formula for allocating the funds described in 
     section 121(h)(2) to local areas;
       ``(26) a description of the State strategy for ensuring 
     that activities carried out under this title are placing men 
     and women in jobs, education, or training that lead to 
     comparable pay; and
       ``(27) a description of the technical assistance available 
     to one-stop operators and providers of training services for 
     strategies to serve hard-to-serve populations and promote 
     placement in nontraditional employment.''.
       (c) Modifications to Plan.--Section 112(d) (29 U.S.C. 
     2822(d)) is amended--
       (1) by striking ``5-year period'' and inserting ``4-year 
     period''; and
       (2) by adding at the end the following: ``In addition, the 
     State shall submit the modifications to the State plan 
     required under subsection (a), under circumstances prescribed 
     by the Secretary that are due to changes in Federal law that 
     significantly affect elements of the State plan.''.

     SEC. 114. LOCAL WORKFORCE INVESTMENT AREAS.

       (a) Designation of Areas.--
       (1) Considerations.--Section 116(a)(1)(B) (29 U.S.C. 
     2831(a)(1)(B)) is amended by adding at the end the following:
       ``(vi) The extent to which such local areas will promote 
     maximum effectiveness in the administration and provision of 
     services.''.
       (2) Automatic designation.--Section 116(a)(2) (29 U.S.C. 
     2831(a)(2)) is amended to read as follows:
       ``(2) Automatic designation.--
       ``(A) In general.--The Governor shall approve a request for 
     designation as a local area that is submitted prior to the 
     submission of the State plan, or of a modification to the 
     State plan relating to area designation, from any area that--
       ``(i) is a unit of general local government with a 
     population of 500,000 or more, except that after the initial 
     2-year period following such designation pursuant to this 
     clause that occurs after the date of enactment of the 
     Workforce Investment Act Amendments of 2003, the Governor 
     shall only be required to approve a request for designation 
     from such area if such area--

       ``(I) performed successfully; and
       ``(II) sustained fiscal integrity;

       ``(ii) was a local area under this title for the preceding 
     2-year period, if such local area--

       ``(I) performed successfully; and
       ``(II) sustained fiscal integrity;

       ``(iii) is served by a rural concentrated employment 
     program grant recipient, except that after the initial 2-year 
     period following any such designation under the initial State 
     plan submitted after the date of enactment of the Workforce 
     Investment Act Amendments of 2003, the Governor shall only be 
     required to approve a request for designation under this 
     clause for such area if such area--

       ``(I) performed successfully; and
       ``(II) sustained fiscal integrity; or

       ``(iv) was a local area under section 116(a)(2)(C) (as in 
     effect on the day before the date of enactment of the 
     Workforce Investment Act Amendments of 2003), except that 
     after the initial 2-year period following such designation 
     pursuant to this clause that occurs after that date of 
     enactment, the Governor shall only be required to approve a 
     request for designation under this clause for such area if 
     such area--

       ``(I) performed successfully; and
       ``(II) sustained fiscal integrity.

       ``(B) Definitions.--For purposes of this paragraph:
       ``(i) Performed successfully.--The term `performed 
     successfully', when used with respect to a local area, means 
     the local area performed at 80 percent or more of the 
     adjusted level of performance for core indicators of 
     performance described in section 136(b)(2)(A) for 2 
     consecutive years.
       ``(ii) Sustained fiscal integrity.--The term `sustained 
     fiscal integrity', used with respect to

[[Page 28978]]

     an area, means that the Secretary has not made a formal 
     determination during the preceding 2-year period that either 
     the grant recipient or the administrative entity of the area 
     misexpended funds provided under this title due to willful 
     disregard of the requirements of the Act involved, gross 
     negligence, or failure to comply with accepted standards of 
     administration.''.
       (3) Conforming amendments.--Section 116(a) (29 U.S.C. 
     2831(a)) is amended--
       (A) by striking paragraph (3);
       (B) by redesignating paragraphs (4) and (5) as paragraph 
     (3) and (4), respectively;
       (C) in paragraph (3) (as redesignated by subparagraph 
     (B))--
       (i) by striking ``(including temporary designation)''; and
       (ii) by striking ``(v)'' and inserting ``(vi)''; and
       (D) in paragraph (4) (as redesignated by subparagraph 
     (B))--
       (i) by striking ``under paragraph (2) or (3)'' and 
     inserting ``under paragraph (2)''; and
       (ii) by striking the second sentence.
       (b) Single Local Area States.--Section 116(b) (29 U.S.C. 
     2831(b)) is amended to read as follows:
       ``(b) Single Local Area States.--
       ``(1) Continuation of previous designation.--
     Notwithstanding subsection (a)(2), the Governor of any State 
     that was a single local area for purposes of this title as of 
     July 1, 2002, may continue to designate the State as a single 
     local area for purposes of this title if the Governor 
     identifies the State as a local area in the State plan under 
     section 112(b)(5).
       ``(2) Redesignation.--The Governor of a State not described 
     in paragraph (1) may designate the State as a single local 
     area if, prior to the submission of the State plan or 
     modification to such plan so designating the State, no local 
     area meeting the requirements for automatic designation under 
     subsection (a)(2) requests such designation as a separate 
     local area.
       ``(3) Effect on local plan.--In any case in which a State 
     is designated as a local area pursuant to this subsection, 
     the local plan prepared under section 118 for the area shall 
     be submitted to the Secretary for approval as part of the 
     State plan under section 112.''.
       (c) Regional Planning.--Section 116(c) (29 U.S.C. 2831(c)) 
     is amended--
       (1) by striking paragraph (1) and inserting the following:
       ``(1) Planning.--
       ``(A) In general.--As part of the process for developing 
     the State plan, a State may require regional planning by 
     local boards for a designated region in the State. The State 
     may require the local boards for a designated region to 
     participate in a regional planning process that results in 
     the establishment of regional performance measures for 
     workforce investment activities authorized under this 
     subtitle. The State, after consultation with local boards and 
     chief elected officials, may require the local boards for the 
     designated region to prepare, submit, and obtain approval of 
     a single regional plan that incorporates local plans for each 
     of the local areas in the region, as required under section 
     118. The State may award regional incentive grants to the 
     designated regions that meet or exceed the regional 
     performance measures pursuant to section 134(a)(2)(B)(iii).
       ``(B) Technical assistance.--If the State requires regional 
     planning as provided in subparagraph (A), the State shall 
     provide technical assistance and labor market information to 
     such local areas in the designated regions to assist with 
     such regional planning and subsequent service delivery 
     efforts.'';
       (2) in paragraph (2), by inserting ``information about the 
     skill requirements of existing and emerging industries and 
     industry clusters,'' after ``information about employment 
     opportunities and trends,''; and
       (3) in paragraph (3), by adding at the end the following: 
     ``Such services may be required to be coordinated with 
     regional economic development services and strategies.''.

     SEC. 115. LOCAL WORKFORCE INVESTMENT BOARDS.

       (a) Composition.--Section 117(b) (29 U.S.C. 2832(b)) is 
     amended--
       (1) in paragraph (2)(A)--
       (A) in clause (i), by striking subclause (II) and inserting 
     the following:

       ``(II) collectively, represent businesses with employment 
     opportunities that reflect the employment opportunities of 
     the local area, and include representatives of businesses 
     that are in high-growth and emerging industries, and 
     representatives of businesses, including small businesses, in 
     the local area; and'';

       (B) by striking clause (ii) and inserting the following:
       ``(ii)(I) a superintendent representing the local school 
     districts involved or another high-level official from such 
     districts;
       ``(II) the president or highest ranking official of an 
     institution of higher education serving the local area; and
       ``(III) an administrator of local entities providing adult 
     education and literacy activities in the local area;'';
       (C) in clause (iv), by inserting ``, hard-to-serve 
     populations,'' after ``disabilities''; and
       (D) by striking clause (vi) and inserting the following:
       ``(vi) if the local board does not establish or continue a 
     youth council, representatives with experience serving out-
     of-school youth, particularly out-of-school youth facing 
     barriers to employment; and''; and
       (2) by adding at the end the following:
       ``(6) Special rule.--In the case that there are multiple 
     school districts or institutions of higher education serving 
     a local area, the representatives described in subclause (I) 
     or (II) of paragraph (2)(A)(ii), respectively, shall be 
     appointed from among individuals nominated by regional or 
     local educational agencies, institutions, or organizations 
     representing such agencies or institutions.''.
       (b) Authority of Board Members.--Section 117(b)(3) (29 
     U.S.C. 2832(b)(3)) is amended--
       (1) in the heading, by inserting ``and representation'' 
     after ``Authority''; and
       (2) by adding at the end the following: ``The members of 
     the board shall represent diverse geographic sections within 
     the local area.''.
       (c) Conforming Amendment.--Section 117(c)(1)(C) (29 U.S.C. 
     2832(c)(1)(C)) is amended by striking ``section 
     116(a)(2)(B)'' and inserting ``section 116(a)(2)(A)(ii)''.
       (d) Functions.--Section 117(d) (29 U.S.C. 2832(d)) is 
     amended--
       (1) in paragraph (2)--
       (A) in subparagraph (B)--
       (i) by inserting ``(except as provided in section 123(b))'' 
     after ``basis''; and
       (ii) by inserting ``(where appropriate)'' after ``youth 
     council''; and
       (B) by adding at the end the following:
       ``(E) Consumer choice requirements.--Consistent with 
     sections 122 and paragraphs (3) and (4) of 134(d), the local 
     board shall work to ensure there are sufficient providers of 
     intensive services and training services serving the local 
     area in a manner that maximizes consumer choice, including 
     providers with expertise in assisting individuals with 
     disabilities.'';
       (2) in paragraph (4), by inserting ``, and shall ensure the 
     appropriate use and management of the funds provided under 
     this subtitle for such programs, activities, and system'' 
     after ``area'';
       (3) in paragraph (8)--
       (A) by inserting ``, including small employers,'' after 
     ``private sector employers''; and
       (B) by striking the period and inserting ``, taking into 
     account the unique needs of small businesses.''; and
       (4) by adding at the end the following:
       ``(9) Technology improvements.--The local board shall 
     develop strategies for technology improvements to facilitate 
     access to services, in remote areas, for services authorized 
     under this subtitle and carried out in the local area.''.
       (e) Conforming Amendment.--Section 117(f)(2) (29 U.S.C. 
     2832(f)(2)) is amended by striking ``described in section 
     134(c)''.
       (f) Authority To Establish Councils and Elimination of 
     Requirement for Youth Councils.--Section 117(h) (29 U.S.C. 
     2832(h)) is amended to read as follows:
       ``(h) Councils.--The local board may establish or continue 
     councils to provide information and advice to assist the 
     local board in carrying out activities under this title. Such 
     councils may include--
       ``(1) a council composed of one-stop partners to advise the 
     local board on the operation of the one-stop delivery system 
     involved;
       ``(2) a youth council composed of experts and stakeholders 
     in youth programs to advise the local board on youth 
     activities; and
       ``(3) such other councils as the local board determines are 
     appropriate.''.
       (g) Alternative Entity Provision.--Section 117(i)(1) (29 
     U.S.C. 2832(i)(1)) is amended--
       (1) by striking subparagraph (B) and inserting the 
     following:
       ``(B) was in existence on August 7, 1998, pursuant to State 
     law; and'';
       (2) by striking subparagraph (C); and
       (3) by redesignating subparagraph (D) as subparagraph (C).

     SEC. 116. LOCAL PLAN.

       (a) Planning Cycle.--Section 118(a) (29 U.S.C. 2833(a)) is 
     amended--
       (1) by striking ``5-year'' and inserting ``4-year''; and
       (2) by adding at the end the following: ``At the end of the 
     first 2-year period of the 4-year plan, the local board shall 
     review and, as needed, amend the 4-year plan to reflect labor 
     market and economic conditions.''.
       (b) Contents.--Section 118(b) (29 U.S.C. 2833(b)) is 
     amended--
       (1) in paragraph (2)--
       (A) in subparagraph (A), by striking ``and'' after the 
     semicolon;
       (B) by striking subparagraph (B) and inserting the 
     following:
       ``(B) a description of how the local board will facilitate 
     access to services provided through the one-stop delivery 
     system, in remote areas, including facilitating access 
     through the use of technology; and''; and
       (C) by adding at the end the following:
       ``(C) a description of how the local board will ensure 
     physical and programmatic accessibility for individuals with 
     disabilities at one-stop centers;'';
       (2) in paragraph (9), by striking ``; and'' and inserting a 
     semicolon;
       (3) by redesignating paragraph (10) as paragraph (14); and
       (4) by inserting after paragraph (9) the following:
       ``(10) a description of how the local board will coordinate 
     workforce investment activities carried out in the local area 
     with economic development activities carried out in the local 
     area;
       ``(11) a description of the strategies and services that 
     will be initiated in the local area to more fully engage all 
     employers, including small employers, in workforce investment 
     activities, to make the workforce investment system more 
     relevant to the needs of area businesses, and to better 
     coordinate workforce investment and economic development 
     efforts, which may include the implementation of innovative 
     initiatives such as incumbent worker training programs, 
     sectoral and industry cluster strategies, regional

[[Page 28979]]

     skills alliance initiatives, career ladder programs, 
     utilization of effective business intermediaries, and other 
     business services and strategies designed to meet the needs 
     of area employers and contribute to the economic well-being 
     of the local area, as determined appropriate by the local 
     board, consistent with the objectives of this title;
       ``(12) a description of how the local board will expand 
     access to education and training services for eligible 
     individuals who are in need of such services through--
       ``(A) the utilization of programs funded under this title; 
     and
       ``(B) the increased leveraging of resources other than 
     those provided under this title, including tax credits, 
     private sector-provided training, and other Federal, State, 
     local, and private funds that are brokered through the one-
     stop centers for training services;
       ``(13) a description of how the local board will coordinate 
     workforce investment activities carried out in the local area 
     with the provision of transportation, including public 
     transportation, in the local area; and''.

     SEC. 117. ESTABLISHMENT OF ONE-STOP DELIVERY SYSTEMS.

       (a) One-Stop Partners.--
       (1) Required partners.--Section 121(b)(1) (29 U.S.C. 
     2841(b)(1)) is amended--
       (A) by striking subparagraph (A) and inserting the 
     following:
       ``(A) Roles and responsibilities of one-stop partners.--
     Each entity that carries out a program or activities 
     described in subparagraph (B) shall--
       ``(i) provide access through the one-stop delivery system 
     to the programs and activities carried out by the entity, 
     including making the core services described in section 
     134(d)(2) that are applicable to the program of the entity 
     available at the comprehensive one-stop centers (in addition 
     to any other appropriate locations);
       ``(ii) use a portion of the funds available to the program 
     of the entity to maintain the one-stop delivery system, 
     including payment of the infrastructure costs of one-stop 
     centers in accordance with subsection (h);
       ``(iii) enter into a local memorandum of understanding with 
     the local board relating to the operation of the one-stop 
     system that meets the requirements of subsection (c);
       ``(iv) participate in the operation of the one-stop system 
     consistent with the terms of the memorandum of understanding, 
     the requirements of this title, and the requirements of the 
     Federal laws authorizing the programs carried out by the 
     entity; and
       ``(v) provide representation on the State board to the 
     extent provided under section 111.'';
       (B) in subparagraph (B)--
       (i) by striking clause (v);
       (ii) by redesignating clauses (vi) through (xii) as clauses 
     (v) through (xi), respectively;
       (iii) in clause (x) (as redesignated by clause (ii)), by 
     striking ``and'' at the end;
       (iv) in clause (xi) (as redesignated by clause (ii)), by 
     striking the period and inserting ``; and''; and
       (v) by adding at the end the following:
       ``(xii) programs authorized under part A of title IV of the 
     Social Security Act (42 U.S.C. 601 et seq.), subject to 
     subparagraph (C).''; and
       (C) by adding at the end the following:
       ``(C) Determination by the governor.--
       ``(i) In general.--An entity that carries out programs 
     referred to in subparagraph (B)(xii) shall be included in the 
     one-stop partners for the local area, as a required partner, 
     for purposes of this title unless the Governor of the State 
     provides the notification described in clause (ii).
       ``(ii) Notification.--The notification referred to in 
     clause (i) is a notification that--

       ``(I) is made in writing of a determination by the Governor 
     not to include such entity in the one-stop partners described 
     in clause (i); and
       ``(II) is provided to the Secretary and the Secretary of 
     Health and Human Services.''.

       (2) Additional partners.--
       (A) In general.--Section 121(b)(2)(A) (29 U.S.C. 
     2841(b)(2)(A)) is amended to read as follows:
       ``(A) In general.--With the approval of the local board and 
     chief elected official, in addition to the entities described 
     in paragraph (1), other entities that carry out human 
     resource programs described in subparagraph (B) may be one-
     stop partners and carry out the responsibilities described in 
     paragraph (1)(A).''.
       (B) Additional partners.--Section 121(b)(2)(B) (29 U.S.C. 
     2841(b)(2)(B)) is amended by striking clauses (i) through 
     (iii) and inserting the following:
       ``(i) employment and training programs administered by the 
     Social Security Administration, including the Ticket to Work 
     and Self-Sufficiency program established under section 1148 
     of the Social Security Act (42 U.S.C. 1320b-19);
       ``(ii) employment and training programs carried out by the 
     Small Business Administration;
       ``(iii) programs authorized under section 6(d)(4) of the 
     Food Stamp Act of 1977 (7 U.S.C. 2015(d)(4));''.
       (b) Local Memorandum of Understanding.--Section 
     121(c)(2)(A) (29 U.S.C. 2841(c)(2)(A)) is amended to read as 
     follows:
       ``(A) provisions describing--
       ``(i) the services to be provided through the one-stop 
     delivery system consistent with the requirements of this 
     section, including the manner in which the services will be 
     coordinated through such system;
       ``(ii) how the costs of such services and the operating 
     costs of such system will be funded to provide a stable and 
     equitable funding stream for ongoing one-stop system 
     operations, including the funding of the infrastructure costs 
     of one-stop centers in accordance with subsection (h);
       ``(iii) methods of referral of individuals between the one-
     stop operator and the one-stop partners for appropriate 
     services and activities;
       ``(iv) methods to ensure the needs of hard-to-serve 
     populations are addressed in providing access to services 
     through the one-stop system; and
       ``(v) the duration of the memorandum of understanding and 
     the procedures for amending the memorandum during the term of 
     the memorandum, and assurances that such memorandum shall be 
     reviewed not less than once every 2-year period to ensure 
     appropriate funding and delivery of services; and''.
       (c) Conforming Amendment.--Section 121(d)(2) (29 U.S.C. 
     2841(d)(2)) is amended by striking ``section 134(c)'' and 
     inserting ``section 121(e)''.
       (d) Provision of Services.--
       (1) Elimination of provisions concerning established 
     systems.--Section 121 (29 U.S.C. 2841) is amended by striking 
     subsection (e).
       (2) Redesignation.--Subtitle B of title I is amended--
       (A) in section 134 (29 U.S.C. 2864), by redesignating 
     subsection (c) as subsection (e); and
       (B) by transferring that subsection (e) so that the 
     subsection appears after subsection (d) of section 121.
       (3) One-stop delivery systems.--Paragraph (1) of section 
     121(e) (29 U.S.C. 2841(e)) (as redesignated by paragraph (2)) 
     is amended--
       (A) in subparagraph (A), by striking ``subsection (d)(2)'' 
     and inserting ``section 134(d)(2)'';
       (B) in subparagraph (B)--
       (i) by striking ``subsection (d)'' and inserting ``section 
     134(d)'';
       (ii) by striking ``individual training accounts'' and 
     inserting ``career scholarship accounts''; and
       (iii) by striking ``subsection (d)(4)(G)'' and inserting 
     ``section 134(d)(4)(G)'';
       (C) in subparagraph (C), by striking ``subsection (e)'' and 
     inserting ``section 134(e)'';
       (D) in subparagraph (D), by striking ``section 121(b)'' and 
     inserting ``subsection (b)''; and
       (E) in subparagraph (E), by striking ``information 
     described in section 15'' and inserting ``data, information, 
     and analysis described in section 15(a)''.
       (e) Continuous Improvement of One-Stop Centers.--Section 
     121 (29 U.S.C. 2841) is amended by adding at the end the 
     following:
       ``(g) Continuous Improvement of One-Stop Centers.--
       ``(1) In general.--The State board, in consultation with 
     chief local elected officials and local boards, shall 
     establish objective criteria and procedures for use by local 
     boards in periodically assessing the effectiveness, physical 
     and programmatic accessibility, and continuous improvement of 
     one-stop centers and one-stop delivery systems.
       ``(2) Criteria.--The procedures and criteria developed 
     under this subsection shall include minimum standards 
     relating to the scope and degree of service coordination 
     achieved by the one-stop delivery system with respect to the 
     programs administered by the one-stop partners at the one-
     stop centers, consistent with the guidelines and guidance 
     provided by the Governor and by the State board, in 
     consultation with the chief elected official and local 
     boards, for such partners' participation under subsections 
     (h)(1)(B) and subsection (i), respectively, and such other 
     factors relating to the quality, accessibility, and 
     effectiveness of the one-stop delivery system as the State 
     board determines to be appropriate.
       ``(3) Local boards.--Consistent with the criteria developed 
     by the State, the local board may develop additional criteria 
     of higher standards to respond to local labor market and 
     demographic conditions and trends.
       ``(h) Funding of One-Stop Infrastructure.--
       ``(1) In general.--
       ``(A) Options for infrastructure funding.--
       ``(i) Local options.--The local board, chief elected 
     officials, and one-stop partners in a local area may choose 
     to fund the costs of the infrastructure of one-stop centers 
     through--

       ``(I) methods described in the local memorandum of 
     understanding, if, the local board, chief elected officials, 
     and one-stop partners agree to such methods; or
       ``(II) the State infrastructure funding mechanism described 
     in paragraph (2).

       ``(ii) Failure to reach agreement on funding methods.--If, 
     as of July 1, 2004, the local board, chief elected officials, 
     and one-stop partners in a local area fail to reach agreement 
     on methods of sufficient funding of the infrastructure costs 
     of one-stop centers, as determined by the local area, the 
     State infrastructure funding mechanism described in paragraph 
     (2) shall be applicable to such local area.
       ``(B) Guidance for infrastructure funding.--In addition to 
     carrying out the requirements relating to the State mechanism 
     for one-stop center infrastructure funding described in 
     paragraph (2), the Governor, after consultation with chief 
     local elected officials, local boards, and the State board, 
     and consistent with the guidelines provided by the State 
     board under subsection (i), shall provide--
       ``(i) guidelines for State administered one-stop partner 
     programs in determining such programs' contributions to and 
     participation in the one-stop delivery system, including 
     funding for the costs of infrastructure as defined in 
     paragraph (2)(D), negotiated pursuant to the local memorandum 
     of understanding under subsection (c); and

[[Page 28980]]

       ``(ii) guidance to assist local areas in identifying 
     equitable and stable alternative methods of funding of the 
     costs of the infrastructure of one-stop centers in local 
     areas.
       ``(2) State one-stop infrastructure funding.--
       ``(A) Partner contributions.--
       ``(i) In general.--Subject to clause (iii), a portion 
     determined under clause (ii) of the Federal funds provided to 
     the State and areas within the State under the Federal laws 
     authorizing the programs described in subsection (b)(1) and 
     administered by one-stop partners for a fiscal year shall be 
     provided to the Governor from such programs to assist in 
     paying the costs of infrastructure of one-stop centers in 
     those local areas of the State not funded under the option 
     described in paragraph (1)(A)(i)(I).
       ``(ii) Determination of governor.--

       ``(I) In general.--Subject to subclause (II) and clause 
     (iii), the Governor, after consultation with chief local 
     elected officials, local boards, and the State board, shall 
     determine the portion of funds to be provided under clause 
     (i) by each one-stop partner from each program described in 
     clause (i). In making such determination, the Governor shall 
     calculate the proportionate use of the one-stop centers for 
     the purpose of determining funding contributions pursuant to 
     clause (i)(II) or (ii) of paragraph (1)(A) by each partner, 
     and the costs of administration for purposes not related to 
     one-stop centers for each partner. The Governor shall exclude 
     from such determination the portion of funds and use of one-
     stop centers attributable to the programs of one-stop 
     partners for those local areas of the State where the 
     infrastructure of one-stop centers is funded under the option 
     described in paragraph (1)(A)(i)(I).
       ``(II) Special rule.--In a State in which the State 
     constitution places policymaking authority that is 
     independent of the authority of the Governor in an entity or 
     official with respect to the funds provided for adult 
     education and literacy activities authorized under title II 
     and for postsecondary vocational and technical education 
     activities authorized under the Carl D. Perkins Vocational 
     and Technical Education Act of 1998 (20 U.S.C. 2301 et seq.), 
     or vocational rehabilitation services offered under the 
     Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), the 
     determination described in subclause (I) with respect to the 
     programs authorized under that title and those Acts shall be 
     made by the chief officer of the entity with such authority 
     in consultation with the Governor.
       ``(III) Appeal by one-stop partners.--The Governor shall 
     establish a procedure for the one-stop partner administering 
     a program described in subsection (b) to appeal a 
     determination regarding the portion of funds to be 
     contributed under this paragraph on the basis that such 
     determination is inconsistent with the criteria described in 
     the State plan or with the requirements of this paragraph. 
     Such procedure shall ensure prompt resolution of the appeal.

       ``(iii) Limitations.--

       ``(I) Provision from administrative funds.--The funds 
     provided under this paragraph by each one-stop partner shall 
     be provided only from funds available for the costs of 
     administration under the program administered by such 
     partner, and shall be subject to the program limitations with 
     respect to the portion of funds under such program that may 
     be used for administration.
       ``(II) Cap on required contributions.--

       ``(aa) WIA formula programs and employment service.--The 
     portion of funds required to be contributed under clause 
     (i)(II) or (ii) of paragraph (1)(A) by the programs 
     authorized under chapters 4 and 5 and under the Wagner-Peyser 
     Act shall not be in excess of 3 percent of the amount of 
     Federal funds provided to carry out each such program in the 
     State for a fiscal year.
       ``(bb) Other one-stop partners.--The portion of funds 
     required to be contributed under clause (i)(II) or (ii) of 
     paragraph (1)(A) by a one-stop partner from a program 
     described in subsection (b)(1) other than the programs 
     described under item (aa) shall not be in excess of 1\1/2\ 
     percent of the amount of Federal funds provided to carry out 
     such program in the State for a fiscal year.
       ``(cc) Special rule.--Notwithstanding items (aa) and (bb), 
     an agreement, including a local memorandum of understanding, 
     entered into prior to the date of enactment of the Workforce 
     Investment Act Amendments of 2003 by an entity regarding 
     contributions under this title that permits the percentages 
     described in such items to be exceeded, may continue to be in 
     effect until terminated by the parties.
       ``(dd) Vocational rehabilitation.--Notwithstanding items 
     (aa) and (bb), an entity administering a program under title 
     I of the Rehabilitation Act of 1973 (29 U.S.C. 720 et seq.) 
     shall not be required to provide, for the purposes of this 
     paragraph, an amount in excess of--
       ``(AA) 0.75 percent of the amount provided for such program 
     in the State for the second program year that begins after 
     the date of enactment of the Workforce Investment Act 
     Amendments of 2003;
       ``(BB) 1.0 percent of the amount provided for such program 
     in the State for the third program year that begins after 
     such date;
       ``(CC) 1.25 percent of the amount provided for such program 
     in the State for the fourth program year that begins after 
     such date; and
       ``(DD) 1.5 percent of the amount provided for such program 
     in the State for the fifth and each succeeding program year 
     that begins after such date.

       ``(III) Federal direct spending programs.--An entity 
     administering a program funded with direct spending as 
     defined in section 250(c)(8) of the Balanced Budget and 
     Emergency Deficit Control Act of 1985 (2 U.S.C. 900(c)(8)) 
     shall not be required to provide, for purposes of this 
     paragraph, an amount in excess of the amount determined to be 
     equivalent to the cost of the proportionate use of the one-
     stop centers for such program in the State.
       ``(IV) Native american programs.--Native American programs 
     established under section 166 shall not be subject to the 
     provisions of this subsection or subsection (i). The method 
     for determining the appropriate portion of funds to be 
     provided by such Native American programs to pay for the 
     costs of infrastructure of a one-stop center shall be 
     determined as part of the development of the memorandum of 
     understanding under subsection (c) for the one-stop center 
     and shall be stated in the memorandum.

       ``(B) Allocation by governor.--From the funds provided 
     under subparagraph (A), the Governor shall allocate the funds 
     to local areas in accordance with the formula established 
     under subparagraph (C) for the purposes of assisting in 
     paying the costs of infrastructure of one-stop centers.
       ``(C) Allocation formula.--The State board shall develop a 
     formula to be used by the Governor to allocate the funds 
     provided under subparagraph (A) to local areas not funding 
     infrastructure costs under the option described in paragraph 
     (1)(A)(i)(I). The formula shall be based on factors including 
     the number of one-stop centers in a local area, the 
     population served by such centers, the services provided by 
     such centers, and other factors relating to the performance 
     of such centers that the State board determines are 
     appropriate.
       ``(D) Costs of infrastructure.--In this subsection, the 
     term `costs of infrastructure', used with respect to a one-
     stop center, means the nonpersonnel costs that are necessary 
     for the general operation of the one-stop center, including 
     the rental costs of the facilities, the costs of utilities 
     and maintenance, equipment (including adaptive technology for 
     individuals with disabilities), and technology to facilitate 
     remote access to the one-stop center's strategic planning 
     activities, and common outreach activities.
       ``(i) Other Funds.--
       ``(1) In general.--Subject to the memorandum of 
     understanding described in subsection (c) for the one-stop 
     delivery system involved, in addition to the funds provided 
     to carry out subsection (h), a portion of funds made 
     available under Federal law authorizing the programs 
     described in subsection (b) and administered by one-stop 
     partners, or the noncash resources available under such 
     programs, shall be used to pay the additional costs relating 
     to the operation of the one-stop delivery system that are not 
     paid from the funds provided under subsection (h), as 
     determined in accordance with paragraph (2), to the extent 
     not inconsistent with the Federal law involved. Such costs 
     shall include the costs of the provision of core services 
     described in section 134(d)(2) applicable to each program and 
     may include common costs that are not paid from the funds 
     provided under subsection (h).
       ``(2) Determination and guidance.--The method for 
     determining the appropriate portion of funds and noncash 
     resources to be provided by each program under paragraph (1) 
     for a one-stop center shall be determined as part of the 
     development of the memorandum of understanding under 
     subsection (c) for the one-stop center and shall be stated in 
     the memorandum. The State board shall provide guidance to 
     facilitate the determination of an appropriate allocation of 
     the funds and noncash resources in local areas.''.

     SEC. 118. ELIGIBLE PROVIDERS OF TRAINING SERVICES.

       Section 122 (29 U.S.C. 2842) is amended to read as follows:

     ``SEC. 122. IDENTIFICATION OF ELIGIBLE PROVIDERS OF TRAINING 
                   SERVICES.

       ``(a) In General.--The Governor, after consultation with 
     the State board, shall establish criteria and procedures 
     regarding the eligibility of providers of training services 
     described in section 134(d)(4) (referred to in this section 
     as `training services') to receive funds provided under 
     section 133(b) for the provision of training services.
       ``(b) Criteria.--
       ``(1) In general.--The criteria established by the Governor 
     pursuant to subsection (a) shall take into account--
       ``(A) the performance of providers of training services 
     with respect to the performance measures described in section 
     136 or other appropriate measures of performance outcomes for 
     those individuals receiving training services under this 
     subtitle (taking into consideration the characteristics of 
     the population served and relevant economic conditions);
       ``(B) the need to ensure access to training services 
     throughout the State, including any rural areas;
       ``(C) the information such providers are required to report 
     to State agencies with respect to Federal and State programs 
     (other than the program carried out under this subtitle), 
     including one-stop partner programs;
       ``(D) the requirements for State licensing of providers of 
     training services, and the licensing status of each provider 
     of training services if applicable;
       ``(E) to the extent practicable, encouraging the use of 
     industry-recognized standards and certification;
       ``(F) the ability to provide training services to hard-to-
     serve populations, including individuals with disabilities; 
     and

[[Page 28981]]

       ``(G) such other factors as the Governor determines are 
     appropriate to ensure--
       ``(i) the quality of services provided;
       ``(ii) the accountability of the providers;
       ``(iii) that the one-stop centers in the State will ensure 
     that such providers meet the needs of local employers and 
     participants;
       ``(iv) the informed choice of participants under chapter 5; 
     and
       ``(v) that the collection of information required is not 
     unduly burdensome or costly to providers.
       ``(2) Information and renewal.--The criteria established by 
     the Governor shall require that a provider of training 
     services submit appropriate, accurate, and timely information 
     to the State for purposes of carrying out subsection (d). The 
     criteria shall also provide for annual review and renewal of 
     eligibility under this section for providers of training 
     services.
       ``(3) Local criteria.--A local board in the State may 
     establish criteria in addition to the criteria established by 
     the Governor, or may require higher levels of performance 
     than required under the criteria established by the Governor, 
     for purposes of determining the eligibility of providers of 
     training services to receive funds described in subsection 
     (a) to provide the services in the local area involved.
       ``(c) Procedures.--The procedures established under 
     subsection (a) shall identify the application process for a 
     provider of training services to become eligible to receive 
     funds provided under section 133(b) for the provision of 
     training services, and identify the respective roles of the 
     State and local areas in receiving and reviewing the 
     applications and in making determinations of such eligibility 
     based on the criteria established under this section. The 
     procedures shall also establish a process for a provider of 
     training services to appeal a denial or termination of 
     eligibility under this section, that includes an opportunity 
     for a hearing and prescribes appropriate time limits to 
     ensure prompt resolution of the appeal.
       ``(d) Information To Assist Participants in Choosing 
     Providers.--
       ``(1) In general.--In order to facilitate and assist 
     participants in choosing employment and training activities 
     under chapter 5 and in choosing providers of training 
     services, the Governor shall ensure that an appropriate list 
     of providers determined to be eligible under this section in 
     the State, accompanied by appropriate information provided by 
     providers of training services in the State in accordance 
     with subsection (b) and such other information as the 
     Governor determines is appropriate, including information on 
     program costs for participants in applicable programs, is 
     provided to the one-stop delivery system in the State. The 
     list and the information shall be made available to such 
     participants and to members of the public through the one-
     stop delivery system in the State.
       ``(2) Special rule.--An entity that carries out programs 
     under the Act of August 16, 1937 (commonly known as the 
     `National Apprenticeship Act', 50 Stat. 664, chapter 663; 29 
     U.S.C. 50 et seq.) shall be included on the list of eligible 
     providers described in paragraph (1) for so long as such 
     entity remains certified by the Department of Labor.
       ``(e) Enforcement.--
       ``(1) In general.--The criteria and procedures established 
     under this section shall provide the following:
       ``(A) Intentionally supplying inaccurate information.--Upon 
     a determination, by an individual or entity specified in the 
     criteria or procedures, that a provider of training services, 
     or individual providing information on behalf of the 
     provider, intentionally supplied inaccurate information under 
     this section, the eligibility of such provider to receive 
     funds under chapter 5 shall be terminated for a period of 
     time that is not less than 2 years.
       ``(B) Substantial violations.--Upon a determination, by an 
     individual or entity specified in the criteria or procedures, 
     that a provider of training services substantially violated 
     any requirement under this title, the eligibility of such 
     provider to receive funds under the program involved may be 
     terminated, or other appropriate action may be taken.
       ``(C) Repayment.--A provider of training services whose 
     eligibility is terminated under subparagraph (A) or (B) shall 
     be liable for the repayment of funds received under chapter 5 
     during a period of noncompliance described in such 
     subparagraph.
       ``(2) Construction.--Paragraph (1) shall be construed to 
     provide remedies and penalties that supplement, but do not 
     supplant, other civil and criminal remedies and penalties.
       ``(f) Agreements With Other States.--States may enter into 
     agreements, on a reciprocal basis, to permit eligible 
     providers of training services to accept career scholarship 
     accounts provided in another State.
       ``(g) Opportunity To Submit Comments.--In establishing 
     criteria, procedures, and information required under this 
     section, the Governor shall provide an opportunity for 
     interested members of the public to make recommendations and 
     submit comments regarding such criteria, procedures, and 
     information.
       ``(h) Transition Period for Implementation.--The 
     requirements of this section shall be implemented not later 
     than December 31, 2004. In order to facilitate early 
     implementation of this section, the Governor may establish 
     transition procedures under which providers eligible to 
     provide training services under chapter 5 as such chapter was 
     in effect on the day before the date of enactment of the 
     Workforce Investment Act Amendments of 2003 may continue to 
     be eligible to provide such services until December 31, 2004, 
     or until such earlier date as the Governor determines to be 
     appropriate.
       ``(i) On-the-Job Training or Customized Training 
     Exception.--
       ``(1) In general.--Providers of on-the-job training or 
     customized training shall not be subject to the requirements 
     of subsections (a) through (h).
       ``(2) Collection and dissemination of information.--A one-
     stop operator in a local area shall collect such performance 
     information from on-the-job training and customized training 
     providers as the Governor may require, determine whether the 
     providers meet such performance criteria as the Governor may 
     require, and disseminate information identifying providers 
     that meet the criteria as eligible providers, and the 
     performance information, through the one-stop delivery 
     system. Providers determined to meet the criteria shall be 
     considered to be identified as eligible providers of training 
     services.''.

     SEC. 119. ELIGIBLE PROVIDERS OF YOUTH ACTIVITIES.

       Section 123 (29 U.S.C. 2843) is amended to read as follows:

     ``SEC. 123. ELIGIBLE PROVIDERS OF YOUTH ACTIVITIES.

       ``(a) In General.--From the funds allocated under section 
     128(b) to a local area, the local board for such area shall 
     award grants or contracts on a competitive basis to providers 
     of youth activities identified based on the criteria in the 
     State plan described in section 112 and shall conduct 
     oversight with respect to such providers.
       ``(b) Exceptions.--A local board may award grants or 
     contracts on a sole-source basis if such board determines 
     there is an insufficient number of eligible providers of 
     youth activities in the local area involved (such as a rural 
     area) for grants and contracts to be awarded on a competitive 
     basis under subsection (a).''.

     SEC. 120. YOUTH ACTIVITIES.

       (a) State Allotments.--Section 127 (29 U.S.C. 2852) is 
     amended--
       (1) in subsection (a)(1), by striking ``opportunity'' and 
     inserting ``challenge''; and
       (2) by striking subsection (b) and inserting the following:
       ``(b) Allotment Among States.--
       ``(1) Youth activities.--
       ``(A) Youth challenge grants.--
       ``(i) In general.--For each fiscal year in which the amount 
     appropriated under section 137(a) exceeds $1,000,000,000, the 
     Secretary shall reserve a portion of the amount to provide 
     youth challenge grants and other activities under section 169 
     (relating to youth challenge grants) and provide youth 
     activities under section 167 (relating to migrant and 
     seasonal farmworker programs).
       ``(ii) Portion.--The portion referred to in clause (i) 
     shall equal, for a fiscal year--

       ``(I) except as provided in subclause (II), the difference 
     obtained by subtracting $1,000,000,000 from the amount 
     appropriated under section 137(a) for the fiscal year; or
       ``(II) for any fiscal year in which the amount is 
     $1,250,000,000 or greater, $250,000,000.

       ``(iii) Youth activities for farmworkers.--The Secretary 
     shall reserve the greater of $10,000,000 or 4 percent of the 
     portion described in clause (i) for a fiscal year to provide 
     youth activities under section 167.
       ``(iv) Native americans.--From the remainder of the amount 
     appropriated under section 137(a) for each fiscal year the 
     Secretary shall reserve not more than 1\1/2\ percent of such 
     amount to provide youth activities under section 166 
     (relating to Native Americans).
       ``(B) Outlying areas.--
       ``(i) In general.--From the amount made available under 
     subsection (a)(2) for each fiscal year the Secretary shall 
     reserve not more than \1/4\ of 1 percent of the amount 
     appropriated under section 137(a) for the fiscal year to 
     provide assistance to the outlying areas to carry out youth 
     activities and statewide workforce investment activities.
       ``(ii) Limitation for freely associated states.--

       ``(I) Competitive grants.--The Secretary shall use funds 
     described in clause (i) to award grants to Guam, American 
     Samoa, the Commonwealth of the Northern Mariana Islands, and 
     the Freely Associated States to carry out youth activities 
     and statewide workforce investment activities.
       ``(II) Award basis.--The Secretary shall award grants 
     pursuant to subclause (I) on a competitive basis and pursuant 
     to the recommendations of experts in the field of employment 
     and training, working through the Pacific Region Educational 
     Laboratory in Honolulu, Hawaii.
       ``(III) Assistance requirements.--Any Freely Associated 
     State that desires to receive assistance under this 
     subparagraph shall submit an application to the Secretary and 
     shall include in the application for assistance--

       ``(aa) information demonstrating that the Freely Associated 
     State will meet all conditions that apply to States under 
     this title;
       ``(bb) an assurance that, notwithstanding any other 
     provision of this title, the Freely Associated State will use 
     such assistance only for the direct provision of services; 
     and
       ``(cc) such other information and assurances as the 
     Secretary may require.

       ``(IV) Administrative costs.--The Secretary may provide not 
     more than 5 percent of the funds made available for grants 
     under subclause (I) to pay the administrative costs of the 
     Pacific Region Educational Laboratory in Honolulu,

[[Page 28982]]

     Hawaii, regarding activities assisted under this clause.

       ``(iii) Additional requirement.--The provisions of Public 
     Law 95-134, permitting the consolidation of grants by the 
     outlying areas, shall not apply to assistance provided to 
     those areas, including the Freely Associated States, under 
     this subparagraph.
       ``(C) States.--
       ``(i) In general.--From the remainder of the amount 
     appropriated under section 137(a) for a fiscal year that 
     exists after the Secretary determines the amounts to be 
     reserved under subparagraphs (A) and (B), the Secretary shall 
     allot to the States--

       ``(I) an amount of the remainder that is less than or equal 
     to the total amount that was allotted to States for fiscal 
     year 2003 under section 127(b)(1)(C) of this Act (as in 
     effect on the day before the date of enactment of the 
     Workforce Investment Act Amendments of 2003), in accordance 
     with the requirements of such section 127(b)(1)(C); and
       ``(II) the amount of the remainder, if any, in excess of 
     the amount referred to in subclause (I), in accordance with 
     clause (ii).

       ``(ii) Formula.--Subject to clauses (iii) and (iv), of the 
     amount described in clause (i)(II)--

       ``(I) 33\1/3\ percent shall be allotted on the basis of the 
     relative number of individuals in the civilian labor force 
     who are ages 16 through 21 in each State, compared to the 
     total number of individuals in the civilian labor force who 
     are ages 16 through 21 in all States;
       ``(II) 33\1/3\ percent shall be allotted on the basis of 
     the relative number of unemployed individuals in each State, 
     compared to the total number of unemployed individuals in all 
     States; and
       ``(III) 33\1/3\ percent shall be allotted on the basis of 
     the relative number of disadvantaged youth who are ages 16 
     through 21 in each State, compared to the total number of 
     disadvantaged youth who are ages 16 through 21 in all States.

       ``(iii) Minimum and maximum percentages.--

       ``(I) Minimum percentage.--The Secretary shall ensure that 
     no State shall receive an allotment percentage under this 
     subparagraph for a fiscal year that is less than 90 percent 
     of the allotment percentage of the State for the preceding 
     fiscal year.
       ``(II) Maximum percentage.--Subject to subclause (I), the 
     Secretary shall ensure that no State shall receive an 
     allotment percentage under this subparagraph for a fiscal 
     year that is more than 130 percent of the allotment 
     percentage of the State for the preceding fiscal year.

       ``(iv) Small state minimum allotment.--Subject to clause 
     (iii), the Secretary shall ensure that no State shall receive 
     an allotment under this subparagraph that is less than the 
     total of--

       ``(I) \3/10\ of 1 percent of $1,000,000,000 of the 
     remainder described in clause (i) for the fiscal year; and
       ``(II) if the remainder described in clause (i) for the 
     fiscal year exceeds $1,000,000,000, \2/5\ of 1 percent of the 
     excess.

       ``(2) Definitions.--For the purposes of paragraph (1):
       ``(A) Allotment percentage.--The term `allotment 
     percentage', used with respect to fiscal year 2004 or a 
     subsequent fiscal year, means a percentage of the remainder 
     described in paragraph (1)(C)(i) that is received by the 
     State involved through an allotment made under this 
     subsection for the fiscal year. The term, used with respect 
     to fiscal year 2003, means the percentage of the amounts 
     allotted to States under this chapter (as in effect on the 
     day before the date of enactment of the Workforce Investment 
     Act Amendments of 2003) that is received by the State 
     involved for fiscal year 2003.
       ``(B) Disadvantaged youth.--Subject to paragraph (3), the 
     term `disadvantaged youth' means an individual who is age 16 
     through 21 who received an income, or is a member of a family 
     that received a total family income, that, in relation to 
     family size, does not exceed the higher of--
       ``(i) the poverty line; or
       ``(ii) 70 percent of the lower living standard income 
     level.
       ``(C) Freely associated state.--The term `Freely Associated 
     State' means the Republic of the Marshall Islands, the 
     Federated States of Micronesia, and the Republic of Palau.
       ``(3) Special rule.--For purposes of the formula specified 
     in paragraph (1)(C), the Secretary shall, as appropriate and 
     to the extent practicable, exclude college students and 
     members of the Armed Forces from the determination of the 
     number of disadvantaged youth.''.
       (b) Reallotment.--
       (1) Amendment.--Section 127(c) (29 U.S.C. 2852(c)) is 
     amended--
       (A) by striking paragraph (2) and inserting the following:
       ``(2) Amount.--The amount available for reallotment for a 
     program year is equal to the amount by which the unexpended 
     balance at the end of the program year prior to the program 
     year for which the determination is made exceeds 30 percent 
     of the total amount of funds available to the State under 
     this section during such prior program year (including 
     amounts allotted to the State in all prior program years that 
     remained available). For purposes of this paragraph, the 
     unexpended balance is the amount that is the difference 
     between--
       ``(A) the total amount of funds available to the State 
     under this section during the program year prior to the 
     program year for which the determination is made (including 
     amounts allotted to the State in all prior program years that 
     remained available); and
       ``(B) the accrued expenditures during such prior program 
     year.'';
       (B) in paragraph (3)--
       (i) by striking ``for the prior program year'' and 
     inserting ``for the program year for which the determination 
     is made''; and
       (ii) by striking ``such prior program year'' and inserting 
     ``such program year'';
       (C) by striking paragraph (4) and inserting the following:
       ``(4) Eligibility.--For purposes of this subsection, an 
     eligible State means a State that does not have an amount 
     available for reallotment under paragraph (2) for the program 
     year for which the determination under paragraph (2) is 
     made.''; and
       (D) in paragraph (5), by striking ``obligation'' and 
     inserting ``accrued expenditure''.
       (2) Effective date.--The amendment made by paragraph (1) 
     shall take effect for the program year that begins after the 
     date of enactment of this Act.
       (c) Within State Allocations.--
       (1) Reservation for statewide activities.--Section 128(a) 
     (29 U.S.C. 2853(a)) is amended to read as follows:
       ``(a) Reservations for Statewide Activities.--
       ``(1) In general.--The Governor of a State shall reserve 
     not more than 15 percent of each of the amounts allotted to 
     the State under section 127(b)(1)(C) and paragraphs (1)(B) 
     and (2)(B) of section 132(b) for a fiscal year for statewide 
     workforce investment activities.
       ``(2) Use of funds.--Regardless of whether the reserved 
     amounts were allotted under section 127(b)(1)(C), or under 
     paragraph (1)(B) or (2)(B) of section 132(b), the Governor 
     may use the reserved amounts to carry out statewide 
     activities under section 129(b) or statewide employment and 
     training activities, for adults or dislocated workers, under 
     section 134(a).''.
       (2) Within state allocation.--Section 128(b) (29 U.S.C. 
     2853(b)) is amended to read as follows:
       ``(b) Within State Allocations.--
       ``(1) In general.--Of the amount allotted to the State 
     under section 127(b)(1)(C) and not reserved under subsection 
     (a)(1)--
       ``(A) a portion equal to not less than 80 percent of such 
     amount shall be allocated by the Governor to local areas in 
     accordance with paragraph (2); and
       ``(B) a portion equal to not more than 20 percent of such 
     amount may be allocated by the Governor to local areas in 
     accordance with paragraph (3).
       ``(2) Established formula.--
       ``(A) In general.--Of the portion described in paragraph 
     (1)(A), the Governor shall allocate--
       ``(i) 33\1/3\ percent on the basis of the relative number 
     of individuals in the civilian labor force who are ages 16 
     through 21 in each local area, compared to the total number 
     of individuals in the civilian labor force who are ages 16 
     through 21 in all local areas in the State;
       ``(ii) 33\1/3\ percent on the basis of the relative number 
     of unemployed individuals in each local area, compared to the 
     total number of unemployed individuals in all local areas in 
     the State; and
       ``(iii) 33\1/3\ percent on the basis of the relative number 
     of disadvantaged youth who are ages 16 through 21 in each 
     local area, compared to the total number of disadvantaged 
     youth who are ages 16 through 21 in all local areas in the 
     State.
       ``(B) Minimum and maximum percentages.--
       ``(i) Minimum percentage.--The Governor shall ensure that 
     no local area shall receive an allocation percentage under 
     this paragraph for a fiscal year that is less than 90 percent 
     of the allocation percentage of the local area for the 
     preceding fiscal year.
       ``(ii) Maximum percentage.--Subject to clause (i), the 
     Governor shall ensure that no local area shall receive an 
     allocation percentage under this paragraph for a fiscal year 
     that is more than 130 percent of the allocation percentage of 
     the local area for the preceding fiscal year.
       ``(C) Definitions.--In this paragraph:
       ``(i) Allocation percentage.--The term `allocation 
     percentage', used with respect to fiscal year 2004 or a 
     subsequent fiscal year, means a percentage of the portion 
     described in paragraph (1)(A) that is received by the local 
     area involved through an allocation made under this paragraph 
     for the fiscal year. The term, used with respect to fiscal 
     year 2003, means the percentage of the amounts allocated to 
     local areas under this chapter (as in effect on the day 
     before the date of enactment of the Workforce Investment Act 
     Amendments of 2003) that is received by the local area 
     involved for fiscal year 2003.
       ``(ii) Disadvantaged youth.--The term `disadvantaged youth' 
     means an individual who--

       ``(I) is age 16 through 21;
       ``(II) is not a college student or member of the Armed 
     Forces; and
       ``(III) received an income, or is a member of a family that 
     received a total family income, that, in relation to family 
     size, does not exceed the higher of--

       ``(aa) the poverty line; or
       ``(bb) 70 percent of the lower living standard income 
     level.
       ``(3) Youth discretionary allocation.--The Governor may 
     allocate the portion described in paragraph (1)(B) to local 
     areas where there are a significant number of eligible youth, 
     after consultation with the State board and local boards.
       ``(4) Local administrative cost limit.--
       ``(A) In general.--Of the amount allocated to a local area 
     under this subsection and section 133(b) for a fiscal year, 
     not more than 10 percent of the amount may be used by the 
     local board involved for the administrative costs of carrying

[[Page 28983]]

     out local workforce investment activities under this chapter 
     or chapter 5.
       ``(B) Use of funds.--Funds made available for 
     administrative costs under subparagraph (A) may be used for 
     the administrative costs of any of the local workforce 
     investment activities described in this chapter or chapter 5, 
     regardless of whether the funds were allocated under this 
     subsection or section 133(b).''.
       (3) Reallocation.--
       (A) Amendment.--Section 128(c) (29 U.S.C. 2853(c)) is 
     amended--
       (i) in paragraph (1), by striking ``paragraph (2)(A) or (3) 
     of'';
       (ii) by striking paragraph (2) and inserting the following:
       ``(2) Amount.--The amount available for reallocation for a 
     program year is equal to the amount by which the unexpended 
     balance at the end of the program year prior to the program 
     year for which the determination is made exceeds 30 percent 
     of the total amount of funds available to the local area 
     under this section during such prior program year (including 
     amounts allocated to the local area in all prior program 
     years that remained available). For purposes of this 
     paragraph, the unexpended balance is the amount that is the 
     difference between--
       ``(A) the total amount of funds available to the local area 
     under this section during the program year prior to the 
     program year for which the determination is made (including 
     amounts allocated to the local area in all prior program 
     years that remained available); and
       ``(B) the accrued expenditures during such prior program 
     year.'';
       (iii) by amending paragraph (3)--

       (I) by striking ``subsection (b)(3)'' each place it appears 
     and inserting ``subsection (b)'';
       (II) by striking ``for the prior program year'' the first 
     place it appears and inserting ``for the program year for 
     which the determination is made'';
       (III) by striking ``such prior program year'' and inserting 
     ``such program year''; and
       (IV) by striking the last sentence; and

       (iv) by striking paragraph (4) and inserting the following:
       ``(4) Eligibility.--For purposes of this subsection, an 
     eligible local area means a local area that does not have an 
     amount available for reallocation under paragraph (2) for the 
     program year for which the determination under paragraph (2) 
     is made.''.
       (B) Effective date.--The amendments made by subparagraph 
     (A) shall take effect for the later of--
       (i) the program year that begins after the date of 
     enactment of this Act; or
       (ii) program year 2004.
       (d) Youth Participant Eligibility.--Section 129(a) (29 
     U.S.C. 2854(a)) is amended to read as follows:
       ``(a) Youth Participant Eligibility.--
       ``(1) Eligibility.--
       ``(A) In general.--To be eligible to participate in 
     activities carried out under this chapter during any program 
     year an individual shall, at the time the eligibility 
     determination is made, be an out-of-school youth or an in-
     school youth.
       ``(B) Out-of-school youth.--In this title the term `out-of-
     school youth' means an individual who is--
       ``(i) not younger than age 16 (subject to paragraph (3)) 
     nor older than age 21; and
       ``(ii) one of the following:

       ``(I) A school dropout.
       ``(II) A youth who is within the age for compulsory school 
     attendance, but has not attended school for at least 1 school 
     year calendar quarter.
       ``(III) A recipient of a secondary school diploma or its 
     equivalent who is--

       ``(aa) deficient in basic skills, including limited English 
     proficiency;
       ``(bb) a low-income individual; and
       ``(cc) not attending any school.

       ``(IV) Subject to the juvenile justice system or ordered by 
     a court to an alternative school.
       ``(V) A low-income individual who is pregnant or parenting 
     and not attending any school.
       ``(VI) A youth who is not attending school or a youth 
     attending an alternative school, who is homeless, a runaway, 
     a foster child, a child eligible for assistance under section 
     477 of the Social Security Act, or in an out-of-home 
     placement.
       ``(VII) A low-income individual who requires additional 
     assistance to complete an educational program or to secure or 
     hold employment.

       ``(C) In-school youth.--In this section the term `in-school 
     youth' means an individual who is--
       ``(i) not younger than age 14 nor older than age 21;
       ``(ii) a low-income individual; and
       ``(iii) one or more of the following:

       ``(I) Deficient in basic literacy skills, including limited 
     English proficiency.
       ``(II) Homeless, a runaway, a foster child, a child 
     eligible for assistance under section 477 of the Social 
     Security Act, or in an out-of-home placement.
       ``(III) Pregnant or parenting.
       ``(IV) An offender (other than an individual described in 
     subparagraph (B)(ii)(IV)).
       ``(V) An individual who requires additional assistance to 
     complete an educational program or to secure or hold 
     employment.

       ``(2) Exception.--Not more than 5 percent of the 
     individuals assisted under this section in each local area, 
     in the case of individuals for whom low income is a 
     requirement for eligibility under this section, may be 
     individuals who are not low income.
       ``(3) Limitations on activities for in-school youth.--
       ``(A) In general.--For any program year, not more than 60 
     percent of the funds available for statewide activities under 
     subsection (b), and not more than 60 percent of funds 
     available to local areas under subsection (c), may be used to 
     provide activities for in-school youth meeting the 
     requirements of paragraph (1)(B).
       ``(B) Exception.--A State that receives a minimum allotment 
     under section 127(b)(1) in accordance with section 
     127(b)(1)(C)(iv) or under section 132(b)(1) in accordance 
     with section 132(b)(1)(B)(iv)(II) may increase the percentage 
     described in subparagraph (A) for a local area in the State, 
     if--
       ``(i) after an analysis of the eligible youth population in 
     the local area, the State determines that the local area will 
     be unable to use at least 40 percent of the funds available 
     for activities under subsection (b) or (c) to serve out-of-
     school youth due to a low number of out-of-school youth; and
       ``(ii)(I) the State submits to the Secretary, for the local 
     area, a request including a proposed increased percentage for 
     purposes of subparagraph (A), and the summary of the eligible 
     youth population analysis; and
       ``(II) the request is approved by the Secretary.
       ``(4) Consistency with compulsory school attendance laws.--
     In providing assistance under this section to an individual 
     who is required to attend school under applicable State 
     compulsory school attendance laws, the priority in providing 
     such assistance shall be for the individual to attend school 
     regularly.''.
       (e) Statewide Activities.--Section 129(b) (29 U.S.C. 
     2854(b)) is amended to read as follows:
       ``(b) Statewide Activities.--
       ``(1) In general.--Funds reserved by a Governor for a State 
     as described in sections 128(a) and 133(a)(1) shall be used, 
     regardless of whether the funds were allotted to the State 
     under section 127(b)(1)(C) or under paragraph (1)(B) or 
     (2)(B) of section 132(b) for statewide activities, which may 
     include--
       ``(A) conducting--
       ``(i) evaluations under section 136(e) of activities 
     authorized under this chapter and chapter 5 in coordination 
     with evaluations carried out by the Secretary under section 
     172;
       ``(ii) research; and
       ``(iii) demonstration projects;
       ``(B) providing incentive grants to local areas for 
     regional cooperation among local boards (including local 
     boards in a designated region as described in section 
     116(c)), for local coordination of activities carried out 
     under this title, and for performance by local areas as 
     described in section 136(i)(2);
       ``(C) providing technical assistance and capacity building 
     activities to local areas, one-stop operators, one-stop 
     partners, and eligible providers, including the development 
     and training of staff, the development of exemplary program 
     activities, the provision of technical assistance to local 
     areas that fail to meet local performance measures described 
     in section 136(c), and the provision of technology to 
     facilitate remote access to services provided through one-
     stop delivery systems;
       ``(D) operating a fiscal and management accountability 
     information system under section 136(f);
       ``(E) carrying out monitoring and oversight of activities 
     carried out under this chapter and chapter 5, which may 
     include a review comparing the services provided to male and 
     female youth;
       ``(F) providing additional assistance to local areas that 
     have high concentrations of eligible youth;
       ``(G) supporting the development of alternative programs 
     and other activities that enhance the choices available to 
     eligible youth and encourage such youth to reenter secondary 
     education, enroll in postsecondary education and advanced 
     training, and obtain career path employment; and
       ``(H) supporting the provision of core services described 
     in section 134(d)(2) in the one-stop delivery system in the 
     State.
       ``(2) Limitation.--Not more than 5 percent of the funds 
     allotted to a State under section 127(b)(1)(C) shall be used 
     by the State for administrative activities carried out under 
     this subsection or section 134(a).
       ``(3) Prohibition.--No funds described in this subsection 
     may be used to develop or implement education curricula for 
     school systems in the State.''.
       (f) Local Elements and Requirements.--
       (1) Program design.--Section 129(c)(1) (29 U.S.C. 
     2854(c)(1)) is amended--
       (A) in the matter that precedes subparagraph (A), by 
     striking ``paragraph (2)(A) or (3), as appropriate, of'';
       (B) in subparagraph (B), by inserting ``are directly linked 
     to 1 or more of the performance measures relating to this 
     chapter under section 136, and that'' after ``for each 
     participant that''; and
       (C) in subparagraph (C)--
       (i) by redesignating clauses (i) through (iv) as clauses 
     (ii) through (v), respectively;
       (ii) by inserting before clause (ii) (as redesignated by 
     clause (i)) the following:
       ``(i) activities leading to the attainment of a secondary 
     school diploma or its equivalent, or another recognized 
     credential;'';
       (iii) in clause (ii) (as redesignated by clause (i)), by 
     inserting ``and advanced training'' after ``opportunities'';
       (iv) in clause (iii) (as redesignated by clause (i))--

       (I) by inserting ``instruction based on State academic 
     content and student academic

[[Page 28984]]

     achievement standards established under section 1111 of the 
     Elementary and Secondary Education Act of 1965 (20 U.S.C. 
     6311)'' after ``academic''; and
       (II) by inserting ``that lead to the attainment of 
     recognized credentials'' after ``learning''; and

       (v) by striking clause (v) (as redesignated by clause (i)) 
     and inserting the following:
       ``(v) effective connections to all employers, including 
     small employers, in sectors of the local and regional labor 
     markets that are experiencing high growth in employment 
     opportunities.''.
       (2) Program elements.--Section 129(c)(2) (29 U.S.C. 
     2854(c)(2)) is amended--
       (A) in subparagraph (A), by striking ``secondary school, 
     including dropout prevention strategies'' and inserting ``the 
     requirements for a secondary school diploma or its recognized 
     equivalent (including recognized alternative standards for 
     individuals with disabilities) or for another recognized 
     credential, including dropout prevention strategies'';
       (B) in subparagraph (B), by inserting ``, with a priority 
     on exposing youth to technology and nontraditional jobs'' 
     before the semicolon;
       (C) in subparagraph (F), by striking ``during nonschool 
     hours'';
       (D) in subparagraph (I), by striking ``and'' at the end;
       (E) in subparagraph (J), by striking the period at the end 
     and inserting a semicolon; and
       (F) by adding at the end the following:
       ``(K) on-the-job training opportunities;
       ``(L) opportunities to acquire financial literacy skills;
       ``(M) entrepreneurial skills training and microenterprise 
     services; and
       ``(N) information about average wages for a range of jobs 
     available in the local area, including technology jobs.''.
       (3) Additional requirements.--Section 129(c)(3)(A) (29 
     U.S.C. 2854(c)(3)(A)) is amended in the matter preceding 
     clause (i) by striking ``or applicant who meets the minimum 
     income criteria to be considered an eligible youth''.
       (4) Priority and exceptions.--Section 129(c) (29 U.S.C. 
     2854(c)) is amended by striking paragraphs (4) and (5).
       (5) Prohibitions and linkages.--Section 129(c) (29 U.S.C. 
     2854(c)), as amended by paragraph (4), is further amended--
       (A) by redesignating paragraphs (6), (7), and (8) as 
     paragraphs (4), (5), and (6), respectively;
       (B) in paragraph (4) (as redesignated by subparagraph 
     (A))--
       (i) by striking subparagraph (B); and
       (ii) by redesignating subparagraph (C) as subparagraph (B); 
     and
       (C) in paragraph (5) (as redesignated by subparagraph (A)), 
     by striking ``youth councils'' and inserting ``local 
     boards''.

     SEC. 121. ADULT AND DISLOCATED WORKER EMPLOYMENT AND TRAINING 
                   ACTIVITIES.

       (a) State Allotments.--
       (1) Reservations.--Section 132(a)(2)(A) is amended by 
     striking ``national emergency grants'' and inserting 
     ``national dislocated worker grants''.
       (2) Allotment among states.--Section 132(b) (29 U.S.C. 
     2862(b)) is amended--
       (A) in paragraph (1)(A)(ii), by striking ``section 
     127(b)(1)(B)'' and all that follows and inserting ``section 
     127(b)(1)(B).'';
       (B) by striking paragraph (1)(B)(ii) and inserting the 
     following:
       ``(ii) Formula.--Subject to clauses (iii) and (iv), of the 
     remainder--

       ``(I) 40 percent shall be allotted on the basis of the 
     relative number of unemployed individuals in areas of 
     substantial unemployment in each State, compared to the total 
     number of unemployed individuals in areas of substantial 
     unemployment in all States;
       ``(II) 25 percent shall be allotted on the basis of the 
     relative number of individuals in the civilian labor force in 
     each State, compared to the total number of such individuals 
     in all States; and
       ``(III) 35 percent shall be allotted on the basis of the 
     relative number of disadvantaged adults in each State, 
     compared to the total number of disadvantaged adults in all 
     States, except as described in clause (iii).'';

       (C) in paragraph (1)(B)--
       (i) in clause (iii), by striking ``section 116(a)(2)(B)'' 
     and inserting ``section 116(a)(2)(A)(iii)''; and
       (ii) in clause (iv)--

       (I) in subclause (II), by striking ``subclauses (I), (III), 
     and (IV)'' and inserting ``subclauses (I) and (III)''; and
       (II) by striking subclause (IV); and

       (D) in paragraph (2)(A)(ii), by striking ``section 
     127(b)(1)(B)'' and all that follows and inserting ``section 
     127(b)(1)(B).''.
       (3) Reallotment.--Section 132(c) (29 U.S.C. 2862(c)) is 
     amended--
       (A) by striking paragraph (2) and inserting the following:
       ``(2) Amount.--The amount available for reallotment for a 
     program year for programs funded under subsection (b)(1)(B) 
     (relating to adult employment and training) and subsection 
     (b)(2)(B) (relating to dislocated worker employment and 
     training), respectively, is equal to the amount by which the 
     unexpended balance at the end of the program year prior to 
     the program year for which the determination is made exceeds 
     30 percent of the total amount of funds available to the 
     State under subsection (b)(1)(B) or (b)(2)(B), respectively, 
     during such prior program year (including amounts allotted to 
     the State in all prior program years under such provisions 
     that remained available). For purposes of this paragraph, the 
     unexpended balance is the amount that is the difference 
     between--
       ``(A) the total amount of funds available to the State 
     under subsection (b)(1)(B) or (b)(2)(B), respectively, during 
     the program year prior to the program year for which the 
     determination is made (including amounts allotted to the 
     State in all prior program years under such provisions that 
     remained available); and
       ``(B) the accrued expenditures from such total amount of 
     funds available under subsection (b)(1)(B) or (b)(2)(B), 
     respectively, during such prior program year.'';
       (B) in paragraph (3)--
       (i) by striking ``under this section for such activities 
     for the prior program year'' and inserting ``under subsection 
     (b)(1)(B) or (b)(2)(B), as appropriate, for the program year 
     for which the determination is made''; and
       (ii) by striking ``under this subsection for such 
     activities for such prior program year'' and inserting 
     ``under subsection (b)(1)(B) or (b)(2)(B), as appropriate, 
     for such program year'';
       (C) by striking paragraph (4) and inserting the following:
       ``(4) Eligibility.--For purposes of this subsection, an 
     eligible State means--
       ``(A) with respect to funds allotted under subsection 
     (b)(1)(B), a State that does not have an amount of such funds 
     available for reallotment under paragraph (2) for the program 
     year for which the determination under paragraph (2) is made; 
     and
       ``(B) with respect to funds allotted under subsection 
     (b)(2)(B), a State that does not have an amount of such funds 
     available for reallotment under paragraph (2) for the program 
     year for which the determination under paragraph (2) is 
     made.''; and
       (D) in paragraph (5), by striking ``obligation'' and 
     inserting ``accrued expenditure''.
       (4) Effective date.--The amendments made by paragraph (3) 
     shall take effect for the later of--
       (A) the program year that begins after the date of 
     enactment of this Act; or
       (B) program year 2004.
       (b) Within State Allocations.--
       (1) Allocation.--Section 133(b)(5)(B)(ii) (29 U.S.C. 
     2863(b)(5)(B)(ii)) is amended by striking ``section 134(c)'' 
     and inserting ``section 121(e)''.
       (2) Reallocation.--Section 133(c) (29 U.S.C. 2863(c)) is 
     amended--
       (A) in paragraph (1), by inserting ``, and under subsection 
     (b)(2)(B) for dislocated worker employment and training 
     activities,'' after ``activities'';
       (B) by striking paragraph (2) and inserting the following:
       ``(2) Amount.--The amount available for reallocation for a 
     program year for programs funded under paragraphs (2)(A) and 
     (3) of subsection (b) (relating to adult employment and 
     training) and subsection (b)(2)(B) (relating to dislocated 
     worker employment and training), respectively, is equal to 
     the amount by which the unexpended balance at the end of the 
     program year prior to the program year for which the 
     determination is made exceeds 30 percent of the total amount 
     of funds available to the local area under paragraphs (2)(A) 
     and (3) of subsection (b), or subsection (b)(2)(B), 
     respectively, during such prior program year (including 
     amounts allocated to the local area in all prior program 
     years under such provisions that remained available). For 
     purposes of this paragraph, the unexpended balance is the 
     amount that is the difference between--
       ``(A) the total amount of funds available to the local area 
     under paragraphs (2)(A) and (3) of subsection (b), or 
     subsection (b)(2)(B), respectively, during the program year 
     prior to the program year for which the determination is made 
     (including amounts allotted to the local area in all prior 
     program years under such provisions that remained available); 
     and
       ``(B) the accrued expenditures from such total amount of 
     funds available under paragraphs (2)(A) and (3) of subsection 
     (b), or subsection (b)(2)(B), respectively, during such prior 
     program year.'';
       (C) by striking paragraph (3) and inserting the following:
       ``(3) Reallocation.--In making reallocations to eligible 
     local areas of amounts available pursuant to paragraph (2) 
     for a program year, the Governor shall allocate to each 
     eligible local area within the State--
       ``(A) with respect to amounts that are available for 
     reallocation under paragraph (2) that were allocated under 
     paragraphs (2)(A) or (3) of subsection (b), an amount based 
     on the relative amount allocated to such local area under 
     paragraphs (2)(A) or (3) of subsection (b), as appropriate, 
     for the program year for which the determination is made, as 
     compared to the total amount allocated to all eligible local 
     areas under paragraphs (2)(A) or (3) of subsection (b), as 
     appropriate, of such program year; and
       ``(B) with respect to amounts that are available for 
     reallocation under paragraph (2) that were allocated under 
     subsection (b)(2)(B), an amount based on the relative amount 
     allocated to such local area under subsection (b)(2)(B) for 
     the program year for which the determination is made, as 
     compared to the total amount allocated to all eligible local 
     areas under subsection (b)(2)(B) for such program year.''; 
     and
       (D) by striking paragraph (4) and inserting the following:
       ``(4) Eligibility.--For purposes of this subsection, an 
     eligible local area means--
       ``(A) with respect to funds allocated under paragraphs 
     (2)(A) or (3) of subsection (b), a local area that does not 
     have an amount of such funds available for reallocation under 
     paragraph (2) for the program year for which the 
     determination under paragraph (2) is made; and

[[Page 28985]]

       ``(B) with respect to funds allocated under subsection 
     (b)(2)(B), a local area that does not have an amount of such 
     funds available for reallocation under paragraph (2) for the 
     program year for which the determination under paragraph (2) 
     is made.''.
       (3) Effective date.--The amendments made by paragraph (2) 
     shall take effect for the later of--
       (A) the program year that begins after the date of 
     enactment of this Act; or
       (B) program year 2004.
       (c) Use of Funds for Employment and Training Activities.--
       (1) Statewide employment and training activities.--
       (A) Statewide rapid response activities.--Section 
     134(a)(2)(A) (29 U.S.C. 2864(a)(2)(A)) is amended to read as 
     follows:
       ``(A) Statewide rapid response activities.--
       ``(i) In general.--A State shall carry out statewide rapid 
     response activities using funds reserved by a Governor for a 
     State under section 133(a)(2). Such activities shall 
     include--

       ``(I) provision of rapid response activities, carried out 
     in local areas by the State or by an entity designated by the 
     State, working in conjunction with the local boards and the 
     chief elected officials for the local areas; and
       ``(II) provision of additional assistance to local areas 
     that experience disasters, mass layoffs, or plant closings, 
     or other events that precipitate substantial increases in the 
     number of unemployed individuals, carried out in local areas 
     by the State, working in conjunction with the local boards 
     and the chief elected officials for the local areas.

       ``(ii) Use of unexpended funds.--Funds reserved under 
     section 133(a)(2) to carry out this subparagraph that remain 
     unexpended after the first program year for which such funds 
     were allotted may be used by the Governor to carry out 
     statewide activities authorized under subparagraph (B) and 
     paragraph (3)(A) in addition to activities under this 
     subparagraph.''.
       (B) Statewide employment and training activities.--Section 
     134(a)(2) (29 U.S.C. 2864(a)(2)) is amended by striking 
     subparagraph (B) and inserting the following:
       ``(B) Statewide employment and training activities.--Funds 
     reserved by a Governor for a State under sections 128(a)(1) 
     and 133(a)(1) and not used under paragraph (1)(A) (regardless 
     of whether the funds were allotted to the States under 
     section 127(b)(1)(C) or paragraphs (1)(B) or (2)(B) of 
     section 132(b)) shall be used for statewide employment and 
     training activities, including--
       ``(i) disseminating--

       ``(I) the State list of eligible providers of training 
     services, including eligible providers of nontraditional 
     training services;
       ``(II) information identifying eligible providers of on-
     the-job training and customized training;
       ``(III) performance information and program cost 
     information, as described in subsections (d) and (i) of 
     section 122; and
       ``(IV) information on physical and programmatic 
     accessibility for individuals with disabilities;

       ``(ii) conducting evaluations under section 136(e) of 
     activities authorized under this chapter and chapter 5 in 
     coordination with evaluations carried out by the Secretary 
     under section 172;
       ``(iii) providing incentive grants to local areas in 
     recognition of exceptional achievement relating to--

       ``(I) regional cooperation among local boards (including 
     local boards in a designated region as described in section 
     116(c));
       ``(II) expanded local coordination of programs and 
     activities carried out as part of a comprehensive workforce 
     investment system, including--

       ``(aa) employment services under the Wagner-Peyser Act and 
     core activities under this title; and
       ``(bb) one-stop partner programs described in section 121;

       ``(III) performance by local areas as described in section 
     136(i)(2); and
       ``(IV) providing expanded access to education and training 
     services, especially through increased leveraging of 
     resources other than those provided through programs under 
     this title;

       ``(iv) developing strategies for ensuring that activities 
     carried out under this section are placing men and women in 
     jobs, education, and training that lead to comparable pay;
       ``(v) providing technical assistance and capacity building 
     to local areas, one-stop operators, one-stop partners, and 
     eligible providers, including the development and training of 
     staff, the development of exemplary program activities, and 
     the provision of technical assistance to local areas that 
     fail to meet local performance measures described in section 
     136(c), which may include the development and training of 
     staff to provide opportunities for hard-to-serve populations 
     to enter high-wage, high-skilled, and nontraditional 
     occupations;
       ``(vi) operating a fiscal and management accountability 
     system under section 136(f); and
       ``(vii) carrying out monitoring and oversight of activities 
     carried out under this chapter and chapter 4.''.
       (C) Allowable statewide employment and training 
     activities.--Section 134(a)(3)(A) (29 U.S.C. 2864(a)(3)(A) is 
     amended to read as follows:
       ``(A) In general.--Funds reserved by a Governor for a State 
     under sections 128(a)(1) and 133(a)(1) and not used under 
     paragraph (1)(A) or (2)(B) (regardless of whether the funds 
     were allotted to the State under section 127(b)(1)(C) or 
     paragraph (1)(B) or (2)(B) of section 132(b)) may be used to 
     carry out additional statewide employment and training 
     activities, which may include--
       ``(i) implementing innovative programs and strategies 
     designed to meet the needs of all businesses in the State, 
     including small businesses, which may include incumbent 
     worker training programs, sectoral and industry cluster 
     strategies and partnerships, including regional skills 
     alliances, career ladder programs, micro-enterprise and 
     entrepreneurial training and support programs, utilization of 
     effective business intermediaries, activities to improve 
     linkages between the one-stop delivery systems in the State 
     and all employers (including small employers) in the State, 
     and other business services and strategies that better engage 
     employers in workforce investment activities and make the 
     workforce investment system more relevant to the needs of 
     State and local businesses, consistent with the objectives of 
     this title;
       ``(ii) developing strategies for effectively serving hard-
     to-serve populations and for coordinating programs and 
     services among one-stop partners;
       ``(iii) implementing innovative programs for displaced 
     homemakers, which for purposes of this clause may include an 
     individual who is receiving public assistance and is within 2 
     years of exhausting lifetime eligibility under part A of 
     title IV of the Social Security Act (42 U.S.C. 601 et seq.);
       ``(iv) implementing programs to increase the number of 
     individuals training for and placed in nontraditional 
     employment;
       ``(v) carrying out activities to facilitate remote access 
     to services, including training services described in 
     subsection (d)(4), provided through a one-stop delivery 
     system, including facilitating access through the use of 
     technology;
       ``(vi) supporting the provision of core services described 
     in subsection (d)(2) in the one-stop delivery system in the 
     State;
       ``(vii) coordinating with the child welfare system to 
     facilitate services for children in foster care and those who 
     are eligible for assistance under section 477 of the Social 
     Security Act;
       ``(viii) activities--

       ``(I) to improve coordination between workforce investment 
     activities carried out within the State involved and economic 
     development activities;
       ``(II) to improve coordination between employment and 
     training assistance, child support services, and assistance 
     provided by State and local agencies carrying out part D of 
     title IV of the Social Security Act (42 U.S.C. 651 et seq.);
       ``(III) to improve coordination between employment and 
     training assistance and cooperative extension programs 
     carried out by the Department of Agriculture;
       ``(IV) to improve coordination between employment and 
     training assistance and programs carried out in the local 
     area for individuals with disabilities, including programs 
     carried out by State agencies relating to mental retardation 
     and developmental disabilities, Statewide Independent Living 
     Councils established under section 705 of the Rehabilitation 
     Act of 1973 (29 U.S.C. 796d), and centers for independent 
     living defined in section 702 of the Rehabilitation Act of 
     1973 (29 U.S.C. 796a);
       ``(V) to develop and disseminate workforce and labor market 
     information; and
       ``(VI) to improve coordination with the corrections system 
     to facilitate provision of training services and employment 
     opportunities that will assist ex-offenders in reentering the 
     workforce;

       ``(ix) conducting--

       ``(I) research; and
       ``(II) demonstration projects; and

       ``(x) adopting, calculating, or commissioning a minimum 
     self-sufficiency standard that specifies the income needs of 
     families, by family size, the number and ages of children in 
     the family, and sub-State geographical considerations.''.
       (2) Required local employment and training activities.--
       (A) Allocated funds.--Section 134(d)(1)(A) (29 U.S.C. 
     2864(d)(1)(A)) is amended--
       (i) in clause (i), by striking ``described in subsection 
     (c)'';
       (ii) in clause (iii), by striking ``and'' at the end;
       (iii) in clause (iv), by striking the period and inserting 
     a semicolon; and
       (iv) by adding at the end the following:
       ``(v) to designate a dedicated business liaison in the 
     local area who may be funded with funds provided under this 
     title or from other sources to establish and develop 
     relationships and networks with large and small employers and 
     their intermediaries; and
       ``(vi) in order to avoid duplication of services and 
     enhance coordination of services, to require the colocation 
     of employment services provided under the Wagner-Peyser Act 
     at the comprehensive one-stop centers.''.
       (B) Core services.--Section 134(d)(2) (29 U.S.C. 
     2864(d)(2)) is amended--
       (i) in the matter preceding subparagraph (A), by striking 
     ``paragraph (1)(A)'' and inserting ``paragraph (1)'';
       (ii) by striking subparagraph (D) and inserting the 
     following:
       ``(D) labor exchange services, including--
       ``(i) job search and placement assistance and, in 
     appropriate cases, career counseling, including--

       ``(I) exposure to high wage, high skill jobs; and
       ``(II) nontraditional employment; and

       ``(ii) appropriate recruitment and other business services 
     for all employers, including small employers, in the local 
     area, which may include services described in this 
     subsection, including information and referral to specialized 
     business

[[Page 28986]]

     services not traditionally offered through the one-stop 
     delivery system;'';
       (iii) in subparagraph (E)(iii)--

       (I) by inserting ``, career ladders,'' after ``earnings''; 
     and
       (II) by striking ``and'' at the end;

       (iv) in subparagraph (F)--

       (I) by striking ``and program cost information''; and
       (II) by striking ``described in section 123'';

       (v) by striking subparagraph (H) and inserting the 
     following:
       ``(H) provision of accurate information, in formats that 
     are usable and understandable to all one-stop center 
     customers, relating to the availability of supportive 
     services or assistance, including child care, child support, 
     medical or child health assistance under title XIX or XXI of 
     the Social Security Act, benefits under the Food Stamp Act of 
     1977, the earned income tax credit under section 32 of the 
     Internal Revenue Code of 1986, and assistance under a State 
     program funded under part A of title IV of the Social 
     Security Act and other supportive services and transportation 
     provided through funds made available under such part, 
     available in the local area, and referral to such services or 
     assistance as appropriate;''; and
       (vi) in subparagraph (J), by striking ``for--'' and all 
     that follows through ``(ii) programs'' and inserting ``for 
     programs''.
       (C) Intensive services.--Section 134(d)(3) (29 U.S.C. 
     2864(d)(3)) is amended--
       (i) by striking subparagraph (A) and inserting the 
     following:
       ``(A) In general.--
       ``(i) Eligibility.--Except as provided in clause (ii), 
     funds allocated to a local area for adults under paragraph 
     (2)(A) or (3), as appropriate, of section 133(b), and funds 
     allocated to the local area for dislocated workers under 
     section 133(b)(2)(B), shall be used to provide intensive 
     services to adults and dislocated workers, respectively--

       ``(I) who are unemployed and who, after an interview, 
     evaluation, or assessment, have been determined by a one-stop 
     operator or one-stop partner to be--

       ``(aa) unlikely or unable to obtain employment, that leads 
     to self-fficiency or wages comparable to or higher than 
     previous employment, through core services described in 
     paragraph (2); and
       ``(bb) in need of intensive services to obtain employment 
     that leads to self-sufficiency or wages comparable to or 
     higher than previous employment; or

       ``(II) who are employed, but who, after an interview, 
     evaluation, or assessment are determined by a one-stop 
     operator or one-stop partner to be in need of intensive 
     services to obtain or retain employment that leads to self-
     sufficiency.

       ``(ii) Special rule.--A new interview, evaluation, or 
     assessment of a participant is not required under clause (i) 
     if the one-stop operator or one-stop partner determines that 
     it is appropriate to use a recent assessment of the 
     participant conducted pursuant to another education or 
     training program.''; and
       (ii) in subparagraph (C)--

       (I) in clause (v), by striking ``for participants seeking 
     training services under paragraph (4)''; and
       (II) by adding at the end the following:

       ``(vii) Internships and work experience.
       ``(viii) Literacy activities relating to basic work 
     readiness, and financial literacy activities.
       ``(ix) Out-of-area job search assistance and relocation 
     assistance.
       ``(x) English language acquisition and integrated training 
     programs.''.
       (D) Training services.--Section 134(d)(4) (29 U.S.C. 
     2864(d)(4)) is amended--
       (i) by striking subparagraph (A) and inserting the 
     following:
       ``(A) In general.--
       ``(i) Eligibility.--Except as provided in clause (ii), 
     funds allocated to a local area for adults under paragraph 
     (2)(A) or (3), as appropriate, of section 133(b), and funds 
     allocated to the local area for dislocated workers under 
     section 133(b)(2)(B), shall be used to provide training 
     services to adults and dislocated workers, respectively--

       ``(I) who, after an interview, evaluation, or assessment, 
     and case management, have been determined by a one-stop 
     operator or one-stop partner, as appropriate, to--

       ``(aa) be unlikely or unable to obtain or retain 
     employment, that leads to self-sufficiency or wages 
     comparable to or higher than previous employment, through the 
     intensive services described in paragraph (3);
       ``(bb) be in need of training services to obtain or retain 
     employment that leads to self-sufficiency or wages comparable 
     to or higher than previous employment; and
       ``(cc) have the skills and qualifications to successfully 
     participate in the selected program of training services;

       ``(II) who select programs of training services that are 
     directly linked to the employment opportunities in the local 
     area or region involved or in another area to which the 
     adults or dislocated workers are willing to commute or 
     relocate;
       ``(III) who meet the requirements of subparagraph (B); and
       ``(IV) who are determined to be eligible in accordance with 
     the priority system in effect under subparagraph (E).

       ``(ii) Special rule.--A new interview, evaluation, or 
     assessment of a participant is not required under clause (i) 
     if the one-stop operator or one-stop partner determines that 
     it is appropriate to use a recent assessment of the 
     participant conducted pursuant to another education or 
     training program.'';
       (ii) in subparagraph (B)(i), by striking ``Except'' and 
     inserting ``Notwithstanding section 479B of the Higher 
     Education Act of 1965 (20 U.S.C. 1087uu) and except'';
       (iii) in subparagraph (D)--

       (I) in clause (viii), by striking ``and'' after the 
     semicolon;
       (II) in clause (ix), by striking the period and inserting 
     ``; and''; and
       (III) by adding at the end the following:

       ``(x) English language acquisition and integrated training 
     programs.'';
       (iv) in subparagraph (F)--

       (I) in clause (ii), by striking ``referred to in subsection 
     (c), shall make available--'' and all that follows and 
     inserting ``shall make available a list of eligible providers 
     of training services, and accompanying information, in 
     accordance with section 122(d).'';
       (II) in the heading of clause (iii), by striking 
     ``Individual training accounts'' and inserting ``Career 
     scholarship accounts'';
       (III) in clause (iii)--

       (aa) by striking ``identifying information'' and inserting 
     ``accompanying information'';
       (bb) by striking ``clause (ii)(I)'' and inserting ``clause 
     (ii)''; and
       (cc) by striking ``individual training account'' and 
     inserting ``career scholarship account''; and

       (IV) by adding at the end the following:

       ``(iv) Coordination.--Each local board may, through one-
     stop centers, coordinate career scholarship accounts with 
     other Federal, State, local, or private job training programs 
     or sources to assist the individual in obtaining training 
     services.''; and
       (v) in subparagraph (G)--

       (I) in the subparagraph heading, by striking ``individual 
     training accounts'' and inserting ``career scholarship 
     accounts'';
       (II) in clause (i), by striking ``individual training 
     accounts'' and inserting ``career scholarship accounts'';
       (III) in clause (ii)--

       (aa) by striking ``individual training account'' and 
     inserting ``career scholarship account'';
       (bb) in subclause (II), by striking ``individual training 
     accounts'' and inserting ``career scholarship accounts'';
       (cc) in subclause (II) by striking ``or'' after the 
     semicolon;
       (dd) in subclause (III), by striking ``special participant 
     populations that face multiple barriers to employment'' and 
     inserting ``hard-to-serve populations'';
       (ee) in subclause (III), by striking the period and 
     inserting '``; or''; and
       (ff) by adding at the end the following:

       ``(IV) the local board determines that it would be most 
     appropriate to award a contract to an institution of higher 
     education in order to facilitate the training of multiple 
     individuals in high-demand occupations, if such contract does 
     not limit customer choice.''; and
       (IV) in clause (iv)--

       (aa) by redesignating subclause (IV) as subclause (V); and
       (bb) by inserting after subclause (III) the following:

       ``(IV) Individuals with disabilities.''.

       (3) Permissible activities.--Section 134(e) (29 U.S.C. 
     2864(e)) is amended--
       (A) by striking the matter preceding paragraph (2) and 
     inserting the following:
       ``(e) Permissible Local Employment and Training 
     Activities.--
       ``(1) In general.--
       ``(A) Activities.--Funds allocated to a local area for 
     adults under paragraph (2)(A) or (3), as appropriate, of 
     section 133(b), and funds allocated to the local area for 
     dislocated workers under section 133(b)(2)(B), may be used to 
     provide, through the one-stop delivery system involved--
       ``(i) customized screening and referral of qualified 
     participants in training services described in subsection 
     (d)(4) to employment;
       ``(ii) customized employment-related services to employers 
     on a fee-for-service basis;
       ``(iii) customer support to enable members of hard-to-serve 
     populations, including individuals with disabilities, to 
     navigate among multiple services and activities for such 
     populations;
       ``(iv) technical assistance and capacity building for 
     serving individuals with disabilities in local areas, for 
     one-stop operators, one-stop partners, and eligible 
     providers, including the development and training of staff, 
     the provision of outreach, intake, assessments, and service 
     delivery, and the development of performance measures;
       ``(v) employment and training assistance provided in 
     coordination with child support enforcement activities of the 
     State and local agencies carrying out part D of title IV of 
     the Social Security Act (42 U.S.C. 601 et seq.);
       ``(vi) activities to improve coordination between 
     employment and training assistance, child support services, 
     and assistance provided by State and local agencies carrying 
     out part D of title IV of the Social Security Act (42 U.S.C. 
     651 et seq.);
       ``(vii) activities to improve coordination between 
     employment and training assistance and cooperative extension 
     programs carried out by the Department of Agriculture;
       ``(viii) activities to facilitate remote access to services 
     provided through a one-stop delivery system, including 
     facilitating access through the use of technology;
       ``(ix) activities--

       ``(I) to improve coordination between workforce investment 
     activities carried out within the local area involved and 
     economic development activities; and

[[Page 28987]]

       ``(II) to improve services and linkages between the local 
     workforce investment system including the local one-stop 
     delivery system, and all employers, including small employers 
     in the local area, through services described in this 
     section, including subparagraph (B);

       ``(x) training programs for displaced homemakers and for 
     individuals training for nontraditional occupations, in 
     conjunction with programs operated in the local area;
       ``(xi) using a portion of the funds allocated under section 
     133(b), activities to carry out business services and 
     strategies that meet the workforce investment needs of local 
     area employers, as determined by the local board, consistent 
     with the local plan under section 118, which services--

       ``(I) may be provided through effective business 
     intermediaries working in conjunction with the local board, 
     and may also be provided on a fee-for-service basis or 
     through the leveraging of economic development and other 
     resources as determined appropriate by the local board; and
       ``(II) may include--

       ``(aa) identifying and disseminating to business, 
     educators, and job seekers, information related to the 
     workforce, economic and community development needs, and 
     opportunities of the local economy;
       ``(bb) development and delivery of innovative workforce 
     investment services and strategies for area businesses, which 
     may include sectoral, industry cluster, regional skills 
     alliances, career ladder, skills upgrading, skill standard 
     development and certification, apprenticeship, and other 
     effective initiatives for meeting the workforce investment 
     needs of area employers and workers;
       ``(cc) participation in seminars and classes offered in 
     partnership with relevant organizations focusing on the 
     workforce-related needs of area employers and job seekers;
       ``(dd) training consulting, needs analysis, and brokering 
     services for area businesses, including the organization and 
     aggregation of training (which may be paid for with funds 
     other than those provided under this title), for individual 
     employers and coalitions of employers with similar interests, 
     products, or workforce needs;
       ``(ee) assistance to area employers in the aversion of 
     layoffs and in managing reductions in force in coordination 
     with rapid response activities;
       ``(ff) the marketing of business services offered under 
     this title, to appropriate area employers, including small 
     and mid-sized employers;
       ``(gg) information referral on concerns affecting local 
     employers; and
       ``(hh) other business services and strategies designed to 
     better engage employers in workforce investment activities 
     and to make the workforce investment system more relevant to 
     the workforce investment needs of area businesses, as 
     determined by the local board to be consistent with the 
     objectives of this title;
       ``(xii) activities to adjust the self-sufficiency standards 
     for local factors, or activities to adopt, calculate, or 
     commission a self-sufficiency standard that specifies the 
     income needs of families, by family size, the number and ages 
     of children in the family, and sub-State geographical 
     considerations; and
       ``(xiii) improved coordination between employment and 
     training assistance and programs carried out in the local 
     area for individuals with disabilities, including programs 
     carried out by State agencies relating to mental retardation 
     and developmental disabilities, Statewide Independent Living 
     Councils established under section 705 of the Rehabilitation 
     Act of 1973 (29 U.S.C. 796d), and centers for independent 
     living defined in section 702 of the Rehabilitation Act of 
     1973 (29 U.S.C. 796a).
       ``(B) Work support activities for low-wage workers.--
       ``(i) In general.--Funds allocated to a local area for 
     adults under paragraph (2)(A) or (3), as appropriate, of 
     section 133(b), and funds allocated to the local area for 
     dislocated workers under section 133(b)(2)(B), may be used to 
     provide, through the one-stop delivery system involved, work 
     support activities designed to assist low-wage workers in 
     retaining and enhancing employment. The one-stop partners 
     shall coordinate the appropriate programs and resources of 
     the partners with the activities and resources provided under 
     this subparagraph.
       ``(ii) Activities.--The activities described in clause (i) 
     may include the provision of activities described in this 
     section through the one-stop delivery system in a manner that 
     enhances the opportunities of such workers to participate in 
     the activities, such as the provision of activities described 
     in this section during nontraditional hours and the provision 
     of onsite child care while such activities are being 
     provided.'';
       (B) in paragraph (2), by striking the matter preceding 
     subparagraph (A) and inserting the following:
       ``(2) Supportive services.--Funds allocated to a local area 
     for adults under paragraph (2)(A) or (3), as appropriate, of 
     section 133(b), and funds allocated to the local area for 
     dislocated workers under section 133(b)(2)(B), may be used to 
     provide supportive services to adults and dislocated workers, 
     respectively--''; and
       (C) by adding at the end the following:
       ``(4) Incumbent worker training programs.--
       ``(A) In general.--The local board may use up to 10 percent 
     of the funds allocated to the local area involved under 
     section 133(b) to pay for the Federal share of the cost of 
     providing training through an incumbent worker training 
     program carried out in accordance with this paragraph. The 
     Governor or State board may make recommendations to the local 
     board regarding incumbent worker training with statewide 
     impact.
       ``(B) Training activities.--The training program for 
     incumbent workers carried out under this paragraph shall be 
     carried out by the local board in conjunction with the 
     employers or groups of employers of such workers for the 
     purpose of assisting such workers in obtaining the skills 
     necessary to retain employment or avert layoffs.
       ``(C) Employer share required.--
       ``(i) In general.--Employers participating in the program 
     carried out under this paragraph shall be required to pay the 
     non-Federal share of the costs of providing the training to 
     incumbent workers of the employers. The local board shall 
     establish the non-Federal share of such costs, which may 
     include in-kind contributions. The non-Federal share shall 
     not be less than--

       ``(I) 10 percent of the costs, for employers with 50 or 
     fewer employees;
       ``(II) 25 percent of the costs, for employers with more 
     than 50 employees but fewer than 100 employees; and
       ``(III) 50 percent of the costs, for employers with 100 or 
     more employees.

       ``(ii) Calculation of employer share.--The non-Federal 
     share paid by such an employer may include the amount of the 
     wages paid by the employer to a worker while the worker is 
     attending a training program under this paragraph.''.

     SEC. 122. PERFORMANCE ACCOUNTABILITY SYSTEM.

       (a) State Performance Measures.--
       (1) Indicators of performance.--Section 136(b)(2)(A) (29 
     U.S.C. 2871(b)(2)(A)) is amended--
       (A) in clause (i)--
       (i) in the matter preceding subclause (I), by striking 
     ``and (for participants who are eligible youth age 19 through 
     21) for youth activities authorized under section 129'';
       (ii) by striking subclause (III) and inserting the 
     following:

       ``(III) increases in earnings from unsubsidized employment; 
     and''; and

       (iii) in subclause (IV), by striking ``, or by 
     participants'' and all that follows through ``unsubsidized 
     employment''; and
       (B) by striking clause (ii) and inserting the following:
       ``(ii) Core indicators for eligible youth.--The core 
     indicators of performance for youth activities authorized 
     under section 129 shall consist of--

       ``(I) entry into employment, education or advanced 
     training, or military service;
       ``(II) attainment of secondary school diplomas or their 
     recognized equivalents, and postsecondary certificates; and
       ``(III) literacy or numeracy gains.''.

       (2) Additional indicators.--Section 136(b)(2)(C) (29 U.S.C. 
     2871(b)(2)(C)) is amended to read as follows:
       ``(C) Additional indicators.--A State may identify in the 
     State plan additional indicators for workforce investment 
     activities under this subtitle, including indicators 
     identified in collaboration with State business and industry 
     associations, with employee representatives where applicable, 
     and with local boards, to measure the performance of the 
     workforce investment system in serving the workforce needs of 
     business and industry in the State.''.
       (3) Levels of performance.--Section 136(b)(3)(A) (29 U.S.C. 
     2871(b)(3)(A)) is amended--
       (A) in clause (iii)--
       (i) in the heading, by striking ``for first 3 years'';
       (ii) by striking ``and the customer satisfaction indicator 
     of performance, for the first 3'' and inserting ``described 
     in clauses (i) and (ii) of paragraph (2)(A) and the customer 
     satisfaction indicator of performance, for the first 2''; and
       (iii) by inserting at the end the following: ``Agreements 
     on levels of performance for each of the core indicators of 
     performance for the third and fourth program years covered by 
     the State plan shall be reached prior to the beginning of the 
     third program year covered by the State plan, and 
     incorporated as a modification to the State plan.'';
       (B) in clause (iv)--
       (i) in subclause (II)--

       (I) by striking ``taking into account'' and inserting ``and 
     shall ensure that the levels involved are adjusted, using 
     objective statistical methods, based on'';
       (II) by inserting ``(such as differences in unemployment 
     rates and job losses or gains in particular industries)'' 
     after ``economic conditions'';
       (III) by inserting ``(such as indicators of poor work 
     history, lack of work experience, lack of educational or 
     occupational skills attainment, dislocation from high-wage 
     and benefit employment, low levels of literacy or English 
     proficiency, disability status, homelessness, and welfare 
     dependency)'' after ``program''; and
       (IV) by striking ``and'' at the end;

       (ii) in subclause (III), by striking the period and 
     inserting ``; and''; and
       (iii) by adding at the end the following:

       ``(IV) the extent to which the levels involved will assist 
     the State in meeting the national goals described in clause 
     (v).'';

       (C) by striking clause (v) and inserting the following:
       ``(v) Establishment of national goals.--In order to promote 
     enhanced performance outcomes on the performance measures and 
     to facilitate the process of reaching agreements with the 
     States under clause (iii) and to measure systemwide 
     performance for the one-stop delivery systems of the States, 
     the Secretary shall establish long-term national goals for 
     the adjusted

[[Page 28988]]

     levels of performance for that systemwide performance to be 
     achieved by the programs assisted under chapters 4 and 5 on 
     the core indicators of performance described in subparagraphs 
     (A) and (B) of subsection (b)(2). Such goals shall be 
     established in accordance with the Government Performance and 
     Results Act of 1993 in consultation with the States and other 
     appropriate parties.''; and
       (D) in clause (vi)--
       (i) by striking ``or (v)''; and
       (ii) by striking ``with the representatives described in 
     subsection (i)'' and inserting ``with the States and other 
     interested parties''.
       (b) Local Performance Measures.--Section 136(c)(3) (29 
     U.S.C 2871(c)(3))--
       (1) by striking ``shall take into account'' and inserting 
     ``shall ensure that the levels involved are adjusted, using 
     objective statistical methods, based on'';
       (2) by inserting ``(characteristics such as unemployment 
     rates and job losses or gains in particular industries)'' 
     after ``economic''; and
       (3) by inserting ``(characteristics such as indicators of 
     poor work history, lack of work experience, lack of 
     educational and occupational skills attainment, dislocation 
     from high-wage and benefit employment, low levels of literacy 
     or English proficiency, disability status, homelessness, and 
     welfare dependency)'' after ``demographic''.
       (c) Report.--Section 136(d) (29 U.S.C. 2871(d)) is 
     amended--
       (1) in paragraph (1), by adding at the end the following: 
     ``In the case of a State or local area that chooses to expend 
     funds for activities under subsection (a)(3)(A)(i) or 
     (e)(1)(A)(xi), respectively, of section 134, the report also 
     shall include the amount of such funds so expended and the 
     percentage that such funds are of the funds available for 
     activities under section 134.'';
       (2) in paragraph (2)--
       (A) in subparagraph (E)--
       (i) by striking ``(excluding participants who received only 
     self-service and informational activities)''; and
       (ii) by striking ``and'' after the semicolon;
       (B) in subparagraph (F)--
       (i) by inserting ``noncustodial parents with child support 
     obligations, homeless individuals,'' after ``displaced 
     homemakers,''; and
       (ii) by striking the period and inserting a semicolon; and
       (C) by adding at the end the following:
       ``(G) the number of participants served and the cost per 
     participant; and
       ``(H) the amount of adult and dislocated worker funds spent 
     on--
       ``(i) core, intensive, and training services, respectively; 
     and
       ``(ii) services provided under subsection (a)(3)(A)(i) or 
     (e)(1)(A)(xi) of section 134, if applicable.''; and
       (3) by adding at the end the following:
       ``(4) Data validation.--In preparing the reports described 
     in this subsection, the States shall establish procedures, 
     consistent with guidelines issued by the Secretary, to ensure 
     that the information contained in the reports is valid and 
     reliable.''.
       (d) Evaluation of State Programs.--Section 136(e)(3) is 
     amended by inserting ``, including information on promoting 
     self-sufficiency and comparable pay between men and women'' 
     after ``employers''.
       (e) Sanctions for State.--Section 136(g) is amended--
       (1) in paragraph (1)(B), by striking ``If such failure 
     continues for a second consecutive year'' and inserting ``If 
     a State performs at less than 80 percent of the adjusted 
     level of performance for core indicators of performance 
     described in subsection (b)(2)(A) for 2 consecutive years''; 
     and
       (2) in paragraph (2), by striking ``section 503'' and 
     inserting ``subsection (i)(1)''.
       (f) Sanctions for Local Area.--Section 136(h)(2)(A) (29 
     U.S.C. 2871(h)(2)(A)) is amended--
       (1) in the matter preceding clause (i), by striking ``If 
     such failure continues for a second consecutive year'' and 
     inserting ``If a local area performs at less than 80 percent 
     of the adjusted level of performance for core indicators of 
     performance described in subsection (b)(2)(A) for 2 
     consecutive years'';
       (2) in clause (ii), by striking ``or'' after the semicolon;
       (3) by redesignating clause (iii) as clause (iv); and
       (4) by inserting after clause (ii) the following:
       ``(iii) redesignate the local area in accordance with 
     section 116(b)(2); or''.
       (g) Incentive Grants.--Section 136(i) (29 U.S.C. 2871(i)) 
     is amended to read as follows:
       ``(i) Incentive Grants for Local Areas.--
       ``(1) In general.--From funds reserved under sections 
     128(a) and 133(a)(1), the Governor involved shall award 
     incentive grants to local areas for performance described in 
     paragraph (2) in carrying out programs under chapters 4 and 
     5.
       ``(2) Basis.--The Governor shall award the grants on the 
     basis--
       ``(A) that the local areas met or exceeded the performance 
     measures established under subsection (c)(2) relating to 
     indicators described in subsection (b)(3)(A)(iii);
       ``(B) of exemplary performance of the local areas in 
     serving hard-to-serve populations; or
       ``(C) that the local areas are effectively--
       ``(i) coordinating multiple systems into a comprehensive 
     workforce investment system, including coordination of 
     employment services under the Wagner-Peyser Act and core 
     activities under this title as well as one-stop partner 
     programs described in section 121;
       ``(ii) expanding access to training, including through 
     increased leveraging of resources other than those funded 
     through programs under this title; or
       ``(iii) implementing innovative business and economic 
     development initiatives.
       ``(3) Use of funds.--The funds awarded to a local area 
     under this paragraph may be used to carry out activities 
     authorized for local areas under chapters 4 and 5, and such 
     demonstration projects or innovative programs for hard-to-
     serve populations as may be approved by the Governor.''.
       (g) Use of Core Measures in Other Department of Labor 
     Programs.--Section 136 (29 U.S.C. 2871) is amended by adding 
     at the end the following:
       ``(j) Use of Core Indicators for Other Programs.--In 
     addition to the programs carried out under chapters 4 and 5, 
     and consistent with the requirements of the applicable 
     authorizing laws, the Secretary shall use the indicators of 
     performance described in subparagraphs (A) and (B) of 
     subsection (b)(2) to assess the effectiveness of the programs 
     described in clauses (i), (ii), and (vi) of section 
     121(b)(1)(B) that are carried out by the Secretary.''.
       (h) Previous Definitions of Core Indicators.--Section 502 
     (29 U.S.C. 9272) is repealed.

     SEC. 123. AUTHORIZATION OF APPROPRIATIONS.

       (a) Youth Activities.--Section 137(a) (29 U.S.C. 2872(a)) 
     is amended by striking ``such sums as may be necessary for 
     each of fiscal years 1999 through 2003'' and inserting ``such 
     sums as may be necessary for each of fiscal years 2004 
     through 2009''.
       (b) Adult Employment and Training Activities.--Section 
     137(b) (29 U.S.C. 2872(b)) is amended by striking ``such sums 
     as may be necessary for each of fiscal years 1999 through 
     2003'' and inserting ``such sums as may be necessary for each 
     of fiscal years 2004 through 2009''.
       (c) Dislocated Worker Employment and Training Activities.--
     Section 137(c) (29 U.S.C. 2872(c)) is amended by striking 
     ``such sums as may be necessary for each of fiscal years 1999 
     through 2003'' and inserting ``such sums as may be necessary 
     for each of fiscal years 2004 through 2009''.

                         Subtitle C--Job Corps

     SEC. 131. JOB CORPS.

       (a) Eligibility.--Section 144(3) (29 U.S.C. 2884(3)) is 
     amended by adding at the end the following:
       ``(F) A child eligible for assistance under section 477 of 
     the Social Security Act.''.
       (b) Implementation of Standards and Procedures.--Section 
     145(a)(3) (29 U.S.C. 2885(a)(3)) is amended--
       (1) in subparagraph (B), by striking ``and'' after the 
     semicolon;
       (2) in subparagraph (C), by striking the period and 
     inserting ``; and''; and
       (3) by adding at the end the following:
       ``(D) child welfare agencies that are responsible for 
     children in foster care and children eligible for assistance 
     under section 477 of the Social Security Act.''.
       (c) Industry Councils.--Section 154(b) (29 U.S.C. 2894(b)) 
     is amended--
       (1) in paragraph (1)(A), by striking ``local and distant''; 
     and
       (2) by adding at the end the following:
       ``(3) Employers outside of local area.--The industry 
     council may include, or otherwise provide for consultation 
     with, employers from outside the local area who are likely to 
     hire a significant number of enrollees from the Job Corps 
     center.
       ``(4) Special rule for single local area states.--In the 
     case of a single local area State designated under section 
     116(b), the industry council shall include a representative 
     of the State Board.''.
       (d) Indicators of Performance.--Section 159 (29 U.S.C. 
     2899) is amended--
       (1) in subsection (c)--
       (A) by striking paragraph (1) and inserting the following:
       ``(1) Performance indicators.--The Secretary shall annually 
     establish expected levels of performance for Job Corps 
     centers and the Job Corps program relating to each of the 
     core indicators of performance for youth activities 
     identified in section 136(b)(2)(A)(ii).'';
       (B) in paragraph (2), by striking ``measures'' each place 
     it appears and inserting ``indicators''; and
       (C) in paragraph (3)--
       (i) in the first sentence, by striking ``core performance 
     measures, as compared to the expected performance level for 
     each performance measure'' and inserting ``performance 
     indicators described in paragraph (1), as compared to the 
     expected level of performance established under paragraph (1) 
     for each performance measure''; and
       (ii) in the second sentence, by striking ``measures'' each 
     place it appears and inserting ``indicators''; and
       (2) in subsection (f)(2), in the first sentence, by 
     striking ``core performance measures'' and inserting 
     ``indicators of performance''.
       (e) Authorization of Appropriations.--Section 161 (29 
     U.S.C. 2901) is amended by striking ``1999 through 2003'' and 
     inserting ``2004 through 2009''.

                     Subtitle D--National Programs

     SEC. 141. NATIVE AMERICAN PROGRAMS.

       (a) Advisory Council.--Section 166(h)(4)(C) (29 U.S.C. 
     2911(h)(4)(C)) is amended to read as follows:
       ``(C) Duties.--The Council shall advise the Secretary on 
     the operation and administration

[[Page 28989]]

     of the programs assisted under this section, including the 
     selection of the individual appointed as head of the unit 
     established under paragraph (1).''.
       (b) Assistance to Unique Populations in Alaska and 
     Hawaii.--Section 166(j) (29 U.S.C. 2911(j)) is amended to 
     read as follows:
       ``(j) Assistance to Unique Populations in Alaska and 
     Hawaii.--
       ``(1) In general.--Notwithstanding any other provision of 
     law, the Secretary is authorized to provide assistance to 
     unique populations who reside in Alaska or Hawaii to improve 
     job training and workforce investment activities.
       ``(2) Authorization of appropriations.--There are 
     authorized to be appropriated to carry out this subsection 
     such sums as may be necessary for fiscal year 2004.''.
       (c) Performance Indicators.--Section 166 (29 U.S.C. 2911) 
     is amended by adding at the end the following':
       ``(k) Performance Indicators.--
       ``(1) Development of indicators.--The Secretary, in 
     consultation with the Native American Employment and Training 
     Council, shall develop a set of performance indicators and 
     standards which shall be applicable to programs under this 
     section.
       ``(2) Special considerations.--Such performance indicators 
     and standards shall take into account--
       ``(A) the purposes of the programs under this section as 
     described in paragraph (a)(1);
       ``(B) the needs of the groups served by this section, 
     including the differences in needs among such groups in 
     various geographic service areas; and
       ``(C) the economic circumstances of the communities served, 
     including differences in circumstances among various 
     geographic service areas.''.

     SEC. 142. MIGRANT AND SEASONAL FARMWORKER PROGRAMS.

       Section 167(d) (29 U.S.C. 2912(d)) is amended by inserting 
     ``(including permanent housing)'' after ``housing''.

     SEC. 143. VETERANS' WORKFORCE INVESTMENT PROGRAMS.

       Section 168(a)(3)(C) (29 U.S.C. 2913(a)(3)(C)) is amended 
     by striking ``section 134(c)'' and inserting ``section 
     121(e)''.

     SEC. 144. YOUTH CHALLENGE GRANTS.

       Section 169 (29 U.S.C. 2914) is amended to read as follows:

     ``SEC. 169. YOUTH CHALLENGE GRANTS.

       ``(a) In General.--Of the amounts reserved by the Secretary 
     under section 127(b)(1)(A) for a fiscal year--
       ``(1) the Secretary shall use not less than 80 percent to 
     award competitive grants under subsection (b); and
       ``(2) the Secretary may use not more than 20 percent to 
     award discretionary grants under subsection (c).
       ``(b) Competitive Grants to States and Local Areas.--
       ``(1) Establishment.--From the funds described in 
     subsection (a)(1), the Secretary shall award competitive 
     grants to eligible entities to carry out activities 
     authorized under this subsection to assist eligible youth in 
     acquiring the skills, credentials, and employment experience 
     necessary to achieve the performance outcomes for youth 
     described in section 136
       ``(2) Eligible entity.--In this subsection, the term 
     `eligible entity' means--
       ``(A) a State or consortium of States;
       ``(B) a local board or consortium of local boards;
       ``(C) a recipient of a grant under section 166 (relating to 
     Native American programs); or
       ``(D) a public or private entity (including a consortium of 
     such entities) with expertise in the provision of youth 
     activities, applying in partnership with a local board or 
     consortium of local boards.
       ``(3) Applications.--To be eligible to receive a grant 
     under this subsection, an eligible entity shall submit an 
     application to the Secretary at such time, in such manner, 
     and containing such information as the Secretary may require, 
     including--
       ``(A) a description of the activities the eligible entity 
     will provide to eligible youth under this subsection, and how 
     the eligible entity will collaborate with State and local 
     workforce investment systems established under this title in 
     the provision of such activities;
       ``(B) a description of the programs of demonstrated 
     effectiveness on which the provision of the activities under 
     subparagraph (A) are based, and a description of how such 
     activities will expand the base of knowledge relating to the 
     provision of activities for youth;
       ``(C) a description of the State, local, and private 
     resources that will be leveraged to provide the activities 
     described under subparagraph (A) in addition to funds 
     provided under this subsection, and a description of the 
     extent of the involvement of employers in the activities;
       ``(D) the levels of performance the eligible entity expects 
     to achieve with respect to the indicators of performance for 
     youth specified in section 136(b)(2)(A)(ii); and
       ``(E) an assurance that the State board of each State in 
     which the proposed activities are to be carried out had the 
     opportunity to review the application, and including the 
     comments, if any, of the affected State boards on the 
     application, except that this subparagraph shall not apply to 
     an eligible entity described in paragraph (2)(C).
       ``(4) Factors for award.--
       ``(A) In general.--In awarding grants under this subsection 
     the Secretary shall consider--
       ``(i) the quality of the proposed activities;
       ``(ii) the goals to be achieved;
       ``(iii) the likelihood of successful implementation;
       ``(iv) the extent to which the proposed activities are 
     based on proven strategies or the extent to which the 
     proposed activities will expand the base of knowledge 
     relating to the provision of activities for youth;
       ``(v) the extent of collaboration with the State and local 
     workforce investment systems in carrying out the proposed 
     activities;
       ``(vi) the extent of employer involvement in the proposed 
     activities;
       ``(vii) whether there are other Federal and non-Federal 
     funds available for similar activities to the proposed 
     activities, and the additional State, local, and private 
     resources that will be provided to carry out the proposed 
     activities; and
       ``(viii) the quality of proposed activities in meeting the 
     needs of the youth to be served.
       ``(B) Equitable geographic distribution.--In awarding 
     grants under this subsection the Secretary shall ensure an 
     equitable distribution of such grants across geographically 
     diverse areas.
       ``(5) Use of funds.--
       ``(A) In general.--An eligible entity that receives a grant 
     under this subsection shall use the grant funds to carry out 
     activities that are designed to assist youth in acquiring the 
     skills, credentials, and employment experience that are 
     necessary to succeed in the labor market, including the 
     activities identified in section 129.
       ``(B) Activities.--The activities carried out pursuant to 
     subparagraph (A) may include the following:
       ``(i) Training and internships for out-of-school youth in 
     sectors of the economy experiencing, or projected to 
     experience, high growth.
       ``(ii) Dropout prevention activities for in-school youth.
       ``(iii) Activities designed to assist special youth 
     populations, such as court-involved youth and youth with 
     disabilities.
       ``(iv) Activities combining remediation of academic skills, 
     work readiness training, and work experience, and including 
     linkages to postsecondary education, apprenticeships, and 
     career-ladder employment.
       ``(v) Activities, including work experience, paid 
     internships, and entrepreneurial training, in areas where 
     there is a migration of youth out of the areas.
       ``(C) Participant eligibility.--Youth who are 14 years of 
     age through 21 years of age, as of the time the eligibility 
     determination is made, may be eligible to participate in 
     activities carried out under this subsection.
       ``(6) Grant period.--The Secretary shall make a grant under 
     this subsection for a period of 2 years and may renew the 
     grant, if the eligible entity has performed successfully, for 
     a period of not more than 3 succeeding years.
       ``(7) Matching funds required.--The Secretary shall require 
     that an eligible entity that receives a grant under this 
     subsection provide non-Federal matching funds in an amount to 
     be determined by the Secretary that is not less than 10 
     percent of the cost of activities carried out under the 
     grant. The Secretary may require that such non-Federal 
     matching funds be provided in cash resources, noncash 
     resources, or a combination of cash and noncash resources.
       ``(8) Evaluation.--The Secretary shall reserve not more 
     than 3 percent of the funds described in subsection (a)(1) to 
     provide technical assistance to, and conduct evaluations of 
     (using appropriate techniques as described in section 
     172(c)), the projects funded under this subsection.
       ``(c) Discretionary Grants for Youth Activities.--
       ``(1) In general.--From the funds described in subsection 
     (a)(2), the Secretary may award grants to eligible entities 
     to provide activities that will assist youth in preparing 
     for, and entering and retaining, employment.
       ``(2) Eligible entity.--In this subsection, the term 
     `eligible entity' means a public or private entity that the 
     Secretary determines would effectively carry out activities 
     relating to youth under this subsection.
       ``(3) Equitable distribution to rural areas.--In awarding 
     grants under this subsection the Secretary shall ensure an 
     equitable distribution of such grants to rural areas.
       ``(4) Applications.--To be eligible to receive a grant 
     under this subsection, an eligible entity shall submit an 
     application to the Secretary at such time, in such manner, 
     and containing such information as the Secretary may require.
       ``(5) Use of funds.--
       ``(A) In general.--An eligible entity that receives a grant 
     under this subsection shall use the grant funds to carry 
     out--
       ``(i) activities that will assist youth in preparing for, 
     and entering and retaining, employment, including the 
     activities described in section 129 for out-of-school youth;
       ``(ii) activities designed to assist in-school youth to 
     stay in school and gain work experience;
       ``(iii) activities designed to assist youth in economically 
     distressed areas; and
       ``(iv) such other activities that the Secretary determines 
     are appropriate to ensure that youth entering the workforce 
     have the skills needed by employers.
       ``(B) Participant eligibility.--Youth who are 14 years of 
     age through 21 years of age, as of the time the eligibility 
     determination is made, may be eligible to participate in 
     activities carried out under this subsection.
       ``(6) Matching funds required.--The Secretary shall require 
     that an eligible entity that

[[Page 28990]]

     receives a grant under this subsection provide non-Federal 
     matching funds in an amount to be determined by the Secretary 
     that is not less than 10 percent of the cost of activities 
     carried out under the grant. The Secretary may require that 
     such non-Federal matching funds be provided in cash 
     resources, noncash resources, or a combination of cash and 
     noncash resources.
       ``(7) Evaluations.--The Secretary may require that an 
     eligible entity that receives a grant under this subsection 
     participate in an evaluation of activities carried out under 
     this subsection, including an evaluation using the techniques 
     described in section 172(c).''.

     SEC. 145. TECHNICAL ASSISTANCE.

       Section 170 (29 U.S.C. 2915) is amended--
       (1) in subsection (a)(1), by--
       (A) inserting ``the training of staff providing rapid 
     response services, the training of other staff of recipients 
     of funds under this title, the training of members of State 
     boards and local boards, peer review activities under this 
     title,'' after ``localities,''; and
       (B) striking ``from carrying out activities'' and all that 
     follows through the period and inserting ``to implement the 
     amendments made by the Workforce Investment Act Amendments of 
     2003.'';
       (2) in subsection (a)(2), by adding at the end the 
     following: ``The Secretary shall also hire staff qualified to 
     provide the assistance described in paragraph (1).'';
       (3) in subsection (b)(2), by striking the last sentence and 
     inserting ``Such projects shall be administered by the 
     Employment and Training Administration.''; and
       (4) by adding at the end the following:
       ``(c) Best Practices Coordination.--The Secretary shall--
       ``(1) establish a system through which States may share 
     information regarding best practices with regard to the 
     operation of workforce investment activities under this Act;
       ``(2) evaluate and disseminate information regarding best 
     practices and identify knowledge gaps; and
       ``(3) commission research under section 172 to address 
     knowledge gaps identified under paragraph (2).''.

     SEC. 146. DEMONSTRATION, PILOT, MULTISERVICE, RESEARCH, AND 
                   MULTISTATE PROJECTS.

       (a) Demonstration and Pilot Projects.--Section 171(b) (29 
     U.S.C. 2916(b)) is amended--
       (1) in paragraph (1)--
       (A) by striking ``Under a'' and inserting ``Consistent with 
     the priorities specified in the'';
       (B) by striking subparagraphs (A) through (E) and inserting 
     the following:
       ``(A) projects that assist national employers in connecting 
     with the workforce investment system established under this 
     title in order to facilitate the recruitment and employment 
     of needed workers for career ladder jobs and to provide 
     information to such system on skills and occupations in 
     demand;
       ``(B) projects that promote the development of systems that 
     will improve the maximum effectiveness of programs carried 
     out under this title;
       ``(C) projects that focus on opportunities for employment 
     in industries and sectors of industries that are 
     experiencing, or are likely to experience, high rates of 
     growth and jobs with wages leading to self-sufficiency;
       ``(D) computerized, individualized, self-paced training 
     projects targeted to dislocated, disadvantaged, or incumbent 
     workers utilizing equipment and curriculum designed in 
     partnership with industries for employment in the operations, 
     repair, and maintenance of high-tech equipment that is used 
     in integrated systems technology;
       ``(E) projects carried out by States and local areas to 
     test innovative approaches to delivering employment-related 
     services;'';
       (C) in subparagraph (G), by striking ``and'' after the 
     semicolon; and
       (D) by striking subparagraph (H) and inserting the 
     following:
       ``(H) projects that provide retention grants, which shall--
       ``(i) be made to qualified job training programs offering 
     instruction, assessment, or professional coaching, upon 
     placement of a low-income individual trained by the program 
     involved in employment with an employer and retention of the 
     low-income individual in that employment with that employer 
     for a period of 1 year, if that employment provides the low-
     income individual with an annual salary--

       ``(I) that is at least $10,000 more than the individual's 
     federally adjusted income for the previous year; and
       ``(II) that is not less than twice the poverty line 
     applicable to the individual; and

       ``(ii) be made taking into account the economic benefit 
     received by the Federal Government from the employment and 
     retention of the individual, including the economic benefit 
     from tax revenue and decreased public subsidies;
       ``(I) targeted innovation projects that improve access to 
     and delivery of employment and training services, with 
     emphasis given to projects that incorporate advanced 
     technologies to facilitate the connection of individuals to 
     the information and tools they need to upgrade skills;
       ``(J) projects that promote the use of distance learning, 
     enabling students to take courses through the use of media 
     technology such as videos, teleconferencing computers, and 
     the Internet; and
       ``(K) projects that provide comprehensive education and 
     training services, and support services, in coordination with 
     local boards, for populations in targeted high poverty areas 
     where the greatest barriers to employment exist, including 
     ex-offenders, out-of-school youth, and public assistance 
     recipient populations.''; and
       (2) in paragraph (2)--
       (A) by striking subparagraph (B); and
       (B) by redesignating subparagraph (C) as subparagraph (B).
       (b) Multiservice Projects.--Section 171(c)(2)(B) (29 U.S.C. 
     2916(c)(2)(B)) is amended to read as follows:
       ``(B) Studies and reports.--
       ``(i) Net impact studies and reports.--

       ``(I) In general.--The Secretary, in coordination with the 
     Secretary of Education, shall conduct studies to determine 
     the net impacts of programs, services, and activities carried 
     out under this title.
       ``(II) Reports.--The Secretary shall prepare and 
     disseminate to the public reports containing the results of 
     the studies conducted under subclause (I).

       ``(ii) Study on resources available to assist out-of-school 
     youth.--The Secretary, in coordination with the Secretary of 
     Education, may conduct a study examining the resources 
     available at the Federal, State, and local levels to assist 
     out-of-school youth in obtaining the skills, credentials, and 
     work experience necessary to become successfully employed, 
     including the availability of funds provided through average 
     daily attendance and other methodologies used by States and 
     local areas to distribute funds.
       ``(iii) Study of industry-based certification and 
     credentials.--

       ``(I) In general.--The Secretary shall conduct a study 
     concerning the role and benefits of credentialing and 
     certification to businesses and workers in the economy and 
     the implications of certification to the services provided 
     through the workforce investment system. The study may 
     examine issues such as--

       ``(aa) the characteristics of successful credentialing and 
     certification systems that serve business and individual 
     needs;
       ``(bb) the relative proportions of certificates and 
     credentials attained with assistance from the public sector, 
     with private-sector training of new hires or incumbent 
     workers, and by individuals on their own initiative without 
     other assistance, respectively;
       ``(cc) the return on human capital investments from 
     occupational credentials and industry-based skill 
     certifications, including the extent to which acquisition of 
     such credentials or certificates enhances outcomes such as 
     entry into employment, retention, earnings (including the 
     number and amount of wage increases), career advancement, and 
     layoff aversion;
       ``(dd) the implications of the effects of skill 
     certifications and credentials to the types and delivery of 
     services provided through the workforce investment system;
       ``(ee) the role that Federal and State governments play in 
     fostering the development of and disseminating credentials 
     and skill standards; and
       ``(ff) the use of credentials by businesses to achieve 
     goals for workforce skill upgrading and greater operating 
     efficiency.

       ``(II) Report to congress.--The Secretary shall prepare and 
     submit to Congress a report containing the results of the 
     study conducted pursuant to subclause (I). Such report may 
     include any recommendations that the Secretary determines are 
     appropriate to include in such report relating to promoting 
     the acquisition of industry-based certification and 
     credentials, and the appropriate role of the Department of 
     Labor and the workforce investment system in supporting the 
     needs of business and individuals with respect to such 
     certification and credentials.

       ``(iv) Study of effectiveness of workforce investment 
     system in meeting business needs.--

       ``(I) In general.--Using funds available to carry out this 
     section jointly with funds available to the Secretary of 
     Commerce and Administrator of the Small Business 
     Administration, the Secretary, in coordination with the 
     Secretary of Commerce and the Administrator of the Small 
     Business Administration, may conduct a study of the 
     effectiveness of the workforce investment system in meeting 
     the needs of business, with particular attention to the needs 
     of small business, including in assisting workers to obtain 
     the skills needed to utilize emerging technologies. In 
     conducting the study, the Secretary, in coordination with the 
     Secretary of Commerce and the Administrator of the Small 
     Business Administration, may examine issues such as--

       ``(aa) methods for identifying the workforce needs of 
     businesses and how the requirements of small businesses may 
     differ from larger establishments;
       ``(bb) business satisfaction with the workforce investment 
     system, with particular emphasis on the satisfaction of small 
     businesses;
       ``(cc) the extent to which business is engaged as a 
     collaborative partner in the workforce investment system, 
     including the extent of business involvement as members of 
     State boards and local boards, and the extent to which such 
     boards and one-stop centers effectively collaborate with 
     business and industry leaders in developing workforce 
     investment strategies, including strategies to identify high 
     growth opportunities;
       ``(dd) ways in which the workforce investment system 
     addresses changing skill needs of business that result from 
     changes in technology and work processes;
       ``(ee) promising practices for serving small businesses;
       ``(ff) the extent and manner in which the workforce 
     investment system uses technology to serve business and 
     individual needs, and how

[[Page 28991]]

     uses of technology could enhance efficiency and effectiveness 
     in providing services; and
       ``(gg) the extent to which various segments of the labor 
     force have access to and utilize technology to locate job 
     openings and apply for jobs, and characteristics of 
     individuals utilizing such technology (such as age, gender, 
     race or ethnicity, industry sector, and occupational groups).

       ``(II) Report to congress.--The Secretary shall prepare and 
     submit to Congress a report containing the results of the 
     study described in clause (I). Such report may include any 
     recommendations the Secretary determines are appropriate to 
     include in such report, including ways to enhance the 
     effectiveness of the workforce investment system in meeting 
     the needs of business for skilled workers.''.

       (c) Next Generation Technologies.--Section 171 (29 U.S.C. 
     2916) is amended by adding at the end the following:
       ``(e) Skill Certification Pilot Projects.--
       ``(1) Pilot projects.--In accordance with subsection (b) 
     and from funds appropriated pursuant to paragraph (10), the 
     Secretary shall establish and carry out not more than 10 
     pilot projects to establish a system of industry-validated 
     national certifications of skills, including--
       ``(A) not more than 8 national certifications of skills in 
     high-technology industries, including biotechnology, 
     telecommunications, highly automated manufacturing (including 
     semiconductors), nanotechnology, and energy technology; and
       ``(B) not more than 2 cross-disciplinary national 
     certifications of skills in homeland security technology.
       ``(2) Grants to eligible entities.--In carrying out the 
     pilot projects, the Secretary shall make grants to eligible 
     entities, for periods of not less than 36 months and not more 
     than 48 months, to carry out the authorized activities 
     described in paragraph (7) with respect to the certifications 
     described in paragraph (1). In awarding grants under this 
     subsection the Secretary shall take into consideration 
     awarding grants to eligible entities from diverse geographic 
     areas, including rural areas.
       ``(3) Eligible entities.--
       ``(A) Definition of eligible entity.--In this subsection 
     the term `eligible entity' means an entity that shall work in 
     conjunction with a local board and shall include as a 
     principal participant one or more of the following:
       ``(i) An educational institution, including a 2- or 4-year 
     college, or a technical or vocational school.
       ``(ii) An advanced technology education center.
       ``(iii) A local board.
       ``(iv) A representative of a business in a target industry 
     for the certification involved.
       ``(v) A representative of an industry association, labor 
     organization, or community development organization.
       ``(B) History of demonstrated capability required.--To be 
     eligible to receive a grant under this subsection, an 
     eligible entity shall have a history of demonstrated 
     capability for effective collaboration with industry on 
     workforce investment activities that is consistent with the 
     objectives of this title.
       ``(4) Applications.--To be eligible to receive a grant 
     under this subsection, an eligible entity shall submit an 
     application to the Secretary at such time, in such manner, 
     and containing such information as the Secretary may require.
       ``(5) Criteria.--The Secretary shall establish criteria, 
     consistent with paragraph (6), for awarding grants under this 
     subsection.
       ``(6) Priority.--In selecting eligible entities to receive 
     grants under this subsection, the Secretary shall give 
     priority to eligible entities that demonstrate the 
     availability of and ability to provide matching funds from 
     industry or nonprofit sources. Such matching funds may be 
     provided in cash or in kind.
       ``(7) Authorized activities.--
       ``(A) In general.--An eligible entity that receives a grant 
     under this subsection shall use the funds made available 
     through the grant--
       ``(i) to facilitate the establishment of certification 
     requirements for a certification described in paragraph (1) 
     for an industry;
       ``(ii) to develop and initiate a certification program that 
     includes preparatory courses, course materials, procedures, 
     and examinations, for the certification; and
       ``(iii) to collect and analyze data related to the program 
     at the program's completion, and to identify best practices 
     (consistent with paragraph (8)) that may be used by local and 
     State workforce investment boards in the future.
       ``(B) Basis for requirements.--The certification 
     requirements established under the grant shall be based on 
     applicable skill standards for the industry involved that 
     have been developed by or linked to national centers of 
     excellence under the National Science Foundation's Advanced 
     Technological Education Program. The requirements shall 
     require an individual to demonstrate an identifiable set of 
     competencies relevant to the industry in order to receive 
     certification. The requirements shall be designed to provide 
     evidence of a transferable skill set that allows flexibility 
     and mobility of workers within a high technology industry.
       ``(C) Relationship to training and education programs.--The 
     eligible entity shall ensure that--
       ``(i) a training and education program related to 
     competencies for the industry involved, that is flexible in 
     mode and timeframe for delivery and that meets the needs of 
     those seeking the certification, is offered; and
       ``(ii) the certification program is offered at the 
     completion of the training and education program.
       ``(D) Relationship to the associate degree.--The eligible 
     entity shall ensure that the certification program is 
     consistent with the requirements for a 2-year associate 
     degree.
       ``(E) Availability.--The eligible entity shall ensure that 
     the certification program is open to students pursuing 
     associate degrees, employed workers, and displaced workers.
       ``(8) Consultation.--The Secretary shall consult with the 
     Director of the National Science Foundation to ensure that 
     the pilot projects build on the expertise and information 
     about best practices gained through the implementation of the 
     National Science Foundation's Advanced Technological 
     Education Program.
       ``(9) Core components; guidelines; reports.--After 
     collecting and analyzing the data obtained from the pilot 
     programs, the Secretary shall--
       ``(A) establish the core components of a model high-
     technology certification program;
       ``(B) establish guidelines to assure development of a 
     uniform set of standards and policies for such programs;
       ``(C) prepare and submit a report on the pilot projects to 
     the Committee on Health, Education, Labor, and Pensions of 
     the Senate and the Committee on Education and the Workforce 
     of the House of Representatives; and
       ``(D) make available to the public both the data and the 
     report.
       ``(10) Authorization of appropriations.--In addition to 
     amounts authorized to be appropriated under section 174(b), 
     there is authorized to be appropriated $30,000,000 for fiscal 
     year 2004 to carry out this subsection.''.
       (d) Integrated Workforce Training Programs for Adults With 
     Limited English Proficiency.--Section 171 (29 U.S.C. 2916), 
     as amended by subsection (c), is further amended by adding at 
     the end the following:
       ``(f) Integrated Workforce Training Programs for Adults 
     With Limited English Proficiency.--
       ``(1) Definitions.--In this subsection:
       ``(A) Integrated workforce training.--The term `integrated 
     workforce training' means training that integrates 
     occupational skills training with language acquisition.
       ``(B) Secretary.--The term `Secretary' means the Secretary 
     of Labor in consultation with the Secretary of Education.
       ``(2) Demonstration project.--In accordance with subsection 
     (b) and from funds appropriated pursuant to paragraph (11), 
     the Secretary shall establish and implement a national 
     demonstration project designed to both analyze and provide 
     data on workforce training programs that integrate English 
     language acquisition and occupational training.
       ``(3) Grants.--
       ``(A) In general.--In carrying out the demonstration 
     project, the Secretary shall make not less than 10 grants, on 
     a competitive basis, to eligible entities to provide the 
     integrated workforce training programs. In awarding grants 
     under this subsection the Secretary shall take into 
     consideration awarding grants to eligible entities from 
     diverse geographic areas, including rural areas.
       ``(B) Periods.--The Secretary shall make the grants for 
     periods of not less than 24 months and not more than 48 
     months.
       ``(4) Eligible entities.--
       ``(A) In general.--To be eligible to receive a grant under 
     this subsection, an eligible entity shall work in conjunction 
     with a local board and shall include as a principal 
     participant one or more of the following:
       ``(i) An employer or employer association.
       ``(ii) A nonprofit provider of English language 
     instruction.
       ``(iii) A provider of occupational or skills training.
       ``(iv) A community-based organization.
       ``(v) An educational institution, including a 2- or 4-year 
     college, or a technical or vocational school.
       ``(vi) A labor organization.
       ``(vii) A local board.
       ``(B) Expertise.--To be eligible to receive a grant under 
     this subsection, an eligible entity shall have proven 
     expertise in--
       ``(i) serving individuals with limited English proficiency, 
     including individuals with lower levels of oral and written 
     English; and
       ``(ii) providing workforce programs with training and 
     English language instruction.
       ``(5) Applications.--
       ``(A) In general.--To be eligible to receive a grant under 
     this subsection, an eligible entity shall submit an 
     application to the Secretary at such time, in such manner, 
     and containing such information as the Secretary may require.
       ``(B) Contents.--Each application submitted under 
     subparagraph (A) shall--
       ``(i) contain information, including capability statements, 
     that demonstrates that the eligible entity has the expertise 
     described in paragraph (4)(B); and
       ``(ii) include an assurance that the program to be assisted 
     shall--

       ``(I) establish a generalized adult bilingual workforce 
     training and education model that integrates English language 
     acquisition and occupational training, and incorporates the 
     unique linguistic and cultural factors of the participants;
       ``(II) establish a framework by which the employer, 
     employee, and other relevant members of the eligible entity 
     can create a career development and training plan that 
     assists both the employer and the employee to meet their 
     long-term needs;

[[Page 28992]]

       ``(III) ensure that the framework established under 
     subclause (II) takes into consideration the knowledge, 
     skills, and abilities of the employee with respect to both 
     the current and economic conditions of the employer and 
     future labor market conditions relevant to the local area; 
     and
       ``(IV) establish identifiable measures so that the progress 
     of the employee and employer and the relative efficacy of the 
     program can be evaluated and best practices identified.

       ``(6) Criteria.--The Secretary shall establish criteria for 
     awarding grants under this subsection.
       ``(7) Integrated workforce training programs.--
       ``(A) Program components.--
       ``(i) Required components.--Each program that receives 
     funding under this subsection shall--

       ``(I) test an individual's English language proficiency 
     levels to assess oral and literacy gains from the beginning 
     and throughout program enrollment;
       ``(II) combine training specific to a particular occupation 
     or occupational cluster, with--

       ``(aa) English language instruction, such as instruction 
     through an English as a Second Language program, or an 
     English for Speakers of Other Languages program;
       ``(bb) basic skills instruction; and
       ``(cc) supportive services;

       ``(III) effectively integrate public and private sector 
     entities, including the local workforce investment system and 
     its functions, to achieve the goals of the program; and
       ``(IV) require matching or in-kind resources from private 
     and nonprofit entities.

       ``(ii) Permissible components.--The program may offer other 
     services, as necessary to promote successful participation 
     and completion, including work-based learning, substance 
     abuse treatment, and mental health services.
       ``(B) Goal.--Each program that receives funding under this 
     subsection shall be designed to prepare limited English 
     proficient adults for, and place such adults in employment 
     in, growing industries with identifiable career ladder paths.
       ``(C) Program types.--In selecting programs to receive 
     funding under this subsection, the Secretary shall select 
     programs that meet 1 or more of the following criteria:
       ``(i) A program that--

       ``(I) serves unemployed, limited English proficient 
     individuals with significant work experience or substantial 
     education but persistently low wages; and
       ``(II) aims to prepare such individuals for, and place such 
     individuals in, higher paying employment, defined for 
     purposes of this subparagraph as employment that provides at 
     least 75 percent of the median wage in the local area.

       ``(ii) A program that--

       ``(I) serves limited English proficient individuals with 
     lower levels of oral and written fluency, who are working but 
     at persistently low wages; and
       ``(II) aims to prepare such individuals for, and place such 
     individuals in, higher paying employment, through services 
     provided at the worksite, or at a location central to several 
     work sites, during work hours.

       ``(iii) A program that--

       ``(I) serves unemployed, limited English proficient 
     individuals with lower levels of oral and written fluency, 
     who have little or no work experience; and
       ``(II) aims to prepare such individuals for, and place such 
     individuals in, employment through services that include 
     subsidized employment, in addition to the components required 
     in subparagraph (A)(i).

       ``(iv) A program that includes funds from private and 
     nonprofit entities.
       ``(D) Program approaches.--In selecting programs to receive 
     funding under this subsection, the Secretary shall select 
     programs with different approaches to integrated workforce 
     training, in different contexts, in order to obtain 
     comparative data on multiple approaches to integrated 
     workforce training and English language instruction, to 
     ensure programs are tailored to characteristics of 
     individuals with varying skill levels and to assess how 
     different curricula work for limited English proficient 
     populations. Such approaches may include--
       ``(i) bilingual programs in which the workplace language 
     component and the training are conducted in a combination of 
     an individual's native language and English;
       ``(ii) integrated workforce training programs that combine 
     basic skills, language instruction, and job specific skills 
     training; or
       ``(iii) sequential programs that provide a progression of 
     skills, language, and training to ensure success upon an 
     individual's completion of the program.
       ``(8) Evaluation by eligible entity.--Each eligible entity 
     that receives a grant under this subsection for a program 
     shall carry out a continuous program evaluation and an 
     evaluation specific to the last phase of the program 
     operations.
       ``(9) Evaluation by secretary.--
       ``(A) In general.--The Secretary shall conduct an 
     evaluation of program impacts of the programs funded under 
     the demonstration project, with a random assignment, 
     experimental design impact study done at each worksite at 
     which such a program is carried out.
       ``(B) Data collection and analysis.--The Secretary shall 
     collect and analyze the data from the demonstration project 
     to determine program effectiveness, including gains in 
     language proficiency, acquisition of skills, and job 
     advancement for program participants.
       ``(C) Report.--The Secretary shall prepare and submit to 
     the Committee on Health, Education, Labor, and Pensions of 
     the Senate and the Committee on Education and the Workforce 
     of the House of Representatives, and make available to the 
     public, a report on the demonstration project, including the 
     results of the evaluation.
       ``(10) Technical assistance.--The Secretary shall provide 
     technical assistance to recipients of grants under this 
     subsection throughout the grant periods.
       ``(11) Authorization of appropriations.--In addition to 
     amounts authorized to be appropriated under section 174(b), 
     there is authorized to be appropriated $10,000,000 for fiscal 
     year 2004 to carry out this subsection.''.

     SEC. 147. NATIONAL DISLOCATED WORKER GRANTS.

       (a) In General.--Section 173 (29 U.S.C. 2918) is amended--
       (1) by striking the heading and inserting the following:

     ``SEC. 173. NATIONAL DISLOCATED WORKER GRANTS.'';

       and
       (2) in subsection (a)--
       (A) by striking the matter preceding paragraph (1) and 
     inserting the following:
       ``(a) In General.--The Secretary is authorized to award 
     national dislocated worker grants--'';
       (B) in paragraph (1), by striking ``subsection (c)'' and 
     inserting ``subsection (b)'';
       (C) in paragraph (3), by striking ``and'' after the 
     semicolon; and
       (D) by striking paragraph (4) and inserting the following:
       ``(4) to a State or entity (as defined in subsection 
     (b)(1)(B)) to carry out subsection (e), including providing 
     assistance to eligible individuals;
       ``(5) to a State or entity (as defined in subsection 
     (b)(1)(B)) to carry out subsection (f), including providing 
     assistance to eligible individuals;
       ``(6) to provide additional assistance to a State board or 
     local board where a higher than average demand for employment 
     and training services for dislocated members of the Armed 
     Forces, or spouses, as defined in section 101(9)(E), of 
     members of the Armed Forces as described in subsection 
     (b)(2)(A)(iv), exceeds State and local resources for 
     providing such services, and where such programs are to be 
     carried out in partnership with the Department of Defense and 
     Department of Veterans Affairs transition assistance 
     programs; and
       ``(7) to provide assistance to a State for statewide or 
     local use in order to--
       ``(A) address cases in which there have been worker 
     dislocations across multiple sectors or across multiple local 
     areas and such workers remain dislocated;
       ``(B) coordinate the State plan described in section 112 
     with emerging economic development needs; and
       ``(C) train eligible individuals who are dislocated workers 
     described in subparagraph (A).

     The Secretary shall issue a final decision on an application 
     for a national dislocated worker grant under this subsection 
     not later than 60 calendar days after receipt of the 
     application. The Secretary shall issue a notice of obligation 
     for such a grant not later than 10 days after the award of 
     the grant.''.
       (b) Administration and Additional Assistance.--Section 173 
     (29 U.S.C. 2918) is amended--
       (1) by striking subsection (b);
       (2) by redesignating subsections (c) through (g) as 
     subsections (b) through (f), respectively;
       (3) by striking subsection (d) (as redesignated by 
     paragraph (2)) and inserting the following:
       ``(d) Additional Assistance.--
       ``(1) In general.--From the amount appropriated and made 
     available to carry out this section for any program year, the 
     Secretary shall use not more than $20,000,000 to make grants 
     to States to provide employment and training activities under 
     section 134, in accordance with subtitle B.
       ``(2) Eligible states.--The Secretary shall make a grant 
     under paragraph (1) to a State for a program year if--
       ``(A) the amount of the allotment that was made to the 
     State for the program year 2003 under the formula specified 
     in section 132(b)(1)(B) as such section was in effect on July 
     1, 2003, is greater than
       ``(B) the amount of the allotment that would be made to the 
     State for the program year under the formula specified in 
     section 132(b)(1)(B).
       ``(3) Amount of grants.--Subject to paragraph (1), the 
     amount of the grant made under paragraph (1) to a State for a 
     program year shall be based on the difference between--
       ``(A) the amount of the allotment that was made to the 
     State for the program year 2003 under the formula specified 
     in section 132(b)(1)(B) as such section was in effect on July 
     1, 2003; and
       ``(B) the amount of the allotment that would be made to the 
     State for the program year under the formula specified in 
     section 132(b)(1)(B).'';
       (4) in subsection (e) (as redesignated by paragraph (2))--
       (A) in paragraph (1), by striking ``paragraph (4)(A)'' and 
     inserting ``paragraph (4)'';
       (B) in paragraph (2), by striking ``subsection (g)'' and 
     inserting ``subsection (f)'';
       (C) in paragraph (4), by striking ``subsection (g)'' and 
     inserting ``subsection (f)'';
       (D) in paragraph (5), by striking ``subsection (g)'' and 
     inserting ``subsection (f)''; and
       (E) in paragraph (6)--
       (i) by striking ``subsection (g)'' and inserting 
     ``subsection (f)''; and

[[Page 28993]]

       (ii) by striking ``subsection (c)(1)(B)'' and inserting 
     ``subsection (b)(1)(B)''; and
       (5) in subsection (f)(1) (as redesignated by paragraph 
     (2))--
       (A) by striking ``paragraph (4)(B)'' and inserting 
     ``paragraph (4)''; and
       (B) by striking ``subsection (f)(1)(A)'' and inserting 
     ``subsection (e)(1)(A)''.

     SEC. 148. AUTHORIZATION OF APPROPRIATIONS FOR NATIONAL 
                   ACTIVITIES.

       (a) In General.--Section 174(a)(1) (29 U.S.C. 2919(a)(1)) 
     is amended by striking ``1999 through 2003'' and inserting 
     ``2004 through 2009''.
       (b) Reservations.--Section 174(b) (29 U.S.C. 2919(b)) is 
     amended to read as follows:
       ``(b) Technical Assistance; Demonstration and Pilot 
     Projects, Evaluations, Incentive Grants.--There are 
     authorized to be appropriated to carry out sections 170 
     through 172 and section 136(i) such sums as may be necessary 
     for each of fiscal years 2004 through 2009.''.

                       Subtitle E--Administration

     SEC. 151. REQUIREMENTS AND RESTRICTIONS.

       Section 181(e) (29 U.S.C. 2931(e)) is amended by striking 
     ``economic development activities,''.

     SEC. 152. REPORTS.

       Section 185(c) (29 U.S.C. 2935(c)) is amended--
       (1) in paragraph (2), by striking ``and'' after the 
     semicolon;
       (2) in paragraph (3), by striking the period and inserting 
     ``; and''; and
       (3) by adding at the end the following:
       ``(4) shall have the option to submit or disseminate 
     electronically any reports, records, plans, or any other data 
     that are required to be collected or disseminated under this 
     title.''.

     SEC. 153. ADMINISTRATIVE PROVISIONS.

       (a) Annual Report.--Section 189(d) (29 U.S.C. 2939(d)) is 
     amended--
       (1) in paragraph (3), by striking ``and'' after the 
     semicolon;
       (2) by redesignating paragraph (4) as paragraph (5); and
       (3) by inserting after paragraph (3) the following:
       ``(4) the negotiated levels of performance of the States, 
     the States' requests for adjustments of such levels, and the 
     adjustments of such levels that are made; and''.
       (b) Availability.--Section 189(g)(2) (29 U.S.C. 2939(g)(2)) 
     is amended, in the first sentence--
       (1) by striking ``Funds'' and inserting ``Except as 
     otherwise provided in this paragraph, funds''; and
       (2) by striking ``each State receiving'' and inserting 
     ``each recipient of''.
       (c) General Waivers.--Section 189(i)(4) (29 U.S.C. 
     2939(i)(4)) is amended--
       (1) in subparagraph (A)(i), by inserting ``the funding of 
     infrastructure costs for one-stop centers,'' after ``local 
     boards,''; and
       (2) by adding at the end the following:
       ``(D) Expedited requests.--The Secretary shall expedite 
     requests for waivers of statutory or regulatory requirements 
     that have been approved for a State pursuant to subparagraph 
     (B), if the requirements of this paragraph have been 
     satisfied.''.

     SEC. 154. USE OF CERTAIN REAL PROPERTY.

       Section 193 (29 U.S.C. 2943) is amended to read as follows:

     ``SEC. 193. TRANSFER OF FEDERAL EQUITY IN STATE EMPLOYMENT 
                   SECURITY AGENCY REAL PROPERTY TO THE STATES.

       ``(a) Transfer of Federal Equity.--Notwithstanding any 
     other provision of law, any Federal equity acquired in real 
     property through grants to States awarded under title III of 
     the Social Security Act (42 U.S.C. 501 et seq.) or under the 
     Wagner-Peyser Act is transferred to the States that used the 
     grants for the acquisition of such equity. The portion of any 
     real property that is attributable to the Federal equity 
     transferred under this section shall be used to carry out 
     activities authorized under title III of the Social Security 
     Act or the Wagner-Peyser Act. Any disposition of such real 
     property shall be carried out in accordance with the 
     procedures prescribed by the Secretary and the portion of the 
     proceeds from the disposition of such real property that is 
     attributable to the Federal equity transferred under this 
     section shall be used to carry out activities authorized 
     under title III of the Social Security Act or the Wagner-
     Peyser Act.
       ``(b) Limitation on Use.--A State shall not use funds 
     awarded under title III of the Social Security Act or the 
     Wagner-Peyser Act to amortize the costs of real property that 
     is purchased by any State on or after the effective date of 
     this provision.''.

     SEC. 155. TABLE OF CONTENTS.

       Section 1(b) (29 U.S.C. 9201 note) is amended--
       (1) by striking the item relating to section 106 and 
     inserting the following:

``Sec. 106. Purposes.'';

       (2) by striking the item relating to section 123 and 
     inserting the following:

``Sec. 123. Eligible providers of youth activities.'';

       (3) by striking the item relating to section 169 and 
     inserting the following:

``Sec. 169. Youth challenge grants.'';

       (4) by striking the item relating to section 173 and 
     inserting the following:

``Sec. 173. National dislocated worker grants.'';

       (5) by striking the item relating to section 193 and 
     inserting the following:

``Sec. 193. Transfer of Federal equity in State employment security 
              agency real property to the States.'';

     and
       (6) by inserting after the item relating to section 243 the 
     following:

``Sec. 244. Integrated english literacy and civics education.''.

                      Subtitle F--Incentive Grants

     SEC. 161. INCENTIVE GRANTS.

       Section 503 (20 U.S.C. 9273) is amended--
       (1) by striking subsection (a) and inserting the following:
       ``(a) In General.--
       ``(1) Prior to july 1, 2005.--Prior to July 1, 2005, the 
     Secretary shall award a grant to each State in accordance 
     with the provisions of this section as this section was in 
     effect on July 1, 2003.
       ``(2) Beginning on july 1, 2005.--Beginning on July 1, 
     2005, the Secretary shall award a grant to each State on the 
     basis--
       ``(A) of the State's exceeding the State adjusted levels of 
     performance for title I, the adjusted levels of performance 
     for title II, and the levels of performance for programs 
     under the Carl D. Perkins Vocational and Technical Education 
     Act of 1998 (20 U.S.C. 2301 et seq.), for the purpose of 
     carrying out an innovative program consistent with the 
     requirements of any one or more of the programs within title 
     I, title II, or such Act, respectively;
       ``(B) of exemplary performance of the States in serving 
     hard-to-serve populations (as defined in section 101) 
     (including performance relating to the levels of service 
     provided and the performance outcomes on such performance 
     measures with respect to the populations);
       ``(C) of States that are effectively--
       ``(i) coordinating multiple systems into a more effective 
     workforce investment system, including coordination of 
     employment services under the Wagner-Peyser Act and core 
     activities under title I as well as partner programs 
     described in section 121;
       ``(ii) expanding access to training, including through 
     increased leveraging of resources other than those funded 
     through programs under title I; or
       ``(iii) implementing innovative business and economic 
     development initiatives; or
       ``(D) of such other factors relating to the performance of 
     the States under title I as the Secretary determines are 
     appropriate.''; and
       (2) in subsection (b)(2), by adding at the end the 
     following:
       ``(D) Use of funds.--The funds awarded to a State under 
     this section may be used to carry out any activities 
     authorized for States under chapters 4 and 5 of subtitle B of 
     title I, title II, and the Carl D. Perkins Vocational and 
     Technical Education Act of 1998, including demonstration 
     projects and innovative programs for hard-to-serve 
     populations (as defined in section 101).''.

  TITLE II--AMENDMENTS TO THE ADULT EDUCATION AND FAMILY LITERACY ACT

     SEC. 201. SHORT TITLE; PURPOSE.

       (a) Short Title.--This title may be cited as the ``Adult 
     Education and Family Literacy Act Amendments of 2003''.
       (b) Purpose.--Section 202 of the Adult Education and Family 
     Literacy Act (20 U.S.C. 9201) is amended--
       (1) in paragraph (2), by striking ``and'' after the 
     semicolon;
       (2) in paragraph (3), by striking ``education.'' and 
     inserting ``education and in the transition to postsecondary 
     education; and''; and
       (3) by adding at the end the following:
       ``(4) assist immigrants and other individuals with limited 
     English proficiency in improving their reading, writing, 
     speaking, and mathematics skills and acquiring an 
     understanding of the American free enterprise system, 
     individual freedom, and the responsibilities of 
     citizenship.''.

     SEC. 202. DEFINITIONS.

       Section 203 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9202) is amended--
       (1) in paragraph (1)--
       (A) in the matter preceding subparagraph (A), by striking 
     ``services or instruction below the postsecondary level'' and 
     inserting ``academic instruction and education services below 
     the postsecondary level that increase an individual's ability 
     to read, write, and speak in English and perform 
     mathematics''; and
       (B) by striking subparagraph (C)(i) and inserting the 
     following:
       ``(i) are basic skills deficient as defined in section 
     101;'';
       (2) in paragraph (2), by striking ``activities described in 
     section 231(b)'' and inserting ``programs and services which 
     include reading, writing, speaking, or mathematics skills, 
     workplace literacy activities, family literacy activities, 
     English language acquisition activities, or other activities 
     necessary for the attainment of a secondary school diploma or 
     its State recognized equivalent'';
       (3) in paragraph (5)--
       (A) by inserting ``an organization that has demonstrated 
     effectiveness in providing adult education, that may 
     include'' after ``means'';
       (B) in subparagraph (B), by striking ``of demonstrated 
     effectiveness'';
       (C) in subparagraph (C), by striking ``of demonstrated 
     effectiveness''; and
       (D) in subparagraph (I), by inserting ``or coalition'' 
     after ``consortium'';
       (4) in paragraph (6)--
       (A) by striking ``literacy program'' and inserting 
     ``language acquisition program'';
       (B) by striking ``literacy program'' and inserting 
     ``language acquisition program''; and
       (C) by inserting ``reading, writing, and speaking'' after 
     ``competence in'';

[[Page 28994]]

       (5) by redesignating paragraphs (7) through (18) as 
     paragraphs (8) through (19), respectively;
       (6) by inserting after paragraph (6) the following:
       ``(7) Essential components of reading instruction.--The 
     term `essential components of reading instruction' has the 
     meaning given the term in section 1208 of the Elementary and 
     Secondary Education Act of 1965 (20 U.S.C. 6368).''; and
       (7) by striking paragraph (19), as redesignated by 
     paragraph (4), and inserting the following:
       ``(19) Workplace literacy program.--The term `workplace 
     literacy program' means an educational program designed to 
     improve the productivity of the workforce through the 
     improvement of literacy skills that is offered by an eligible 
     provider in collaboration with an employer or an employee 
     organization at a workplace, at an off-site location, or in a 
     simulated workplace environment.''.

     SEC. 203. AUTHORIZATION OF APPROPRIATIONS.

       Section 205 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9204) is amended--
       (1) by striking ``1999'' and inserting ``2004''; and
       (2) by striking ``2003'' and inserting ``2009''.

     SEC. 204. HOME SCHOOLS.

       Section 204 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9203) is amended to read as follows:

     ``SEC. 204. HOME SCHOOLS.

       ``Nothing in this title shall be construed to affect home 
     schools, whether a home school is treated as a home school or 
     a private school under State law, or to compel a parent 
     engaged in home schooling to participate in an English 
     literacy program, family literacy services, or adult 
     education.''.

     SEC. 205. RESERVATION OF FUNDS; GRANTS TO ELIGIBLE AGENCIES; 
                   ALLOTMENTS.

       Section 211 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9211) is amended--
       (1) by striking subsection (a) and inserting the following:
       ``(a) Reservation of Funds.--From the sum appropriated 
     under section 205 for a fiscal year, the Secretary--
       ``(1) shall reserve 1.5 percent to carry out section 242, 
     except that the amount so reserved shall not exceed 
     $10,000,000;
       ``(2) shall reserve 1.5 percent to carry out section 243 
     and subsection (f)(4), except that the amount so reserved 
     shall not exceed $8,000,000;
       ``(3) shall make available, to the Secretary of Labor, 1.72 
     percent for incentive grants under section 136(i); and
       ``(4) shall reserve 12 percent of the amount that remains 
     after reserving funds under paragraphs (1), (2) and (3) to 
     carry out section 244.'';
       (2) in subsection (c)(1)(B), by striking ``$250,000'' and 
     inserting ``$350,000'';
       (3) by striking subsection (d) and inserting the following:
       ``(d) Qualifying Adult.--For the purpose of subsection 
     (c)(2), the term `qualifying adult' means an adult who--
       ``(1) is not less than 16 years of age;
       ``(2) is beyond the age of compulsory school attendance 
     under the law of the State or outlying area;
       ``(3) does not have a secondary school diploma or its 
     recognized equivalent; and
       ``(4) is not enrolled in secondary school.'';
       (4) in subsection (e)--
       (A) by striking paragraph (2) and inserting the following:
       ``(2) Award basis.--The Secretary shall award grants 
     pursuant to paragraph (1) on a competitive basis and pursuant 
     to recommendations from the Pacific Region Educational 
     Laboratory in Honolulu, Hawaii.''; and
       (B) in paragraph (3), by striking ``shall'' and all that 
     follows through the period and inserting ``shall be eligible 
     to receive a grant under this title until the date when an 
     agreement for the extension of the United States education 
     assistance under the Compact of Free Association for each of 
     the Freely Associated States becomes effective.''; and
       (5) by striking subsection (f) and inserting the following:
       ``(f) Hold-Harmless Provisions.--
       ``(1) In general.--Notwithstanding subsection (c) and 
     subject to paragraph (2), for fiscal year 2004 and each 
     succeeding fiscal year, no eligible agency shall receive an 
     allotment under this section that is less than 90 percent of 
     the allotment the eligible agency received for the preceding 
     fiscal year under this section.
       ``(2) 100 percent allotment.--Notwithstanding paragraphs 
     (1) and (2) of subsection (e), an eligible agency that 
     receives only an initial allotment under subsection (c)(1) 
     (and no additional allotment under subsection (c)(2)) shall 
     receive an allotment under this section that is equal to 100 
     percent of the initial allotment under subsection (c)(1).
       ``(3) Ratable reduction.--If for any fiscal year the amount 
     available for allotment under this subtitle is insufficient 
     to satisfy the provisions of paragraphs (1) and (2), the 
     Secretary shall ratably reduce the payments to all eligible 
     agencies, as necessary.
       ``(4) Additional assistance.--
       ``(A) In general.--From amounts reserved under subsection 
     (a)(2), the Secretary shall make grants to eligible agencies 
     described in subparagraph (B) to enable such agencies to 
     provide activities authorized under chapter 2.
       ``(B) Eligibility.--An eligible agency is eligible to 
     receive a grant under this paragraph for a fiscal year if the 
     amount of the allotment such agency receives under this 
     section for the fiscal year is less than the amount such 
     agency would have received for the fiscal year if the 
     allotment formula under this section as in effect on 
     September 30, 2003, were in effect for such year.
       ``(C) Amount of grant.--The amount of a grant made to an 
     eligible agency under this paragraph for a fiscal year shall 
     be the difference between--
       ``(i) the amount of the allotment such agency would have 
     received for the fiscal year if the allotment formula under 
     this section as in effect on September 30, 2003, were in 
     effect for such year; and
       ``(ii) the amount of the allotment such agency receives 
     under this section for the fiscal year.''.

     SEC. 206. PERFORMANCE ACCOUNTABILITY SYSTEM.

       Section 212 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9212) is amended--
       (1) in subsection (b)--
       (A) in paragraph (1)(A)(ii), by striking ``additional 
     indicators of performance (if any)'' and inserting 
     ``employment performance indicators'';
       (B) in paragraph (2)--
       (i) in subparagraph (A)--

       (I) in clause (i), by striking ``Demonstrated'' and 
     inserting ``Measurable'';
       (II) by striking clause (ii) and inserting the following:

       ``(ii) Placement in, retention in, or completion of, 
     postsecondary education or other training programs.''; and

       (III) in clause (iii), by inserting ``(including recognized 
     alternative standards for individuals with disabilities)'' 
     after ``equivalent'';

       (ii) by redesignating subparagraph (B) as subparagraph (C);
       (iii) by inserting after subparagraph (A), the following:
       ``(B) Employment performance indicators.--An eligible 
     agency shall identify in the State plan individual 
     participant employment performance indicators, including 
     entry into unsubsidized employment, retention in unsubsidized 
     employment, and career advancement. The State workforce 
     investment board shall assist the eligible agency in 
     obtaining and using quarterly wage records to collect data 
     for such indicators, consistent with applicable Federal and 
     State privacy laws.'';
       (iv) in subparagraph (C), as redesignated by clause (ii), 
     by inserting ``relevant'' after ``additional''; and
       (v) by adding at the end the following:
       ``(D) Indicators for workplace literacy programs.--Special 
     accountability measures may be negotiated for workplace 
     literacy programs.''; and
       (C) in paragraph (3)--
       (i) in subparagraph (A)--

       (I) in clause (i)(II), by striking ``in performance'' and 
     inserting ``the agency's performance outcomes in an 
     objective, quantifiable, and measurable form'';
       (II) in clause (ii), by striking ``3 programs years'' and 
     inserting ``2 program years'';
       (III) in clause (iii), by striking ``first 3 years'' and 
     inserting ``first 2 years'';
       (IV) in clause (iii), by striking ``first 3 program years'' 
     and inserting ``first 2 program years'';
       (V) in clause (v), by striking ``4th and 5th'' and 
     inserting ``3rd and 4th'';
       (VI) in clause (v), by striking ``to the fourth'' and 
     inserting ``to the third'';
       (VII) in clause (v), by striking ``fourth and fifth'' and 
     inserting ``third and fourth''; and
       (VIII) in clause (vi), by striking ``(II)'' and inserting 
     ``(I)'';

       (ii) in subparagraph (B)--

       (I) by striking the heading and inserting ``Levels of 
     employment performance'';
       (II) by striking ``may'' and inserting ``shall''; and
       (III) by striking ``additional'' and inserting 
     ``employment''; and

       (iii) by adding at the end the following:
       ``(C) Alternative assessment systems.--Eligible agencies 
     may approve the use of assessment systems that are not 
     commercially available standardized systems if such systems 
     meet the Standards for Educational and Psychological Testing 
     issued by the Joint Committee on Standards for Educational 
     and Psychological Testing of the American Educational 
     Research Association, the American Psychological Association, 
     and the National Council on Measurement in Education.'';
       (2) in subsection (c)--
       (A) in paragraph (1)--
       (i) by inserting ``the Governor, the State legislature, and 
     the State workforce investment board'' after ``Secretary''; 
     and
       (ii) by striking ``including'' and all that follows through 
     the period and inserting ``including the following:
       ``(A) Information on the levels of performance achieved by 
     the eligible agency with respect to the core indicators of 
     performance, and employment performance indicators.
       ``(B) The number and type of each eligible provider that 
     receives funding under such grant.
       ``(C) The number of enrollees 16 to 18 years of age who 
     enrolled in adult education not later than 1 year after 
     participating in secondary school education.'';
       (B) in paragraph (2)(A), by inserting ``eligible providers 
     and'' after ``available to''; and
       (C) by adding at the end the following:
       ``(3) Data Access.--The report made available under 
     paragraph (2) shall indicate which eligible agencies did not 
     have access to State unemployment insurance wage data in 
     measuring employment performance indicators.''; and
       (3) by adding at the end the following:
       ``(d) Program Improvement.--
       ``(1) In general.--If the Secretary determines that an 
     eligible agency did not meet its adjusted

[[Page 28995]]

     levels of performance for the core indicators of performance 
     described in subsection (b)(2)(A) for any program year, the 
     eligible agency shall--
       ``(A) work with the Secretary to develop and implement a 
     program improvement plan for the 2 program years succeeding 
     the program year in which the eligible agency did not meet 
     its adjusted levels of performance; and
       ``(B) revise its State plan under section 224, if 
     necessary, to reflect the changes agreed to in the program 
     improvement plan.
       ``(2) Further assistance.--If, after the period described 
     in paragraph (1)(A), the Secretary has provided technical 
     assistance to the eligible agency but determines that the 
     eligible agency did not meet its adjusted levels of 
     performance for the core indicators of performance described 
     in subsection (b)(2)(A), the Secretary may require the 
     eligible agency to make further revisions to the program 
     improvement plan described in paragraph (1). Such further 
     revisions shall be accompanied by further technical 
     assistance from the Secretary.''.

     SEC. 207. STATE ADMINISTRATION.

       Section 221(1) of the Adult Education and Family Literacy 
     Act (20 U.S.C. 9221(1)) is amended by striking ``and 
     implementation'' and inserting ``implementation, and 
     monitoring''.

     SEC. 208. STATE DISTRIBUTION OF FUNDS; MATCHING REQUIREMENT.

       Section 222 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9222) is amended--
       (1) in subsection (a)--
       (A) in paragraph (1)--
       (i) by striking ``82.5'' the first place such term appears 
     and inserting ``80''; and
       (ii) by striking ``the 82.5 percent'' and inserting ``such 
     amount'';
       (B) in paragraph (2), by striking ``not more than 12.5 
     percent'' and inserting ``not more than 15 percent''; and
       (C) in paragraph (3), by striking ``$65,000'' and inserting 
     ``$75,000''; and
       (2) in subsection (b)(1), by striking ``equal to'' and 
     inserting ``that is not less than''.

     SEC. 209. STATE LEADERSHIP ACTIVITIES.

       Section 223 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9223) is amended--
       (1) in subsection (a)--
       (A) in the matter preceding paragraph (1), by inserting 
     ``to develop or enhance the adult education system of the 
     State'' after ``activities'';
       (B) in paragraph (1), by striking ``instruction 
     incorporating'' and all that follows through the period and 
     inserting ``instruction incorporating the essential 
     components of reading instruction and instruction provided by 
     volunteers or by personnel of a State or outlying area.'';
       (C) in paragraph (2), by inserting ``, including 
     development and dissemination of instructional and 
     programmatic practices based on the most rigorous research 
     available in reading, writing, speaking, mathematics, English 
     language acquisition programs, distance learning and staff 
     training'' after ``activities'';
       (D) in paragraph (5), by striking ``monitoring and'';
       (E) by striking paragraph (6) and inserting the following:
       ``(6) The development and implementation of technology 
     applications, translation technology, or distance learning, 
     including professional development to support the use of 
     instructional technology.''; and
       (F) by striking paragraph (7) through paragraph (11) and 
     inserting the following:
       ``(7) Coordination with--
       ``(A) other partners carrying out activities authorized 
     under this Act;
       ``(B) existing support services, such as transportation, 
     child care, mental health services, and other assistance 
     designed to increase rates of enrollment in, and successful 
     completion of adult education and literacy activities, for 
     adults enrolled in such activities.
       ``(8) Developing and disseminating curricula, including 
     curricula incorporating the essential components of reading 
     instruction as they relate to adults.
       ``(9) The provision of assistance to eligible providers in 
     developing, implementing, and reporting measurable progress 
     in achieving the objectives of this subtitle.
       ``(10) The development and implementation of a system to 
     assist in the transition from adult basic education to 
     postsecondary education, including linkages with 
     postsecondary educational institutions.
       ``(11) Integration of literacy and English language 
     instruction with occupational skill training, and promoting 
     linkages with employers.
       ``(12) Activities to promote workplace literacy programs.
       ``(13) Activities to promote and complement local outreach 
     initiatives described in section 243(b)(3)(F).
       ``(14) In cooperation with efforts funded under sections 
     242 and 243, the development of curriculum frameworks and 
     rigorous content standards that--
       ``(A) specify what adult learners should know and be able 
     to do in the areas of reading and language arts, mathematics, 
     and English language acquisition; and
       ``(B) take into consideration the following:
       ``(i) State academic standards established under section 
     1111(b) of the Elementary and Secondary Education Act of 
     1965.
       ``(ii) The current adult skills and literacy assessments 
     used in the State.
       ``(iii) The core indicators of performance established 
     under section 212(b)(2)(A).
       ``(iv) Standards and academic requirements for enrollment 
     in non-remedial, for-credit, courses in State supported 
     postsecondary education institutions.
       ``(v) Where appropriate, the basic and literacy skill 
     content of occupational and industry skill standards widely 
     used by business and industry in the State.
       ``(15) In cooperation with efforts funded under sections 
     242 and 243, development and piloting of--
       ``(A) new assessment tools and strategies that identify the 
     needs and capture the gains of students at all levels, with 
     particular emphasis on--
       ``(i) students at the lowest achievement level;
       ``(ii) students who have limited English proficiency; and
       ``(iii) adults with learning disabilities;
       ``(B) options for improving teacher quality and retention; 
     and
       ``(C) assistance in converting research into practice.
       ``(16) The development and implementation of programs and 
     services to meet the needs of adult learners with learning 
     disabilities or limited English proficiency.
       ``(17) Other activities of statewide significance that 
     promote the purpose of this title.''; and
       (2) in subsection (c), by striking ``being State- or 
     outlying area-imposed'' and inserting ``being imposed by the 
     State or outlying area''.

     SEC. 210. STATE PLAN.

       Section 224 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9224) is amended--
       (1) in subsection (a)--
       (A) by striking the heading and inserting ``4-Year Plans''; 
     and
       (B) in paragraph (1), by striking ``5'' and inserting 
     ``4'';
       (2) in subsection (b)--
       (A) in paragraph (1), by inserting ``and the role of 
     provider and cooperating agencies in preparing the 
     assessment'' after ``serve'';
       (B) by striking paragraph (2) and inserting the following:
       ``(2) a description of how the eligible agency will address 
     the adult education and literacy needs identified under 
     paragraph (1) in each workforce development area of the 
     State, using funds received under this subtitle, as well as 
     other Federal, State, or local funds received in partnership 
     with other agencies for the purpose of adult literacy as 
     applicable;'';
       (C) in paragraph (3)--
       (i) by inserting ``and measure'' after ``evaluate'';
       (ii) by inserting ``and improvement'' after 
     ``effectiveness''; and
       (iii) by striking ``212'' and inserting ``212, including--
       ``(A) how the eligible agency will evaluate and measure 
     annually such effectiveness on a grant-by-grant basis; and
       ``(B) how the eligible agency--
       ``(i) will hold eligible providers accountable regarding 
     the progress of such providers in improving the academic 
     achievement of participants in adult education programs under 
     this subtitle and regarding the core indicators of 
     performance described in section 212(b)(2)(A); and
       ``(ii) will use technical assistance, sanctions, and 
     rewards (including allocation of grant funds based on 
     performance and termination of grant funds based on 
     performance)'';
       (D) in paragraph (4), by striking ``will ensure the 
     improvement of'' and inserting ``improved'';
       (E) by redesignating paragraphs (5) through (12) as 
     paragraphs (6) through (13), respectively;
       (F) by inserting after paragraph (4) the following:
       ``(5) a description of how the eligible agency will improve 
     teacher quality, the professional development of eligible 
     providers, and instruction;'';
       (G) in paragraph (6) (as redesignated by subparagraph (E)), 
     by striking ``who'' and all that follows through the 
     semicolon and inserting ``that--
       ``(A) offers flexible schedules and coordinates with 
     necessary Federal, State, and local support services (such as 
     child care, transportation, mental health services, and case 
     management) to enable individuals, including individuals with 
     disabilities or individuals with other special needs, to 
     participate in adult education and literacy activities; and
       ``(B) attempts to coordinate with support services that are 
     not provided under this subtitle prior to using funds for 
     adult education and literacy activities provided under this 
     subtitle for support services;'';
       (H) in paragraph (10) (as redesignated by subparagraph 
     (E)), by striking ``plan'' and inserting ``plan, which 
     process--
       ``(A) shall include the State Workforce Investment Board, 
     the Governor, State officials representing public schools, 
     community colleges, welfare agencies, agencies that provide 
     services to individuals with disabilities, other State 
     agencies that promote or operate adult education and literacy 
     activities, and direct providers of such adult literacy 
     services;
       ``(B) may include consultation with the State agency for 
     higher education, institutions responsible for professional 
     development of adult education and literacy education program 
     instructors, institutions of higher education, 
     representatives of business and industry, refugee assistance 
     programs, and community-based organizations, as defined in 
     section 101;'';
       (I) in paragraph (11) (as redesignated by subparagraph 
     (E))--
       (i) by inserting ``assess potential population needs and'' 
     after ``will'';
       (ii) in subparagraph (A), by striking ``students'' and 
     inserting ``individuals'';
       (iii) in subparagraph (C), by striking ``and'' after the 
     semicolon; and
       (iv) by adding at the end the following:
       ``(E) the unemployed; and
       ``(F) those who are employed, but at levels below self-
     sufficiency, as defined in section 101.'';

[[Page 28996]]

       (J) in paragraph (12) (as redesignated by subparagraph 
     (E))--
       (i) by inserting ``and how the plan submitted under this 
     subtitle is coordinated with the plan submitted by the State 
     under title I'' after ``eligible agency''; and
       (ii) by striking ``and'' after the semicolon;
       (K) in paragraph (13) (as redesignated by subparagraph 
     (E)), by striking ``231(c)(1).'' and inserting ``231(c)(1), 
     including--
       ``(A) how the State will build the capacity of 
     organizations that provide adult education and literacy 
     activities; and
       ``(B) how the State will increase the participation of 
     business and industry in adult education and literacy 
     activities;''; and
       (L) by adding at the end the following:
       ``(14) a description of how the eligible agency will 
     consult with any State agency responsible for postsecondary 
     education to develop adult education programs and services 
     (including academic skill development and support services) 
     that prepare students to enter postsecondary education upon 
     completion of secondary school programs or their recognized 
     equivalent;
       ``(15) a description of how the eligible agency will 
     consult with the State agency responsible for workforce 
     development to develop adult education programs and services 
     that are designed to prepare students to enter the workforce; 
     and
       ``(16) a description of how the eligible agency will 
     improve the professional development of eligible providers of 
     adult education and literacy activities.'';
       (3) in subsection (c), by adding at the end the following: 
     ``At the end of the first 2-year period of the 4-year State 
     plan, the eligible agency shall review and, as needed, revise 
     the 4-year State plan.''; and
       (4) in subsection (d)--
       (A) in paragraph (1), by inserting ``, the chief State 
     school officer, the State officer responsible for 
     administering community and technical colleges, and the State 
     Workforce Investment Board'' after ``Governor''; and
       (B) in paragraph (2), by striking ``comments'' and all that 
     follows through the period and inserting ``comments regarding 
     the State plan by the Governor, the chief State school 
     officer, the State officer responsible for administering 
     community and technical colleges, and the State Workforce 
     Investment Board, and any revision to the State plan, are 
     submitted to the Secretary.''.

     SEC. 211. PROGRAMS FOR CORRECTIONS EDUCATION AND OTHER 
                   INSTITUTIONALIZED INDIVIDUALS.

       Section 225 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9225) is amended--
       (1) in subsection (b)--
       (A) in paragraph (1), by striking ``basic education'' and 
     inserting ``adult education and literacy activities'';
       (B) in paragraph (2), by inserting ``and'' after the 
     semicolon;
       (C) by striking paragraph (3); and
       (D) by redesignating paragraph (4) as paragraph (3); and
       (2) in subsection (d), by striking ``Definition of Criminal 
     Offender.--'' and inserting ``Definitions.--In this 
     section:''.

     SEC. 212. GRANTS AND CONTRACTS FOR ELIGIBLE PROVIDERS.

       Section 231 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9241) is amended--
       (1) in subsection (b)--
       (A) in paragraph (1), by striking ``workplace literacy 
     services'' and inserting ``workplace literacy programs''; and
       (B) in paragraph (3), by striking ``literacy'' and 
     inserting ``language acquisition'';
       (2) in subsection (e)--
       (A) in paragraph (1), by inserting ``to be achieved 
     annually on the core indicators of performance and employment 
     performance indicators described in section 212(b)(2)'' after 
     ``outcomes'';
       (B) by striking paragraph (3) and inserting the following:
       ``(3) the commitment of the eligible provider to be 
     responsive to local needs and to serve individuals in the 
     community who were identified by the assessment as most in 
     need of adult literacy services, including individuals who 
     are low-income, have minimal literacy skills, have learning 
     disabilities, or have limited English proficiency;'';
       (C) in paragraph (4)(B), by striking ``, such as'' and all 
     that follows through the semicolon and inserting ``that 
     include the essential components of reading instruction;'';
       (D) in paragraph (5), by striking ``research'' and 
     inserting ``the most rigorous research available'';
       (E) in paragraph (7), by inserting ``, when appropriate and 
     based on the most rigorous research available,'' after ``real 
     life contexts'';
       (F) in paragraph (9), by inserting ``education, job-
     training, and social service'' after ``other available'';
       (G) in paragraph (10)--
       (i) by inserting ``coordination with Federal, State, and 
     local'' after ``schedules and''; and
       (ii) by striking ``and transportation'' and inserting ``, 
     transportation, mental health services, and case 
     management'';
       (H) in paragraph (11)--
       (i) by inserting ``measurable'' after ``report'';
       (ii) by striking ``eligible agency'';
       (iii) by inserting ``established by the eligible agency'' 
     after ``performance measures''; and
       (iv) by striking ``and'' after the semicolon;
       (I) in paragraph (12), by striking ``literacy programs.'' 
     and inserting ``language acquisition programs and civics 
     education programs;''; and
       (J) by adding at the end the following:
       ``(13) the capacity of the eligible provider to produce 
     information on performance results, including enrollments and 
     measurable participant outcomes;
       ``(14) whether reading, writing, speaking, mathematics, and 
     English language acquisition instruction provided by the 
     eligible provider are based on the best practices derived 
     from the most rigorous research available;
       ``(15) whether the eligible provider's applications of 
     technology and services to be provided are sufficient to 
     increase the amount and quality of learning and lead to 
     measurable learning gains within specified time periods; and
       ``(16) the capacity of the eligible provider to serve adult 
     learners with learning disabilities.''.

     SEC. 213. LOCAL APPLICATION.

       Section 232 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9242) is amended--
       (1) in paragraph (1)--
       (A) by inserting ``consistent with the requirements of this 
     subtitle'' after ``spent''; and
       (B) by striking ``and'' after the semicolon;
       (2) in paragraph (2), by striking the period at the end and 
     inserting ``; and''; and
       (3) by adding at the end the following:
       ``(3) information that addresses each of the considerations 
     required under section 231(e).''.

     SEC. 214. LOCAL ADMINISTRATIVE COST LIMITS.

       Section 233 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9243) is amended--
       (1) in subsection (a)(2)--
       (A) by inserting ``and professional'' after ``personnel''; 
     and
       (B) by inserting ``development of measurable goals in 
     reading, writing, and speaking the English language, and in 
     mathematical computation,'' after ``development,''; and
       (2) in subsection (b)--
       (A) by inserting ``and professional'' after ``personnel''; 
     and
       (B) by inserting ``development of measurable goals in 
     reading, writing, and speaking the English language, and in 
     mathematical computation,'' after ``development,''.

     SEC. 215. ADMINISTRATIVE PROVISIONS.

       Section 241(b) of the Adult Education and Family Literacy 
     Act (20 U.S.C. 9251(b)) is amended--
       (1) in paragraph (1)(A)--
       (A) by striking ``adult education and literacy activities'' 
     both places such terms appear and inserting ``activities 
     under this subtitle''; and
       (B) by striking ``was'' and inserting ``were''; and
       (2) in paragraph (4)--
       (A) by inserting ``not more than'' after ``this subsection 
     for''; and
       (B) by striking ``only''.

     SEC. 216. NATIONAL INSTITUTE FOR LITERACY.

       Section 242 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9252) is amended--
       (1) in subsection (a)--
       (A) in paragraph (1), by striking ``literacy'' and 
     inserting ``effective literacy programs for children, youth, 
     adults, and families'';
       (B) in paragraph (2), by inserting ``and disseminates 
     information on'' after ``coordinates''; and
       (C) by striking paragraph (3)(A) and inserting the 
     following:
       ``(A) coordinating and participating in the Federal effort 
     to identify and disseminate information on literacy that is 
     derived from scientifically based research, or the most 
     rigorous research available and effective programs that serve 
     children, youth, adults, and families; and'';
       (2) by striking subsection (b)(3) and inserting the 
     following:
       ``(3) Recommendations.--The Interagency Group, in 
     consultation with the National Institute for Literacy 
     Advisory Board (in this section referred to as the `Board') 
     established under subsection (e), shall plan the goals of the 
     Institute and the implementation of any programs to achieve 
     the goals. The Board may also request a meeting of the 
     Interagency Group to discuss any recommendations the Board 
     may make.'';
       (3) in subsection (c)--
       (A) in paragraph (1)--
       (i) in subparagraph (A)--

       (I) by striking ``to establish'' and inserting ``to 
     maintain'';
       (II) in clause (i), by striking ``phonemic awareness, 
     systematic phonics, fluency, and reading comprehension'' and 
     inserting ``the essential components of reading 
     instruction'';
       (III) in clause (iii), by striking ``and'' after the 
     semicolon;
       (IV) in clause (iv), by inserting ``and'' after the 
     semicolon; and
       (V) by adding at the end the following:

       ``(v) a list of local adult education and literacy 
     programs;'';
       (ii) in subparagraph (C)--

       (I) by striking ``reliable and replicable research'' and 
     inserting ``reliable and replicable research as defined by 
     the Institute of Education Sciences''; and
       (II) by striking ``especially with the Office of 
     Educational Research and Improvement in the Department of 
     Education,'';

       (iii) in subparagraph (D), by striking ``phonemic 
     awareness, systematic phonics, fluency, and reading 
     comprehension based on'' and inserting ``the essential 
     components of reading instruction and'';
       (iv) in subparagraph (H), by striking ``and'' after the 
     semicolon;
       (v) in subparagraph (I), by striking the period at the end 
     and inserting a semicolon; and
       (vi) by adding at the end the following:
       ``(J) to work cooperatively with the Department of 
     Education to assist States that are pursuing the 
     implementation of standards-based educational improvements 
     for adults through

[[Page 28997]]

     the dissemination of training, technical assistance, and 
     related support and through the development and dissemination 
     of related standards-based assessment instruments; and
       ``(K) to identify rigorous research on the effectiveness of 
     instructional practices and organizational strategies 
     relating to literacy programs on the acquisition of skills in 
     reading, writing, English acquisition, and mathematics.''; 
     and
       (B) by adding at the end the following:
       ``(3) Coordination.--In identifying the reliable and 
     replicable research the Institute will support, the Institute 
     shall use standards for research quality that are consistent 
     with those of the Institute of Education Sciences.'';
       (4) in subsection (e)--
       (A) in paragraph (1)(B)--
       (i) in clause (i), by striking ``literacy programs'' and 
     inserting ``language acquisition programs'';
       (ii) in clause (ii), by striking ``literacy programs'' and 
     inserting ``or have participated in or partnered with 
     workplace literacy programs'';
       (iii) in clause (iv), by inserting ``, including adult 
     literacy research'' after ``research'';
       (iv) in clause (vi), by striking ``and'' after the 
     semicolon;
       (v) in clause (vii), by striking the period at the end and 
     inserting ``; and''; and
       (vi) by adding at the end the following:
       ``(viii) institutions of higher education.'';
       (B) in paragraph (2)--
       (i) in subparagraph (B), by striking ``and'' after the 
     semicolon;
       (ii) in subparagraph (C), by striking the period at the end 
     and inserting ``; and''; and
       (iii) by adding at the end the following:
       ``(D) review the biennial report submitted to Congress 
     pursuant to subsection (k).''; and
       (C) in paragraph (5), by striking the second sentence and 
     inserting the following: ``A recommendation of the Board may 
     be passed only by a majority of the Board's members present 
     at a meeting for which there is a quorum.''; and
       (5) in subsection (k)--
       (A) by striking ``Labor and Human Resources'' and inserting 
     ``Health, Education, Labor, and Pensions''; and
       (B) by striking ``The Institute shall submit a report 
     biennially to'' and inserting ``Not later than 1 year after 
     the date of enactment of the Adult Education and Family 
     Literacy Act Amendments of 2003, and biennially thereafter, 
     the Institute shall submit a report to''.

     SEC. 217. NATIONAL LEADERSHIP ACTIVITIES.

       Section 243 of the Adult Education and Family Literacy Act 
     (20 U.S.C. 9253) is amended to read as follows:

     ``SEC. 243. NATIONAL LEADERSHIP ACTIVITIES.

       ``(a) In General.--The Secretary shall establish and carry 
     out a program of national leadership activities to enhance 
     the quality of adult education and literacy programs 
     nationwide.
       ``(b) Permissive Activities.--The national leadership 
     activities described in subsection (a) may include the 
     following:
       ``(1) Technical assistance, including--
       ``(A) assistance provided to eligible providers in 
     developing and using performance measures for the improvement 
     of adult education and literacy activities, including family 
     literacy services;
       ``(B) assistance related to professional development 
     activities, and assistance for the purposes of developing, 
     improving, identifying, and disseminating the most successful 
     methods and techniques for providing adult education and 
     literacy activities, including family literacy services, 
     based on scientific evidence where available;
       ``(C) assistance in distance learning and promoting and 
     improving the use of technology in the classroom;
       ``(D) assistance in developing valid, measurable, and 
     reliable performance data, including data around employment 
     and employment outcome, and using performance information for 
     the improvement of adult education and literacy programs; and
       ``(E) assistance to help States, particularly low-
     performing States, meet the requirements of section 212.
       ``(2) A program of grants, contracts, or cooperative 
     agreements awarded on a competitive basis to national, 
     regional, or local networks of private nonprofit 
     organizations, public libraries, or institutions of higher 
     education to build the capacity of such networks' members to 
     meet the performance requirements of eligible providers under 
     this title and involve adult learners in program improvement.
       ``(3) Funding national leadership activities that are not 
     described in paragraph (1), either directly or through 
     grants, contracts, or cooperative agreements awarded on a 
     competitive basis to or with postsecondary educational 
     institutions, public or private organizations or agencies, or 
     consortia of such institutions, organizations, or agencies, 
     such as--
       ``(A) developing, improving, and identifying the most 
     successful methods and techniques for addressing the 
     education needs of adults, including instructional practices 
     using the essential components of reading instruction based 
     on the work of the National Institute of Child Health and 
     Human Development;
       ``(B) increasing the effectiveness of, and improving the 
     quality of, adult education and literacy activities, 
     including family literacy services;
       ``(C) carrying out research on national literacy basic 
     skill acquisition for adult learning, including estimating 
     the number of adults functioning at the lowest levels of 
     literacy proficiency;
       ``(D)(i) carrying out demonstration programs;
       ``(ii) disseminating best practices information, including 
     information regarding promising practices resulting from 
     federally funded demonstration programs; and
       ``(iii) developing and replicating best practices and 
     innovative programs, including--
       ``(I) the development of models for basic skill 
     certificates;
       ``(II) the identification of effective strategies for 
     working with adults with learning disabilities and with 
     adults with limited English proficiency;
       ``(III) integrated basic and workplace skills education 
     programs;
       ``(IV) coordinated literacy and employment services; and
       ``(V) postsecondary education transition programs;
       ``(E) providing for the conduct of an independent 
     evaluation and assessment of adult education and literacy 
     activities through studies and analyses conducted 
     independently through grants and contracts awarded on a 
     competitive basis, which evaluation and assessment shall 
     include descriptions of--
       ``(i) the effect of performance measures and other measures 
     of accountability on the delivery of adult education and 
     literacy activities, including family literacy services;
       ``(ii) the extent to which the adult education and literacy 
     activities, including family literacy services, increase the 
     literacy skills of adults (and of children, in the case of 
     family literacy services), lead the participants in such 
     activities to involvement in further education and training, 
     enhance the employment and earnings of such participants, 
     and, if applicable, lead to other positive outcomes, such as 
     reductions in recidivism in the case of prison-based adult 
     education and literacy activities;
       ``(iii) the extent to which the provision of support 
     services to adults enrolled in adult education and family 
     literacy programs increase the rate of enrollment in, and 
     successful completion of, such programs; and
       ``(iv) the extent to which different types of providers 
     measurably improve the skills of participants in adult 
     education and literacy programs;
       ``(F) supporting efforts aimed at capacity building of 
     programs at the State and local levels such as technical 
     assistance in program planning, assessment, evaluation, and 
     monitoring of activities carried out under this subtitle;
       ``(G) collecting data, such as data regarding the 
     improvement of both local and State data systems, through 
     technical assistance and development of model performance 
     data collection systems;
       ``(H) supporting the development of an entity that would 
     produce and distribute technology-based programs and 
     materials for adult education and literacy programs using an 
     interconnection system (as defined in section 397 of the 
     Communications Act of 1934 (47 U.S.C. 397)) and expand the 
     effective outreach and use of such programs and materials to 
     adult education eligible providers;
       ``(I) determining how participation in adult education and 
     literacy activities prepares individuals for entry into 
     postsecondary education and employment and, in the case of 
     prison-based services, has an effect on recidivism; and
       ``(J) other activities designed to enhance the quality of 
     adult education and literacy activities nationwide.''.

     SEC. 218. INTEGRATED ENGLISH LITERACY AND CIVICS EDUCATION.

       Chapter 4 of subtitle A of title II (29 U.S.C. 9251 et 
     seq.) is amended by adding at the end the following:

     ``SEC. 244. INTEGRATED ENGLISH LITERACY AND CIVICS EDUCATION.

       ``(a) In General.--From funds made available under section 
     211(a)(4) for each fiscal year the Secretary shall award 
     grants to States, from allotments under subsection (b), for 
     integrated English literacy and civics education.
       ``(b) Allotment.--
       ``(1) In general.--Subject to paragraph (2), from amounts 
     made available under section 211(a)(4) for a fiscal year the 
     Secretary shall allocate--
       ``(A) 65 percent to the States on the basis of a State's 
     need for integrated English literacy and civics education as 
     determined by calculating each State's share of a 10-year 
     average of the Immigration and Naturalization Service data 
     for immigrants admitted for legal permanent residence for the 
     10 most recent years; and
       ``(B) 35 percent to the States on the basis of whether the 
     State experienced growth as measured by the average of the 3 
     most recent years for which Immigration and Naturalization 
     Service data for immigrants admitted for legal permanent 
     residence are available.
       ``(2) Minimum.--No State shall receive an allotment under 
     paragraph (1) in an amount that is less than $60,000.''.

     SEC. 219. TRANSITION.

       The Secretary shall take such steps as the Secretary 
     determines to be appropriate to provide for the orderly 
     transition to the authority of the Adult Education and Family 
     Literacy Act (as amended by this title) from any authority 
     under provisions of the Adult Education and Family Literacy 
     Act (as such Act was in effect on the day before the date of 
     enactment of the Adult Education and Family Literacy Act 
     Amendments of 2003.

            TITLE III--AMENDMENTS TO OTHER PROVISIONS OF LAW

     SEC. 301. WAGNER-PEYSER ACT.

       (a) Conforming Amendment.--Section 2(3) of the Wagner-
     Peyser Act (29 U.S.C. 49a(3)) is

[[Page 28998]]

     amended by striking ``section 134(c)'' and inserting 
     ``section 121(e)''.
       (b) Colocation.--Section 3 of the Wagner-Peyser Act (29 
     U.S.C. 49b) is amended by adding at the end the following:
       ``(d) In order to avoid duplication of services and enhance 
     integration of services, employment services offices in each 
     State shall be colocated with comprehensive one-stop centers 
     established under title I of the Workforce Investment Act of 
     1998.''.
       (c) Cooperative Statistical Program.--Section 14 of the 
     Wagner-Peyser Act (29 U.S.C. 49l-1) is amended by striking 
     the section heading and all that follows through ``There'' 
     and inserting the following:

     ``SEC. 14. COOPERATIVE STATISTICAL PROGRAM.

       ``There''.
       (d) Workforce and Labor Market Information System.--Section 
     15 of the Wagner-Peyser Act (29 U.S.C. 49l-2) is amended--
       (1) by striking the section heading and inserting the 
     following:

     ``SEC. 15. WORKFORCE AND LABOR MARKET INFORMATION SYSTEM.'';

       (2) by striking ``employment statistics system'' each place 
     it appears and inserting ``workforce and labor market 
     information system'';
       (3) in subsection (a)(1), by striking ``of employment 
     statistics'';
       (4) in subsection (b)(2)(E)--
       (A) in clause (i), by adding ``and'' at the end;
       (B) in clause (ii), by striking ``; and'' and inserting a 
     period; and
       (C) by striking clause (iii);
       (5) by striking subsections (c) and (d) and inserting the 
     following:
       ``(c) National Electronic Tools To Provide Services.--The 
     Secretary, in consultation with States, is authorized to 
     assist in the development of national electronic tools that 
     may be used to improve access to workforce information for 
     individuals through--
       ``(1) the one-stop delivery systems established under 
     section 121(e); and
       ``(2) such other delivery systems as the Secretary 
     determines to be appropriate.
       ``(d) Two-Year Plan.--The Secretary, working through the 
     Bureau of Labor Statistics, and in cooperation with the 
     States and with the assistance of the Employment and Training 
     Administration and other appropriate Federal agencies, shall 
     prepare a 2-year plan which shall be the mechanism for 
     achieving cooperative management of the nationwide workforce 
     and labor market information system described in subsection 
     (a) and the statewide workforce and labor market information 
     systems that comprise the nationwide system. The plan shall--
       ``(1) describe the steps the to be taken in the following 2 
     years to carry out the duties described in subsection (b)(2);
       ``(2) evaluate the performance of the system and recommend 
     needed improvements, with particular attention to the 
     improvements needed at the State and local levels; and
       ``(3) describe the involvement of States in the development 
     of the plan, pursuant to a process established by the 
     Secretary in cooperation with the States in accordance with 
     subsection (i).'';
       (6) in subsection (e)(2)--
       (A) in subparagraph (G), by adding ``and'' at the end;
       (B) by striking subparagraph (H); and
       (C) by redesignating subparagraph (I) as subparagraph (H);
       (7) in subsection (g), by striking ``1999 through 2004'' 
     and inserting ``2004 through 2009 to enable the Secretary to 
     carry out the provisions of this section in a timely manner 
     through grants or cooperative agreements with the States'';
       (8) in subsection (g)--
       (A) by striking ``There are'' and inserting the following:
       ``(1) In general.--There are''; and
       (B) by adding at the end the following:
       ``(2) Distribution of funds.--With regard to distributing 
     funds appropriated under paragraph (1) (relating to workforce 
     and labor market information funding) for fiscal years 2004 
     through 2009, the Secretary shall continue to distribute the 
     funds to the States in the manner in which the Secretary 
     distributed funds to the States under this section for fiscal 
     years 1999 through 2003.''; and
       (9) by adding at the end the following:
       ``(i) Coordination With the States.--The Secretary, working 
     though the Bureau of Labor Statistics and in coordination 
     with the Employment and Training Administration, shall 
     consult at least annually with representatives of each of the 
     10 Federal regions of the Department of Labor, elected 
     (pursuant to a process established by the Secretary) by and 
     from the State workforce and labor market information 
     directors affiliated with the State agencies that perform the 
     duties described in subsection (e)(2).''.

                TITLE IV--REHABILITATION ACT AMENDMENTS

     SEC. 401. SHORT TITLE.

       This title may be cited as the ``Rehabilitation Act 
     Amendments of 2003''.

     SEC. 402. TECHNICAL AMENDMENTS TO TABLE OF CONTENTS.

       (a) Incentive Grants.--Section 1(b) of the Rehabilitation 
     Act of 1973 (29 U.S.C. 701 note) is amended by inserting 
     after the item relating to section 112 the following:

``Sec. 113. Incentive grants.''.
       (b) Independent Living Services for Older Individuals Who 
     Are Blind.--Section 1(b) of the Rehabilitation Act of 1973 
     (29 U.S.C. 701 note) is amended by striking the items 
     relating to sections 752 and 753 and inserting the following:

``Sec. 752. Training and technical assistance.
``Sec. 753. Program of grants.
``Sec. 754. Authorization of appropriations.''.

     SEC. 403. PURPOSE.

       Section 2(b) of the Rehabilitation Act of 1973 (29 U.S.C. 
     701(b)) is amended--
       (1) in paragraph (1)(F), by striking ``and'' after the 
     semicolon;
       (2) in paragraph (2), by striking the period at the end and 
     inserting ``; and''; and
       (3) by adding at the end the following:
       ``(3) to provide opportunities for employers and 
     rehabilitation service providers to provide meaningful input 
     at all levels of government to ensure successful employment 
     of individuals with disabilities.''.

     SEC. 404. DEFINITIONS.

       Section 7 of the Rehabilitation Act of 1973 (29 U.S.C. 705) 
     is amended--
       (1) in paragraph (2)(B)--
       (A) in the matter preceding clause (i), by inserting ``and 
     literacy services'' after ``supported employment''; and
       (B) in clause (iii), by inserting ``and literacy skills'' 
     after ``educational achievements'';
       (2) by striking paragraph (7) and inserting the following:
       ``(7) Consumer organization.--The term `consumer 
     organization' means a membership organization in which a 
     majority of the organization's members and a majority of the 
     organization's officers are individuals with disabilities.'';
       (3) in paragraph (17)--
       (A) in subparagraph (C), by striking ``and'' after the 
     semicolon;
       (B) in subparagraph (D), by striking the period at the end 
     and inserting ``; and''; and
       (C) by adding at the end the following:
       ``(E) maintaining individuals with significant disabilities 
     in, or transitioning individuals with significant 
     disabilities to, community-based living.'';
       (4) by redesignating paragraphs (24) through (28), (29) 
     through (34), and (35) through (39), as paragraphs (25) 
     through (29), (31) through (36), and (38) through (42), 
     respectively;
       (5) by inserting after paragraph (23) the following:
       ``(24) Literacy.--The term `literacy' has the meaning given 
     the term in section 203 of the Adult Education and Family 
     Literacy Act (20 U.S.C. 9202).'';
       (6) by inserting after paragraph (29), as redesignated by 
     paragraph (4), the following:
       ``(30) Post-employment service.--The term `post-employment' 
     service means a service identified in section 103(a) that 
     is--
       ``(A) provided subsequent to the achievement of an 
     employment outcome; and
       ``(B) necessary for an individual to maintain, regain, or 
     advance in employment, consistent with the individual's 
     strengths, resources, priorities, concerns, abilities, 
     capabilities, interests, and informed choice.'';
       (7) by inserting after paragraph (36), as redesignated by 
     paragraph (4), the following:
       ``(37) Student with a disability.--
       ``(A) In general.--The term `student with a disability' 
     means an individual with a disability who attends an 
     elementary school or secondary school and who--
       ``(i) is not younger than 14 years of age;
       ``(ii) is not older than 21 years of age;
       ``(iii) has been determined to be eligible under section 
     102(a) for assistance under title I; and
       ``(iv)(I) is eligible for, and receiving, special education 
     and related services under part B of the Individuals with 
     Disabilities Education Act (20 U.S.C. 1411 et seq.); or
       ``(II) is an individual with a disability, for purposes of 
     section 504.
       ``(B) Students with disabilities.--The term `students with 
     disabilities' means more than 1 student with a disability.''; 
     and
       (8) in paragraph (38)(A)(ii), as redesignated by paragraph 
     (4), by striking ``paragraph (36)(C)'' and inserting 
     ``paragraph (39)(C)''.

     SEC. 405. ADMINISTRATION OF THE ACT.

       Section 12(a)(1) of the Rehabilitation Act of 1973 (29 
     U.S.C. 709(a)(1)) is amended--
       (1) by inserting ``(A)'' after ``(1)'';
       (2) by striking the semicolon and inserting ``; and''; and
       (3) by adding at the end the following:
       ``(B) provide technical assistance to the designated State 
     units on developing successful partnerships with 
     employers;''.

     SEC. 406. CARRYOVER.

       Section 19 of the Rehabilitation Act of 1973 (29 U.S.C. 
     716) is amended--
       (1) in subsection (a)(1)--
       (A) by striking ``, section 509 (except as provided in 
     section 509(b))'';
       (B) by striking ``or (C)''; and
       (C) by striking ``752(b)'' and inserting ``753(b)''; and
       (2) by adding at the end the following:
       ``(c) Protection and Advocacy of Individual Rights.--
       ``(1) Appropriated amounts.--Notwithstanding any other 
     provision of law, any funds appropriated for a fiscal year to 
     carry out a grant program under section 509 (except as 
     provided in section 509(b)), including any funds reallotted 
     under such grant program, that are not obligated and expended 
     by recipients prior to the beginning of the succeeding fiscal 
     year shall remain available for obligation and expenditure by 
     such recipients during such succeeding fiscal year.
       ``(2) Program income.--Notwithstanding any other provision 
     of law, any amounts of program income received by recipients 
     under a grant program under section 509 in a fiscal year that 
     are

[[Page 28999]]

     not obligated and expended by recipients prior to the 
     beginning of the succeeding fiscal year, shall remain 
     available until expended.''.

             Subtitle A--Vocational Rehabilitation Services

     SEC. 411. DECLARATION OF POLICY; AUTHORIZATION OF 
                   APPROPRIATIONS.

       Section 100(b)(1) of the Rehabilitation Act of 1973 (29 
     U.S.C. 720(b)(1)) is amended by striking ``fiscal years 1999 
     through 2003'' and inserting ``fiscal years 2004 through 
     2009''.

     SEC. 412. STATE PLANS.

       Section 101(a) of the Rehabilitation Act of 1973 (29 U.S.C. 
     721(a)) is amended--
       (1) in paragraph (6)(B), by striking ``to employ and 
     advance in employment'' and inserting ``to recruit, employ, 
     and advance in employment'';
       (2) in paragraph (7)(A)(v), by striking subclause (I) and 
     inserting the following:

       ``(I) a system for the continuing education of 
     rehabilitation professionals and paraprofessionals within the 
     designated State unit, particularly with respect to 
     rehabilitation technology, including training implemented in 
     coordination with State programs carried out under section 
     101 of the Assistive Technology Act of 1998 (29 U.S.C. 3011); 
     and'';

       (3) in paragraph (8)(A), by adding at the end the 
     following:
       ``(iii) Services identified in individualized work plan.--
     For purposes of clause (i), for an individual who receives 
     assistance under the Ticket to Work and Self-Sufficiency 
     Program established under section 1148 of the Social Security 
     Act (42 U.S.C. 1320b-19), comparable benefits and services 
     available under such program only include those benefits and 
     services identified in the individual's individualized work 
     plan developed by an employment network pursuant to such 
     section.'';
       (4) in paragraph (10)--
       (A) in subparagraph (B), by striking ``annual reporting on 
     the eligible individuals receiving the services, on those 
     specific data elements described in section 136(d)(2) of the 
     Workforce Investment Act of 1998'' and inserting ``annual 
     reporting of information on eligible individuals receiving 
     services that is needed to assess performance on the core 
     indicators of performance described in section 
     136(b)(2)(A)(i) of the Workforce Investment Act of 1998'';
       (B) in subparagraph (C), by striking clauses (iii) and (iv) 
     and inserting the following:
       ``(iii) the number of applicants and eligible recipients, 
     including the number of individuals with significant 
     disabilities, who exited the program carried out under this 
     title and the number of such individuals who achieved 
     employment outcomes after receiving vocational rehabilitation 
     services; and
       ``(iv) the number of individuals who received vocational 
     rehabilitation services who entered and retained employment 
     and the increases in earnings of such individuals, consistent 
     with State reporting responsibilities pursuant to section 
     136(b)(2)(A)(i) of the Workforce Investment Act of 1998.''; 
     and
       (C) in subparagraph (E)(ii), by striking ``in meeting'' and 
     all that follows through the period and inserting ``in 
     meeting the standards and indicators established pursuant to 
     section 106.'';
       (5) in paragraph (11)--
       (A) by striking subparagraph (C) and inserting the 
     following:
       ``(C) Interagency cooperation with other agencies.--The 
     State plan shall include descriptions of interagency 
     cooperation with, and utilization of the services and 
     facilities of, Federal, State, and local agencies and 
     programs, including the State programs carried out under 
     section 101 of the Assistive Technology Act of 1998 (29 
     U.S.C. 3011), programs carried out by the Under Secretary for 
     Rural Development of the Department of Agriculture, and State 
     use contracting programs, to the extent that such agencies 
     and programs are not carrying out activities through the 
     statewide workforce investment system.'';
       (B) by striking subparagraph (D)(ii) and inserting the 
     following:
       ``(ii) transition planning by personnel of the designated 
     State agency and the State educational agency that will 
     facilitate the development and completion of the 
     individualized education programs under section 614(d) of the 
     Individuals with Disabilities Education Act (20 U.S.C. 
     1414(d)) and, as appropriate, the development and completion 
     of the individualized plan for employment, in order to 
     achieve post-school employment outcomes of students with 
     disabilities;''; and
       (C) by adding at the end the following:
       ``(G) Coordination with ticket to work and self-sufficiency 
     program.--The State plan shall provide that the designated 
     State unit will coordinate activities with any other State 
     agency that administers a Ticket to Work and Self-Sufficiency 
     Program established under section 1148 of the Social Security 
     Act (42 U.S.C. 1320b-19).''; and
       (6) in paragraph (20)--
       (A) by redesignating subparagraph (B) as subparagraph (D);
       (B) by inserting after subparagraph (A) the following:
       ``(B) Information on assistance for beneficiaries of 
     assistance under title ii or xvi of the social security 
     act.--The State plan shall include an assurance that the 
     designated State agency will make available to individuals 
     entitled to benefits under title II or XVI of the Social 
     Security Act (42 U.S.C. 401 et seq., 1381 et seq.) on the 
     basis of a disability or blindness, information on the 
     availability of--
       ``(i) medical assistance under the State medicaid program 
     under title XIX of the Social Security Act (42 U.S.C. 1396 et 
     seq.);
       ``(ii) benefits under the medicare program under title 
     XVIII of the Social Security Act (42 U.S.C. 1395 et seq.);
       ``(iii) assistance through benefits planning and assistance 
     programs under section 1149 of the Social Security Act (42 
     U.S.C. 1320b-20) and protection and advocacy programs under 
     section 1150 of the Social Security Act (42 U.S.C. 1320b-21); 
     and
       ``(iv) medical assistance under other federally funded 
     programs.
       ``(C) Information for individuals under the ticket to work 
     program.--The State plan shall include an assurance that the 
     designated State agency will make available to individuals 
     entitled to benefits under title II or XVI of the Social 
     Security Act (42 U.S.C. 401 et seq., 1381 et seq.) on the 
     basis of a disability or blindness and eligible for 
     assistance under the Ticket to Work and Self-Sufficiency 
     Program established under section 1148 of the Social Security 
     Act (42 U.S.C. 1320b-19), general information regarding the 
     Ticket to Work and Self-Sufficiency Program and specific 
     information on how to contact the program manager of the 
     Ticket to Work and Self-Sufficiency Program to obtain 
     information on approved employment networks.''; and
       (C) in subparagraph (D)(ii), as redesignated by 
     subparagraph (A)--
       (i) in subclause (II), by inserting ``, to the maximum 
     extent possible,'' after ``point of contact''; and
       (ii) in subclause (III), by striking ``or regain'' and 
     inserting ``regain, or advance in''.

     SEC. 413. ELIGIBILITY AND INDIVIDUALIZED PLAN FOR EMPLOYMENT.

       Section 102 of the Rehabilitation Act of 1973 (29 U.S.C. 
     722) is amended--
       (1) in subsection (b)--
       (A) in paragraph (1)--
       (i) in subparagraph (A), by striking the semicolon at the 
     end and inserting ``, including a listing of all the 
     community resources (including resources from consumer 
     organizations), to the maximum extent possible, to assist in 
     the development of such individual's individualized plan for 
     employment to enable the individual to make informed and 
     effective choices in developing the individualized plan for 
     employment;''; and
       (ii) in subparagraph (D)--

       (I) in clause (i), by striking ``and'' after the semicolon;
       (II) in clause (ii), by striking the period at the end and 
     inserting a semicolon; and
       (III) by adding at the end the following:

       ``(iii) for individuals entitled to benefits under title II 
     or XVI of the Social Security Act (42 U.S.C. 401 et seq., 
     1381 et seq.) on the basis of a disability or blindness, 
     information on the availability of--
       ``(I) medical assistance under the State medicaid program 
     under title XIX of the Social Security Act (42 U.S.C. 1396 et 
     seq.);
       ``(II) benefits under the medicare program under title 
     XVIII of the Social Security Act (42 U.S.C. 1395 et seq.);
       ``(III) assistance through benefits planning and assistance 
     programs under section 1149 of the Social Security Act (42 
     U.S.C. 1320b-20) and protection and advocacy programs under 
     section 1150 of the Social Security Act (42 U.S.C. 1320b-21); 
     and
       ``(IV) medical assistance under other federally funded 
     programs; and
       ``(iv) for individuals entitled to benefits under title II 
     or XVI of the Social Security Act (42 U.S.C. 401 et seq., 
     1381 et seq.) on the basis of a disability or blindness and 
     eligible for assistance under the Ticket to Work and Self-
     Sufficiency Program established under section 1148 of the 
     Social Security Act (42 U.S.C. 1320b-19), information--
       ``(I) on the options under the Ticket to Work and Self-
     Sufficiency Program; and
       ``(II) on how to contact the program manager of the Ticket 
     to Work and Self-Sufficiency Program who has contact 
     information on approved employment networks, the benefits 
     planning and assistance programs in the area, and the 
     protection and advocacy programs in the area.'';
       (B) in paragraph (2)(E)--
       (i) in clause (i)(II), by striking ``and'' after the 
     semicolon;
       (ii) in clause (ii), by striking the period at the end and 
     inserting ``; and''; and
       (iii) by adding at the end the following:
       ``(iii) amended, as necessary, to include the post-
     employment services and service providers that are necessary 
     for the individual to maintain, regain, or advance in 
     employment, consistent with the individual's strengths, 
     resources, priorities, concerns, abilities, capabilities, 
     interests, and informed choice.''; and
       (C) in paragraph (3)--
       (i) in subparagraph (B)(i)(I), by striking ``and personal 
     assistance services'' and inserting ``mentoring services, and 
     personal assistance services'';
       (ii) in subparagraph (F)(ii), by striking ``and'' after the 
     semicolon;
       (iii) in subparagraph (G), by striking the period at the 
     end and inserting a semicolon; and
       (iv) by adding at the end the following:
       ``(H) for a student with a disability, the description--
       ``(i) in paragraph (3)(A), may be a description of the 
     student's projected post-school employment outcome; and
       ``(ii) in paragraph (3)(B), shall include the specific 
     transition services (including, as appropriate, work 
     experience and mentoring activities) needed to achieve the 
     student's employment outcome or projected employment outcome; 
     and

[[Page 29000]]

       ``(I) for an individual who is receiving assistance under 
     the Ticket to Work and Self-Sufficiency Program established 
     under section 1148 of the Social Security Act (42 U.S.C. 
     1320b-19), a list of services such individual receives from 
     an employment network other than the designated State 
     unit.''; and
       (2) in subsection (c)(7), by inserting ``that take into 
     consideration the informed choice of the individual,'' after 
     ``plan development,''.

     SEC. 414. VOCATIONAL REHABILITATION SERVICES.

       Section 103(a) of the Rehabilitation Act of 1973 (29 U.S.C. 
     723(a)) is amended--
       (1) in paragraph (5), by inserting ``literacy services,'' 
     after ``vocational adjustment services,'';
       (2) in paragraph (17), by striking ``and'' after the 
     semicolon;
       (3) in paragraph (18), by striking the period at the end 
     and inserting ``; and''; and
       (4) by adding at the end the following:
       ``(19) mentoring services.''.

     SEC. 415. STATE REHABILITATION COUNCIL.

       Section 105(b) of the Rehabilitation Act of 1973 (29 U.S.C. 
     725(b)) is amended--
       (1) in paragraph (1)(A), by striking clause (ix) and 
     inserting the following:
       ``(ix) in a State in which 1 or more projects provide 
     services under section 121, not less than 1 representative of 
     the directors of the projects;''; and
       (2) by striking paragraph (5) and inserting the following:
       ``(5) Chairperson.--The Council shall select a chairperson 
     from among the voting membership of the Council.''.

     SEC. 416. EVALUATION STANDARDS AND PERFORMANCE INDICATORS.

       Section 106(b)(2)(B)(i) of the Rehabilitation Act of 1973 
     (29 U.S.C. 726(b)(2)(B)(i)) is amended by striking ``, if 
     necessary'' and all that follows through the semicolon and 
     inserting ``if the State has not improved its performance to 
     acceptable levels, as determined by the Commissioner, direct 
     the State to make further revisions to the plan to improve 
     performance, which may include allocating a higher proportion 
     of the State's resources for services to individuals with 
     disabilities if the State's spending on such services is low 
     in comparison to spending on such services in comparable 
     agencies in other States;''.

     SEC. 417. STATE ALLOTMENTS.

       Section 110 of the Rehabilitation Act of 1973 (29 U.S.C. 
     730) is amended--
       (1) by striking subsection (b) and inserting the following:
       ``(b) Reallotment.--
       ``(1) Determination.--Not later than 45 days prior to the 
     end of the fiscal year, the Commissioner shall determine, 
     after reasonable opportunity for the submission to the 
     Commissioner of comments by the State agency administering or 
     supervising the program established under this title, that 
     any payment of an allotment to a State under section 111(a) 
     for any fiscal year will not be utilized by such State in 
     carrying out the purposes of this title.
       ``(2) Formula.--
       ``(A) In general.--As soon as practicable but not later 
     than the end of the fiscal year, the Commissioner shall 
     reallot the amount available under paragraph (1) to other 
     States, consistent with subparagraphs (B) and (C), for 
     carrying out the purposes of this title to the extent the 
     Commissioner determines such other State will be able to use 
     such additional amount during that fiscal year or the 
     subsequent fiscal year for carrying out such purposes.
       ``(B) Formula.--
       ``(i) Eligible states.--The Commissioner shall reallot the 
     amount available under paragraph (1) for a fiscal year to 
     each State whose allotment under subsection (a) for such 
     fiscal year is less than such State's allotment under 
     subsection (a) for the immediately preceding fiscal year 
     increased by the percentage change in the funds available for 
     subsection (a) from the immediately preceding fiscal year.
       ``(ii) Amount.--

       ``(I) In general.--A State that is eligible to receive a 
     reallotment under clause (i) shall receive an amount for a 
     fiscal year from the amount available for reallotment under 
     paragraph (1) that is equal to the difference between--

       ``(aa) the amount such State received for such fiscal year; 
     and
       ``(bb) the amount such State was allotted under subsection 
     (a) for the immediately preceding fiscal year adjusted by the 
     percentage change in the funds available for subsection (a) 
     from the immediately preceding fiscal year.

       ``(II) Insufficient funds.--If the amount available for 
     reallotment under paragraph (1) is insufficient to provide 
     each State eligible to receive a reallotment with the amount 
     described in subclause (I), the amount reallotted to each 
     eligible State shall be determined by the Commissioner.

       ``(C) Remaining funds.--If there are funds remaining after 
     each State eligible to receive a reallotment under 
     subparagraph (B)(i) receives the amount described in 
     subparagraph (B)(ii), the Commissioner shall reallot the 
     remaining funds among the States requesting a reallotment.
       ``(3) Non-federal share.--The Commissioner shall reallot an 
     amount to a State under this subsection only if the State 
     will be able to make sufficient payments from non-Federal 
     sources to pay for the non-Federal share of the cost of 
     vocational rehabilitation services under the State plan for 
     the fiscal year for which the amount was appropriated.
       ``(4) Increase in allotment.--For the purposes of this 
     part, any amount made available to a State for any fiscal 
     year pursuant to this subsection shall be regarded as an 
     increase of such State's allotment (as determined under the 
     preceding provisions of this section) for such year.''; and
       (2) by striking subsection (c)(2) and inserting the 
     following:
       ``(2)(A) In this paragraph:
       ``(i) The term `appropriated amount' means the amount 
     appropriated under section 100(b)(1) for allotment under this 
     section.
       ``(ii) The term `covered year' means a fiscal year--
       ``(I) that begins after September 30, 2003; and
       ``(II) for which the appropriated amount exceeds the total 
     of--
       ``(aa) the appropriated amount for the preceding fiscal 
     year; and
       ``(bb) 0.075 percent of the appropriated amount for the 
     preceding fiscal year.
       ``(B) For each covered year, the sum referred to in 
     paragraph (1) shall be, as determined by the Secretary--
       ``(i) not less than the total of the sum reserved under 
     this subsection for the preceding fiscal year and 0.1 percent 
     of the appropriated amount for the covered year; and
       ``(ii) not more than 1.5 percent of the appropriated amount 
     for the covered year.''.

     SEC. 418. CLIENT ASSISTANCE PROGRAM.

       Section 112 of the Rehabilitation Act of 1973 (29 U.S.C. 
     732) is amended--
       (1) in subsection (a), by striking ``States'' and inserting 
     ``agencies designated under subsection (c)'';
       (2) in subsection (e)--
       (A) in paragraph (1)--
       (i) in subparagraph (A), by striking ``The Secretary'' and 
     all that follows through the period and inserting the 
     following: ``After reserving funds under subparagraphs (E) 
     and (F), the Secretary shall allot the remainder of the sums 
     appropriated for each fiscal year under this section among 
     the agencies designated under subsection (c) within the 
     States on the basis of relative population of each State, 
     except that no such agency shall receive less than 
     $50,000.'';
       (ii) in subparagraph (B), by inserting ``the designated 
     agencies located in'' after ``each to'';
       (iii) in subparagraph (D)(i)--

       (I) by inserting ``the designated agencies located in'' 
     after ``$100,000 for''; and
       (II) by inserting ``the designated agencies located in'' 
     after ``$45,000 for''; and

       (iv) by adding at the end the following:
       ``(E)(i) Beginning on October 1, 2004, for any fiscal year 
     for which the amount appropriated to carry out this section 
     equals or exceeds $13,000,000, the Secretary shall reserve 
     funds appropriated under this section to make grants to the 
     protection and advocacy system serving the American Indian 
     Consortium to provide client assistance services in 
     accordance with this section. The amount of such grants shall 
     be the same amount as provided to territories under 
     subparagraph (B), as increased under clauses (i) and (ii) of 
     subparagraph (D).
       ``(ii) In this subparagraph:
       ``(I) The term `American Indian Consortium' has the meaning 
     given the term in section 102 of the Developmental 
     Disabilities Assistance and Bill of Rights Act of 2000 (42 
     U.S.C. 15002).
       ``(II) The term `protection and advocacy system' means a 
     protection and advocacy system established under subtitle C 
     of title I of the Developmental Disabilities Assistance and 
     Bill of Rights Act of 2000 (42 U.S.C. 15041 et seq.).
       ``(F) For any fiscal year for which the amount appropriated 
     to carry out this section equals or exceeds $14,000,000, the 
     Secretary shall reserve not less than 1.8 percent and not 
     more than 2.2 percent of such amount to provide training and 
     technical assistance to the programs established under this 
     section. Such training and technical assistance shall be 
     coordinated with activities provided under section 
     509(c)(1)(A).'';
       (B) in paragraph (2)--
       (i) by striking ``State'' each place such term appears and 
     inserting ``designated agency''; and
       (ii) by striking ``States'' each place such term appears 
     and inserting ``designated agencies''; and
       (C) in paragraph (3), by striking ``Except as specifically 
     prohibited by or as otherwise provided in State law, the 
     Secretary shall pay'' and inserting ``The Secretary shall pay 
     directly'';
       (3) in subsection (f), by striking ``State'' and inserting 
     ``agency designated under subsection (c)''; and
       (4) in subsection (h), by striking ``fiscal years 1999 
     through 2003'' and inserting ``fiscal years 2004 through 
     2009''.

     SEC. 419. INCENTIVE GRANTS.

       Part B of title I of the Rehabilitation Act of 1973 (29 
     U.S.C. 730 et seq.) is amended by adding at the end the 
     following:

     ``SEC. 113. INCENTIVE GRANTS.

       ``(a) Authority.--The Commissioner is authorized to make 
     incentive grants to States that, based on the criteria 
     established under subsection (b)(1), demonstrate--
       ``(1) a high level of performance; or
       ``(2) a significantly improved level of performance as 
     compared to the previous reporting period or periods.
       ``(b) Criteria.--
       ``(1) Establishment.--Not later than 180 days after the 
     date of enactment of this section, the Commissioner shall 
     establish, and publish in the Federal Register, criteria for 
     making grant awards under subsection (a).
       ``(2) Development and evaluation standards.--The criteria 
     under paragraph (1) shall--

[[Page 29001]]

       ``(A) be developed with input from State vocational 
     rehabilitation agencies and other vocational rehabilitation 
     stakeholders, including vocational rehabilitation consumers 
     and consumer organizations; and
       ``(B) be based upon the evaluation standards and 
     performance indicators established under section 106 and 
     other performance related measures that the Commissioner 
     determines to be appropriate.
       ``(c) Use of Funds.--A State that receives a grant under 
     subsection (a) shall use the grant funds for any approved 
     activities in the State's State plan submitted under section 
     101.
       ``(d) No Non-Federal Share Requirement.--The provisions of 
     sections 101(a)(3) and 111(a)(2) shall not apply to this 
     section.
       ``(e) Authorization of Appropriations.--There are 
     authorized to be appropriated to carry out this section such 
     sums as may be necessary for each of fiscal years 2004 
     through 2009.''.

     SEC. 420. VOCATIONAL REHABILITATION SERVICES GRANTS.

       Section 121 of the Rehabilitation Act of 1973 (29 U.S.C. 
     741) is amended--
       (1) in subsection (a), in the first sentence, by inserting 
     ``, consistent with such individuals' strengths, resources, 
     priorities, concerns, abilities, capabilities, interests, and 
     informed choice, so that such individuals may prepare for, 
     and engage in, gainful employment'' before the period at the 
     end; and
       (2) in subsection (b)--
       (A) in paragraph (1)--
       (i) in subparagraph (B), by striking ``and'' after the 
     semicolon;
       (ii) in subparagraph (C), by striking the period at the end 
     and inserting ``; and''; and
       (iii) by adding at the end the following:
       ``(D) contains assurances that--
       ``(i) all decisions affecting eligibility for vocational 
     rehabilitation services, the nature and scope of available 
     services, and the provision of such services, will be made by 
     a representative of the tribal vocational rehabilitation 
     program; and
       ``(ii) such decisions will not be delegated to another 
     agency or individual.'';
       (B) in paragraph (3), by striking the first sentence and 
     inserting the following: ``An application approved under this 
     part that complies with the program requirements set forth in 
     the regulations promulgated to carry out this part shall be 
     effective for 5 years and shall be renewed for additional 5-
     year periods if the Commissioner determines that the grantee 
     demonstrated acceptable past performance and the grantee 
     submits a plan, including a proposed budget, to the 
     Commissioner that the Commissioner approves that identifies 
     future performance criteria, goals, and objectives.''; and
       (C) by striking paragraph (4) and inserting the following:
       ``(4) In allocating funds under this part, the Secretary 
     shall give priority to paying the continuation costs of 
     existing projects and may provide for increases in funding 
     for such projects as determined necessary.''.

     SEC. 421. GAO STUDIES.

       (a) Study on Title I and Ticket to Work.--
       (1) In general.--The Comptroller General of the United 
     States shall conduct a study on the interaction of title I of 
     the Rehabilitation Act of 1973 (29 U.S.C. 720 et seq.) with 
     the Ticket to Work and Self-Sufficiency Program established 
     under section 1148 of the Social Security Act (42 U.S.C. 
     1320b-19), including the impact of the interaction on 
     beneficiaries, community rehabilitation programs, and State 
     vocational rehabilitation agencies.
       (2) Conduct of study.--In conducting the study under 
     paragraph (1), the Comptroller General of the United States 
     shall consult with all participants in the Ticket to Work and 
     Self-Sufficiency Program, including the Social Security 
     Administration, the Rehabilitation Services Administration, 
     ticketholders, State agencies, community rehabilitation 
     programs (including employment networks and nonemployment 
     networks), protection and advocacy agencies, MAXIMUS, and 
     organizations representing the interests of ticketholders.
       (3) Report to congress.--Not later than 18 months after the 
     date of enactment of this title, the Comptroller General of 
     the United States shall submit the study conducted pursuant 
     to this subsection to the appropriate committees of Congress.
       (b) Study on the Allotment Formula.--
       (1) In general.--The Comptroller General of the United 
     States shall conduct a study on the relationship between the 
     State allotment formula under section 110 of the 
     Rehabilitation Act of 1973 (29 U.S.C. 730) and the ability of 
     States to provide vocational rehabilitation services in 
     accordance with the State's State plan under section 101 of 
     such Act.
       (2) Conduct of study.--In conducting the study under 
     paragraph (1), the Comptroller General of the United States 
     shall consult with appropriate entities.
       (3) Report to congress.--Not later than 12 months after the 
     date of enactment of this title, the Comptroller General of 
     the United States shall submit the study conducted pursuant 
     to this subsection to the appropriate committees of Congress.

                   Subtitle B--Research and Training

     SEC. 431. AUTHORIZATION OF APPROPRIATIONS.

       Section 201(a) of the Rehabilitation Act of 1973 (29 U.S.C. 
     761(a)) is amended--
       (1) in paragraph (1), by striking ``fiscal years 1999 
     through 2003'' and inserting ``fiscal years 2004 through 
     2009''; and
       (2) in paragraph (2), by striking ``fiscal years 1999 
     through 2003'' and inserting ``fiscal years 2004 through 
     2009''.

     SEC. 432. NATIONAL INSTITUTE ON DISABILITY AND REHABILITATION 
                   RESEARCH.

       Section 202(f)(1) of the Rehabilitation Act of 1973 (29 
     U.S.C. 762(f)(1)) is amended by striking ``Federal 
     employees'' and inserting ``Department of Education 
     employees''.

     SEC. 433. RESEARCH AND OTHER COVERED ACTIVITIES.

       Section 204(c)(2) of the Rehabilitation Act of 1973 (29 
     U.S.C. 764(c)(2)) is amended by striking ``$500,000'' and 
     inserting ``$750,000''.

     SEC. 434. REHABILITATION RESEARCH ADVISORY COUNCIL.

       Section 205(c) of the Rehabilitation Act of 1973 (29 U.S.C. 
     765(c)) is amended by adding at the end the following: ``The 
     Council also shall include a representative from the business 
     community who has experience with the vocational 
     rehabilitation system and hiring individuals with 
     disabilities.''.

     Subtitle C--Professional Development and Special Projects and 
                             Demonstrations

     SEC. 441. TRAINING.

       Section 302 of the Rehabilitation Act of 1973 (29 U.S.C. 
     772) is amended--
       (1) in subsection (b)(1)(B)(i), by striking ``or 
     prosthetics and orthotics'' and inserting ``prosthetics and 
     orthotics, rehabilitation for the blind, or orientation and 
     mobility instruction''; and
       (2) in subsection (i), by striking ``fiscal years 1999 
     through 2003'' and inserting ``fiscal years 2004 through 
     2009''.

     SEC. 442. DEMONSTRATION AND TRAINING PROGRAMS.

       Section 303 of the Rehabilitation Act of 1973 (29 U.S.C. 
     773) is amended--
       (1) in subsection (b)(5)(A)(i), by striking ``special 
     projects'' and inserting ``not less than 2 special 
     projects'';
       (2) by redesignating subsections (c), (d), and (e) as 
     subsections (e), (f), and (h), respectively;
       (3) by inserting after subsection (b) the following:
       ``(c) Demonstration Projects for Employment of Students 
     With Intellectual Disabilities or Mental Illness.--
       ``(1) Purpose.--The purpose of this subsection is to 
     support model demonstration projects to provide supported and 
     competitive employment experiences for students with 
     intellectual disabilities or students with mental illness, 
     and training for personnel that work with students described 
     in this paragraph, to enable the students to gain employment 
     skills and experience that will promote effective transitions 
     from school to employment and adult living.
       ``(2) Grants authorized.--
       ``(A) Competitive grants authorized.--The Secretary may 
     award grants, contracts, and cooperative agreements, on a 
     competitive basis, to eligible organizations described in 
     paragraph (3), to enable the organizations to carry out 
     demonstration projects described in paragraph (1).
       ``(B) Duration.--The Secretary shall award grants under 
     this subsection for periods of 3 to 5 years.
       ``(3) Eligible organizations.--To be eligible to receive a 
     grant, contract, or cooperative agreement under this 
     subsection, an organization shall--
       ``(A) have expertise in providing employment and support 
     services for individuals with intellectual disabilities or 
     individuals with mental illness;
       ``(B) have a proven track record in successfully running 
     supported employment programs;
       ``(C) provide employment services that are exclusively 
     integrated community-based supported employment services;
       ``(D) have expertise in creating natural supports for 
     employment;
       ``(E) have expertise in providing computer training for the 
     targeted population for the project involved; and
       ``(F) have experience operating mentoring programs for the 
     target population in middle and high schools for at least a 
     decade in diverse communities throughout the Nation.
       ``(4) Applications.--Each organization desiring to receive 
     a grant, contract, or cooperative agreement under this 
     subsection shall submit an application to the Secretary at 
     such time, in such manner, and including such information as 
     the Secretary may require. Each application shall include--
       ``(A) a description of how the organization plans to carry 
     out the activities authorized in this subsection through a 
     demonstration project;
       ``(B) a description of how the organization will evaluate 
     the project;
       ``(C) a description of how the organization will 
     disseminate information about the activities and the impact 
     of the activities on the lives of students served by the 
     project; and
       ``(D) a description of how the organization will coordinate 
     activities with any other relevant service providers in the 
     locality where the organization is based, including federally 
     supported independent living centers.
       ``(5) Authorized activities.--An organization that receives 
     a grant under this subsection shall use the funds made 
     available through the grant to carry out 1 or more of the 
     following activities for individuals, ages 14 through 21, who 
     are students with intellectual disabilities or students with 
     mental illness:
       ``(A) Providing supported and competitive employment 
     experiences.--The development of innovative and effective 
     supported and competitive employment experiences after 
     school, on weekends, and in the summer, utilizing natural 
     supports that lead to competitive high-paying jobs.

[[Page 29002]]

       ``(B) Providing training to school and transition 
     personnel.--The development and deployment of experts to work 
     with transition programs (including personnel working with 
     students on transition) so that personnel from the programs 
     develop skills needed to train students with intellectual 
     disabilities or students with mental illness to be successful 
     in competitive employment in a range of settings, including 
     office settings. The training shall include training for the 
     personnel in providing instruction to students in computer 
     skills, office skills, interview etiquette, and appropriate 
     social behavior required for successful long-term employment 
     in professional environments.
       ``(6) Authorization of appropriations.--There are 
     authorized to be appropriated to carry out this subsection 
     $5,000,000 for fiscal year 2004 and such sums as may be 
     necessary for fiscal years 2005 through 2008.
       ``(d) Demonstration Project for Employment of Individuals 
     who are Deaf and Low Functioning.--
       ``(1) Purpose.--It is the purpose of this subsection to 
     support a model demonstration project to provide training and 
     support services for individuals who are deaf and low 
     functioning to enable them to gain employment skills that 
     will allow them to become employed and economically self-
     sufficient.
       ``(2) Definition.--
       ``(A) In general.--In this subsection, the term `individual 
     who is deaf and low functioning' means an individual who has 
     been deaf from birth or very early childhood, reads at or 
     below the second grade level, has little or no intelligible 
     speech, and lacks a high school diploma or GED.
       ``(B) Secondary disabilities.--Such term may include an 
     individual with a secondary disability.
       ``(3) Grants authorized.--
       ``(A) Competitive grants authorized.--The Secretary may 
     award grants to State agencies, other public agencies or 
     organizations, or not-for-profit organizations with expertise 
     in providing employment training and support services for 
     individuals who are deaf and low functioning to support model 
     demonstration projects.
       ``(B) Duration.--Grants under this subsection shall be 
     awarded for a period not to exceed 5 years.
       ``(4) Authorized activities.--
       ``(A) Developing a comprehensive training program.--Each 
     grant recipient shall develop an innovative, comprehensive 
     program of instruction for individuals who are deaf and low 
     functioning that can be implemented at multiple training 
     locations through such means as distance learning and use of 
     advanced technology, as appropriate. Such training program 
     shall be developed to maximize the potential for replication 
     of the program by other training providers.
       ``(B) Implementation.--Each grant recipient shall implement 
     the comprehensive training program developed in subparagraph 
     (A) as soon as feasible. Such training shall provide 
     instruction on the job and the social skills necessary for 
     successful long-term employment of individuals who are deaf 
     and low functioning.
       ``(C) Establishing a post-training program of employment 
     and support services.--Each grant recipient shall implement 
     employment and support services to assist individuals who 
     complete the training program under subparagraph (A) in 
     securing employment and transitioning to the workplace for a 
     period of not less than 90 days subsequent to placement.
       ``(5) Applications.--Each entity desiring to receive a 
     grant under this subsection shall submit an application to 
     the Secretary at such time, in such manner, and accompanied 
     by such information as the Secretary may require including--
       ``(A) a description of how the applicant plans to address 
     the activities authorized under this subsection;
       ``(B) a description of the evaluation plan to be used in 
     the project;
       ``(C) a description of how the applicant will disseminate 
     information about the training program developed and the 
     results of the model demonstration project; and
       ``(D) a description of how the project will coordinate with 
     any other relevant service providers or entities providing 
     employment training and supports for individuals who are deaf 
     and low functioning.
       ``(6) Mandated evaluation and dissemination activities.--
       ``(A) Annual report.--Not later than 2 years after the date 
     on which a grant under this subsection is awarded and 
     annually thereafter, each grant recipient shall submit to the 
     Commissioner a report containing--
       ``(i) the number of individuals who are participating in 
     the demonstration project funded under this subsection;
       ``(ii) the employment and other skills being taught in the 
     project;
       ``(iii) the number of individuals participating in the 
     project that are placed in employment;
       ``(iv) the job sites in which those individuals are placed 
     and the type of jobs they are placed in; and
       ``(v) the number of individuals who have dropped out of the 
     project and the reasons for their terminating participation 
     in the project.
       ``(B) Evaluation of the project.--Each grant recipient 
     shall implement the evaluation plan approved in its 
     application for determining the results of the project within 
     the timeframe specified in, and following the provisions of, 
     its approved application.
       ``(C) Participant evaluation process; final evaluation.--In 
     the final year of the project, the grant recipient will 
     produce a final evaluation report of the results of the model 
     demonstration project containing--
       ``(i) the number of individuals who participated in the 
     training program;
       ``(ii) a description of the job sites in which those 
     individuals were placed;
       ``(iii) the number of individuals placed in employment and 
     the type of employment in which they were placed;
       ``(iv) the number of individuals who did not complete their 
     training and the reasons those individuals dropped out of the 
     project;
       ``(v) the number of individuals who participated in the 
     training project and who remain employed as of 2 months prior 
     to the date on which the final report is submitted to the 
     Secretary;
       ``(vi) a written analysis of the model project, including 
     both the strengths and weaknesses of the project, to assist 
     other entities in replicating the training program developed 
     through this model demonstration project; and
       ``(vii) such other information as the Secretary determines 
     appropriate.
       ``(D) Dissemination.--Not later than 5 years after the date 
     on which an award is granted under this subsection, the 
     evaluations and results of activities funded by such grant 
     shall be disseminated to State vocational rehabilitation 
     agencies, school systems providing instruction to students 
     who are deaf, supported employment providers, postsecondary 
     vocational training programs, employers, the Social Security 
     Administration, and other interested parties.
       ``(7) Authorization of appropriations.--There are 
     authorized to be appropriated to carry out this subsection, 
     $5,000,000 for fiscal year 2004 and such sums as may be 
     necessary for each of fiscal years 2005 through 2008.'';
       (4) by inserting after subsection (f), as redesignated by 
     paragraph (2), the following:
       ``(g) Access to Telework.--
       ``(1) Definition of telework.--In this subsection, the term 
     `telework' means to work from home and other telework sites 
     with the assistance of a computer and with reasonable 
     accommodations, including the necessary equipment to 
     facilitate successful work from home and other telework 
     sites.
       ``(2) Authorization of program.--The Commissioner is 
     authorized to make grants to States and governing bodies of 
     American Indian tribes located on Federal and State 
     reservations (and consortia of such governing bodies) to pay 
     for the Federal share of the cost of establishing or 
     expanding a telework program.
       ``(3) Application.--A State that desires to receive a grant 
     under this subsection shall submit an application to the 
     Commissioner at such time, in such manner, and containing 
     such information as the Commissioner may require.
       ``(4) Use of funds.--A State that receives a grant under 
     this subsection shall establish or expand a telework program 
     that shall provide loans or other alternative financing 
     mechanisms to individuals with disabilities to enable such 
     individuals to purchase computers or other equipment, 
     including adaptive equipment, that facilitates work from home 
     and other telework sites so that such individuals are able to 
     telework.
       ``(5) Annual report.--
       ``(A) In general.--A State that receives a grant under this 
     subsection shall submit an annual report to the Commissioner.
       ``(B) Contents.--The report under subparagraph (A) shall 
     include the following:
       ``(i) The characteristics of each individual with a 
     disability that receives a loan or other alternative 
     financing mechanism under the program, including information 
     about the individual such as the following:

       ``(I) Age.
       ``(II) Ethnicity.
       ``(III) Type of disability.
       ``(IV) Employment status at the time of application for a 
     loan or other alternative financing mechanism under this 
     subsection.
       ``(V) Whether the individual attempted to secure financial 
     support from other sources to enable the individual to 
     telework and, if so, a description of such sources.
       ``(VI) Whether the individual is working and, if so, 
     whether the individual teleworks, the occupation in which the 
     individual is working, the hourly salary the individual 
     receives, and the hourly salary of the individual prior to 
     receiving a loan or other alternative financing mechanism 
     under the program.
       ``(VII) Whether the individual has repaid the loan or other 
     alternative financing mechanism received under the program, 
     is in repayment status, is delinquent on repayments, or has 
     defaulted on the loan or other alternative financing 
     mechanism.

       ``(ii) Any other information that the Commissioner may 
     require.
       ``(6) Federal share.--The Federal share of the cost of 
     establishing a telework program shall be 10 percent of the 
     cost.''; and
       (5) in subsection (h), as redesignated by paragraph (2)--
       (A) by striking ``this section'' and inserting ``this 
     section (other than subsections (c) and (d))''; and
       (B) by striking ``fiscal years 1999 through 2003'' and 
     inserting ``fiscal years 2004 through 2009''.

     SEC. 443. MIGRANT AND SEASONAL FARMWORKERS.

       Section 304(b) of the Rehabilitation Act of 1973 (29 U.S.C. 
     774(b)) is amended by striking ``fiscal years 1999 through 
     2003'' and inserting ``fiscal years 2004 through 2009''.

     SEC. 444. RECREATIONAL PROGRAMS.

       Section 305 of the Rehabilitation Act of 1973 (29 U.S.C. 
     775) is amended--

[[Page 29003]]

       (1) in subsection (a)(1)(B), by striking ``construction of 
     facilities for aquatic rehabilitation therapy,''; and
       (2) in subsection (b), by striking ``fiscal years 1999 
     through 2003'' and inserting ``fiscal years 2004 through 
     2009''.

               Subtitle D--National Council on Disability

     SEC. 451. AUTHORIZATION OF APPROPRIATIONS.

       Section 405 of the Rehabilitation Act of 1973 (29 U.S.C. 
     785) is amended by striking ``fiscal years 1999 through 
     2003'' and inserting ``fiscal years 2004 through 2009''.

                    Subtitle E--Rights and Advocacy

     SEC. 461. ARCHITECTURAL AND TRANSPORTATION BARRIERS 
                   COMPLIANCE BOARD.

       Section 502(j) of the Rehabilitation Act of 1973 (29 U.S.C. 
     792(j)) is amended by striking ``fiscal years 1999 through 
     2003'' and inserting ``fiscal years 2004 through 2009''.

     SEC. 462. PROTECTION AND ADVOCACY OF INDIVIDUAL RIGHTS.

       Section 509 of the Rehabilitation Act of 1973 (29 U.S.C. 
     794e) is amended--
       (1) in subsection (g)(2), by striking ``was paid'' and 
     inserting ``was paid, except that program income generated 
     from the amount paid to an eligible system shall remain 
     available to such system until expended''; and
       (2) in subsection (l), by striking ``fiscal years 1999 
     through 2003'' and inserting ``fiscal years 2004 through 
     2009''.

 Subtitle F--Employment Opportunities for Individuals With Disabilities

     SEC. 471. PROJECTS WITH INDUSTRY AUTHORIZATION OF 
                   APPROPRIATIONS.

       Section 612 of the Rehabilitation Act of 1973 (29 U.S.C. 
     795a) is amended by striking ``fiscal years 1999 through 
     2003'' and inserting ``fiscal years 2004 through 2009''.

     SEC. 472. SERVICES FOR INDIVIDUALS WITH SIGNIFICANT 
                   DISABILITIES AUTHORIZATION OF APPROPRIATIONS.

       Section 628 of the Rehabilitation Act of 1973 (29 U.S.C. 
     795n) is amended by striking ``fiscal years 1999 through 
     2003'' and inserting ``fiscal years 2004 through 2009''.

  Subtitle G--Independent Living Services and Centers for Independent 
                                 Living

     SEC. 481. STATE PLAN.

       Section 704 of the Rehabilitation Act of 1973 (42 U.S.C. 
     795c) is amended by adding at the end the following:
       ``(o) Promoting Full Access to Community Life.--The plan 
     shall describe how the State will provide independent living 
     services that promote full access to community life for 
     individuals with significant disabilities. The services shall 
     include, as appropriate, facilitating transitions from 
     nursing homes and other institutions, including institutions 
     serving individuals with cognitive disabilities, to 
     community-based residences, assisting individuals with 
     significant disabilities at risk of entering institutions to 
     remain in the community, and promoting home ownership among 
     individuals with significant disabilities.''.

     SEC. 482. STATEWIDE INDEPENDENT LIVING COUNCIL.

       (a) Section 705(b) of the Rehabilitation Act of 1973 (29 
     U.S.C. 796d(b)) is amended--
       (1) in paragraph (2), by striking subparagraph (C) and 
     inserting the following:
       ``(C) in a State in which 1 or more projects provide 
     services under section 121, not less than 1 representative of 
     the directors of the projects.''; and
       (2) by striking paragraph (5) and inserting the following:
       ``(5) Chairperson.--The Council shall select a chairperson 
     from among the voting membership of the Council.''.

     SEC. 483. INDEPENDENT LIVING SERVICES AUTHORIZATION OF 
                   APPROPRIATIONS.

       Section 714 of the Rehabilitation Act of 1973 (29 U.S.C. 
     796e-3) is amended by striking ``fiscal years 1999 through 
     2003'' and inserting ``fiscal years 2004 through 2009''.

     SEC. 484. PROGRAM AUTHORIZATION.

       Section 721 of the Rehabilitation Act of 1973 (42 U.S.C. 
     796f) is amended--
       (1) by striking subsection (c) and inserting the following:
       ``(c) Allotments to States.--
       ``(1) Definitions.--In this subsection:
       ``(A) Additional appropriation.--The term `additional 
     appropriation' means the amount (if any) by which the 
     appropriation for a fiscal year exceeds the total of--
       ``(i) the amount reserved under subsection (b) for that 
     fiscal year; and
       ``(ii) the appropriation for fiscal year 2003.
       ``(B) Appropriation.--The term `appropriation' means the 
     amount appropriated to carry out this part.
       ``(C) Base appropriation.--The term `base appropriation' 
     means the portion of the appropriation for a fiscal year that 
     is equal to the lesser of--
       ``(i) an amount equal to 100 percent of the appropriation, 
     minus the amount reserved under subsection (b) for that 
     fiscal year; or
       ``(ii) the appropriation for fiscal year 2003.
       ``(2) Allotments to states from base appropriation.--After 
     the reservation required by subsection (b) has been made, the 
     Commissioner shall allot to each State whose State plan has 
     been approved under section 706 an amount that bears the same 
     ratio to the base appropriation as the amount the State 
     received under this subsection for fiscal year 2003 bears to 
     the total amount that all States received under this 
     subsection for fiscal year 2003.
       ``(3) Allotments to states of additional appropriation.--
     From any additional appropriation for each fiscal year, the 
     Commissioner shall allot to each State whose State plan has 
     been approved under section 706 an amount equal to the sum 
     of--
       ``(A) an amount that bears the same ratio to 50 percent of 
     the additional appropriation as the population of the State 
     bears to the population of all States; and
       ``(B) \1/56\ of 50 percent of the additional 
     appropriation.''; and
       (2) by adding at the end the following:
       ``(e) Carryover Authority.--Notwithstanding any other 
     provision of law--
       ``(1) any funds appropriated for a fiscal year to carry out 
     a grant program under section 722 or 723, that are not 
     obligated and expended by recipients prior to the beginning 
     of the succeeding fiscal year shall remain available for 
     obligation and expenditure by such recipients during that 
     succeeding fiscal year and the subsequent fiscal year; and
       ``(2) any amounts of program income received by recipients 
     under a grant program under section 722 or 723 in a fiscal 
     year that are not obligated and expended by recipients prior 
     to the beginning of the succeeding fiscal year, shall remain 
     available for obligation and expenditure by such recipients 
     during that succeeding fiscal year and the subsequent fiscal 
     year.''.

     SEC. 485. GRANTS TO CENTERS FOR INDEPENDENT LIVING IN STATES 
                   IN WHICH FEDERAL FUNDING EXCEEDS STATE FUNDING.

       Section 722(c) of the Rehabilitation Act of 1973 (29 U.S.C. 
     796f-1(c)) is amended by striking ``by September 30, 1997'' 
     and inserting ``during the preceding year''.

     SEC. 486. GRANTS TO CENTERS FOR INDEPENDENT LIVING IN STATES 
                   IN WHICH STATE FUNDING EQUALS OR EXCEEDS 
                   FEDERAL FUNDING.

       Section 723(c) of the Rehabilitation Act of 1973 (29 U.S.C. 
     796f-2(c)) is amended by striking ``by September 30, 1997'' 
     and inserting ``during the preceding year''.

     SEC. 487. STANDARDS AND ASSURANCES FOR CENTERS FOR 
                   INDEPENDENT LIVING.

       Section 725(b) of the Rehabilitation Act of 1973 (29 U.S.C. 
     796f-4(b)) is amended by adding at the end the following:
       ``(8) Promoting full access to community life.--The center 
     shall provide independent living services that promote full 
     access to community life for individuals with significant 
     disabilities. The services shall include, as appropriate, 
     facilitating transitions from nursing homes and other 
     institutions, including institutions serving individuals with 
     cognitive disabilities, to community-based residences, 
     assisting individuals with significant disabilities at risk 
     of entering institutions to remain in the community, and 
     promoting home ownership among individuals with significant 
     disabilities.''.

     SEC. 488. CENTERS FOR INDEPENDENT LIVING AUTHORIZATION OF 
                   APPROPRIATIONS.

       Section 727 of the Rehabilitation Act of 1973 (29 U.S.C. 
     796f-6) is amended by striking ``fiscal years 1999 through 
     2003'' and inserting ``fiscal years 2004 through 2009''.

     SEC. 489. INDEPENDENT LIVING SERVICES FOR OLDER INDIVIDUALS 
                   WHO ARE BLIND.

       Chapter 2 of title VII of the Rehabilitation Act of 1973 
     (29 U.S.C. 796j et seq.) is amended--
       (1) by redesignating sections 752 and 753 as sections 753 
     and 754, respectively; and
       (2) by inserting after section 751 the following:

     ``SEC. 752. TRAINING AND TECHNICAL ASSISTANCE.

       ``(a) Grants; Contracts; Other Arrangements.--For any 
     fiscal year for which the funds appropriated to carry out 
     this chapter exceed the funds appropriated to carry out this 
     chapter for fiscal year 2003, the Commissioner shall first 
     reserve from such excess, to provide training and technical 
     assistance to designated State agencies for such fiscal year, 
     not less than 1.8 percent, and not more than 2 percent, of 
     the funds appropriated to carry out this chapter for the 
     fiscal year involved.
       ``(b) Allocation.--From the funds reserved under subsection 
     (a), the Commissioner shall make grants to, and enter into 
     contracts and other arrangements with, entities that 
     demonstrate expertise in the provision of services to older 
     individuals who are blind to provide training and technical 
     assistance with respect to planning, developing, conducting, 
     administering, and evaluating independent living programs for 
     older individuals who are blind.
       ``(c) Funding Priorities.--The Commissioner shall conduct a 
     survey of designated State agencies that receive grants under 
     section 753 regarding training and technical assistance needs 
     in order to determine funding priorities for grants, 
     contracts, and other arrangements under this section.
       ``(d) Review.--To be eligible to receive a grant or enter 
     into a contract or other arrangement under this section, an 
     eligible entity shall submit an application to the 
     Commissioner at such time, in such manner, containing a 
     proposal to provide such training and technical assistance, 
     and containing such additional information as the 
     Commissioner may require.
       ``(e) Prohibition on Combined Funds.--No funds reserved by 
     the Commissioner under this section may be combined with 
     funds appropriated under any other Act or part of this Act if 
     the purpose of combining funds is to make a single 
     discretionary grant or a single discretionary payment, unless 
     such funds appropriated under this chapter are separately 
     identified in such grant or payment and are used for the 
     purposes of this chapter.''.

[[Page 29004]]



     SEC. 490. PROGRAM OF GRANTS.

       Section 753 of the Rehabilitation Act of 1973, as 
     redesignated by section 489, is amended--
       (1) in subsection (g), by inserting ``, or contracts 
     with,'' after ``grants to'';
       (2) by striking subsection (h);
       (3) by redesignating subsections (i) and (j) as subsections 
     (h) and (i), respectively;
       (4) in subsection (b), by striking ``section 753'' and 
     inserting ``section 754'';
       (5) in subsection (c)--
       (A) in paragraph (1), by striking ``section 753'' and 
     inserting ``section 754''; and
       (B) in paragraph (2)--
       (i) by striking ``subsection (i)'' and inserting 
     ``subsection (h)''; and
       (ii) by striking ``subsection (j)'' and inserting 
     ``subsection (i)'';
       (6) in subsection (h), as redesignated by paragraph (3)--
       (A) in paragraph (1), by striking ``subsection (j)(4)'' and 
     inserting ``subsection (i)(4)''; and
       (B) in paragraph (2)--
       (i) in subparagraph (A)(vi), by adding ``and'' after the 
     semicolon;
       (ii) in subparagraph (B)(ii)(III), by striking ``; and'' 
     and inserting a period; and
       (iii) by striking subparagraph (C); and
       (7) in subsection (i), as redesignated by paragraph (3)--
       (A) by striking paragraph (2) and inserting the following:
       ``(2) Minimum allotment.--
       ``(A) States.--In the case of the several States, the 
     District of Columbia, and the Commonwealth of Puerto Rico, 
     the amount referred to in paragraph (1)(A) for a fiscal year 
     is the greater of--
       ``(i) $350,000;
       ``(ii) an amount equal to the amount the State, the 
     District of Columbia, or the Commonwealth of Puerto Rico 
     received to carry out this chapter for fiscal year 2003; or
       ``(iii) an amount equal to \1/3\ of 1 percent of the amount 
     appropriated under section 754, and not reserved under 
     section 752, for the fiscal year and available for allotments 
     under subsection (a).
       ``(B) Certain territories.--In the case of Guam, American 
     Samoa, the United States Virgin Islands, and the Commonwealth 
     of the Northern Mariana Islands, the amount referred to in 
     paragraph (1)(A) for a fiscal year is $60,000.'';
       (B) in paragraph (3)(A), by striking ``section 753'' and 
     inserting ``section 754, and not reserved under section 
     752,''; and
       (C) in paragraph (4)(B)(i), by striking ``subsection (i)'' 
     and inserting ``subsection (h)''.

     SEC. 491. INDEPENDENT LIVING SERVICES FOR OLDER INDIVIDUALS 
                   WHO ARE BLIND AUTHORIZATION OF APPROPRIATIONS.

       Section 754 of the Rehabilitation Act of 1973, as 
     redesignated by section 489, is amended by striking ``fiscal 
     years 1999 through 2003'' and inserting ``fiscal years 2004 
     through 2009''.

                       Subtitle H--Miscellaneous

     SEC. 495. HELEN KELLER NATIONAL CENTER ACT.

       (a) General Authorization of Appropriations.--The first 
     sentence of section 205(a) of the Helen Keller National 
     Center Act (29 U.S.C. 1904(a)) is amended by striking ``1999 
     through 2003'' and inserting ``2004 through 2009''.
       (b) Helen Keller National Center Federal Endowment Fund.--
     The first sentence of section 208(h) of the Helen Keller 
     National Center Act (29 U.S.C. 1907(h)) is amended by 
     striking ``1999 through 2003'' and inserting ``2004 through 
     2009''.

                 TITLE V--TRANSITION AND EFFECTIVE DATE

     SEC. 501. TRANSITION PROVISIONS.

       The Secretary of Labor shall, at the discretion of the 
     Secretary, take such actions as the Secretary determines to 
     be appropriate to provide for the orderly implementation of 
     titles I and III of this Act. The Secretary of Education 
     shall, at the discretion of the Secretary, take such actions 
     as the Secretary determines to be appropriate to provide for 
     the orderly implementation of titles II and IV of this Act.

     SEC. 502. EFFECTIVE DATE.

       Except as otherwise provided in this Act, this Act and the 
     amendments made by this Act shall take effect on the date of 
     enactment of this Act.

  Mr. KENNEDY. Mr. President, it is a privilege to join my colleagues 
to support a bipartisan bill to reauthorize the Workforce Investment 
Act and increase the opportunities for workers to obtain the services 
and training they need to hold good jobs in the years ahead.
  This bill strengthens the current one-stop system, so that many more 
can be served in the system we created in 1998. The bill creates 
stronger partnerships with businesses to recruit new workers, 
collaborate in training of current workers, improve career ladder 
opportunities, and work with local leaders to meet the development 
needs of their community.
  The one-stop system is needed more than ever now, to serve hard-
working Americans who have lost their job through no fault of their own 
in the current economic downturn, who need effective training to be 
eligible for the available jobs in their area.
  We have worked to remove the sequencing of services for people 
entering the workforce who face barriers to employment. Providers can 
move adults directly to skills training or create training programs 
that include literacy and language training as well, so that skills 
training is not delayed.
  The bill also encourages local providers to stay with workers until 
they earn self-sufficient wages. A minimum wage is a start--and the 
support system should be there to help them qualify for the better 
paying jobs that will enable them to support their families.
  The bill will also help young people. Last summer, as the youth 
unemployment rate rose to 19 percent, we were all acutely aware of the 
special challenges that young workers face in this economy. The youth 
program will continue to work with both in-school and out-of-school 
youth to help them obtain the education and the real job experience 
they need to be competitive.
  The bill also contains the Adult Literacy Act, which funds critical 
programs in States to assist adults in obtaining the basic reading, 
writing, numeracy, and English language skills that they need to be 
full participants in the workplace and in society at large. We all know 
that education is the great equalizer. Improving basic literacy 
services is a critical component of job training as well.
  Finally, this bill also contains the Vocational Rehabilitation Act. 
For over 30 years, since the Vocational Rehabilitation Act was first 
enacted in 1973, State vocational rehabilitation systems have brought 
new hope to individuals with disabilities throughout the country, so 
that they can reach their full potential and actively participate in 
their communities.
  Through vocational rehabilitation, individuals with disabilities can 
obtain the training, counseling, support, and job opportunities they 
need in order to have independent, productive, and fulfilling lives. 
For millions of these Americans, vocational rehabilitation is the 
difference between dependence and independence, between lost potential 
and a productive career.
  In 1998, vocational rehabilitation became part of the State-wide work 
force system in each State. This reauthorization will strengthen that 
partnership, so that many more working-age individuals with 
disabilities, even those with the most significant disabilities, have 
realistic opportunities to obtain the services and support they need to 
reach their employment goals.
  The legislation also strengthens other aspects of independent living, 
so that students and adults with disabilities receive the services and 
support they need for community-based living.
  Our goal in this reauthorization is to see that the talents and 
strengths of all individuals with disabilities are recognized, 
enhanced, and fairly rewarded in communities and workplaces across the 
Nation.
  I thank my colleagues and the many organizations representing 
governors, mayors, county officials, youth, women, labor, and low-
income persons who were all actively involved in preparing this 
legislation. We have tried to listen carefully to the many leaders who 
implement these laws.
  This bipartisan bill was the result of months of dedicated staff 
work, and I would like to give special thanks to Jane Oates of my 
staff, Ilyse Schuman and Scott Fleming of Senator Enzi's staff, Bill 
Kamela with Senator Murray, Sherry Kaiman with Senator Jeffords, Randy 
Soderquist with Senator Bingaman, Elyse Wasch and Didem Nisanci with 
Senator Jack Reed, Catherine Brown with Senator Clinton, Lindsay 
Lovlien with Senator Ensign, Tom Horgan and Julie Jolly with Senator 
Bond, Andrea Becker with Senator Frist, Prim Formby with Senator 
Sessions, Mary Beth Luna with Senator DeWine, and Annie White and Tracy 
Locklin with Chairman Gregg.
  I would also like to thank Sigurd Nilsen with the GAO whose staff 
prepared countless reports to get us the information we needed to make 
critical decisions; Ann Lordeman and Paul Irwin of CRS for their 
technical support and Mark Koster, Amy Gaynor, and Liz King of 
Legislative Counsel who prepared the bill. In addition, I thank the 
floor staff who are so helpful on every piece of legislation.
  I look forward to continuing this bipartisan effort as we continue 
into conference with the House, and I thank my

[[Page 29005]]

colleagues for their willingness to work so well in the completion of 
this bill.
  Mr. ENZI. Mr. President, the signs are all around us. They can be 
seen in the economic reports in the papers, in the economic forecasts 
that are discussed on the weekend talk shows, and in reports on the job 
market. It all adds up to some good news for the people of this 
Nation--the economy is getting stronger.
  It hasn't happened overnight, of course. By taking action to lay the 
groundwork for our economic recovery, we have ensured the presence of 
more capital in our economy which has already started to lead to the 
creation of more jobs. There are telling signs that the labor market is 
on the mend. The economy gained 126,000 jobs in October--almost twice 
the market forecast of 65,000.
  Now we will take the next step. With the passage of the Workforce 
Investment Act Amendments of 2003, we lay the groundwork for helping 
millions of Americans get back to work or find new or better jobs 
through training and employment assistance.
  It is very clear that the face of our Nation's economy is changing. 
The kind of jobs that are available now--and will be in the future--are 
different from those that were highly valued a few years, or even 
months, ago. Last month, for instance, there was significant job growth 
in the professional, educational and health related services sectors. 
The manufacturing sector, however, continued to lose jobs. To keep the 
American dream within the grasp of all Americans, we will have to deal 
with the changing face of our economy. To do that we must ensure that 
job seekers have the skills they need for the new economy. We must also 
bring together workforce supply and demand to ensure that our 
businesses have the skilled employees they need to compete in a more 
global economy.
  That is why this legislation is so very important. Workforce 
development is a powerful economic development tool. This legislation 
builds upon the successes of the Workforce Investment Act of 1998 while 
addressing its shortcomings. In so doing, this bill will improve the 
lives of millions of our workers, and increase the strength of our 
businesses and communities.
  This legislation that I introduced along with Senators Kennedy, 
Gregg, and Murray is the product of an extensive bipartisan effort. It 
reflects significant input from the Department of Labor and Department 
of Education, as well as major stakeholders in job training, adult 
education, and vocational rehabilitation.
  The workforce investment system may be fairly new, but we've already 
learned a great deal about its strengths and weaknesses. These lessons 
reinforce what I learned as a small business owner in Wyoming:

       Real opportunity in America comes from the small business 
     sector; economic development and workforce development go 
     hand in hand; rural areas face unique workforce development 
     challenges; Washington cannot--and should not--determine 
     state, local and individual workforce needs; and, overly 
     burdensome administrative requirements divert resources from 
     serving customers.

  Our bill improves upon the existing One-Stop Career Center delivery 
system to ensure that it can respond quickly and effectively to the 
changing needs of employers and workers in the new economy. Doing so 
will provide the 21st century workforce with the skills they will need 
for career opportunities in high-growth sectors. Our bill removes 
barriers in the law that have discouraged business involvement in 
workforce training, particularly small businesses. Our bill also 
removes barriers to access to services created by distance in many 
rural and frontier areas like Wyoming. This legislation will leverage 
technology to improve access to employment and training services in all 
areas of the country.
  This legislation will also help keep the American dream within the 
grasp of men and women alike by ensuring that men and women have access 
to jobs, education, and training that will lead to comparable pay.
  Some States and localities have found creative ways to overcome the 
challenges imposed by current law. Wyoming has done a magnificent job 
with the resources they have been allotted, and I commend their 
ingenuity. With this legislation, we will give Wyoming and the other 
States and localities the tools they need to help the unemployed or 
underemployed find new or better jobs.
  I want to thank Senator Kennedy, Senator Gregg, Senator Murray and 
the rest of my colleagues on the committee for all their work on this 
bipartisan bill. I also want to thank the Department of Labor and 
Department of Education for their assistance. I look forward to getting 
this bill into conference and quickly enacting this vital legislation.
  I would also like to thank the staff on both sides of the aisle who 
worked on this bill--Ilyse Schuman, Scott Fleming, Annie White, Lindsay 
Loulien, Tracy Locklin, Jane Oates, Bill Kamela, Sherry Kaiman and all 
the other HELP Committee staff who worked so hard to make this 
possible. I would also like to extend a special thank you to Denise 
Dendy, the Committee's Editor.
  This legislation builds a bridge between the jobs of yesterday and 
the jobs of tomorrow. The bridge is a workforce investment system that 
is flexible, innovative, and responsive to the needs of employers--both 
large and small. At the other end of the bridge is the American dream, 
and good, solid careers for our Nation's workers.
  Mr. FRIST. Mr. President, I ask unanimous consent that the committee-
reported substitute be agreed to; the bill, as amended, be read a third 
time and passed; the HELP Committee be discharged from further 
consideration of H.R. 1261; that the Senate proceed to its immediate 
consideration; provided that all after the enacting clause be stricken; 
the text of S. 1627, as amended, be inserted in lieu thereof; that the 
bill, as amended, be read a third time and passed, and the motion to 
reconsider be laid upon the table en bloc; that any statements relating 
to the bill be printed in the Record.
  I further ask unanimous consent that S. 1627 be returned to the 
calendar.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The committee amendment in the nature of a substitute was agreed to.
  The bill H.R. 1261, as amended, was read the third time and passed.

                          ____________________




   UNANIMOUS CONSENT AGREEMENT--EXECUTIVE CALENDAR NOS. 418 AND 436 
                              THROUGH 450

  Mr. FRIST. Mr. President, as in executive session, I ask unanimous 
consent that at a time determined by the majority leader, with the 
concurrence of the Democratic leader, the Senate may proceed to 
executive session for the consideration of Calendar No. 418, MG Robert 
T. Clark, to be lieutenant general in the Army; further, that there be 
2 hours equally divided between the chairman and the ranking member; 
provided further, that under the time controlled by the minority, 40 
minutes be allocated to Senator Kennedy and 15 minutes to Senator 
Dayton. I further ask consent that following the use or yielding back 
of time, the Senate proceed to a vote on the confirmation of the 
nomination, with no intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. FRIST. I further ask unanimous consent that following the 
confirmation vote, the Senate proceed to the consideration of the 
following nominations en bloc, Nos. 436 through 450, and all remaining 
nominations on the Secretary's desk; further, that the nominations be 
confirmed, and the motions to reconsider be laid upon the table, the 
President be immediately notified of all of the above action, and the 
Senate then resume legislative session.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.

                          ____________________




         MEASURES READ THE FIRST TIME--S. 1862 THROUGH S. 1866

  Mr. FRIST. Mr. President, I understand there are five bills, numbered 
S. 1862 through S. 1866, at the desk, and I ask that they be read for 
the first time en bloc.
  The PRESIDING OFFICER. The clerk will report the bills by title.

[[Page 29006]]

  The assistant legislative clerk read as follows:

       A bill (S. 1862) to provide certain exceptions from 
     requirements for bilateral agreements with Australia and the 
     United Kingdom for exemptions from the International Traffic 
     in Arms Regulations.
       A bill (S. 1863) to authorize the transfer of certain naval 
     vessels.
       A bill (S. 1864) to enhance the security of the United 
     States and United States allies.
       A bill (S. 1865) to enhance the security of the United 
     States and United States allies.
       A bill (S. 1866) to enhance the security of the United 
     States and United States allies.

  Mr. FRIST. I now ask for their second reading and object to further 
proceeding on these matters en bloc.
  The PRESIDING OFFICER. Objection having been heard, the bills will 
remain at the desk.

                          ____________________




                        THIS WEEK IN THE SENATE

  Mr. FRIST. Mr. President, in looking over the course of the last 
week, much of the focus of the last 40 hours or so, the last 2 days, 
has been on the issue of judges. The three cloture votes failed this 
morning.
  Earlier in the week, we really accomplished a reasonable amount, as I 
look over what we have done. The Syria Accountability Act--Chairman 
Lugar and Senator Santorum and many others in the body who brought that 
forward had it debated, and it was passed. The MILCON conference report 
was completed this week, and the Defense authorization conference 
report. We had another bill, the armed cargo pilots bill. We had the 
District of Columbia Retirement Equity Act by Senator Collins and 
others.
  Today, we had the OPIC reauthorization, which we just did, with a lot 
of bipartisan work done by Chairman Lugar and others; a bill that has 
been worked on for a long period of time in a bipartisan way with 
Senator Mike Enzi, the Workforce Investment Reauthorization Act, a lot 
of work reflected in that bill. I am glad we have completed action on 
that bill today.
  With regard to the last 48 hours, I want to extend the comments that 
were made earlier by the Democratic leader a few hours ago in thanking 
everybody, expressing my heartfelt appreciation to all of the people 
who participated over what was a very long and challenging schedule the 
last couple of days: The Secretary of the Senate, Emily Reynolds, and 
her staff, Dave Tinsley and Allen Frumin, along with their team of 
legislative clerks and Parliamentarians; the folks in the Official 
Reporters of Debates and in Closed Captioning Services who worked 
around the clock; the Sergeant at Arms Bill Pickle, and all of his 
support staff, including Skip Rouse and his crew with Capitol 
facilities, for the around-the-clock services, everything from cots to 
different bedding materials; Myron Flemming and his doorkeepers who 
kept control of the galleries because we had a lot of people through 
over the course of the last 2 days; the Capitol Police who, as always, 
do such a superb job watching over this Capitol complex, keeping it 
safe, and very long hours through the night and through the morning 
with a lot of visitors in and out of the building; Margo Conner and 
Jorge Castro, along with the Senate restaurants that helped provide 
food and made sure we were all well fed over the course of the last 
couple of days; Joy Ogden and the women of the appointments desk for 
ably handling all of the many guests who came through; the Press 
Gallery, the folks in the Senate Library, Printing and Document 
Services, Information Systems, and the Senate pages with whom I was 
just talking a few moments ago, all for their willingness to help in 
any way; we have the floor staff here, the cloakroom staff in the 
cloakrooms behind us, all who helped to make things run as smoothly as 
possible.
  A lot of staff are involved for each Senator. Behind each and every 
one are a number of staff members on both sides of the aisle who worked 
very long hours.
  As I got home very late last night, when I said hello to Karen, my 
wife, I realized I hadn't seen her in quite a few days. It made me 
realize, once again, that the Senators on this floor work long hours, 
and there is a lot of patience and a lot of understanding by Senate 
spouses who sacrifice their time for their loved ones, especially with 
a lot of understanding.
  I thank my own staff who have worked with a lot of dedication, 
including Manny Miranda, Marty Gold, Ramona Lessen, Holly Nass, Brook 
Whitfield, Tom Craig, Meg Gregory, and Abby Clinton. I thank everybody 
who has participated in the last several days. It has been 
extraordinary in many ways, made possible by a lot of hard work.

                          ____________________




                  ORDERS FOR MONDAY, NOVEMBER 17, 2003

  Mr. FRIST. Mr. President, I ask unanimous consent that when the 
Senate completes its business today, it adjourn until 12 noon, Monday, 
November 17. I further ask that following the prayer and the pledge, 
the morning hour be deemed expired, the Journal of proceedings be 
approved to date, the time for the two leaders be reserved for their 
use later in the day, and the Senate then resume consideration of the 
VA-HUD appropriations bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________




                                PROGRAM

  Mr. FRIST. Mr. President, on Monday, the Senate will resume the VA-
HUD appropriations bill. If Senators have amendments, they should be 
prepared to offer and debate those amendments during Monday's session. 
At 4:30 p.m. the Senate will resume consideration of the FAA 
reauthorization conference report. Under the previous order there will 
be 1 hour of debate prior to a vote on the motion to invoke cloture on 
the conference report. The cloture vote on the FAA conference report 
will occur at approximately 5:30 p.m., and that will be the first vote 
on Monday's session.
  I would also remind my colleagues that two cloture motions were filed 
on the Dorr nomination today. Those cloture votes will occur on Tuesday 
morning.
  Before closing, I see the distinguished Senator and colleague, the 
person who is most responsible in many ways for this Workforce 
Investment Reauthorization Act, Senator Enzi. I am happy to yield to 
him.
  Mr. ENZI. Mr. President, I thank the leadership on both sides of the 
aisle for bringing this bill to fruition at this point in time. I thank 
Senator Gregg for allowing me to work this issue through to this point. 
I thank Senator Kennedy and Senator Murray for their tremendous effort 
and willingness to work toward the goal of getting more people in the 
workforce and eliminating some of the disparity between men's and 
women's wages. It has been a tremendous effort. This is normally a very 
controversial bill, but through some very steady effort over many 
months, we have come to this point. I thank everybody. I will have 
additional comments.
  Mr. FRIST. Mr. President, again, I congratulate Senator Enzi for 
outstanding work. This is a bill he has worked on for a long period of 
time, as we have talked about jobs, job creation, what the workplace is 
like. This is a very exciting bill. I congratulate him and his 
colleagues who worked in a bipartisan way on an excellent piece of 
legislation that will have a true impact on what we all care so much 
about; that is, the economy, jobs, and the setting in which those jobs 
are carried out.

                          ____________________




              ADJOURNMENT UNTIL MONDAY, NOVEMBER 17, 2003

  Mr. FRIST. Mr. President, if there is no further business to come 
before the Senate, I ask unanimous consent that the Senate stand in 
adjournment under the previous order.
  There being no objection, the Senate, at 3:06 p.m., adjourned until 
Monday, November 17, 2003, at noon.

                          ____________________




                              NOMINATIONS

  Executive nominations received by the Senate November 14, 2003:

[[Page 29007]]




                             THE JUDICIARY

       DIANE S. SYKES, OF WISCONSIN, TO BE UNITED STATES CIRCUIT 
     JUDGE FOR THE SEVENTH CIRCUIT, VICE JOHN L. COFFEY, RETIRING.


                          DEPARTMENT OF STATE

       DAVID C. MULFORD, OF ILLINOIS, TO BE AMBASSADOR 
     EXTRAORDINARY AND PLENIPOTENTIARY OF THE UNITED STATES OF 
     AMERICA TO INDIA.

                          ____________________




                              CONFIRMATION

  Executive nomination confirmed by the Senate November 14, 2003:


                          DEPARTMENT OF STATE

       ZALMAY KHALILZAD, OF MARYLAND, TO BE AMBASSADOR 
     EXTRAORDINARY AND PLENIPOTENTIARY OF THE UNITED STATES OF 
     AMERICA TO THE TRANSITIONAL ISLAMIC STATE OF AFGHANISTAN.
       THE ABOVE NOMINATION WAS APPROVED SUBJECT TO THE NOMINEE'S 
     COMMITMENT TO RESPOND TO REQUESTS TO APPEAR AND TESTIFY 
     BEFORE ANY DULY CONSTITUTED COMMITTEE OF THE SENATE.
     
     
     


[[Page 29008]]

                          EXTENSIONS OF REMARKS
                          ____________________


     INTRODUCTION OF AFFORDABLE HOUSING PRESERVATION TAX RELIEF ACT

                                 ______
                                 

                            HON. JIM RAMSTAD

                              of minnesota

                    in the house of representatives

                      Wednesday, November 12, 2003

  Mr. RAMSTAD. Mr. Speaker, today I am introducing the ``Affordable 
Housing Preservation Tax Relief Act,'' legislation to maintain and 
increase the stock of affordable housing in this country. I am 
delighted to be joined in this effort by my friend and colleague from 
Maryland, Mr. Cardin.
  In 1999, Congress recognized the need to look at this issue by 
establishing the bipartisan Millennial Housing Commission (MHC). That 
Commission was charged with taking a thorough look at what the 
government was doing to fill the huge unmet gap for affordable housing.
  The MHC released their report in May of 2000. The report stated, ``In 
1999 one in four--almost 28 million--American households reported 
spending more on housing than the Federal Government considers 
affordable and appropriate (more than 30 percent of income).''
  The MHC report also contained a list of 13 recommendations for making 
housing more affordable. One of those recommendations was for Congress 
to provide a ``new tool'' to encourage the transfer of affordable 
housing to entities that agree to maintain these properties and keep 
them affordable. They recommended doing so by forgiving the depreciated 
recapture tax for owners who sell their properties to purchasers who 
agree to maintain them for a 30-year period and to keep them 
affordable. The MHC recommendation would still hold owners responsible 
for any capital gains taxes due above and beyond the depreciated 
amount.
  The lack of affordable housing is something I hear about and see all 
across my congressional district and my State. Indeed recent data shows 
that approximately 35 percent of renters in Minnesota pay over 30 
percent of their income on housing and 15 percent of renters pay over 
50 percent of their income on their housing.
  The legislation we are introducing today tracks closely with the 
recommendation made by the MHC. I believe enactment of this legislation 
would be an important step toward maintaining and increasing affordable 
housing in this country, and I urge my colleagues to join me as a 
cosponsor of this legislation.

                          ____________________




                       TRIBUTE TO EDWARD J. DRAKE

                                 ______
                                 

                           HON. PETE SESSIONS

                                of texas

                    in the house of representatives

                      Wednesday, November 12, 2003

  Mr. SESSIONS. Mr. Speaker, I rise today in honor of Edward J. Drake, 
a son of Dallas, Texas, and a good servant to his family, his faith, 
and his community.
  In the Bible, Timothy describes charity as, ``out of a pure heart, 
and of a good conscience, and of faith unfeigned.'' Over the years, Ed 
Drake has served those around him, not only with charity, but also with 
dedication and humility. The breadth of his service to the Dallas 
community and to our Nation is wide, and includes activities such as 
representing human health needs, developing positive environments for 
business, and fighting for the democracy that he cherishes.
  Through his leadership in organizations such as the National Easter 
Seal Society, the American Cancer Society, and the Science Place, Ed 
Drake has helped our Nation address critical health needs. In his 
professional life, his integrity and loyalty have carried him to the 
top of the Dallas business community and earned him honors such as his 
appointment as Commissioner of the Texas Advisory Commission on 
Intergovernmental Relations, among many others. Finally, Mr. Drake's 
love of democracy and work defending freedom as a B-17 pilot in World 
War II has made him an example for future generations of citizens.
  This noble leader of the Dallas community personifies service to his 
country through the light of charity. As steadfast a patriot and 
compassionate a humanitarian as I have ever known, Ed Drake shines to 
those in his community as he does to his wife Donda and their family. I 
am proud to be his Representative in Congress.

                          ____________________




CONFERENCE REPORT ON H.R. 1588, NATIONAL DEFENSE AUTHORIZATION ACT FOR 
                            FISCAL YEAR 2004

                                 ______
                                 

                               speech of

                             HON. RON PAUL

                                of texas

                    in the house of representatives

                        Friday, November 7, 2003

  Mr. PAUL. Mr. Speaker, while I am pleased to see that this conference 
report has addressed the issue of concurrent receipt, I note with 
dismay that the provision as included in the report is inadequate. It 
will leave hundreds of thousands of veterans out in the cold, many of 
whom will likely not live long enough to benefit from this unacceptable 
pseudo-solution.
  This provision will allow only those 20-year retiree combat-disabled 
veterans to receive concurrent receipt, which completely ignores that 
many if not most soldiers who are combat-disabled do not remain in the 
military for 20 years. Upon becoming disabled they are discharged from 
the military. This means that, according to some estimates, two-thirds 
of disabled veterans will be left behind by this provision. In this, 
the provision is a slap in the face of our veterans.
  Additionally, the 10 year phase-in of concurrent receipt for the 
remaining who are at least 50 percent disabled effectively means that 
thousands of our veterans--particularly those of the World War II and 
Korea generations--will not live to receive this earned and deserved 
benefit.
  Mr. Speaker, we need to make our veterans and our soldiers our top 
priority. We have entered into a contract with each of them. They have 
done their part and are doing their part every day--in conflicts across 
the globe including the increasingly deadly Iraq occupation. We must 
keep our end of the contract. I am sad to note that provisions like 
this watered-down concurrent receipt are not in keeping with our end of 
the contract.
  I also must object to the procedure in bringing this conference 
report to the Floor. We were once again given only hours to read a 
conference report that ran hundreds and hundreds of pages. This is a 
disturbing pattern that seems to surface when we are required to vote 
on controversial legislation. Are Members not anymore supposed to at 
least review legislation before voting?

                          ____________________




  THE NEED FOR LEGISLATION TO AUTHORIZE ADDITIONAL JUDGESHIPS FOR THE 
  UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

                                 ______
                                 

                         HON. WILLIAM M. THOMAS

                             of california

                    in the house of representatives

                      Wednesday, November 12, 2003

  Mr. THOMAS. Mr. Speaker, I rise today to introduce legislation that, 
in accordance with the recommendation of the United States Judicial 
Conference, would authorize the creation of three additional judgeships 
for the United States District Court for the Eastern District of 
California, as well as convert a temporary judgeship into a permanent 
judgeship.
  There is no question that these additional judgeships are needed. The 
average weighted caseload per judge in the Eastern District is 733, as 
compared to 649 a year ago, an increase of almost 12 percent. This is 
extremely significant, as the national average for weighted caseloads 
per judge is 524, and an average weighted caseload in excess of 430 is 
the United States Judicial Conference's standard for determining if 
additional permanent judgeships are required. The Eastern District's 
average weighted caseload of 733 exceeds this

[[Page 29009]]

standard by 70 percent. In addition, the Eastern District's average 
weighted caseload surpasses the national average by more than 39 
percent and has exceeded 430 since 1994.
  In 2003, there was a significant increase in the total number of 
filings in the Eastern District; in fact, total filings in 2003 rose 
11.7 percent to 5,523. Criminal case filings, for which our 
Constitution guarantees an individual the right to have a speedy trial, 
rose 12.7 percent. In addition, there are now a total of 6,343 cases 
pending before the Eastern District; an increase of 11.5 percent in 
2003 and an 18.5 percent increase over the past five years. Moreover, 
as the temporary judgeship expired in February 2002, upon a permanent 
judge's decision to take senior status, this situation will be 
exacerbated because the President will be unable to appoint a 
replacement unless Congress acts to convert the temporary judgeship 
into a permanent judgeship before that time.
  Accordingly, I ask my colleagues to work with me to enact this 
legislation and thereby improve the administration of our Nation's laws 
in the Eastern District of California.

                          ____________________




                    IN RECOGNITION OF JUDITH ZITTER

                                 ______
                                 

                          HON. ADAM B. SCHIFF

                             of california

                    in the house of representatives

                      Wednesday, November 12, 2003

  Mr. SCHIFF. Mr. Speaker, I rise today to honor Judith Zitter, who is 
being honored by the Zonta Club of Pasadena as their 2003 Woman of 
Achievement. Each year, the Zonta Club of Pasadena pays special tribute 
to the accomplishments made by an extraordinary woman who has made a 
difference in our community.
  A Pasadena native, Ms. Zitter received her Masters in Social Work 
from California State University, San Francisco in 1982. Judith is 
married to her Blair High School sweetheart, Neal Wrightson, who is the 
founder of the Children's Community School in Van Nuys. She and Neal 
have two children, Erica, a freshman at University of California, Santa 
Barbara and Max, a sophomore at the Los Angeles High School for the 
Arts.
  Ms. Zitter's strong commitment to her community is clearly reflected 
in her career path. She has worked as an adoption social worker, 
director of a senior center, and a field representative for Pasadena 
Mayor Rick Cole. During her tenure with Mayor Cole, she was 
instrumental in implementing positive changes in the Old Pasadena and 
Northwest Pasadena neighborhoods. Currently, Judith is a community 
health manager for Kaiser Permanente. In this capacity, she has helped 
create relationships to support community organizations, such as the 
formation of a statewide partnership with free and community clinics in 
California, and the American Diabetes Association.
  The consummate volunteer, Judith currently serves on the boards of El 
Centro de Accion Social, Day One, the Asian Pacific Community Fund and 
the Pasadena Center Operating Company. Her past volunteer efforts 
include Haven House, the Los Angeles Women's Foundation, Community 
Health Councils, Artists Beyond Disabilities, United Way, and numerous 
political organizations.
  Judith has received many awards, including the Pasadena YWCA Second 
Century Award in 1998, the Outstanding Community Service Award from the 
American Diabetes Association in 2002, and the Kaiser Permanente Public 
Affairs Award in 2000 and 2003.
  The time, energy and love Judith gives to our community is 
extraordinary, and the residents of my district have benefited greatly 
from her dedicated service. For her lifetime of service, I am proud to 
ask all Members to join with me in commending Judith Zitter upon 
receiving the 2003 Zonta Club of Pasadena's Woman of Achievement Award.

                          ____________________




    WELCOMING THE MOST REVEREND ANTHONY SABLAN APURON, OFM CAP, DD, 
                    METROPOLITAN ARCHBISHOP OF AGANA

                                 ______
                                 

                       HON. MADELEINE Z. BORDALLO

                                of guam

                    in the house of representatives

                      Wednesday, November 12, 2003

  Ms. BORDALLO. Mr. Speaker, it is my honor and privilege to welcome 
the Most Reverend Anthony Sablan Apuron, OFM Cap, DD, Metropolitan 
Archbishop of Agana to the People's House and to thank him for offering 
today's prayer.
  Archbishop Apuron has served God and His people first as priest and 
now bishop for over 31 years. Born November 1, 1945, he was ordained a 
priest in the Order of Friars Minor Capuchin on August 26, 1972. He was 
appointed Auxiliary Bishop of Agana by the late Archbishop Felixberto 
C. Flores on December 8, 1983 and consecrated Titular Bishop of Muzuca 
on February 19, 1984. On May 11, 1986, the Most Reverend Anthony S. 
Apuron was elevated to Metropolitan Archbishop of Agana.
  As the head of the Roman Catholic Archdiocese of Agana, he is the 
spiritual leader for over 350,000 Roman Catholics in Guam, the Diocese 
of Chalan Kanoa in the Northern Mariana Islands, and the Diocese of the 
Caroline and the Marshall Islands. He has been the moral voice for the 
faithful who look to him for direction in these difficult times. Under 
his leadership, the Archdiocese of Agana has expanded its ministries to 
meet the changing needs of the community.
  On behalf of the people of Guam, I want to thank Archbishop Apuron 
for being with us today and for his leadership and guidance of the 
people of Metropolitan Archdiocese of Agana. Si Yu'os Ma'ase.

                          ____________________




                         HONORING ANDREA BAGLEY

                                 ______
                                 

                           HON. TAMMY BALDWIN

                              of wisconsin

                    in the house of representatives

                      Wednesday, November 12, 2003

  Ms. BALDWIN. Mr. Speaker, I rise today to pay tribute to a woman who 
has ably served the House of Representatives and the citizens of 
Wisconsin for more than 20 years. In the offices of four Members of 
Congress, on both sides of the aisle, Andrea Bagley has worked 
diligently and compassionately to better the lives of our constituents.
  Andrea first became a congressional caseworker in 1983, in the office 
of Representative Steve Gunderson, for whose father she had initially 
worked as a bookkeeper. In her first case, she helped a young person 
resolve a problem with a student loan. As a mother of three sons, Andy 
was already adept at solving problems and offering caring support.
  When she began her congressional service, Andy handled roughly 500 
cases a year, without benefit of fax machines or computers. It's hard 
for young staffers to even imagine a world of onion skins and carbon 
copies or the joy of an electric typewriter with memory. In 20 years, 
she's seen the technology grow with her caseload . . . to more than a 
thousand a year, yet she's handled them all with calm persistence. To 
every constituent with a problem she says, ``We can't guarantee you'll 
get the answer you want, but we guarantee you'll get fair 
consideration.'' Thanks to her, they have.
  Andy describes her job as being part detective, part problem-solver, 
part researcher, and part social worker. For every case, she 
meticulously amasses bits of information, institutional knowledge, 
documentation, and paper trails to piece together solutions to problems 
as finely stitched as the elaborate quilts she makes for her dozens of 
fortunate friends and family.
  The gratitude of our constituents is apparent--from the thanks Andy 
recently received from a man gaining citizenship, to the wedding photos 
of a bride whose family needed visas to attend the wedding, to the 
visits of grateful parents and the children they adopted from foreign 
lands.
  Congressmen Gunderson, Klug, and Barrett join me in adding our words 
of gratitude to Andrea Bagley for her 20 years of honorable service to 
our offices and our constituents. Selfishly, I wish for many more.

                          ____________________




                       SENATE COMMITTEE MEETINGS

  Title IV of Senate Resolution 4, agreed to by the Senate on February 
4, 1977, calls for establishment of a system for a computerized 
schedule of all meetings and hearings of Senate committees, 
subcommittees, joint committees, and committees of conference. This 
title requires all such committees to notify the Office of the Senate 
Daily Digest--designated by the Rules committee--of the time, place, 
and purpose of the meetings, when scheduled, and any cancellations or 
changes in the meetings as they occur.
  As an additional procedure along with the computerization of this 
information, the Office of the Senate Daily Digest will prepare this 
information for printing in the Extensions of Remarks section of the 
Congressional Record on Monday and Wednesday of each week.
  Meetings scheduled for Thursday, November 13, 2003 may be found in 
the Daily Digest of today's Record.

[[Page 29010]]



                           MEETINGS SCHEDULED

                              NOVEMBER 18
     9:30 a.m.
       Judiciary
         To hold hearings to examine America after the 9/11 
           terrorist attacks.
                                                            SD-226
       Governmental Affairs
       Investigations Subcommittee
         To hold hearings to examine the role of professional 
           organizations like accounting firms, law firms, and 
           financial institutions in developing, marketing and 
           implementing tax shelters.
                                                            SH-216
     10 a.m.
       Banking, Housing, and Urban Affairs
         To hold hearings to examine current investigations and 
           regulatory actions regarding the mutual fund industry.
                                                            SD-538
     2:30 p.m.
       Governmental Affairs
         To hold hearings to examine the nomination of James M. 
           Loy, of Virginia, to be Deputy Secretary of Homeland 
           Security.
                                                            SD-342
       Energy and Natural Resources
       Public Lands and Forests Subcommittee
         To hold hearings to examine S. 1209, to provide for the 
           acquisition of property in Washington County, Utah, for 
           implementation of a desert tortoise habitat 
           conservation plan, H.R. 708, to require the conveyance 
           of certain National Forest System lands in Mendocino 
           National Forest, California, to provide for the use of 
           the proceeds from such conveyance for National Forest 
           purposes, S. 1467, to establish the Rio Grande 
           Outstanding Natural Area in the State of Colorado, S. 
           1167, to resolve the boundary conflicts in Barry and 
           Stone Counties in the State of Missouri, and S. 1848, 
           to amend the Bend Pine Nursery Land Conveyance Act to 
           direct the Secretary of Agriculture to sell the Bend 
           Pine Nursery Administration Site in the State of 
           Oregon.
                                                            SD-366
     4 p.m.
       Armed Services
         To hold hearings to examine the nomination of Michael W. 
           Wynne, of Florida, to be Under Secretary of Defense for 
           Acquisition, Technology, and Logistics.
                                                            SR-222

                              NOVEMBER 19
     9:30 a.m.
       Governmental Affairs
         To hold hearings to examine the threat of agroterrorism.
                                                            SD-342
     10 a.m.
       Health, Education, Labor, and Pensions
         To hold hearings to examine S. 741, to amend the Federal 
           Food, Drug, and Cosmetic Act with regard to new animal 
           drugs, proposed Mammography Quality Standards 
           Reauthorization Act, proposed Medical Device Technical 
           Corrections Act, proposed Organ Donation and Recovery 
           Improvement Act, and pending nominations.
                                                            SD-430
       Judiciary
         To hold hearings to examine pending judicial nominations.
                                                            SD-226
     2:30 p.m.
       Governmental Affairs
       Oversight of Government Management, the Federal Workforce, 
           and the District of Columbia Subcommittee
         To resume hearings to examine the August 2003 Northeast 
           blackouts and the federal role in managing the nation's 
           electricity.
                                                            SD-342

                              NOVEMBER 20
     9:30 a.m.
       Governmental Affairs
       Investigations Subcommittee
         To resume hearings to examine the role of professional 
           organizations like accounting firms, law firms, and 
           financial institutions in developing, marketing and 
           implementing tax shelters.
                                                            SH-216
     10 a.m.
       Banking, Housing, and Urban Affairs
         To hold hearings to examine improving the corporate 
           governance of the NYSE.
                                                            SD-538
     2 p.m.
       Banking, Housing, and Urban Affairs
         To resume hearings to examine current investigations and 
           regulatory actions regarding the mutual fund industry.
                                                            SD-538

                             CANCELLATIONS

                              NOVEMBER 14
     10 a.m.
       Energy and Natural Resources
         To hold oversight hearings to examine the implementation 
           of the Energy Employees Occupational Illness 
           Compensation Program.
                                                            SD-366