[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
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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
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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
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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,
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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
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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
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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?
[[Page 28683]]
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
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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
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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
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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
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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
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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
[[Page 28846]]
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.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[[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.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[[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