[Congressional Record Volume 141, Number 103 (Thursday, June 22, 1995)]
[Senate]
[Pages S8855-S8874]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______


   NOMINATION OF HENRY W. FOSTER, JR., TO BE MEDICAL DIRECTOR IN THE 
REGULAR CORPS OF THE PUBLIC HEALTH SERVICE AND TO BE SURGEON GENERAL OF 
                       THE PUBLIC HEALTH SERVICE

  The PRESIDING OFFICER. Under the previous order, the hour of 12 noon [[Page S 
8856]] having arrived, the Senate will now go into executive session to 
consider the nomination of Dr. Henry W. Foster, Jr., to be Surgeon 
General. The clerk will report the nomination.
  The legislative clerk read as follows:

       The nomination of Henry W. Foster, Jr., to become Medical 
     Director in the Regular Corps of the Public Health Service, 
     subject to qualifications therefor as provided by law and 
     regulations, and to be Surgeon General of the Public Health 
     Service.

  The Senate resumed consideration of the nomination.
  Mr. KENNEDY. Mr. President, as I understand, there is an agreement to 
vote at 2 o'clock. So there is a 2-hour time limitation, an hour to be 
controlled by the Senator from Kansas, Senator Kassebaum, and the other 
hour to be controlled by the Senator from Massachusetts.
  The PRESIDING OFFICER. That is the order.
  Mr. KENNEDY. I yield myself 8 minutes.
  Mr. President, over the period of the last 24 hours, I have tried to 
look at this whole nomination, including the extensive hearings that we 
had as well as the debate on the floor, to try to determine what is 
really before the U.S. Senate.
  What we have before the U.S. Senate is an extraordinary nominee--an 
extraordinary human being--who is eminently qualified to serve as the 
nation's Surgeon General. And I thought back to the beginning, and 
asked myself: ``What shape did the process take?''
  We know that Dr. Henry Foster's name was brought to the attention of 
President Clinton by a very distinguished former Republican Cabinet 
Member, Dr. Louis Sullivan, with whom many of us worked very closely 
during his leadership at the Department of HHS. We know that Dr. 
Foster's nomination was seconded, effectively, by the presence of Lamar 
Alexander, a Republican Governor, who recognized the work of Dr. Henry 
Foster and his leadership ability in confronting the problem of teenage 
pregnancy and asked him to develop a program to do so. Those are two 
Republicans that right from the start recommended Dr. Henry Foster for 
this important position.
  And even on the Labor Committee, Senator Frist--Dr. Frist--the one 
Member of the U.S. Senate who is a doctor and who knows Dr. Foster and 
who has supported his nomination, coming forward and speaking on behalf 
of Dr. Foster's extraordinary record and qualifications as a physician, 
educator and community leader.
  So, looking back from the very beginning, we see that this nomination 
was borne of the effort to put forth someone who has been recognized as 
having a distinguished record--and he has had a distinguished record, 
which I will speak to--but also someone who was not going to be 
necessarily identified with any one particular political party, but 
rather with strong bipartisan support.
  We have heard a great deal on the floor of the Senate and in the 
press, that Dr. Foster was selected for narrow partisan or political 
reasons. The fact of the matter is that he was nominated because of a 
very distinguished record.
  And what a record it has been--what a record it has been. Dr. Foster 
possesses an extraordinary record of service. We have a nominee who has 
demonstrated his commitment to the neediest people in our country and 
our society. After he graduated from medical school, he could have 
practiced medicine in any of the cities of this country and in many 
rural areas and had a very comfortable life. But, no, he did not do 
that.
  What did he do? He went to the poorest areas of America. Why? Because 
he wanted to serve his fellow human beings. He went to the rural 
South--and treated women and their children. Most of Dr. Foster's 
patients had never even seen a doctor before. He went into homes and 
houses down there that, in many instances, did not even have 
electricity or hot water. He went there to help and assist deliver 
babies. To provide pre-natal care to women who had never had access to 
pre-natal care before. He is a baby doctor. A baby doctor who is about 
service to his community. Service to people. He is a good and decent 
man who has committed his entire life--his entire life--to service. Not 
only did he engage in an program of service in rural Alabama, but his 
record shows that he was widely recognized for his dedication, ability, 
leadership and expertise.
  He was recognized as a physician. He was recognized as an educator. 
He was recognized as a researcher in sickle cell anemia and infant 
mortality and the problems facing the youngest and most vulnerable in 
our society.
  He was recognized by the Institute of Medicine, perhaps the most 
prestigious assemblage of the medical profession in our country, being 
elected to that prestigious body with a regular membership of only 500 
members. In 1992, he was elected by the membership to serve as one of 
only 21 members of the Institute's governing council--one of only 21 
members selected by the members of the Institute--his peers. What an 
extraordinary, extraordinary recognition of a man who was selfless, 
dedicated and passionate about serving those living in the poorest 
areas of this country.
  During his career, after numerous accomplishments, he was selected to 
be Dean of the Meharry School of Medicine--a distinguished medical 
school. Did he stop with that? No. What did he want to do? He wanted to 
be a teacher in the classroom as well as dean of the medical school. 
Why? Because he wanted to work with young people. He wanted to help 
train them, and bring more qualified and compassionate doctors into the 
field of medicine.
  Was he satisfied with that? No. He went to his community and 
developed a program to deal with the problems of teenage pregnancy and 
the school drop-out problem. He developed a program that has made such 
a difference in the lives of young people, that it has been recognized 
by a President, George Bush, a Republican President of the United 
States.
  Now that is the record of Dr. Foster. That is the record that is 
before the U.S. Senate. That is the record of service before us. By 
voting for Dr. Foster, we are not doing Dr. Foster a favor, we are 
doing a favor to all Americans. We are doing a favor to those parents 
of those teenagers who are confronted with the sad prospects of teenage 
pregnancy, welfare dependency, and hopelessness. We are doing a favor 
to all those who struggle with the life-threatening illness of cancer. 
We are doing a favor to all those whose families or friends or 
neighbors are afflicted with AIDS. We are doing the United States of 
America a favor, which needs a highly principled and dedicated person 
to serve his country. That is what we have here: A good, outstanding, 
selfless individual.
  Now, you would not understand that, necessarily, from those who have 
spoken in opposition to this nomination, because they have their own 
message, and their message is very clear. They want to send a very 
particular message. Sure, they have distorted his record, 
misrepresented his record, and in spite of the fact that Dr. Foster at 
the committee hearings, and the committee itself, thoroughly answered 
and refuted the shallow allegations against him, they are repeated 
again and again and again and again and again. And those that repeat 
them do a disservice to themselves, they do a disservice to themselves.
  What their message is and why this is being done is very clear to me. 
They are doing this because they want to say to any and every doctor in 
America, ``If you ever perform an abortion, if you ever do so, even to 
save the life of the mother, you'll never get a position of confidence 
or leadership in the U.S. Government, because you'll never make it 
through the confirmation process by the U.S. Senate.''
  That is the message. We understand that. They are not fooling anyone. 
When, on one hand you have Dr. Foster's extraordinary record of service 
and on the other, you have the repeated distortions, 
misrepresentations, and shallow allegations, the message is very clear 
and it is motivated by narrow political concerns and interests. That is 
the message that is being sent to doctors in this country. That is the 
message that is here.
  Dr. Foster's opponents prefer to play a negative card. When all of 
America is struggling to look upward, higher--to reach out for a better 
future for themselves and their children--his opponents would have us 
languish in darkness. They do not want to recognize the [[Page S 
8857]] light, the hope, that Dr. Foster represents for the future of 
this country.
  During the course of Dr. Foster's testimony at the hearings, Senator 
Pell asked him what has been one of the most inspiring moments of his 
life. And Dr. Foster answered, ``Well, it was just after I and my 
classmates had graduated from seventh grade, and my father brought us 
out to the edge of town and treated all the children in our class to an 
airplane ride.'' Two children in the front with the pilot, children in 
the back--Dr. Foster described the way he felt when that plane took 
off.
  He said, ``When we got up in that air, every child that was in that 
class looked out and they could see trees as far as the eye could see. 
They could see that there was a broader land, that there are lakes out 
there and there are hills.''
  Perhaps for the first time, they saw that there was a broader America 
than just the school house where they went to the school, and their own 
small home where they grew up, in a segregated society with little 
opportunity.
  He said:

       That plane ride was one of the most inspiring moments of my 
     life, because it taught me that there is a future out there, 
     and that I could be a part of it. My hope and dream of 
     service is to provide that same ``airplane ride'' to the 
     young people all across this country.

  That is the soul of Dr. Foster. You would not know it listening to 
the distortions and misrepresentations of the opposing side; you would 
not know the true record of the nominee who is before us. You would not 
know it when they repeat and repeat and repeat these charges that any 
fair-minded person would understand have been responded to.
  How many political primaries are we going to have on the floor of the 
U.S. Senate? The election is 18 months away. What was yesterday? Super 
Wednesday? What is today? Super Thursday? What are we going to say to 
every person that is nominated? Do we tell them that they are going to 
go through this pillory to serve the American people?
  That is the issue. Are we going, in this institution and in this 
body, to appeal to the better instincts of its membership? Or are we 
going to be slaves to those kinds of interests that are holding hostage 
the nomination process here before the U.S. Senate? I hope, Mr. 
President, that the higher angels of our character will come out today 
when we vote at the hour of 2 o'clock.
  I see my colleague on the floor, the Senator from Washington, who has 
been such a leader on this issue and who speaks with such eloquence and 
insight into the qualifications of this nomination.
  I yield her 5 minutes.
  Mrs. MURRAY. I thank my colleague from Massachusetts for his 
outstanding work on this nomination. I remind my colleagues that we 
should be here debating the nomination of Dr. Henry Foster and what 
message and tone he can bring to this office. But we are not. We are 
here debating whether or not Dr. Foster will have the opportunity to 
have an up-or-down vote on the floor of the Senate.
  I have been working with Dr. Foster for a number of months now. It is 
extremely disappointing to see this fine man, after all he has been 
through, being denied a vote on the floor of the Senate. I hope our 
colleagues across the aisle can step back today and think about the 
larger message. Think about what will happen if we block this vote 
today and do not allow this man with great dignity to have the vote 
that he deserves after the last 5 months.
  Throughout this debate, I have been focusing on what Dr. Foster 
brings to this office. Certainly, he brings the issues of women's 
health care clearly to the forefront of this Nation for the first time 
in our history, and that is a good thing. Certainly, he brings the 
ability to send a message to our teenagers, a vision of hope, a vision 
that they can be somebody. That is something that is needed in this 
Nation.
  But I fear, Mr. President, that many of our American viewers today do 
not realize that that is not what this vote is all about. This vote has 
become a vote about Presidential politics, and I find that very sad. As 
we have worked to get to the last three votes, it has been surprising 
and saddening to hear what some of my colleagues have expressed. They 
do not feel they can vote for this candidate--not because he is not 
qualified, not because they think the process should be fair. They tell 
me they do not want to be seen as giving one Presidential candidate a 
vote over another Presidential candidate. It has become an issue of 
winners and losers. Who are the winners? Who is going to win? I can 
tell you who the losers are. The losers are the American people. The 
American people will be the losers because not only will they lose a 
fine candidate for Surgeon General, they will lose because the process 
has been sullied, and I think that is a sad statement for this Nation.
  I think the winner--no matter what the outcome of this vote--is Dr. 
Foster. He is a man of dignity, a man of courage, and he is a man of 
honor. Every one of us--every one in this Nation--should stand up and 
give this man a loud round of applause. He deserves it. He has lived 
through torture--name calling, watching his whole, entire life be put 
in print--and he has shown all of us, as he sat before the committee, 
that he is a man of dignity. Dr. Foster certainly is the kind of person 
that deserves to be in the Surgeon General position, and he is also a 
man we all want to be like. He is a man of honor, and he should be very 
proud today that he has shown this Nation how to be a leader and what 
we should expect of leaders and what we want our Nation's leaders to 
look like.
  I hope that all of our colleagues will step back and think about the 
larger message as they vote today. This man deserves a vote on the 
floor of the Senate. But above all, he deserves our applause for going 
through this process and showing us what a leader really looks like.
  I thank my colleagues and I yield the floor.
  Mr. KENNEDY. I yield 5 minutes to the Senator from California, 
Senator Boxer.
  The PRESIDING OFFICER. The Senator from California [Mrs. Boxer] is 
recognized.
  Mrs. BOXER. Mr. President, I thank my friend from Massachusetts and 
my friend from Washington for their extraordinary leadership in trying 
to get a very simple premise fulfilled, and that premise is that Dr. 
Foster deserves an up-or-down vote. It is wrong to deny this man a 
vote. Let him stand or fall on his merits or demerits.
  I saw him standing next to the President yesterday at the White 
House, saying, ``All I ask for is fairness.'' He wants a vote, and 57 
Members of the Senate--Democrats and Republicans--said, ``That is 
right, Dr. Foster; you deserve a vote.'' But a minority said no. If I 
were one of them, I would not have slept very well last night because 
it is a mean-spirited thing to do to a decent American. It is not fair. 
If Americans are anything, they are fair.
  Dr. Foster is a pawn in a political game--a pawn in a political 
game--a physician who went to work in rural America when he could have 
had a cushy job. He is a physician who went into the toughest, most 
difficult parts of our Nation to help lower the infant mortality rate, 
and he did. He is one who took on the problem of teenage pregnancy. It 
is incredible that my colleagues on the other side of the aisle who are 
trying to block this vote criticize his program. What did they ever do 
in their lives to help stop teenage pregnancy? Let us hear what they 
have done. Oh, they throw the stones. What have they done? Have they 
walked into the toughest parts of America and taken a problem on that 
nobody else wants to take on? I do not think so.
  They have a pretty cushy job right here. But they throw stones at a 
man who should be honored--and, by the way, he has been honored by 
President Bush, a Republican, I might say, who gave him a Thousand 
Points of Light Award. He was honored by Dr. Louis Sullivan, a former 
Republican Secretary of HHS, who recommended him for this job. People 
say President Clinton was playing politics. I have to tell you, this 
was the most bipartisan appointment I have seen. Senator Kennedy made 
that point at a press conference yesterday. It is a truly bipartisan 
appointment.
  Dr. Foster is being denied a vote because two Republican candidates 
for President want to block a vote on him. The Republicans are being 
told, ``You have to be loyal. Do not allow a vote on this man. It will 
hurt our chances.''
  Playing politics is not what a U.S. Senator is supposed to do. They 
are [[Page S 8858]] supposed to be fair. They are supposed to be just. 
They are supposed to step up to the plate and put political 
considerations behind them and give a man a chance.
  I have to tell you, maybe these two political candidates for 
President will do well in the short run. But do you know what I think? 
In the long run, I do not think they will do very well because they are 
out of step with mainstream America. If you ask the American people 
what are the two important things they want to see in a President, it 
is fairness and courage. And it is not fair to deny this man his day. 
It is not courageous to cower to the right wing of one political party. 
So, in the long run, mainstream America is not going to look kindly at 
these two candidates--mark my words.
  I think this debate has been somewhat disturbing. Last night I was on 
a TV show with one of the leading opponents of Dr. Foster, and that 
Senator called Dr. Foster an abortionist. I think it is an outrage. He 
owes Dr. Foster an apology. Dr. Foster brought thousands of babies into 
this world and he is called an abortionist? Thirty-nine abortions over 
38 years, a legal medical procedure, and he calls him an abortionist on 
national TV. He is lucky he cannot be sued for defamation of character.
  Dr. Foster is an ob-gyn, an obstetrician/gynecologist, a decent man, 
and he deserves a vote. I stand very proudly with the Senator from 
Massachusetts, with the Democratic women Senators, with the 11 
Republicans who had the guts to stand up and say fair is fair, and I 
hope and pray that we have a different result today. If we do not, I 
think the fallout will be much greater than anyone now anticipates.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. KENNEDY. Mr. President, how much time remains?
  The PRESIDING OFFICER. The Senator from Massachusetts has 40 minutes 
remaining.
  Mr. KENNEDY. I just yield myself 15 seconds, and then I will yield 5 
minutes to the Senator from California.
  In one of the most important considerations in debate, the silence on 
the other side is deafening--their willingness to engage in this debate 
and discussion, and we have nothing to speak about on the other side.
  I yield 5 minutes to the Senator from California.
  Mrs. FEINSTEIN. Mr. President, I thank the Senator from 
Massachusetts. I thank the Senator from Washington for all the work she 
has done on this matter.
  I really address my remarks, Mr. President, to 43 Members of this 
body, and I want to share with them some of my thoughts and see where 
they register with them.
  Let me start by saying that my basic belief regarding this nominee is 
that--in the absence of any compelling evidence of misconduct, 
insufficiency of professional qualifications, or flaws in character--
the Senate owes it to the President and the nominee to conclude its 
advise-and-consent role and grant its approval. I say that particularly 
in view of what has happened to his predecessor.
  In my belief, it is not appropriate for a minority of the Senate to 
prevent a vote on a Presidential selection based on unsubstantiated 
arguments about what Dr. Foster might have known or should have said. 
That is not the Senate's role.
  In addition, it is unprecedented to deny the President even an up or 
down vote on a well-qualified nominee for a public health position such 
as Surgeon General.
  Therefore, I believe that Dr. Foster is entitled to an up or down 
vote by the Senate. Not a procedural vote, but a real majority vote 
that will show the Nation that a majority of Senators favor Dr. Foster.
  Let me also say that I believe that many of the concerns raised by 
Dr. Foster's opponents over the last 5 months have been a smokescreen 
of false issues, innuendo, and other distractions designed to obscure 
the central issue here, which is a woman's right to choose an abortion.
  However, I am grateful that Dr. Foster's nomination has been 
investigated approved by the Labor Committee by a 9-7 vote and finally 
been brought to the Senate floor. It is my hope that in the remaining 
time for debate, Dr. Foster's real qualifications can be made clear and 
any remaining issues can be raised and answered, once and for all, and 
that a few more Senators can be persuaded.
  The concerns of Dr. Foster's critics boil down to a few basic 
elements, which we have continued to hear over and over. These 
arguments are:
  Dr. Foster has insufficient professional qualifications and 
credentials to serve as Surgeon General;
  Dr. Foster provided contradictory information on the number of 
abortions he has performed;
  Dr. Foster knew about the Tuskegee experiment, in which 400 black men 
with syphilis were left untreated, before it was revealed in 1972;
  Dr. Foster performed sterilizations of mentally retarded women during 
the 1970's; and
  Dr. Foster's I Have a Future teenage pregnancy prevention program 
focuses on contraception rather than abstinence.
  While most of these issues have already been thoroughly addressed and 
dismissed, I would like to briefly summarize the factual responses to 
each of them, based on what I have learned:
  On the issue of Dr. Foster's qualifications and credentials, I 
believe that they are impressive. Dr. Foster, is in rough chronological 
order:
  A graduate of Morehouse College and the University of Arkansas 
medical school;
  A former U.S. Air Force captain;
  An examiner for the American College of Obstetricians and 
Gynecologists;
  An advisor to the National Institutes on Health and the FDA on 
maternal and child health;
  A member of the National Board of Medical Examiners, the 
accreditation council for graduate medical education, and the board of 
the March of Dimes;
  A Distinguished Practitioner recognized in 1987 by the National 
Academies of Practice;
  Acting president of Meharry Medical College, where he has served for 
the last 21 years as dean of Medicine and Chairman of Obstetrics.
  On the issue of the contradictory estimates of abortions Dr. Foster 
performed and his overall credibility:
  A review of 38 years of medical records determined that the actual 
number of abortions Dr. Foster has performed or been the doctor of 
record are small in number [39]--particularly in view of his estimated 
delivery of 10,000 live babies.
  The initial confusion surrounding this number resulted from Dr. 
Foster having been listed as the attending physician for additional 
procedures that he himself did not perform, as well as disputes over 
whether hysterectomies Dr. Foster performed to protect the health of 
women should be counted as abortions if pregnancies were discovered 
during the procedure.
  During his hearing, Dr. Foster provided the following explanation of 
the early contradictions: ``In my desire to provide instant answers to 
the barrage of questions coming at me, I spoke without having all the 
facts at my disposal.'' The majority of the committee found this 
explanation reasonable enough to approve the nominee.
  On the claim that Dr. Foster consented to the infamous experiments at 
the Tuskegee Institute:
  While Dr. Foster was at Tuskegee during the time of the study, his 
expertise was maternal and child health rather than sexually 
transmitted diseases;
  A full committee investigation showed that the possibility Dr. Foster 
knew about the study is tenuous at best, resting on assumptions about 
what he should have known or might have been told, rather than direct 
evidence; the doctor whose statements have been used to suggest Dr. 
Foster failed to act promptly has stated repeatedly that Dr. Foster did 
not know of the study before it was revealed in 1972.
  Without any direct or concrete evidence that Dr. Foster actually knew 
about the experiments and failed to take action, it is not reasonable 
to judge him a participant or to burden him with the responsibility of 
having to shut down an experiment he did not control nor was he a party 
of this ill-conceived study. [[Page S 8859]] 
  On the assertion that Dr. Foster performed sterilizations of mentally 
retarded women:
  Dr. Foster sterilized retarded girls at the request of their parents 
under the established practice guidelines and ethics of the times, and 
wrote sensitively about these cases and the danger and tragedy of 
forced sterilization in 1974;
  If there were any real questions about Dr. Foster's ethics, he would 
not have been endorsed by every major medical association in the United 
States.
  On the claim that I Have a Future Program does not promote 
abstinence:
  This after-school program focuses on delaying teenage pregnancy, 
including providing education about abstinence and increasing self-
esteem as a way of preventing early sexual activity. Only if necessary 
are participants referred to medical personnel for information about 
contraception;
  Every press article and description I have seen talks about how the 
program emphasizes abstinence and does not just throw condoms at the 
kids. Whether or not all program brochures include the word 
``abstinence'' or not is not the central issue.
  In fact, the central motivation for the I Have a Future Program was 
Dr. Foster's observation that simply providing contraceptives to at-
risk teens was not an effective form of pregnancy prevention for at-
risk teens, and self-esteem and personal goal-setting must be included.
  Should he be denied because abstinence was not on a piece of paper?
  In all, here is a man who has impressive qualifications, an 
upstanding character, and reputation for integrity in his home 
community and among his professional peers. He has no glaring flaw that 
justifies denying him confirmation.
  Instead--and this is increasingly clear--there is just one real 
reason that he is being opposed: he performed 39--the number is 
disputed--medically necessary legal abortions as part of a career that 
includes 10,000 deliveries of live babies.
  What I would like to point out is that 39 is an amazingly small 
number, considering the human situations that Dr. Foster has 
encountered--women who have been raped; women whose mental or physical 
condition is such that they could not give birth; questions of major 
fetal deficiencies.
  The fact is that out of 10,000 live babies delivered, there were few 
cases where Dr. Foster performed a medically necessary and appropriate 
abortion. To me, this is a very small number.
  Were the procedures legal? Were they in accord with medical standards 
and performed as part of his established responsibilities? The answer 
to these questions, of course, is yes. Nothing has been raised to 
contradict this statement.
  What is clear to me from the last 5 months of debate over Dr. 
Foster's nomination is that there is now a question whether any 
obstetrician could ever hold the office of Surgeon General if they have 
performed even one legal, medically appropriate abortion.
  That clearly is the question in my mind. I really believe the issue 
is that simple. And I strongly believe that the answer to that question 
should be yes.
  I believe this body has but one choice and I am hopeful that, of the 
43 there are 3 who will come forward and simply say, in fairness, Dr. 
Henry Foster deserves a vote in this body.
  I yield the floor.
  Mr. COATS. Mr. President, I doubt that anything I say will shatter 
the deafening silence the Senator from Massachusetts alluded to. But it 
will at least interrupt. We have a number of speakers. Mrs. Kassebaum, 
who normally would be managing this, is chairing a hearing of the Labor 
Committee. I know the Senator from Massachusetts, who was a former 
chairman of that committee, understands that sometimes they do not end 
as quickly as you would hope. She will be here as soon as she can. A 
number of other Members plan to speak on our side. Several of them are 
tied up in that same hearing but will be here shortly.
  Mr. President, if yesterday's vote is any indication, Dr. Foster will 
not be confirmed as the next Surgeon General of the United States when 
we take this vote at 2 o'clock. I believe that conclusion is justified 
by the record. The Labor and Human Resources Committee held what 
everyone has described as thorough and fair hearings. Dr. Foster was 
given every opportunity to present, at whatever length of time he 
required and in whatever detail or depth he required, his 
qualifications, his experience, and to present his answers to the 
questions that were raised.
  Many have concluded, on the basis of that hearing, those who sat 
through the hearing and those who have examined the record, that Dr. 
Foster did not satisfactorily answer the many disturbing questions that 
were raised, that a disturbing pattern of behavior and of responses--
whether directed by the White House or not I do not know for sure--
emanated from those hearings and left many with serious questions. I 
detailed many of those in a letter to my colleagues, a very lengthy 
letter comparing the public documents, matters of public record, which 
in many numerous instances was in direct contradiction to Dr. Foster's 
version of the various incidents; issues in this debate that arose. 
Some of those will be addressed here today. That, however, has been a 
matter of examination for all Senators. They have all had the 
opportunity to do that, and in a sufficient length of time to do that.
  I believe that the conclusion that Dr. Foster is not the right man 
for this job is justified by the record. Questions of medical ethics 
that were raised are not just disturbing, in my opinion they are 
disqualifying. Questions of credibility in this Senator's opinion have 
never been adequately answered leaving us with a candidate that the New 
York Times says ``fails the candor test.''
  These problems, problems that the administration and problems that 
the nominee himself were largely responsible for, I believe have 
decided the outcome of this procedure. But I would like to spend a 
moment this afternoon on the broader lessons that should be taken from 
the tenure of the former Surgeon General, Dr. Elders, and the apparent 
failure of this nominee to receive the necessary support for this 
position, lessons that hopefully will inform the selection of the next 
nominee for this office.
  The President of the United States needs to understand that there are 
millions of Americans committed to the protection of innocent life and 
the protection of the innocence of childhood. They are not fanatics to 
be demonized. They are part of the responsible mainstream of American 
life.
  They understand that this administration disagrees with them. But 
what they do not understand is why this administration has chosen to 
actively assault their deepest beliefs, to disdainfully dismiss their 
highest ideals, to treat them as if they were beneath civility.
  This bias has been particularly obvious in the Office of Surgeon 
General. The former occupant of the Surgeon General's Office, Dr. 
Joycelyn Elders, abdicated her role as spokesman for public health 
entirely, and became what appeared to be a full-time spokeswoman for 
radical causes. And this nominee has shown, as I believe the record 
indicates, little sensitivity for the moral concerns of countless 
Americans whom he himself called ``right-wing extremists.''
  There is almost a mantra coming out of the White House, a mantra 
coming out of the Democrat Campaign Committee, a mantra being heard on 
this floor that any opposition to the President, almost on any subject, 
is the work of right-wing extremists. Boy, what a powerful group they 
are. I am not sure even if we can identify who they are. But any 
opposition raised to what the President deems his priority, his agenda 
for America, is dismissed either by the President or by his 
spokespeople as just the work of the right-wing extremists and, 
therefore, to be dismissed.
  I would suggest it goes to something far deeper than that. It goes to 
an undercurrent that threads its way throughout American life, American 
culture. It goes to the values that many Americans hold dear, people 
who do not even belong to any particular political party, people who 
would not begin to identify themselves as right wing or extremist or 
anything else--just concerns that affect everyday Americans, American 
families, American parents, those of us that are concerned with some of 
the breakdown in our culture and some of the undermining of our values. 
[[Page S 8860]] 
  So we raise questions about the bully pulpit that is being used by 
the administration, by the President and by the Office of Surgeon 
General to advocate an agenda that many of us feel is out of the 
mainstream of what the Democrats describe as the mainstream, but very 
much in the mainstream of what America has tried as America's agenda. 
We can debate this. We can debate what is the best course of action to 
take, and what direction we ought to go and what our values ought to 
be. We are not very successful at legislating those values. And I do 
not think it is possible to legislate those values. These problems are 
not going to be solved in this Chamber. They are going to be decided 
and solved around the kitchen table, in the family rooms, and where 
Americans live and work, and where the most discourse takes place among 
our citizens.
  But there are many who are concerned that the Office of Surgeon 
General has been used as an advocacy post for a certain agenda, an 
agenda that many of us feel is out of step with America's agenda, and 
the agenda of at least a very substantial majority of our people.
  This use of this position for this purpose makes the work of the 
Surgeon General literally impossible because the role of that office 
traditionally has been--and I think in most of our definitions should 
be--the role of building consensus around important public health 
issues. Instead, it is hard to argue any other way but that the 
administration has turned public health into an ethical battleground by 
enphasizing not issues that unite us but issues that divide us. And 
more than that, they have ridiculed anyone who dares to disagree, 
including the Catholic Church, the pro-life movement, and millions of 
parents who do not believe that condoms are a universal substitute for 
moral conviction.
  This administration by this attitude has undermined the public health 
discussion in America, and it has squandered the potential that exists 
for the Surgeon General and the Office of Surgeon General.
  Now the President, it appears, will have again a choice to make with 
another nominee--whether that nominee will bind our Nation or rend it, 
whether it will unite the Senate or divide us. I have some questions 
for the administration, questions that I think deserve serious 
consideration and deserve an answer. Mr. President, when will you 
finally nominate someone who can unite us as Americans around important 
issues of public health instead of polarizing us? When, Mr. President, 
will you choose a candidate for this office who is not an advocate of 
the most divisive issues of our times but is an advocate for those 
issues that can bring us together as a people? When, Mr. President, 
will you allow us to return our focus from moral controversies to 
issues of public health? We are not asking you to send us someone that 
we always agree with. But we are asking you to send us someone who does 
not bitterly divide us as a people. If your administration fails to do 
this, the consequences will be immediate, and I am afraid unfortunate.
 Because if the President insists that the Office of Surgeon General is 
a bully pulpit for radicalism, for advocacy, we will be forced to ask 
if the office should exist at all. I hope this is a decision we do not 
have to make. And I hope that the President will make his next choice 
with a lot more care than he exercised on his last two choices.

  Mr. President, I yield the floor.
  Mr. KENNEDY. Mr. President, I yield 5 minutes to the Senator from 
Maryland.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Ms. MIKULSKI. I thank the Chair.
  Mr. President, this is decision day on Henry Foster. This is not 
decision day on Joycelyn Elders. This is not decision day on Bill 
Clinton. We get to do that in November 1996.
  This is decision day on Henry Foster. We should be talking about 
Henry Foster and is he or is he not qualified to be the Surgeon General 
of the United States of America. I believe he is.
  Now, when one wants to ask: Where are those people who will unite us 
on broad issues of public health? Bill Clinton has done it. He gave us 
Dr. Phil Lee, a distinguished physician, who is our Assistant Secretary 
of Health, who is coordinating health policy in a time during shrinking 
budgets and higher need. He has given us Dr. Varmus to head the 
National Institutes of Health when George Bush delayed the appointment 
of the head of NIH because of a litmus test on fetal tissue. But Dr. 
Varmus is attracting the kind of young talent and retaining the 
seasoned talent for NIH to continue to be the flagship of research of 
the life science issues in America.
  Bill Clinton is meeting his responsibility. Today, it is our 
responsibility to pick a Surgeon General. And we are not voting on Dr. 
Elders. We did that. We are voting on Henry Foster.
  Henry Foster is a man unique unto himself, bringing his own 
credentials and expertise. He is not Joycelyn Elders in wingtips.
  Now, let us get it straight. I regret that abortion has become the 
focal point of this debate rather than the broad policy issues of 
public health. We should be focusing on who can focus on prevention, 
primary care, and personal responsibility in a public health agenda. 
That is what it is all about, and Dr. Foster has done that.
  We knew that, yes, there would be those who would focus on the big A 
word, abortion, so in a public hearing at the Labor Committee, chaired 
in a very outstanding way by Senator Kassebaum, I asked Henry Foster 
tough questions because I felt the public had a right to know. I said 
to Dr. Foster, ``Did you ever perform an illegal abortion?'' He said, 
``Absolutely not. I have only done those things that were legal and 
medically necessary.'' I said, ``Did you ever do a trimester 
abortion?'' He said, ``Absolutely not.'' I said, ``Did you ever do an 
abortion for sex selection?'' He said, ``Absolutely not.'' I said, 
``Did you ever sterilize mentally retarded girls without parental 
involvement?'' And he said, ``Absolutely not.''
  So that is the record, and it is on the record. ``Absolutely not.'' 
And on this sterilization study that has been discussed, the record is 
clear. Dr. Foster's name is on a study of a variety of people who 
conducted hysterectomies on retarded women, and on those three in which 
he was involved--and he was involved in only three--there was parental 
involvement and parental consent. They were acting in loco parentis, in 
the guardianship role of parents. Now, we believe parents should be 
involved. I support parental consent for abortion. There was parental 
consent in this area. Henry Foster did the right thing as a clinician, 
and he did the right thing in involving parents.
  So that is where we are on these issues. Now, the question becomes 
with Henry Foster, when is good good enough? This man has devoted his 
life to public service and the practice of medicine. To be Surgeon 
General of the United States, to serve your country, when is good good 
enough? Thirty-eight years in the practice of medicine. When is good 
good enough to be Surgeon General? When you serve in the U.S. military 
as a captain, as a physician, when you have done that job for your 
country, when is good good enough to be Surgeon General? When you 
practice medicine in a town like Nashville, and you are chosen to be 
head of your own bioethics committee, you are asked to be the dean of a 
medical school, is that not good enough credentials? What more do we 
want? Competency, well respected by your peers, 38 years of devotion, 
volunteer work in the community, starting a program called ``I Have a 
Future,'' going into the public housing projects to say to kids that 
you just say no.
  Schoolmarmist admonitions with these Victorian values only get good 
headlines. They do not get good results. You have to go to those kids 
and reach out to them. And the way you get them to say no is when they 
say yes to the possibilities of a life where they can define themselves 
as full men and women, not only in terms of their sexual prowess.
  That is what he did. And that is why George Bush wanted him to be a 
point of light, because these kinds of programs are a point of light.
  The PRESIDING OFFICER. The Senator's time has expired.
  Ms. MIKULSKI. Could I have 1 additional moment?
  Let me just conclude by saying this. In a room in a meeting with Dr. 
Foster, I said to him, ``What do you want to do as Surgeon General?'' 
He said, ``I want to help all Americans live better and I [[Page S 
8861]] want to help poor kids do better and make sure they have a 
future.''
  Dr. Foster has devoted his life to giving other people a chance. Let 
us give him a chance and not hide behind parliamentary procedure. Let 
us make this decision day for Henry Foster.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mrs. KASSEBAUM addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mrs. KASSEBAUM. I believe the Senator from New Hampshire has been 
waiting. Am I correct on that?
  Mr. SMITH. I have been here. Yes.
  Mrs. KASSEBAUM. I would like to yield to the Senator from New 
Hampshire 15 minutes.
  The PRESIDING OFFICER. The Senator from New Hampshire is recognized.
  Mr. SMITH. The Senator from Pennsylvania has said he is only asking 
for 3 minutes. I will be happy to yield and then take my time after the 
Senator from Pennsylvania.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. I thank the Senator from New Hampshire.
  The PRESIDING OFFICER. Is the Senator from Kansas or the Senator from 
Massachusetts yielding time to the Senator from Pennsylvania?
  Mr. SPECTER. I ask the Senator from Massachusetts to yield 3 minutes.
  Mr. KENNEDY. Three minutes.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, it is my hope that at least three 
additional Senators will vote in favor of closing debate so that Dr. 
Foster can receive a vote on the merits.
  I believe Dr. Foster is entitled to his day in court. He is entitled 
to his vote in the Senate. The sole issue which is holding up this 
confirmation is the issue of abortion. Cutting to the bone, that is it, 
pure and simple. And I think it is simply wrong to deny Dr. Foster 
confirmation because he has performed an operation which is lawful 
under the Constitution of the United States. And you see the pattern 
emerging. In yesterday's Washington Times, it is Ralph Reed, Jr., who 
is calling the tune for those who are opposing Dr. Foster, and in 
today's Washington Post it is Gary Bauer who is handing out plaudits to 
those in the Senate who are opposing Dr. Foster. I believe it is 
inappropriate for this body to deny this man a vote on the merits and 
to deny confirmation for performing a medical procedure, abortions, 
lawful under the U.S. Constitution.
  I would remind my colleagues, Mr. President, that there is nothing in 
the Contract With America, which was the basis of our Republican 
victory last November, nothing in the Contract With America, on 
abortion. And that is not a mandate from the American people defining 
the Republican stand. I would also remind my colleagues that if this 
body is going to become embroiled in this kind of an ideological 
battle, we are not going to be able to take up the issues which the 
American people elected us for. They did not elect us in 1994 on the 
abortion issue. They elected us to have smaller Government, less 
spending, reduced taxes, and strong national defense. Those are our 
core values and, if I may say, our core Republican values. And it is a 
very dangerous precedent for this body to have an ideological debate.
  If we are going to subject people who want to be public servants to 
60 votes, not the democratic majority, we are going to discourage 
people like Henry Foster and other qualified individuals from coming to 
this town, this Government, to serve. If there had been a demand for 60 
votes for Justice Clarence Thomas, he would not be sitting on the 
Supreme Court of the United States today. And I know there have been 
nominees who have had a past filibuster test. But the appropriate 
standard, the nonideological standard is to say, ``Is he qualified when 
he performs a medical procedure which is constitutional?'' I yield the 
floor.
  Mr. KENNEDY. We reserve whatever time we have. I believe the Senator 
from New Hampshire has been typically courteous to permit the Senator 
from Iowa to proceed for 3\1/2\ minutes.
  Mr. HARKIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Iowa is recognized for 3\1/2\ 
minutes.
  Mr. HARKIN. Thank you, Mr. President.
  Mr. President, I want to focus my comments a little on the comments 
made yesterday by the majority leader, Senator Dole. I have been for 
some time involved in the whole issue of filibusters. Senators may 
remember I tried earlier this year to do something about filibusters. 
The filibuster is being used here today. So, I looked it up in the 
Record, and here is what Senator Dole said yesterday. He said, ``Yes, 
supporters must obtain 60 votes.'' That is the way it works. I had the 
Congressional Research Service do a little work in that area. I have 
heard people say, ``Oh, this never happened before.'' It has happened a 
lot.'' He goes on to say, ``Since 1968 24 nominations have been 
subjected to cloture votes.'' As Paul Harvey might say, ``Now for the 
rest of the story,'' because that is not quite correct. The fact is, 
Mr. President, that nominations have been defeated by filibuster after 
failure to invoke cloture in only two cases: the first was Abe Fortas 
to be the Chief Justice of the Supreme Court in 1968; the other was Sam 
Brown to be an Ambassador in 1994. Both nominations were made by 
Democratic Presidents and defeated by Republican filibusters.
  Senator Dole was half right. He said that there had been 24 
filibusters. What he did not say was that 22 of them went through, and 
they got their nominations. Only two did not make it--Abe Fortas and 
Sam Brown.
  I might also point out, Mr. President, that Democrats have never 
blocked a nomination of a Republican President by filibuster and defeat 
of a cloture motion. Never. Not once. Now, until recently we never had 
cloture votes on nominations. Up until 1949 you could not filibuster a 
nomination. Then the rules were changed and you could. And even then 
comity prevailed on both sides of the aisle. During the Eisenhower 
administration we let Ike have whatever nominees he wanted. It was not 
until 1968 that the first filibuster was held. That was on Abe Fortas. 
And cloture was not invoked.
  The second, I said, was in 1994 on Sam Brown. But during all those 
years when there were Republican Presidents, a Democratic Senate never 
defeated, not once, by a filibuster a nomination of a Republican 
President. Those are the facts. And they cannot be disputed, Mr. 
President. Those are the facts.
  So I would say to my friends on the other side of the aisle, do not 
hide. Do not hide behind this procedure. Have the guts to come out and 
vote up or down on whether Dr. Foster ought to be the Surgeon General 
of the United States. And for once and for all, put behind us this 
filibuster procedure on nominations. I believe, Mr. President, we are 
going down a very bad road, a very bad road, because if we continue 
this, the worm will turn. There will be a Republican President and 
there will be a Democratic Senate. And then the shoe will be on the 
other foot. And I say that is the wrong road for us to go down. Let us 
invoke cloture and have an up or down vote. Let us not hide behind 
procedure.
  Mrs. KASSEBAUM addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mrs. KASSEBAUM. Mr. President, I yield 15 minutes to the Senator from 
New Hampshire.
  The PRESIDING OFFICER. The Senator from New Hampshire is recognized.
  Mr. SMITH. I thank the Senator from Kansas for yielding me this time. 
Mr. President, I rise in very strong opposition to Dr. Foster being 
confirmed as President Clinton's nomination to be Surgeon General of 
the United States. I also at this point would like to thank Senator 
Kassebaum for the fine job that she did with the hearings that were 
conducted very fairly, and I thank Senator Coats for his leadership in 
bringing information to the forefront regarding this nomination.
  As Senator Coats has ably pointed out during this debate, there are 
many troubling issues surrounding the confirmation of Dr. Foster. And I 
always feel somewhat sad to have to be involved in these debates when 
individuals like Dr. Foster are brought into the arena, so to speak, 
because appropriate research was not done on the [[Page S 
8862]] nomination prior to placing that person in the arena, which has 
happened in this case, I believe.
  The issues that I am concerned about include the credibility of Dr. 
Foster's responses to questions about his knowledge of the Tuskegee 
syphilis study, the infamous experiment with hundreds of black men with 
syphilis where they were deliberately left untreated in the name of 
medical research.
  In addition, several members of the Labor Committee have indicated 
they remain unconvinced that Dr. Foster was, as he claimed, ``in the 
mainstream'' of medical practice when he performed hysterectomies on 
mentally retarded women without securing independent-party written 
consent and even years after the State and Federal courts, as well as 
the U.S. Department of Health, Education and Welfare had proscribed 
those and similar practices.
  One of the principal issues surrounding this nomination is the 
credibility of Dr. Foster with respect to the number of abortions that 
he has performed. Various times since he was chosen by the President to 
be Surgeon General, Dr. Foster has claimed 1, 12, 39, and 55 abortions. 
And there is even a transcript of a public proceeding in which he 
appears to have claimed that he performed 700. The interesting thing 
about this, whether it is 1 or whether it is 700, one of those 
individuals, you never know, could very well, had they had the 
opportunity to live a full life, been the nominee for Surgeon General 
of the United States of America at some point in the future.
  All of these doubts about Dr. Foster were summed up just right I 
thought by the New York Times editorial entitled ``Ending the Foster 
Nomination,'' calling Dr. Foster a flawed nominee whose nomination 
involved sacrificing the principle that candidates for high office must 
fully disclose relevant facts and attitudes. The Times concluded that 
Dr. Foster's nomination deserves to be rejected.
  Mr. President, even though there are many reasons to oppose the 
nomination other than his performance of and advocacy of abortions, let 
me focus my remarks this afternoon on just how extreme--I emphasize the 
word ``extreme''--Dr. Foster's abortion policy views are. Polls by 
Gallup and others have consistently found that over three-fourths of 
the American people believe that abortion should be prohibited except 
to save the life of the mother after the first 12 weeks of pregnancy. 
Yet in the 1984 speech to Planned Parenthood of Eastern Tennessee, Dr. 
Foster expressed his strong opposition to restrictions on abortion 
after 12 weeks, about 150,000 of which are performed annually. Dr. 
Foster said--and I quote--``We in the movement must work to prevent the 
erection of such barriers to late abortion access.'' That is after 12 
weeks. In other words, Mr. President, Dr. Foster's view is that 
abortion should be legal, on demand, throughout pregnancy at any time. 
Let us explore for just a couple of moments what that means.
  Last Friday Senator Gramm and I introduced S. 939, the partial-birth 
abortion ban of 1995. Our bill is companion legislation to a bill 
called H.R. 1833 reported favorably by the House Judiciary Subcommittee 
yesterday.
  Mr. President, partial-birth abortions are first performed at 19 to 
20 weeks of gestation, very often much later.
  To give my colleagues a clear understanding of how well developed an 
unborn child is that late in pregnancy, I have with me an anatomically 
correct model of a child--not a fetus, it is a child. It is a little 
child. Its face is formed; its arms, toes, fingers, eyes--this is a 
child.
  Dr. Foster said he never performed a late-term abortion, and I have 
no reason to doubt that. I do not know. That is the statement that he 
made, and I am not accusing him of performing late-term abortions, but 
he is not blocking them either. So if you are not a murderer but you do 
not stop a murder, I think you can draw the conclusion.
  I brought some photographs to show that premature babies of this very 
age are the victims of these partial-birth abortions. In this 
photograph, this is Faith Materowski. She was born at 23 weeks of 
gestation, just 3 weeks older than this little model would be, weighing 
1 pound and 3 ounces, Mr. President. This photograph was taken about a 
month after she was born, and I am happy to report that Faith survived. 
She survived because her mother wanted her to live not die.
  Let me explain, with the aid of a series of illustrations, exactly 
what is done to children about the same age in a partial-birth 
abortion. As I do, keep in mind that Dr. Martin Haskell, who by his own 
admission has performed 700 of these partial-birth abortions as of 
1993--Lord knows how many after that--has told the American Medical 
News, the official newspaper of the AMA, that the illustrations and 
descriptions that I am about to present are accurate, technically 
accurate. In the first illustration, the abortionist----
  Mrs. MURRAY. Will the Senator yield?
  Mr. SMITH. I will not yield. I will be happy to yield when I finish 
and engage in questions and answers on your time.
  In the first illustration, the abortionist, guided by ultrasound, 
grabs the baby's leg with forceps.
  As you see in illustration 2, the baby's leg is then pulled from the 
birth canal. So you see the forceps now have grabbed the legs, pulling 
the baby from the birth canal.
  In the third picture, in this so-called partial-birth abortion 
process, the abortionist delivers the entire baby, with the exception 
of the head--the entire baby. So I ask my colleagues to think about 
this, as to whether or not this is some impersonal thing or whether 
this is a child now in the hands of the abortionist. It could be a 
doctor, Mr. President. If it were a doctor who wanted to save that 
life, the life would be saved; the baby would be born and the life 
would be saved. The only difference is it is an abortionist.
  In illustration No. 4, the abortionist takes a pair of scissors and 
inserts the scissors into the back of the skull and then opens the 
scissors up to make a gap in the back of the skull in order to insert a 
catheter to literally suck the brains from the back of that child's 
head.
  That is what happens in the so-called partial-birth abortion. 
Anywhere from the 19th or 20th week up, this can happen. It is 
unspeakably brutal, and yet some say the child does not feel this. Take 
a pair of scissors and slowly insert them into the skin in the back of 
your neck a little way and see how that feels to you.
  According to neurologist Paul Renalli, premature babies born at this 
stage may be more sensitive to painful stimulation than others. I would 
think my colleagues would be repulsed by this and most Americans would 
be appalled, sickened, and angered that such a brutal act could be 
carried out against a defenseless child. This is a child, I say to my 
colleagues. This is a child; a defenseless child.
  I ask you, would you put your dog to sleep by inserting scissors in 
the back of the neck and using a catheter to suck out its brains? Yet, 
under the Supreme Court Roe versus Wade decision, the brutal partial-
birth abortion procedure that I just described is legal in all 50 
States--all 50 States. And, in fact, the National Abortion Federation 
has written:

       Don't apologize, this is a legal abortion procedure.

  Exactly my point and exactly the connection with Dr. Foster. And 
before my colleagues stand up and accuse me of saying it, I am not 
accusing Dr. Foster of doing this. What I am accusing Dr. Foster of is 
ignoring the fact that it is taking place and accepting the fact that 
by any means, any means legal--and this is legal--by any means legal, a 
life can be taken. So lest my views get misrepresented on the floor of 
this Senate, I am making it very clear.
  So when Dr. Foster says he wants to prevent the erection of barriers 
to late-abortion access, he is tolerating and condoning this. That is a 
late abortion, and he is tolerating it and allowing it to happen. Based 
on Dr. Foster's own statement, one can only conclude that he would 
oppose, and oppose strongly, the very bill that I have introduced. I 
have not heard otherwise.
  The grotesque and brutal partial-birth abortion procedure that I just 
described and illustrated on the floor of the Senate today can and 
should be outlawed. And if the Surgeon General of the United States, 
whoever he or she may be, spoke out against it, it would [[Page S 
8863]] be outlawed, and that is the kind of Surgeon General that I 
want.
  The bill that Senator Gramm and I have introduced would outlaw it, 
and our bill amends title 18 of the United States Code so that:

       Whoever, in or affecting interstate or foreign commerce, 
     knowingly performs a partial-birth abortion and thereby kills 
     a human fetus should be fined . . .

  Not the woman, the doctor--called a doctor--the abortionist.
  So, Mr. President, when Dr. Foster speaks of these barriers, he is 
talking, in effect, about bills like mine, like the bill that would ban 
partial-birth abortions. He is providing, when he says a woman's right 
to choose, a woman's right to choose partial-birth abortions. This is 
what it means. Let us put some meaning to the words, because that is 
what it means.
  Out of all of the controversy surrounding Joycelyn Elders, all of the 
unbelievable statements and the controversy that we endured during her 
all-too-long and lengthy tenure, I cannot understand why the President 
would choose as his successor someone whose past record and policy 
views on the pressing social questions of our time are so out of tune, 
so far out of sync, with the rest of the American people.
  The Surgeon General should be someone that the American people have 
confidence in, someone who would put the intense controversy of the 
Elders years behind us. Yet, President Clinton apparently, without even 
reviewing carefully Dr. Foster's record, which places him, 
unfortunately, in this debate, did not do a good job of investigating 
his past and even recklessly went ahead and made this nomination.
  Mr. President, there are over 650,000 physicians in the United States 
of America--black, white, male, female, Asian, Hispanic, Indian. 
Surely, surely there is one out of 650,000 that could be brought to the 
floor of the U.S. Senate that would not have this kind of controversy 
and this kind of debate following the Elders reign.
  My friend and colleague, Senator Mikulski, a few moments ago said on 
the floor that she could not understand why this whole thing was about 
abortion, why the debate was so focused on abortion. In the Washington 
Post this morning--I might answer the Senator from Maryland by saying 
this--here is what President Clinton said:

       Make no mistake about it, this was not a vote about the 
     right of a President to choose a Surgeon General. This was 
     really a vote about every American woman's right to choose.

  That is why it is about abortion, because the President is making it 
about abortion, because he wants this kind of thing to occur.
  Mr. President, I am confident that when the votes are counted, it is 
going to be the same result as yesterday, and Dr. Foster will not be 
the next Surgeon General.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. Who yields time? The Senator from Washington.
  Mrs. MURRAY. I yield myself 1 minute, and then I will yield to my 
colleague.
  Mr. President, I am appalled and shocked that there would be this 
kind of display on the floor of the U.S. Senate. Certainly, Dr. Foster 
has made it very clear, as Senator Mikulski explained to all of us, 
that he does not support third trimester abortions, that he does not 
support abortions for sex selection, nor does he support illegal 
abortions.
  I think it is really outrageous that guilt by association occurs on 
the floor of the Senate. I think the American people deserve a debate 
with dignity. I think Dr. Foster deserves a debate with dignity, and I 
hope that all of us can remember that.
  Again, I remind you, Dr. Foster's nomination is in front of us 
because he is a man with a tremendous history of service--community 
service--delivering more than 10,000 babies, and I think that is what 
we should be debating today.
  I yield my colleague from New Jersey 2 minutes.
  The PRESIDING OFFICER. The Senator from New Jersey is recognized.
  Mr. LAUTENBERG. Mr. President, I thank the distinguished Senator and 
urge her to continue her quest to see that fairness is finally 
delivered on this floor.
 I am astounded by what we have just seen. I assume that the pictures 
that we saw reflect a woman's decision, that she chose to have that 
abortion. You can make it look as ugly as you want. But the fact is 
that it is a medical procedure, and this woman chose to have it. This 
same Senator--a distinguished Senator and a friend of mine--from New 
Hampshire voted the other day and led the fight to take helmets off 
motorcycle riders. They could be laying all over the road, and they 
wind up in a hospital as paraplegics and quadriplegics, and we pay for 
it. That is OK. But to permit a woman who, under the law, has a right 
to make a choice, no, no.

  Here we are watching a small minority deciding how the behavior of 
the majority ought to perform. This is an outrage. Yes, this is about 
abortion because the other side made it about abortion, instead of 
taking this man with superb credentials, who did what he had to under 
his oath as a physician and under his compassion as a human being. He 
obeyed the law and delivered excellent service. Over 10,000 babies 
delivered. The Senator from New Hampshire wants to pick out a procedure 
that was required and make that the subject of this discussion.
  No, it is a narrow minority who says to the women across this country 
that you have no right to choose, even though the law says so. In his 
very statement, he said that. He said if we had a Surgeon General who 
spoke against it, then it would be OK with this Senator and those whom 
he represents--Senator Gramm and the others.
  This is an outrage. What we are witnessing here is the truth about 
this issue. This has nothing to do with Dr. Foster. This has to do with 
politics, raw politics. I appeal to the people across this country, if 
you think you are being dealt with fairly, just look at what took 
place: Decrying a law that is on the books and a physician for doing 
his duty. We ought to get a couple of friends here with enough courage 
to stand up and say we are not going to take it anymore and we are 
going to vote on behalf of the women in this country.
  Mrs. MURRAY. Mr. President, I yield my colleague from Illinois 4 
minutes.
  Ms. MOSELEY-BRAUN. Mr. President, everybody is talking about what the 
issue is here. I think there are a number of American people who think 
that the only real issue is fairness. It is whether or not a minority 
of this body will stop this nomination, using the time-honored trick of 
the filibuster in order to enforce an extreme agenda on the President 
of the United States through his nominee. It is just that simple.
  The extreme agenda, I think, is pretty evident. I have never seen 
anything as horrific, as horrendous, as awful, as ugly and graphic as 
the posters and the doll figure I saw on the floor a few minutes ago. 
It is outrageous to bring something like that on the floor of the U.S. 
Senate to make whatever point. Whether you are for or against choice, 
to bring that kind of graphic depiction of ugliness on this floor, I 
think, only serves the purpose of inflaming people around an issue that 
really inflames and divides the American people, and that does go to 
the heart of the opposition's extreme agenda here.
  People who say the Supreme Court was wrong in terms of Roe versus 
Wade are finding 9,000 ways to overturn it in subtle ways. People who 
do not believe that a woman has a right to choose--by the way, 
everybody is entitled to their own view on that issue. American people 
are and will be divided. That is a profoundly divisive issue in our 
body politic. But the question is: Why would that profoundly divisive 
issue be applied to Dr. Foster's nomination?
  Here is a man who is not an abortionist. He is a women's doctor. He 
has delivered tens of thousands of babies, and he has made the point 
that he supports the laws in terms of a woman's right to choose, but 
that is not his practice and never has been. Dr. Foster has played by 
the rules, has promoted women's health over the years, and he has a 
stellar background.
  I join my colleague from New Jersey in saying that this really is a 
nomination now that is wrapped up in games and politics. Indeed, I will 
go as far as to say that Dr. Foster is a political hostage to 
extremism. That is the issue here--whether or not we are going to allow 
that extremism to derail this [[Page S 8864]] nomination through use of 
the filibuster, or whether we are going to allow this man to have a 
majority vote of this body. Fifty-seven Members of this body, 
yesterday, voted to allow the nomination to come to a vote. That is 
more than half. That is more than a majority. What it is not is enough 
to overcome the time-honored trick of the filibuster. It is continuing 
that filibuster that is at the heart of the vote that will take place 
this afternoon.
  I urge my colleagues to strike a blow for fairness and say to the 
American people that we are prepared to allow a majority to rule in the 
U.S. Senate, like it does on other matters--the budget, the 
appropriations, and all the other things we do. Let us say we are going 
to allow the majority vote to prevail regarding this nomination for the 
President's administration.
  Dr. Foster was nominated by the President over 136 days ago. We have 
been sitting here in the U.S. Senate with all of the public issues we 
have before us--violence and crime, the issues in the communities, 
AIDS, you can go down the list--and they have not been attended to. 
Why? Because of the politics of abortion and politics of the 
Presidential campaign. I say let us free Dr. Foster and have his 
nomination vote take place today.
  Mrs. KASSEBAUM. Mr. President, I yield 10 minutes to the Senator from 
Texas.
  Mr. GRAMM. Mr. President, I thank the distinguished chairman for 
yielding. We are coming down to the final moments of the debate. We 
will have our final vote here in a few minutes.
  I would like simply to review the key issues. First of all, let me 
address the issue of the cloture vote. To listen to our colleagues, it 
would sound as if we never vote on cloture in the U.S. Senate. Yet, 
hardly a week goes by that we do not have a cloture vote. It is part of 
the fabric of American democracy. It was part of the process making the 
Senate the deliberative body of Congress that George Washington 
described to Thomas Jefferson when Jefferson came back from France. 
Thomas Jefferson had been the American Minister to France while the 
Constitutional Convention was occurring.
  Our colleagues talk about cloture votes and filibuster. Yet, since 
1968, 24 times we have had cloture votes on nominations, and nearly 
every one of them occurring when we had Democratically controlled 
Congresses.
  The way our system works is, if there is a determined minority, that 
minority has the right to speak in the U.S. Senate. There is, today, a 
determined minority. And to accommodate the Senate, an agreement was 
worked out so that the proponents of this nomination had not one vote, 
but two. That was agreed to by unanimous consent. Any Member of the 
Senate could have objected. No one objected. So this is a process that 
we chose and that every Member agreed to. This is a process that we all 
understand, and it is a process called ``democracy.'' It has served us 
well in the past. It will serve us well today when we reject this 
nomination.
  I remind my colleagues that there was a Democratic effort to stop the 
confirmation of Chief Justice Rehnquist of the Supreme Court. That 
nomination went to a cloture vote. In that case, cloture was invoked. 
But the point was somebody on the Democratic side of the aisle felt so 
strongly about that nomination to one of the three most important 
offices in the land--the head of an entire branch of American 
Government--that they exercised their right. Many people did not like 
it, but that is how our system works. In that case, the process worked. 
We invoked cloture. Judge Rehnquist was confirmed. And in this case it 
is going to work as well. We are not going to invoke cloture, and Dr. 
Foster is not going to be confirmed.
  Now, let me address the issue of Dr. Foster's credentials, and let me 
make it very clear that there is absolutely nothing in this debate that 
has anything to do with anything other than his qualifications to hold 
this office. There are two principal qualifications that our colleagues 
go on and on about with Dr. Foster. No. 1, he was the department head 
at a medical school in America. That is true. It is also true that the 
department he headed lost its accreditation while he was head of that 
department. Was it his fault? Were there extenuating circumstances? 
Were there other factors involved? Certainly there were. There always 
are.
 But the bottom line is that he served as the department head of a 
department that lost its accreditation.

  The second argument given is that he established a program with a 
wonderful name, ``I Have a Future.'' That program's stated goal was to 
reduce teen pregnancy. Our colleagues make a big point that this 
program was given a Point of Light Award. It was given that award 
because of its objective, a noble and great objective, and one that we 
need to promote all over America. But the bottom line is there were two 
objective assessments of that program, and both of them were made after 
it was given this award. Both evaluations concluded exactly the same 
thing: This program did not in any statistically significant way reduce 
teen pregnancy among those who participated in the program.
  I said it yesterday. I will say it again today. And every Member of 
the Senate knows it. If we had set up a distinguished panel of 
physicians to go out and look at qualifications of physicians in 
America and to come up with a list of 1,000 physicians who were 
eminently qualified to hold the position as America's first physician, 
Surgeon General, Dr. Foster's name would not have been on that list. I 
do not think anybody here believes that Dr. Foster is qualified to be 
Surgeon General when considering his two major credentials: One being 
the head of a department that lost its accreditation; the other being 
the director of wonderful-sounding program with a noble objective 
which, according to two objective assessments, proved totally 
ineffective in promoting those objectives.
  Because it has been the focal point of the debate, as it should be, I 
am not going to get into again the problem of Dr. Foster's credibility. 
Maybe it was his fault, maybe it was the White House's fault, maybe it 
is failing memory, maybe it is simply a lack of understanding of the 
political process and how it works. But the bottom line is, on 
virtually every issue that has been raised, there has been a problem of 
credibility.
  Finally, on the whole issue of abortion. I did not see the 
presentation that my dear colleague, Senator Smith, made about partial-
birth abortions. Maybe some people were offended by the presentation. 
But I am offended that this is happening in America. I think people do 
have different views on abortion, and I respect the opinion of people 
who disagree with me.
  But I think it is an extreme view when you take the view which Dr. 
Foster takes, in opposition to parental consent in cases involving 
abortion and minors. Polls show that is an extreme view; 80 percent of 
the people in America think that parents ought to be notified when 
abortion is going to be performed on a minor. I think it is an extreme 
view when a child is in the process of being born, and its life is 
extinguished. I think it is an extreme view that when a lady is being 
taken down the hallway toward the delivery room, that it is perfectly 
acceptable in America to make a left turn to perform an abortion. The 
American people, by a margin of over 70 percent, think that is an 
extreme view.
  Why filibuster? Why force a 60-percent vote? The answer to that is 
very, very simple. A lot of us felt very strongly about Joycelyn 
Elders. When I read the things that she had said about the Roman 
Catholic Church, when I read the her comments which made her sound more 
potentially successful as a radio talk show host than a Surgeon General 
of the United States, when I looked at how extreme her views were, I 
did not think she ought to have that job.
  But this was the President's first nomination for this position, and 
there was no way of knowing in advance exactly what she would be like. 
I voted no; I opposed her nomination; I fought it; I wanted to defeat 
it, but I did not use the power that the minority has in the Senate, 
and that is the power to debate. Having made that mistake on Joycelyn 
Elders, I and others were determined that we were not going to make 
that mistake again.
  I believe Dr. Foster is not qualified for this position. I believe 
that there are real credibility problems concerning the facts that have 
been presented to the country and the Congress. And [[Page S 
8865]] finally, I believe that his views are radical and outside the 
mainstream of American thinking.
  Yesterday, I quoted our President four times from his campaign, 
talking about the values of our people, talking about family values, 
talking about traditional values. I do not believe that Dr. Foster's 
views match the President's 1992 campaign rhetoric.
  I think one thing we have a right to expect Presidents to do once 
they are elected is to put forth nominees whose views are consistent 
with their campaign rhetoric. We have a right to expect that those 
campaign views will be reflected in their nominees. Do not get me 
wrong. When people voted for Bill Clinton, they voted for more 
spending, more taxes, more regulation, more Government, and for the 
appointment of liberals. If they did not know it, they should have 
known it. That is what democracy is about.
  But they did not vote for the radicals that this President has 
appointed. This is an appointment where the views of this candidate are 
outside the mainstream of American thinking, and I believe we are 
making the right decision in saying no.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. KENNEDY. Mr. President, I yield 2 minutes to the Senator from 
Arkansas.
  The PRESIDING OFFICER. The Senator from Arkansas is recognized.
  Mr. PRYOR. Mr. President, I thank the Chair and I thank the 
distinguished manager.
  I do not know whether this debate is more about politics or more 
about abortion or exactly what it is about. But I do not truly believe 
this debate is about Dr. Henry Foster. There are two Henry Fosters: The 
one that is depicted and portrayed by his opposition; and there is the 
real Henry Foster, a man of deep compassion and certainly a man of 
great ability.
  There have been a lot of articles written, a lot of stories on TV and 
radio and in newspapers, about who is winning in this Foster fight; 
whether it is one of the candidates for the Republican nomination for 
President or the other candidate.
  Mr. President, I can say the loser in this fight, if we do not get 60 
votes today, will be the American people. It will be the American 
people who are going to be the great loser if we do not confirm this 
man.
  He has stated time and time and time again his position on abortion 
is very, very simple: That they should be safe, that they should be 
legal, and that they should be rare. That is his position on abortion.
  I urge my colleagues to vote for this splendid man as our next 
Surgeon General of the United States.
  Mr. President, it gives me great pleasure to support the nomination 
of Henry W. Foster Jr., M.D. to one of the most important health care 
posts in our Government, Surgeon General. As you know, the Surgeon 
General is the national spokesperson to promote good health activities 
and to alert the nation regarding things that are harmful or 
potentially harmful. In May, Dr. Foster convinced the Labor and Human 
Resources Committee that he was the right man for the job.
  Today, I am here to explain to my colleagues why I know Dr. Foster is 
the right person for that job. To reiterate, soon after I set out to 
learn more about our nominee for Surgeon General, I realized that there 
are actually two Dr. Henry Fosters. One is the Dr. Foster created by 
inside-the-beltway groups using diversionary tactics to derail the 
nomination of a respected physician. The other is the Dr. Foster who 
grew up in Pine Bluff, AR, attended University of Arkansas as the only 
African-American in his class, served his country as a medical officer 
in the Air Force, and set up a practice in Tennessee where he trained 
hundreds of the nation's finest medical practitioners.
  Mr. President, I am here to tell you that I am convinced that this 
second Dr. Foster is the real Dr. Foster. For those who doubt this and 
want to see something tangible, I urge you to visit Nashville to see 
his accomplishments, such as the doctors he trained, the day care 
centers he created, and the individuals, young and old, he has 
delivered into this world over his many years of practice.
  I would be remiss if I did not mention one of Dr. Foster's greatest 
accomplishments, his I Have a Future Program, a pioneering effort to 
reduce the number of teen pregnancies by improving teens' self-esteem. 
As you may know, President George Bush named Dr. Foster's program as 
one of American's Thousand Points of Light in 1991. President Bush's 
own Secretary of HHS, Dr. Louis Sullivan, has lauded Dr. Foster's 
nomination.
  Let me also talk about what Dr. Foster's peers say about him. The 
American Medical Association, the American College of Obstetricians and 
Gynecologists, the National Medical Association, the American College 
of Preventive Medicine, are just some of the professional organizations 
that have come out in support of Dr. Foster.
  Mr. President, in addition to letters from his peers, I have also 
gotten letters from other groups. One organization, the Council for 
Health and Human Service Ministries of the United Church of Christ 
wrote:

       We are people of faith, committed to promoting and 
     maintaining optimum health of all people. We believe that the 
     professional credentials and experiences of Dr. Foster are 
     impressive and provide sufficient evidence of his ability to 
     be the nation's spokesperson on matter of public health 
     policies and practices.

  In sum, Mr. President, let me make these points about Dr. Foster:
  He is a practicing physician, a scholar and academic administrator of 
national stature, and a community leader.
  Dr. Foster is a skilled communicator who emphasizes consensus-
building over confrontation.
  Dr. Foster has bipartisan support.
  Dr. Foster is one of the nation's leading experts on, and advocates 
for, maternal and child health, and has developed and directed teen 
pregnancy and drug-abuse prevention programs that bolster self-esteem 
and encourage personal responsibility.
  Mr. President, let us look at the Dr. Foster from Tennessee, the man 
who has done so much for people who others have ignored. Let us follow 
the Labor and Human Resource Committee's lead and confirm Dr. Foster's 
nomination.
  Mr. KENNEDY. Mr. President, I yield 2 minutes to the Senator from 
California.
  The PRESIDING OFFICER. The Senator from California is recognized for 
2 minutes.
  Mrs. BOXER. Mr. President, I was not going to take the floor back, 
but I have to respond to some of the things done and said on this 
floor. I feel very strongly that it is my responsibility as a U.S. 
Senator from the largest State in the Union to the say a couple of 
things here.
  No. 1, to my colleague from Texas, people in America want a fair 
President. This is not fair. To deny this man a vote is not fair--
period. And then to keep bringing up Joycelyn Elders. I do not say 
about my colleague that he is like Richard Nixon or he is like Herbert 
Hoover. If I agree with him, I agree with him because it is him. I do 
not say he is like someone else. So let us cut it out. If you want to 
fight a guy, fight it on fair terms.
  My colleague from New Hampshire shows us pictures meant to divide 
this country. He shows us pictures that should never be shown in front 
of the Senate pages who sit here. They should have been spared that. 
You want to outlaw abortion? You want to make it a crime? You want to 
put women in jail for having them? You want to put doctors in jail? 
Bring the legislation to the floor. I will debate with you toe to toe--
toe to toe. And I will win that battle because, thank you very much, 
the women of America do not want Senators telling them how to handle 
their private lives.
  I am always amazed that the very people who say get Government out of 
our lives want to put Government in the bedrooms of the women and men 
of this country.
  You are out of the mainstream, and you are stopping this nomination 
with a minority vote here. It is wrong to do that.
  I want to end my remarks with a positive picture--and I wish I had 
it--of 10,000 little babies.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mrs. BOXER. May I have 30 additional seconds?
  Mrs. KASSEBAUM. Mr. President, I yield the additional time.
  Mrs. BOXER. I thank my colleague. [[Page S 8866]] 
  If I had only known we were going to do this picture situation, I 
would have tried to get the picture of thousands of new babies--10,000 
brought into the world by this physician who went into the Deep South, 
where no one would go, who turned around the infant mortality rate. Did 
you ever see a picture of a baby who was born without prenatal care? I 
will tell you about it. I happen to have one. I have two who were born 
premature with prenatal care. But I want to tell you, it is not a 
pretty picture. They have tubes up their noses. They suffer. They 
struggle. They get high bilirubin. They turn yellow. And I will never 
forget, before my baby was born prematurely, I remembered then 
President Kennedy had a baby that was born prematurely. It is not a 
pretty sight.
  He turned it around. He showed those pictures. Dr. Foster never 
performed a late-term abortion that was not to save the life of the 
mother. That is on the record. It is an unfair thing to do to this man.
  I urge my colleagues, in light of those pictures, to change your 
vote, show that you have a conscience, and stand up for what is right 
and just.
  I yield the floor.
  Mrs. KASSEBAUM. Mr. President, I yield 15 minutes to the Senator from 
Ohio.
  Mr. DeWINE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Ohio is recognized for up to 
15 minutes.
  Mr. DeWINE. Mr. President, I rise today to discuss the nomination of 
Dr. Henry Foster to be Surgeon General of the United States.
  The role of the Surgeon General is to be a public advocate--to 
persuade Americans to change their private behavior and lead healthier 
lives. That is why the credibility of the Surgeon General--his or her 
ability to communicate with the American people--is vital to his 
success in that job. The Surgeon General has to be able to connect with 
the general public in a truly personal way.
  To do this, the Surgeon General has to be sensitive to people's real 
concerns. He cannot be someone who appears to shrug off important 
issues.
  That is why Dr. Foster's record on the very important issue of 
sterilizations is so troubling.
  What are the facts? The facts are that in the early 1970's, it was 
becoming increasingly clear, to a broad public, to the medical 
profession, that mentally retarded individuals needed special 
protections--to prevent abuses of the practice of sterilization.
  In 1970, the American College of Obstetricians and Gynecologists 
issued the following statement of policy:

       If an operation to accomplish sterilization is recommended 
     by the physician for medical indications, the recorded 
     opinion of a knowledgeable consultant should be obtained.

  Four years later, in 1974, Dr. Foster wrote an article in which he 
said--and I quote: ``Recently, I have begun to use hysterectomy in 
patients with severe mental retardation.''
  The operative words are ``recently'' and ``begun.''
  ``I have recently begun''.
  In a written inquiry, I asked Dr. Foster whether he had obtained the 
recorded opinion of a consultant prior to performing those 
hysterectomies. His answer was--and I quote--``I do not believe I 
obtained the recorded opinion of a consultant.''
  But he adds:

       I believed that * * * the manner in which they were 
     performed was fully consistent with prevailing rules 
     governing informed consent.

  Dr. Foster is now--and was then--a member of the American College of 
Obstetricians and Gynecologists. But in response to my question, Dr. 
Foster said he believes that the policies of the American College of 
Obstetricians and Gynecologists simply are not binding.
  I have a problem with that. I think that the position of the American 
College of Obstetricians and Gynecologists--their insistence on a 
recorded opinion from a consultant--should not be dismissed so 
cavalierly. Indeed, the whole trend of history was moving toward 
protecting the rights of the mentally retarded, and away from Dr. 
Foster's position, at the time he wrote that article.
  Let me add a few more comments to put it into really historic 
context.
  In 1972, a Federal district court--in the case of Wyatt versus 
Stickney--had placed Alabama's institutions for the mentally ill and 
mentally retarded under sweeping and detailed court orders forbidding 
experimental research and certain kinds of treatment without express 
and informed consent.
  In June 1973, two girls--ages 12 and 14--were surgically sterilized 
in Montgomery, AL.
  Without going into all the details, it was an absolutely shocking set 
of facts.
  When the sterilizations came to light, there was immediate public 
reaction--and a move toward nationwide reform. By the end of that same 
month--June 1973--there was already a lawsuit filed. In the following 
month--July 1973--Senator Edward Kennedy held hearings on this 
controversy. The Secretary of HEW announced that new regulations on the 
use of Federal funds for sterilizations would be published within 
weeks.
  And the regulations were published. They sought to protect the rights 
of all persons--including the mentally retarded--with respect to 
federally funded sterilizations.
  These regulations never took effect, because in 1974 a Federal 
district court found--in the case of Relf versus Weinberger--that HEW 
had no authority to perform any nonconsensual--that is what we are 
talking about, nonconsensual--sterilizations whatsoever.
  On January 8, 1974--the very beginning of 1974--Federal District 
Judge Frank M. Johnson, Jr., issued an order that specified the 
procedures that would have to be followed in cases of the sterilization 
of institutionalized mentally handicapped individuals. Judge Johnson 
required that any sterilization would have to be approved by the 
director of the institution, a review committee, and the court.
  That was January 1974.
  That tells us a little bit about what the climate was.
  That was the moral and legal climate in which Dr. Foster was 
justifying and defending the practice of sterilizing mentally 
handicapped women.
  In the summer of that same year--months after the decision by Judge 
Frank Johnson, and a year after the Kennedy hearings--Dr. Foster made 
his statement that he had ``recently * * * begun to use hysterectomy in 
patients with severe mental retardation.''
  The physician--even more than the average citizen--owes what our 
Declaration of Independence calls ``a decent respect to the opinions of 
mankind.'' That is way Dr. Foster's responses on the issue of 
sterilization gives cause to me for grave concern. They lead one to 
believe that Dr. Foster can be tone deaf to some very important issues.
  It is one thing to have a controversial position on some issue. It is 
something else entirely when someone chooses to remain totally 
indifferent to the moral controversies of his time.
  If you are going to be Surgeon General, you have to be able to reach 
people. You have to be sensitive to them. You have to care about what 
is going in their hearts and their fundamental moral sensibilities.
  Dr. Foster, as I have said on several different occasions, Mr. 
President, is a good man. He is a caring person. He is a loving human 
being. That is not the issue. I believe, based upon the hearings, on my 
own conversations with him, on his responses to my written questions, 
that Dr. Foster simply cannot adequately perform this job; that he 
cannot use the job of the Surgeon General of the United States to its 
fullest capability; that he cannot use it as the bully pulpit that it 
should be used as; that he cannot maximize the great potential that 
office has.
  That is why I will again today vote no on his nomination.
  I yield the floor.
  Mr. BRADLEY. Mr. President, I rise reluctantly today to join the 
debate on Dr. Henry Foster's nomination as Surgeon General. I am 
reluctant because this has gone on too long; there should not be such 
fierce opposition to a candidate so clearly qualified as Dr. Foster. 
However, the debate continues, and I feel it is important to point out 
his qualifications, and thereby separate the germane issues from 
distractions, wordplay, and rhetoric.
  The facts of Dr. Foster's career speak for themselves. His work at 
Meharry Medical College, his service for a long list of organizations, 
including the March of Dimes Foundation and the [[Page S 
8867]] American Cancer Society, are evidence of his dedication and 
professionalism. His I Have a Future Program has helped young men and 
women leave housing projects and embark on field trips, jobs, and 
college educations. The program was aptly chosen as No. 404 of the 
Thousand Points of Light. Who can deny that teaching job skills, self-
esteem, communication skills, and counseling for at-risk youths is a 
light in these troubled times? Who can question the values of a man who 
builds up a community, provides support for teenagers, and encourages 
family participation in crucial life decisions?
  Dr. Foster was there for the teenagers of Nashville when their 
decisions were anything but simple. Violence, pregnancy, drugs, and 
poverty are problems that faced these youths, and which face us here 
today. We have a chance to provide America with a Surgeon General who 
has said that as the People's Doctor, he would try to ``replace a 
culture of hopelessness with one that gives young people a clear 
pathway to healthy futures.'' We can debate endlessly, lamenting the 
lack of values in America and condemning violence, but when we prevent 
Dr. Foster's nomination, we prevent him from continuing and expanding 
his fight against today's problems.
  Dr. Foster has used his position as a medical doctor and an educator 
to encourage abstinence and to give teenagers hope for the future, so 
that they will take the responsible path. He has used his knowledge and 
his expertise to bring adolescent health services to places where they 
are desperately needed. He has performed a function beyond the call of 
a traditional physician. In his own words, his work ``involves the 
entire families and the total social matrix of the surrounding 
community.''
  In holding back this nomination, we hold back possible solutions to 
problems which face all of us, problems which will not be solved 
without work like Dr. Foster's, problems which will not go away, and 
problems which will not wait for political delays.
  We must listen to the facts in this case. By now, we are all familiar 
with Dr. Foster's outstanding achievements as a doctor, an educator, a 
scholar, and a community leader. We know that Dr. Foster has the 
support of the American Medical Association, the American College of 
Obstetricians and Gynecologists, the American College of Physicians, 
the Association of American Medical Colleges, and hundreds of other 
respected institutions and individuals. We cannot ignore the letters 
which pour in from informed organizations like these, all supporting 
Dr. Foster, and all condemning the politicization of this issue. We 
should look at Dr. Foster's numerous achievements, instead of creating 
a smokescreen of accusations. We should confirm Dr. Foster, and allow 
him to continue his hard work for at-risk teenagers, for families, for 
each and every one of us in this Chamber, and for this country.
  Mr. FRIST. Mr. President, I ask unanimous consent that the following 
statement of support for Dr. Henry Foster's nomination as Surgeon 
General be printed in the Congressional Record. The statement was 
presented on May 26, 1995, at the Labor and Human Resources Committee 
vote on the nomination, and fully explains my reasons for supporting 
this nominee.
  There being no objection, the statement was ordered to be printed in 
the Record, as follows:
 Statement by Senator Bill Frist on Dr. Henry W. Foster, Jr.--May 26, 
                                  1995

       Last November, the people of Tennessee elected me to make 
     difficult decisions. And this has been a decision I've 
     struggled with. I know that thoughtful people honestly and 
     fundamentally differ on whether Hank Foster should be Surgeon 
     General.
       What makes my statement different from those you have heard 
     today? I know Hank Foster. I know him as a fellow Tennessean. 
     I know him as a fellow physician and colleague, who worked 4 
     miles from my office. We are both members of the Nashville 
     Academy of Medicine, on whose Ethics Board he has served. And 
     I know him as a fellow Nashvillian, who has done what few 
     physicians do--step out of the clinic into their community to 
     address the really tough problems in our society.
       Since February 2, the day the President announced his 
     choice, I've listened carefully to every conceivable argument 
     for and against the nominee. And over the past 3 months, I've 
     done my very best to remain neutral--neither to blindly 
     endorse Hank Foster because he is a fellow Nashvillian, nor 
     to condemn him because of allegations drawn from the attics 
     of his past. I have waited until final testimony was 
     submitted just last Friday so that I could thoughtfully, and 
     carefully, consider every aspect, every ramification, of his 
     nomination. Several days ago, I again met with Hank Foster--
     one-on-one, face-to-face--to specifically and directly ask 
     him about his plans as Surgeon General.
       I asked him the tough questions. Would he be like his 
     predecessor, Dr. Elders? Would he allow himself to be used as 
     a political tool for an out-of-step President, who time and 
     time again has promoted radical agendas? Or would he 
     represent mainstream America and family values?
       Dr. Foster told me, without hesitation, that his number one 
     goal was to reduce teen pregnancy--a problem that we as a 
     people have done a miserable job addressing. It's a problem 
     that literally threatens the very fabric of America. His 
     approach? He looked me straight in the eye, and said ``number 
     one, build self-esteem; number two, promote abstinence; and 
     number three, instill family values.''
       He told me that the other main issues on his agenda would 
     include screening for breast cancer and prostatic cancer, 
     addressing the AIDS epidemic, and teenage smoking. Dr. Foster 
     stressed to me that he places primary emphasis on family, 
     that he understands the importance of leading by building a 
     consensus, and that he understands that his agenda as Surgeon 
     General
      must appeal to, and be embraced by, mainstream America.
       Madam Chairman, many have told me that this nomination is 
     no longer about Hank Foster, the man. They say it's about the 
     inept way in which the Administration has handled his 
     nomination. They say it's about the tardy and roundabout 
     manner in which information has been provided to this 
     Committee and to the American people. They say it's about a 
     radical social agenda that is beyond the bounds of mainstream 
     America and traditional values.
       But, I don't buy it. I guess as a newcomer to this body, I 
     see it all very differently. I believe it is about Hank 
     Foster, the man--the man who had delivered thousands of 
     babies into this world; the man who has committed his life 
     not to making money, not to promoting himself, but to serving 
     others' needs; the man who has cared for and nursed to health 
     thousands of women; the man who in addition to the practice 
     of medicine, has courageously and unselfishly stepped out 
     into his community to give others a chance to step out of a 
     world of poverty; and the man who 4 days ago, looked me in 
     the eye and described a fundamental commitment to the 
     principles of self-esteem, personal responsibility, and 
     family values.
       As I stated at the Committee hearings, it should not be our 
     purpose to search for every possible mistake or imperfection 
     in Hank Foster's life. The question before us is a much more 
     narrow one: does this man have the commitment, the 
     intelligence, the training, the honesty, and the integrity to 
     be the chief spokesman for Americans on matters concerning 
     public health? These are the issues that I've considered, and 
     I'm satisfied with what I've seen and heard.
       Having known Hank Foster as a fellow Tennessean, having 
     heard his testimony, having had the opportunity to talk to 
     him extensively face-to-face, and having considered every 
     aspect of his nomination very carefully, I believe his 
     nomination should be referred out of Committee favorably and 
     brought before the U.S. Senate. And I also believe we should 
     move forward with this process. We've got a lot of important 
     business to attend to and the American people want this 
     Congress to press on.
       Madam Chairman, I think it is also important to mention, as 
     I did in the Committee hearing, my belief that this 
     confirmation process is not the place or the time to revisit 
     our national policy on abortion. Americans of conscience will 
     remain deeply divided over this issue regardless of who is 
     appointed Surgeon General. It's important to remember that 
     the office of Surgeon General does not set social policy, nor 
     convey with it the right to vote on any legislation--whether 
     affecting abortion or otherwise. When this body confirmed Dr. 
     C. Everett Koop as Surgeon General, a staunch opponent of 
     abortion, that confirmation did not outlaw abortion. If this 
     body confirms Hank Foster, that confirmation won't condone 
     abortion.
       No doubt, the unfortunate events that immediately followed 
     Hank Foster's nomination cast a shadow on his viability to be 
     Surgeon General. Conflicting information raised questions 
     about his credibility. I, too, was angered that the Clinton 
     Administration had badly mishandled yet another nomination by 
     failing to adequately prepare Dr. Foster--a physician who had 
     never had to face such aggressive public scrutiny.
       Questions arose about Dr. Foster's ability as an 
     administrator, his involvement in 4 hysterectomies performed 
     25 years ago, and his knowledge of a study on black men 
     conducted over a 40 year period in rural Alabama. These 
     issues concerned many, and each and every one concerned me. 
     But I believe that Hank Foster's testimony, evidence 
     submitted to the Committee, and my own one-on-one interviews 
     with him, put to rest those concerns.
       Dr. Foster, I feel, came through the hearing process with 
     his credibility and integrity intact, and with is 
     qualifications to be Surgeon General apparent. [[Page S 
     8868]] 
       In the end, when people ask me why I support Hank Foster's 
     nomination, I'll tell them simply because he's qualified to 
     carry out the duties of Surgeon General. I am confident that 
     he will perform his job well.
       Finally, Madame Chairman, I ask my colleagues to consider 
     this nomination, not based on politics, but rather on 
     qualifications and ability. In the past, the Democrats have 
     so often brought politics into the equation--we all remember 
     the nominations of John Tower, Robert Bork and Clarence 
     Thomas. I wasn't here, but as a private citizen, I recall the 
     anger I felt and the disappointment in the process. Let us 
     not make the same mistakes. The American people are tired of 
     politics as usual--that was the message of November 8.
       For that reason, I urge all of my colleagues to view this 
     candidate away from the distractions and the hype of 
     political expediency, and without regard to who nominated 
     him. Rather, look at his accomplishments, his qualifications, 
     his statements, his goals, and the testimonials of other who 
     know him.
       And then--based on serious reflection--make your decisions.
       I've done that, and I choose to support Dr. Henry Foster.

  Mr. CRAIG. Mr. President, the concerns that have led me to oppose the 
nomination of Dr. Henry W. Foster, Jr., to be Surgeon General of the 
United States are not trivial. They are also not intended as a 
criticism of the nominee personally. He is a fine individual and 
deserves our respect.
  However, in deciding whether to support a nominee, character cannot 
be the only consideration. We must also examine the nominee's ability 
to serve the American people in the office to which he or she was 
nominated.
  It is important to note that my decision to oppose the nomination of 
Dr. Henry W. Foster was made after a great deal of thought and 
consideration. I do not take lightly the responsibility of the Senate 
in confirming Presidential nominees. Nor do I take lightly the right of 
the President to nominate individuals who share his philosophy. My own 
philosophy, opinions or views have run contradictory to most of the 
nominees presented by this administration. However, I have opposed very 
few of those nominees.
  Mr. President, as I have noted, I have concerns about Dr. Foster. I 
do not agree with him on a number of issues, including abortion. 
However my opposition on his confirmation is not based on differing 
opinions. I am opposing Dr. Foster's nomination because the many 
problems surrounding his nomination are issues that will be divisive.
  An individual can have many fine qualities and excellent experience 
and yet not be qualified to serve as a public official in the position 
of Surgeon General. That position, sometimes referred to as ``America's 
Family Doctor,'' requires someone who also has the ability to bring 
groups together to work toward resolving the health problems of this 
Nation. To his credit, Dr. Foster has some fine qualities and 
experience. I do not dispute that fact. However, the controversy 
surrounding his nomination, the disclosure--or lack of disclosure--of 
the number of abortions he has performed, as well as the questions 
surrounding his knowledge of the Tuskegee syphilis study lessen his 
ability to bring Americans together on the multitude of health issues 
our Nation faces.
  Mr. President, the role of Surgeon General requires the ability to 
bring people together, not to be divisive. The controversy surrounding 
Dr. Foster's nomination has diminished his ability to play the unifier.
  In addition, I would add that I have received numerous letters from 
Idahoans expressing concerns and opposition to the confirmation of Dr. 
Foster.
  Therefore, I have decided to vote ``no'' on the confirmation of Dr. 
Henry Foster for the office of Surgeon General for the United States.
  Mr. KOHL. Mr. President, some today have presented Dr. Foster's 
credentials and discussed his integrity. Others simply do not support 
the candidate. We have heard the arguments. We should be ready to 
vote--to go on record, yes or no, whether we approve of this nominee.
  Unfortunately, Mr. President, some in this body do not want a vote on 
the nomination of Dr. Henry Foster. The debate we are now engaged in is 
not about the qualifications of the candidate for the job of Surgeon 
General. This is about a political game.
  Machiavelli would enjoy how the Nation's business is handled in 
Washington, D.C. today. Bipartisanship is a word easily tossed around, 
but seldom practiced. The bottom line is how to prevail in the next 
election, not how to solve this Nation's problems.
  Do we really think the best way to find qualified candidates to serve 
the United States Government is to pick apart their careers and their 
characters, groping for something that will justify a political end? Is 
that what faces all those who wish to serve their country?
   Ever since the President announced Dr. Foster as the Surgeon General 
nominee, the Nation has witnessed a non-stop exercise in abusive 
politics.
  For months Dr. Foster was attacked by those opposed to his profession 
and who questioned his integrity. Based on allegations by ideological 
factions and media scrutiny, some called for the nomination to be 
pulled before allowing Dr. Foster a chance to respond. That is not how 
this body should consider Presidential nominations. Nominations should 
proceed in a fair manner, allowing candidates to fully present their 
story.
  We should debate those whose views differ from our own. That is 
called Democracy. But I do not believe every event in a person's life 
should be held under a national microscope--especially when the person 
in question has no chance to respond. That is called persecution.
  Fortunately, Dr. Foster finally received a fair hearing in the Labor 
and Human Resources Committee. He responded well to questions raised 
about his background and proved to be an honest, caring and dedicated 
individual.
  After all that Dr. Foster and his family has endured in the past 
several months, does he not deserve a vote?
  Dr. Foster has committed his life to helping others and promoting 
public health. He is well respected by his professional peers and those 
whose lives he has touched through community service. In short, this 
candidate is qualified to serve as Surgeon General and deserves a final 
decision.
  The Labor Committee approved of Dr. Foster and passed his nomination. 
It is now time for the full Senate to exercise its responsibility. I 
urge my colleagues to end this sad political spectacle and vote on the 
nomination of Dr. Henry Foster.
  Mr. HATFIELD. Mr. President, yesterday I voted against limiting 
debate on the nomination of Dr. Henry Foster as Surgeon General of the 
United States. It is my intention to do so again today.
  I will vote against cloture today because I am disappointed by the 
handling of Dr. Foster's nomination and because I do not believe debate 
should be limited before it begins. This is a misuse of the cloture 
motion. Cloture should be a tool of last resort rather than a tactic 
employed as soon as an issue hits the Senate floor.
  In addition, I believe it is improper to raise a single issue and use 
it as the litmus test for the nomination of a Surgeon General. The 
President did that yesterday by stating that this vote was really a 
vote about abortion. I am deeply disappointed that the debate has come 
to this.
  The Surgeon General serves an important role as the national 
spokesperson on matters of public health. Over the years we have seen 
individuals serving in their capacity as Surgeon General make important 
statements on the health effects of smoking, the spread of AIDS, and 
teenage pregnancy. This person often becomes a lightening rod for 
controversy.
  In recent years, a number of individuals who have been nominated as 
Surgeon General have been controversial figures. Their nominations did 
not pass the Senate without a full debate. Dr. Foster's nomination is 
controversial. Much of the initial information provided to the Senate 
was misleading or inadequate. In addition, there are a number of issues 
that have been raised relating to Dr. Foster's qualifications to serve 
as Surgeon General and I believe that both sides should have an 
opportunity to fully debate these issues.
  Mr. BINGAMAN. Mr. President, I rise to express my strong support for 
the confirmation of Dr. Henry Foster to be Surgeon General of the 
Public Health Service. In my view, it is time that the Senate put 
personal agendas and Presidential primary politics aside.
  It is time we let Dr. Foster get on with the important job he has 
been preparing for throughout his professional [[Page S 8869]] career: 
the job of chief public health advocate for our country.
  Based on the public hearings held by the Labor and Human Resources 
Committee and the very detailed questioning those hearings involved, I 
have come to the conclusion that Dr. Foster is imminently qualified to 
serve as Surgeon General.
  Just as Presidential politics should not define when and under what 
conditions the Senate conducts its business, neither should we in the 
Senate attempt to define, based on ideology alone, the boundaries of a 
Surgeon General's professional experiences.
  We in the Senate need to focus on the real world we live in, not the 
world we wish we lived in. The reality is that our Nation has 
deplorably high rates of teen pregnancy, infant mortality, and poverty. 
Too many of our children are abused, troubled, hungry, and hopeless. 
Childhood violence and death due to suicide are increasing at alarming 
rates. Incidence of AIDS and other sexually transmitted diseases are 
increasing in every population in our country.
  Statistics from my home State of New Mexico illustrate these facts in 
graphic detail:
  We have the third worst rate of births to unmarried teens in the 
nation: From 1985 to 1992, the number of births to unmarried teens grew 
from 41.6 to 60.1 births per 1,000 females age 15 to 19. That is an 
increase of 44 percent over 7 years.
  In 1991, 18,234 cases of child abuse were reported in New Mexico, an 
increase of 21.4 percent from 1990.
  More than 10 percent of New Mexico's children live in extreme 
poverty, with family incomes below 50 percent of the poverty level; 
27.2 percent of our children live in poverty, compared to the national 
average of less than 20 percent.
  Nearly 40 percent--4 out of 10--of our children live in families with 
incomes 150 percent of the poverty level or less.
  Our teen violent death rate, though declining, was still hovering at 
more than 70 deaths per 100,000 teens in 1992.
  I could go on, but I believe I have made my point.
  The real world is tough. The problems we face are tremendous. It will 
take a person who has faced reality and dealt with the problems he has 
seen with compassion and commitment to find solutions to the enormous 
public health challenges confronting our nation.
  My impression is that Dr. Foster is such a person. His background as 
a practicing physician, a scholar, and academic administrator, and an 
advocate for poor children, combined with his proven ability to lead 
are evidence of his strength and compassion.
  Dr. Foster has proven his commitment to public service and public 
health. He deserves to be judged by the Senate on his merits as a 
physician and an educator. And he deserves the opportunity to serve his 
country as the next Surgeon General.
  Mr. FEINGOLD. Mr. President, I would like to express my support for 
the confirmation of Henry Foster as Surgeon General of the United 
States.
  In making my decision to support Dr. Foster, I reflected upon many of 
the comments on this nomination that I have received from constituents 
in my home State of Wisconsin. Most Wisconsinites wish that fewer women 
had abortions, hope that fewer young women got pregnant unintendedly, 
and want sufficient access to comprehensive health care services for 
women and children.
  Dr. Foster's capabilities and accomplishments in addressing women's 
and community health are noteworthy. He is a respected medical educator 
and president of Meharry Medical School. He is the past president of 
the Association of Professors of Gynecology and Obstetrics, and has 
been a leader in addressing teenage pregnancy issues in Nashville, TN. 
Lastly, by all accounts, he is a sincere, compassionate, and respected 
gynecologist who has delivered thousands of babies and seeks quality 
health care for women and their families.
  All of us heard numerous opinions on the nomination of Dr. Foster. I 
have received letters from practitioners, leading medical education 
departments, and professional associations, and have heard nothing from 
the medical community which would impeach Dr. Foster's skills, 
abilities, and integrity. For example, when President Clinton nominated 
Dr. Foster, Dr. Douglas Laube, chair of obstetrics and gynecology at 
the University of Wisconsin-Madison wrote the President in support of 
that decision, and sent me a copy of his letter. Dr. Laube has 
personally worked with Dr. Foster for 7 years, serving on a number of 
national committees designed to develop the education of medical 
students and resident physicians in the United States. Dr. Laube writes 
``Dr. Foster's commitment to medical education nationally and his 
activities in Tennessee underscore the efforts of an altruistic and 
well-intentioned person.'' He continues, ``In my personal dealings with 
him, and in my observations of his dealings with others, I can attest 
to his integrity, consistency, and dogged attention to detail. More 
importantly, Dr. Foster is a physician who has spent his entire career 
attempting to better the life of others while serving as a role model 
for countless medical students and resident physicians in training.''
  With his profession behind him, how, then, has all this controversy 
over Dr. Foster arisen? In his 37 years as an obstetrician and 
gynecologist, despite his work to reduce teen pregnancy, sexually 
transmitted disease and drug abuse, and his role in delivering more 
than 10,000 babies, Dr. Foster has also performed some 39 abortions.
  I do not believe that Dr. Foster should be penalized for acting under 
the law. The legalization of abortion is an issue for Congress and the 
courts, ultimately to be decided by the American people, and currently 
abortion is legal in this country. I have been very concerned that 
individual Members are using this nomination to express their personal 
views about abortion. The controversy over the number of abortions Dr. 
Foster performed, and his recollection of that number, is really a 
smoke screen designed to attack and demean Dr. Foster and other health 
care providers who are involved in providing comprehensive women's 
health care. The underlying message is that one can forget holding 
public office as a physician if you provide health services to women 
that includes abortion services.
  As a practitioner, the decision to perform abortions is already risky 
enough. In January of this year, I joined my colleague, the Senator 
from California [Mrs. Boxer], in condemning violence at reproductive 
health clinics. I explained then that many of the doctors in my home 
State of Wisconsin have taken to wearing bullet proof vests to go to 
clinics to do their work. Are we now saying, that in addition to 
enduring the threats of stalking, bombings, and shootings, physicians 
like Dr. Foster must also pay the public political price of ostracism 
and denouncement of professional credibility?
  Despite the controversy surrounding his nomination, Dr. Foster 
conducted himself in the Labor and Human Resources Committee hearings 
in a manner which convinces me both of his skill as a communicator and 
his compassion as a practitioner. I believe he was responsive to 
questions asked of him, and that he clearly explained his practice 
record including his tenure and involvement at Meharry in Nashville, at 
Tuskegee in Alabama, and now on sabbatical at the Association of 
Academic Health Centers in Washington, DC.
  In sum, Mr. President, I have evaluated the entire body of Dr. 
Foster's record, and I believe him to be well qualified for this 
position. I also generally believe that the President is entitled to 
select key members of his administration and due deference should be 
paid to his choice, where the individual is qualified to serve. I will 
cast my vote to confirm Dr. Foster, and I admire throughout all the 
controversy his continued commitment and desire to serve our country in 
this capacity.
  Mr. GLENN. Mr. President, I rise today in support of Dr. Henry Foster 
for the post of Surgeon General of the U.S. Public Health Service.
  Since his nomination several months ago, Dr. Foster's public and 
private history has been subjected to an exceptional level of public 
scrutiny, and has become a pawn in an unfair political game. I believe 
it is a compliment to Dr. Foster's character and achievements, that 
when given the opportunity to answer his critics, a majority of the 
Labor and Human Resources Committee voted to forward his nomination to 
the full Senate. [[Page S 8870]] 
  Mr. President, after reviewing the testimony presented at Dr. 
Foster's hearing and examining his credentials and accomplishments, I 
strongly believe that Henry Foster possesses the skills and experience 
necessary to address the many public health challenges that face our 
Nation.
  During his 38 years as a practicing obstetrician-gynecologist, Dr. 
Foster has received national recognition as a scholar, academic 
administrator, and advocate for maternal and child health. He has 
devoted much of his career to educating medical practitioners at 
Meharry Medical College--serving as a professor, department chairman, 
dean of medicine, and president. As a practicing physician and 
educator, Dr. Foster chose to work with low-income families and 
children who might not otherwise have access to health care.
  Dr. Foster was a pioneer in the movement to introduce the concept of 
responsibility to at-risk youth. This concept has received a lot of 
attention in Congress lately. In 1988, Dr. Foster founded the highly 
successful I Have a Future Program devoted to preventing teen pregnancy 
and drug abuse. Unlike teen pregnancy prevention efforts which focus on 
contraception, the I Have a Future Program concentrates on improving 
self-esteem, cultivating a sense of optimism in the lives of 
disadvantaged young people, and providing incentives to delay sexual 
activity and childbearing. ``I Have a Future'' has won wide recognition 
from many sources, including the American Medical Association, and was 
designated as one of America's Thousand Points of Light by President 
Bush in 1991.
  Mr. President, I regret that the vote on Dr. Foster's nomination has 
really come down to a vote on abortion. An individual's beliefs about 
reproductive choice, or the number of abortions performed during the 
course of a medical career, should not be a litmus-test for a nominee 
to the Surgeon General post. Through his delivery and care of over 
10,000 children, commitment to research and education, promotion of 
healthy lifestyles, and efforts to prevent unwanted pregnancies, Dr. 
Foster has proven his dedication to improving the health of all 
Americans.
  Dr. Foster has an outstanding private, public, and professional 
record. He is uniquely qualified to lead our Nation as an advocate for 
healthy and responsible lifestyles. Mr. President, this country has 
been without a Surgeon General for over 6 months and we now have the 
opportunity to confirm a man who will bring both experience and 
enthusiasm to our efforts to combat public health crises such as infant 
mortality, substance abuse, sexually-transmitted diseases, teen 
pregnancy, HIV infection, and others. Unfortunately, it appears that 
the will of a small minority will block a fair and democratic up-or-
down vote on Dr. Foster's nomination.
  Mr. President, I believe that Dr. Foster deserves more than a 
politically motivated procedural vote. I strongly urge my colleagues to 
vote for cloture and support Dr. Foster's nomination to the post of 
Surgeon General of the United States.
  Mr. FAIRCLOTH. Mr. President, much has already been said on the 
Senate floor about why Dr. Henry Foster is unfit to serve as Surgeon 
General. Yesterday, I voted against the petition to invoke cloture on 
debate concerning Dr. Foster's nomination. As far as I am concerned, 
nothing has happened since yesterday to cause me to change my opinion 
about Dr. Foster's qualifications to serve as Surgeon General. He was 
the wrong man for the job yesterday, and he is the wrong man for the 
job today.
  Many have testified as to their personal knowledge that Dr. Foster is 
a fine man--a nice man. I have no reason to disagree with that 
assessment. Despite those testimonials, many--myself included--do not 
believe that we are conducting a congeniality contest to fill the 
vacancy created by Dr. Elders' forced resignation. In rushing to fill 
the position, the Clinton administration failed--once again--to do 
their homework and thoroughly investigate a nominee's qualifications 
for the job for which he is nominated. The saga of Dr. Foster is yet 
another in a long string of failed efforts by the White House to send 
to the Senate nominees who are prepared to fully disclose important 
information about their background--information essential for the 
Senate to exercise its constitutional duty to advise and consent on 
Presidential nominations.
  After 2\1/2\ years in office, I would think that the White House 
staff would take more seriously their responsibility toward the Senate 
and toward administration nominees. Time after time, we in the Senate 
are subjected to unqualified nominees from the White House gang that 
can't shoot straight. How much longer will our Nation continue to 
tolerate this sort of negligence in office?
  Yesterday, 43 Senators sent a clear message to the Clinton 
administration that we cannot support a nominee whose credibility is in 
serious doubt as a result of numerous inconsistencies in statements by 
Dr. Foster and the White House. Beginning on February 2 when the 
President nominated Dr. Foster, a steady stream of inaccuracies were 
uncovered concerning crucial details about his professional medical 
background. Either Dr. Foster has a selective memory disability or the 
White House early on concluded that the full truth about Dr. Foster 
would sink his chances in the Senate.
  After hastily confirming other Clinton nominees like Ron Brown and 
Henry Cisneros, both of whom have serious ethical and possibly even 
criminal misconduct charges outstanding against them, it is 
incomprehensible that the White House would not more carefully screen 
its nominees. Mr. President, let us not forget that President Clinton 
originally promised that his administration would be the most ethical 
in American history. It is remarkable how far President Clinton has 
fallen from the mark which he set for his administration.
  I will not recount the long list of inconsistencies in Dr. Foster's 
record. Suffice it to say, that any nominee with such a tainted record 
before the Senate is de facto unqualified to hold high public office in 
this Nation. President Clinton should never have nominated Dr. Foster 
and when learning of the many inaccuracies in information provided to 
the Senate, President Clinton should have withdrawn the nomination.
  Many months have passed while the administration attempted to 
rehabilitate Dr. Foster's reputation for veracity. However, nothing 
will change the fact that Dr. Foster and the White House consistently 
provided the Senate with false information. I cannot in good conscience 
support such a nominee.
  Moreover, I have begun to think that we no longer need a Surgeon 
General. Many of the responsibilities of this Office could easily be 
fulfilled by others in the Department of Health and Human Services. 
Savings from elimination of the Surgeon General's Office could be 
contributed toward deficit reduction. With the total mishandling of the 
Foster nomination, President Clinton has demonstrated better than any 
of his predecessors the irrelevancy of the Office of Surgeon General.
  Mr. KEMPTHORNE. Mr. President, I rise today to speak on the 
nomination of Dr. Henry Foster as surgeon general of the United States.
  Let me begin by stating that I am unequivocally opposed to confirming 
Dr. Foster for this post.
  I have been concerned about this nomination from the time it was 
announced. We are all well aware of the conflicting reports which came 
out of the White House about Dr. Foster's background. I do not think I 
need to go into the confusion created by the continually changing 
reports about the number of abortions which the doctor has performed. 
But those inconsistencies quickly cast a shadow over the nomination as 
to whether the administration had done its job of properly 
investigating a potential nominee.
  While I do not believe Dr. Foster should be held responsible for the 
blunderings of the White House staff, the situation raised doubts about 
his forthrightness which have, in my mind, never been resolved.
  One of the most glaring examples of this lack of candidness involved 
the Tuskegee Syphilis Study, in which black men with the disease went 
untreated as part of a study to examine the long-term effects of 
syphilis. While Dr. Foster claims he had no knowledge of the study 
prior to 1972, Public Health Service records indicate the Macon County 
Medical Society, of which Dr. Foster was vice-president, [[Page S 
8871]] and later president, knew of the study as early as 1969.
  We have received conflicting reports about whether or not Dr. Foster 
attended the meeting in which the society agreed to cooperate with the 
PHS in the study. Even if he did not attend, documents from PHS 
officials indicate further efforts were made to share information on 
the study with all the members of the Macon County Medical Society. I 
simply do not see how Dr. Foster, as the vice-president of a 10-member 
society, could have completely avoided any knowledge of this study 
while so many efforts were being made to keep the society fully 
informed on this matter.
  But let us not focus entirely on the past. What about the future? 
What kind of role would Dr. Foster play as surgeon general? He has 
stressed his concern about the rate of teenage pregnancy in this 
country. Surely, this is a concern which all of us share. Illegitimacy, 
especially among teens, is at a crisis level in the United States. 
Equally important, however, is the manner in which this issue would be 
addressed if Dr. Foster were confirmed.
  The basis of Dr. Foster's efforts to reduce teen pregnancy may be 
seen in the ``I Have a Future'' program. From my knowledge of the 
program, it leans toward the attitude that, ``Kids will be kids.'' It 
assumes that when it comes to sex, we must teach children to be careful 
rather than responsible. I could not possibly disagree more with this 
view. Yes, children must be allowed to make some decisions for 
themselves. But we, as adults and parents, have a responsibility to 
instill strong values in today's youth.
  Dr. Foster's ``I Have a Future'' program failed to provide such 
guidance. Teaching young people about sex, without stressing the 
importance of abstinence, at best, gives young people an incomplete 
message. At worst, it actually encourages the kind of behavior which we 
should be trying to discourage.
  Mr. President, we are all well aware of the controversy which has 
surrounded the Office of the Surgeon General in recent years. The next 
surgeon general must be able to repair the damage which has been done 
to that position. The focus must be shifted from the personality of the 
office holder to the important health issues which face our Nation.
  While I would not question Dr. Foster's level of concern about the 
issues he embraces, I do not believe he would be able to achieve this 
goal. For this reason, I will oppose Dr. Foster's nomination.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Kansas.
  Mrs. KASSEBAUM. Mr. President, how much time remains on our side?
  The PRESIDING OFFICER. The Senator has 14 minutes and 10 seconds.
  Mrs. KASSEBAUM. And how much on the other side?
  The PRESIDING OFFICER. The Senator from Massachusetts has 6 minutes 
17 seconds.
  Mrs. KASSEBAUM. Mr. President, I would like to yield myself 3 
minutes.
  As we close the debate today on the nomination of Dr. Foster, I would 
like to make just a few further comments about the process.
  I think it has been a good debate the last 2 days. Prior to that 
time, the Labor and Human Resources Committee spent a considerable 
amount of time focusing on the substantive issues and raising 
substantive questions regarding this nomination.
  Some, including a majority of the committee, were satisfied with the 
answers that Dr. Foster gave, and the vote was 9 to 7 to report him 
favorably from committee. Others, including myself, were not.
  With respect to the process in the Chamber, the majority leader had a 
number of options, including the option of not bringing up the 
nomination of Dr. Foster at all. I have always believed we should have 
an up-or-down vote on nominations. Nevertheless, the course that was 
chosen by the majority leader is one that is a perfectly legitimate 
option, well within the rules of the Senate. These are rules that have 
been used frequently in the past by Members on both sides of the 
aisle--as has been pointed out in the course of this debate.
  The majority leader has made this debate and these votes possible in 
less than 1 month after the nomination was reported from the committee.
  There is nothing that would have made this process pleasant for any 
of us, most of all Dr. Foster. We may regret how we handle confirmation 
processes and nominations for members of a President's Cabinet and 
agency heads. It is not an easy process, and it has become, I think, 
increasingly a grueling one.
  In this case, I believe it has been handled in a way which is well 
within the parameters of appropriate conduct. There are those who have 
questioned that, but I think there has been an opportunity to air 
strong feelings on both sides in ways that have fit the rules and the 
procedures of the Senate. I am not sure, Mr. President, that we can ask 
for more than that. It has been my own belief that Dr. Foster has 
answered successfully and well the questions that were put before him 
in the committee.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mrs. KASSEBAUM. I will yield myself 1 more minute.
  And those were important and substantive questions. For myself, I do 
not believe he is the person to be a successful Surgeon General of the 
United States at this time and that is why I have opposed his 
confirmation. Nevertheless, I feel strongly that the nomination has 
been debated and handled fairly within the scope of legitimate 
procedures of the Senate.
  I yield the floor, Mr. President.
  The PRESIDING OFFICER. Who yields time?
  Mr. KENNEDY. Mr. President, I yield 2 minutes to the Senator from 
Vermont.
  The PRESIDING OFFICER. The Senator from Vermont is recognized for 2 
minutes.
  Mr. JEFFORDS. Mr. President, I rise in strong support of cloture, as 
I believe it is the right of the President to have an opportunity to 
have a vote up or down on a very fine man who is willing to dedicate 
his time to public service, who has an unblemished career of dedication 
to those people who need help, those who are economically 
disadvantaged, and those who have not seen the advantages that have 
been brought to so many others.
  It is unfortunate that we find ourselves in this situation because 
there is no question that this man was picked because he would not 
``Raise the specter of abortion,'' because his record, first of all, of 
being an ob/gyn doctor who only performed 39, 40, if you want to count 
another, abortions in 38 years is certainly not of one who is out 
seeking to make a career of abortions, by any stretch of the 
imagination.
  In addition to that, by serving the poor and starting his program I 
Have a Future, he set an example we must replicate around this country 
of how we can get the young people in our schools to look towards the 
future with hope, to understand that teenage pregnancy is a bad 
situation and that he had all those kinds of rules that he followed in 
respect to that, teaching abstinence, of teaching parental guidance 
when possible, things that I do not think anyone disagrees with. It is 
true that the study was marred by utilization of statistics, but that 
does not in any way diminish the importance of the message he was 
giving to those young people.
  Mr. President, I want to remind my colleagues what this vote is 
about. We are here to consider whether or not we will limit debate on 
this nomination, whether we not allow a minority of this Chamber to 
take this nominee hostage.
  We are going to vote now, not on whether Dr. Henry Foster is 
qualified for the job of Surgeon General--which I believe he is--but on 
whether we will allow the President's nominee the courtesy, the due 
process, of an up or down vote on his nomination.
  What reason could we possibly have not to vote? Whose interests are 
served by allowing a minority of Senators to deny a presidential 
nominee a confirmation vote?
  The charges against Dr. Foster that we heard yesterday and today are 
just that--charges. They are allegations, not fact. During the 
committee process I spent hours and hours familiarizing myself with Dr. 
Foster's record and the specifics of his critics' charges. I became 
convinced of several facts:
  Henry Foster did not learn of the Tuskegee experiments in 1969 at the 
[[Page S 8872]] briefing given by public health officials. Not only is 
he documented as attending at a complicated Caesarean section birth 
shortly after the meeting started, but I believe the doctors who were 
at that meeting were not given the full story. Foster did not know 
anything about the denial of treatment for these men.
  In fact, no one did, because even the doctors at the meeting were not 
told about it. According to the FBI, the public health officials were 
already covering their tracks and when they briefed these six or eight 
doctors they did not tell them the truth about the experiment. How 
could they have?
  Certainly someone given the facts would have spoken out publicly and 
halted the 40-year-long project.
  Foster did not know because nobody knew. Decades later, we cannot 
prove the content of the meeting because the minutes, trip report and 
file have long ago disappeared from the CDC archives as the officials 
tried to cover their tracks.
  Dr. Foster has had a distinguished medical career, treating patients 
within the medical norms of his time and even advancing new and better 
treatments in many cases. I hope my colleagues will resist the 
temptation to judge treatments given decades ago--like the 
sterilizations of severely mentally impaired women--by the medicine of 
today.
  Then as well as now, Dr. Foster has enjoyed the admiration and 
acclamation of his peers, and he has been supported in this nomination 
by every medical group that I can think of, ranging from the AMA, not 
known for its liberalism, to the American College of OB/GYNs to the 
American Association of Medical Colleges.
  It is undeniably true that the administration did not serve Henry 
Foster's nomination well in its characterization of his record on 
abortion. Ever since they misinformed Senator Kassebaum's office about 
the number of procedures he had performed back in January, there has 
been confusion in the numbers game.
  But after he had the opportunity to review his patients' medical 
records, Dr. Foster gave us a number; he is the physician of record for 
39 surgical procedures since 1973. That number has not changed.
  I can understand why he did not know off the top of his head, because 
I would be hard pressed to give an accurate count of the votes I have 
taken on a particular issue over the past 20 years. I might volunteer 
an estimate, but I would certainly have to do research to verify the 
number.
  Some have implied that we should not vote on Henry Foster's 
nomination because he was once--once in a 30-year career--charged with 
medical malpractice. The charges were dropped. The case was not 
adjudicated. Yes, the allegation of improper conduct was made, but it 
was not substantiated.
  I would suggest to my colleagues that we have a similar situation 
here and now with this nomination. There is no substance to the charges 
against this good man, this talented and hard-working doctor.
  Let us not let ideology and politics get in the way of fairness. We 
have a collective responsibility to vote, even on controversial 
nominees. I do hope my colleagues will join me in supporting Dr. 
Foster's nomination, but at the very least I believe he deserves an up 
or down vote. Let us not deny him that. Please join me in voting for 
cloture.
  The PRESIDING OFFICER. The Senator's time has expired.
  Who yields time? The Senator from Massachusetts.
  Mr. KENNEDY. I yield 2 minutes to the Senator from Connecticut.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized for 
2 minutes.
  Mr. DODD. Mr. President, I thank the distinguished Senator from 
Massachusetts.
  Mr. President, I spoke yesterday on this nomination, but I wish to 
emphasize again today my strong support for this nominee and my strong 
hope that this very fine American will be given a chance to be voted 
on, yes or no. I think it is regrettable that there are those who cast 
their votes against this man, who never even bothered to talk to him, 
never met him, did not participate in the hearings. I would invite my 
colleagues in the short time that remains to talk to their colleague 
from Tennessee, Dr. Frist. The rest of us talk about Dr. Foster. 
Although some of us met him and spent time with him, it has been just 
since February. Dr. Frist, our new colleague from Tennessee, has not 
only known him but worked with him. I would invite my colleagues to 
read his comments in the Senate Labor Committee hearings, just prior to 
the favorable vote coming out of that committee.
  Some of us talk at least from some experience, having spent some time 
with him, but here is someone who actually worked with him, knows him 
from his State, knows people he has worked with. You can listen to 
speeches by those who oppose him, never met him, never sat down with 
him, in fact in some cases within hours after his name was sent up 
announced they were against him. That is almost unheard of. I respect 
those who let the hearing process go forward, gave him a chance to 
express his views, listened to him, and then said they were against 
him. But to never meet the man, never give him the benefit of a 
hearing, even a personal one, and then decide that he did not deserve 
to be voted on by this body, I think is a sad moment in this Chamber.
  The PRESIDING OFFICER. The Senator's time has expired.
  Who yields time?
  Mr. KENNEDY. I yield 1 minute to the Senator from Washington.
  The PRESIDING OFFICER. The Senator from Washington is recognized for 
1 minute.
  Mrs. MURRAY. I thank the chair. I thank my colleague.
  I want to thank Senator Kassebaum for having conducted fair hearings 
and allowing the process to move forward. I hope that today's vote is 
one again of fairness.
  A filibuster on nominations has only occurred 24 times. Twenty-two of 
those times in this body, the body has said the nomination deserves an 
up-or-down vote; two of those other times they were nominations made by 
Democratic Presidents and defeated by Republican filibusters.
  I hope that fairness prevails as it has 22 times in the past and that 
this Senate votes today to allow this nomination to come forward so we 
can finally vote up or down on the nomination of Dr. Henry Foster. He 
deserves that vote, and he deserves our confidence.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. KENNEDY. Mr. President, no matter how they have tried to distort 
and misrepresent the record of Dr. Foster, he is an outstanding 
physician, selected by the Institute of Medicine,
 selected to be on the governing board of the most prestigious board in 
the United States of America for a doctor, outstandingly well 
qualified.

  On the one hand you have the sense of hope, the belief in the young 
people of this country, someone that really wants to give something 
back to this country for all that it has done for him. And on the other 
side you have gross distortions, misrepresentations, and negativism. 
That is what we have seen during the course of this debate. And the 
opposition is basically as a result of Presidential politics.
  I say again, let us leave Presidential politics in Iowa and in the 
other primaries, and let us get on and give this outstanding individual 
the fair vote that he deserves.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Kansas controls 10 minutes 20 seconds.
  The Democratic leader is recognized.
  Mr. DASCHLE. I understand the time allocated to this side has been 
expired. So, I will use my leader time to accommodate that.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DASCHLE. Mr. President, this is an important moment. The vote we 
are about to cast will affect more than one man or one position. It 
will help dictate the way this Senate discharges one of its most 
important duties. And I ask each of my colleagues to think about that 
as we cast our vote. Each of us has been afforded the right to make our 
case to the American public. That is how we got here. We cannot deny 
this afternoon the same right to a man who is clearly qualified to be 
the next Surgeon General.
  The Surgeon General has been rightly called America's family doctor. 
And in that capacity he or she is called upon to grapple with some of 
the most [[Page S 8873]] difficult problems of our day; problems like 
AIDS, problems like teen pregnancy, problems like substance abuse and 
breast cancer, problems that are devastating to the American people and 
to families all over this country.
  This Senate has talked too little about these problems during the 
course of the last 5 hours. Instead of focusing on America's future, 
many Members of this Senate have chosen to focus on the past and, 
frankly, distorting it. That is regrettable. The distinguished majority 
leader said yesterday that this is not such an unusual occurrence. 
Twenty-six times in the last 27 years, he said, nominees have been 
denied confirmation by filibuster.
  Well, just moments ago I heard the distinguished Senator from Iowa 
set the record straight on that issue. Senator Harkin--as others have 
indicated on several occasions already during this debate--has 
attempted to correct the record on this and so many other matters that 
have been misreported or on which only half the facts were presented. 
The fact is that on every occasion during the 27 years Senator Dole 
cited, when it was a Republican nominee, that nominee ultimately was 
approved with bipartisan support. Two nominees were prevented from 
being confirmed by a filibuster, and both were Democrats--Abe Fortas, 
who was nominated by President Johnson to sit on the Supreme Court, and 
Sam Brown, who was nominated by President Clinton for the rank of 
Ambassador. So the only filibusters that have prevented nominees from 
receiving a fair vote were Republican filibusters. Let us be clear 
about that.
  So the question before us today is not whether Henry Foster is 
qualified to be Surgeon General. That is the question we will face 
should we take the next step forward. Mr. President, the question we 
face this afternoon with this vote before us now is one of fairness. 
And the American people have made themselves abundantly clear on the 
question of fairness. The majority of people have said in poll after 
poll, Henry Foster deserves a vote. And the majority of this body 
agrees with that sentiment.
  Are we going to confront the health problems that are devastating 
America's families and give Dr. Foster the opportunity to combat those 
problems as Surgeon General? Will we do that? Or are we going to allow 
partisan Presidential politics to stifle that debate?
  The question we face right here, right now, is simply that. It is a 
question of fairness. What message are we sending to Dr. Foster, to the 
American people who believed in his right to a fair vote? What message 
are we sending to the people who look up to Dr. Foster as a role model 
and to all the Americans who need the services of a qualified Surgeon 
General today if we refuse to extend to Dr. Foster the opportunity 
given every one of his predecessors? Mr. President, the issue this 
afternoon is simply one of fairness.
  What is really being judged here, unfortunately, is not Dr. Henry 
Foster. For 6 months, Dr. Foster has been subjected to intense scrutiny 
from the Labor Committee, from the media, and from the American people. 
And he has passed every test. The only test he did not pass was the 
litmus test of the far right. What is being judged here is the Senate 
itself and the way the Senate deals with those who come before us to 
offer their public service.
  Henry Foster is an extraordinary physician and leader. If this were 
not an election cycle, I have no doubt that he would be Surgeon General 
already, that this Senate would have confirmed him overwhelmingly long 
ago. Henry Foster is a selfless man who wants to serve his country and 
is being wasted for the selfish political ambitions of a few. If we 
prevent him from receiving a fair vote, we will make it even more 
difficult to attract good, qualified people to public service. And this 
body, the U.S. Senate, will be judged harshly.
  Mr. President, I close with this thought: It is the position of this 
Senator that the process we have just seen is clearly wrong. It is 
wrong for the United States and it must be stopped. The business of 
interest groups fanning out through the country, digging up dirt on a 
nominee, the business of leaks, of confidential documents put out to 
members of the press, the idea that absolutely anything goes that is 
necessary to stop a nominee, this whole process must end. We in the 
Senate have the power to encourage that process or the power to stop 
it. We have that power by the vote we are about to cast.
  Mr. President, those are not my words. They belong to a former 
colleague, Senator John Danforth. Senator Danforth issued that eloquent 
plea nearly 4 years ago in the defense of Clarence Thomas' right to a 
vote on his nomination to sit on the Supreme Court. Justice Thomas 
received that vote. He received that vote with the backing of some of 
the very same people who now would deny that vote to Dr. Foster. And I 
urge Members, in particular today on this nomination, to put politics 
aside just for the moment and allow Dr. Foster's nomination to move 
forward. It is a question of fairness, Mr. President. And the answer--
well, the answer is in our hands.
  I yield the floor.
  The majority controls 10 minutes.
  The PRESIDING OFFICER. The majority leader.
  Mr. DOLE. As I said yesterday, I would like to begin with just a few 
facts, facts we sometimes are not using in debate or are not reported 
by the media. Let me again say, because I did not read it anywhere and 
did not hear it on television--maybe it was on radio: During these 2\1/
2\ years in office, President Clinton has submitted 251 names to the 
Senate for confirmation of civilian positions. Of these 251, 115 have 
been confirmed, 1 withdrawn and none defeated. The rest are in the 
confirmation pipeline.
  Let us get the record clear right up front. You talk about fairness. 
That is 251, and not one defeated. And, second, I heard about a 
filibuster. I do not know of any filibuster going on. If so, I missed 
it. By unanimous consent we agreed to this procedure. I think it is a 
good one. We are giving Dr. Foster the same thing we gave Chief Justice 
Rehnquist back in 1986 when I had to file cloture because the Senator 
from Massachusetts would not let it come to a vote.
  So Dr. Foster's nomination was reported out of the Labor Committee on 
May 26. We began this debate on June 21, and during that period there 
has been a 7- or 8-day recess. So Dr. Foster has been treated fairly. 
The Labor Committee has acted promptly and his nomination has been 
placed before the full Senate for debate and a vote.
  Again, as I said yesterday, I have always felt that the President 
should have a right to his nominees, but there may be exceptions from 
time to time, and I have voted against nominees from time to time--not 
very often. I believe the record will show that we have cooperated in 
nearly every case; in fact, even helped the President with some of the 
nominations which might have been in trouble without assistance from 
this side of the aisle.
  There is plenty of precedent for rejecting a nomination on a cloture 
vote. Again, as I said, I will put in the Record for everyone to see 
that there were 24 nominations, including the nomination of William 
Rehnquist to be Chief Justice, which had to face cloture vote hurdles.
  So overnight, I have done a little research on the Rehnquist 
nomination, and I learned that 19 of my Democratic colleagues who are 
still in the Senate today voted against invoking cloture on this 
nomination: Senators Baucus, Biden, Bradley, Byrd, Dodd, Exon, Glenn, 
Harkin, Inouye, Johnston, Kennedy, Kerry, Lautenberg, Levin, Moynihan, 
Pryor, Rockefeller, Sarbanes, and Simon, and also then Senator Albert 
Gore. Now, certainly, he would not be unfair, but he was, according to 
all the rhetoric I heard coming from the other side.
  In fact, I filed a cloture motion on the Rehnquist nomination because 
my colleague from Massachusetts, Senator Kennedy, was apparently 
unwilling to end debate. Do not take my word for it, just take a look 
at page 23336 of the Congressional Record for September 15, 1986. 
Senator Kennedy also urged his colleagues to follow the Abe Fortas 
example: Defeat cloture so the Rehnquist nomination will be withdrawn. 
That can be found on page 22805 of the Congressional Record of 
September 11, 1986.
  So, Mr. President, we hear a lot of talk about fairness, we hear a 
lot of talk about the need for an up-or-down vote, but I do not 
remember all the hand wringing about fairness back in [[Page S 
8874]] 1986, or many times since that time, when at that time the Chief 
Justice Rehnquist nomination was on the line.
  What does history tell us? History tells us that 31 of my colleagues 
on the other side of the aisle were prepared to filibuster a nominee to 
one of the highest positions of our Government, and today many of those 
who supported this filibuster allege unfairness when Republicans 
exercise the same right--the same right--only this is a minor office 
compared to the Chief Justice of the Supreme Court.
  We are talking about a nominee to an office with a budget of under $1 
million with a staff of six. But he is supposed to make certain 
everybody is taken care of, all the medical problems are going to be 
taken care of if we just vote yes on this nomination, according to my 
distinguished colleague from South Dakota, Senator Daschle.
  In fact, I remember my colleague from Massachusetts arguing against 
the Justice Rehnquist confirmation because he ``lacked candor in 
testifying before the Senate Judiciary Committee'' and because of 
Justice Rehnquist's ``alleged pattern of explanations * * * that are 
contradicted by others or are misleading or do not ring true.''
  Does that sound familiar? Many of us said this time the same thing 
about Dr. Foster.
  I have talked to him personally, others have talked to him, others 
who are on the committee. We should not have the right to make that 
judgment because we are Republicans, but it is all right to make it 
against the Chief Justice nominee for the U.S. Supreme Court.
  So, Mr. President, facts can be stubborn things. They are rarely 
noted by the media, not often used in this Chamber. But they show that 
we have a double standard and it is alive and well in Washington, DC. 
And it goes on and on and on. We hear all the hand wringing over there 
and all the talk of Presidential politics on this side and nothing 
about Presidential politics downtown. This is not about Presidential 
politics. That may be a good sound bite. This is about Dr. Foster and 
his qualifications for the office, and it is about our right to advise 
and consent.
  I must say, as I look back on it, we could have chosen other options, 
but it seemed to me this was a fair option, just as fair as it was for 
Justice Rehnquist who was nominated to be Chief Justice.
  Cloture was invoked in that case. Cloture can be invoked in this 
case. The issue is not whether cloture was invoked on 22 of the 24 
nominations that have been subjected to cloture procedure. This is a 
false distinction. What is important is we have had 24 nominations 
subjected to a cloture vote. So he can get an up-or-down vote, all he 
needs to do is get 60 votes on this, as others have done in the past.
  I do not question those who say Dr. Foster is probably a fine person. 
I do not know Dr. Foster that well. I have had one visit with him. I do 
not snoop around about his past. I think Senator Danforth was right 
when he made that statement: Tell it to the family of John Tower when 
you talk about allegations and stuff over the transom, under the 
transom and wrecking somebody's character; tell it to John Tower's 
family. He is gone.
  Tell it to Robert Bork. Tell it to his wife when they were harangued 
and harassed day after day after day by the Judiciary Committee.
  Tell it to Bill Lucas and his family, the fine outstanding sheriff of 
Wayne County, MI, an outstanding black American who did not even get a 
vote, any kind of a vote on this floor, because the Judiciary Committee 
voted, in a 7-7 tie, and would not report him out.
  That is the thing the Democrats do not tell us: How many Republicans 
never had a hearing, were never reported out of the committee, and when 
they were reported out, they stayed on the calendar; never had the 
courtesy to even have a cloture vote. They died on the calendar.
  I have not heard anybody say anything about that over there, and I 
put those facts in the Record. I thought surely somebody would get up 
and explain why the Democrats would do that when they talk about 
fairness and their hearts ache and they cannot sleep at night. Why do 
they not read the Record and go back and call all the families of the 
people who did not even get a hearing or were on the calendar week 
after week after week, month after month after month and never even had 
the courtesy of a vote, not even a cloture vote.
  So I know all about it. I have been here a while, and I keep track of 
these things. What comes around goes around, and none of us are 
perfect. When we make arguments on the Senate floor, we ought to go 
back and look at the last argument we made and the one before that to 
see if it is consistent and how did we vote on Rehnquist before 
standing up to make a speech.
  I can recall in 1980 joining with the Senator from Massachusetts, 
Senator Kennedy, when they wanted to block John Breyer's nomination. I 
said it should not be blocked, and I voted for cloture, and we 
succeeded. He was a Democrat, so it is not politics.
  This nomination was flawed from the start, and the President knows 
it. But he sought to divide the American people on the issue of 
abortion. That is all this nomination is about, trying to divide the 
American people for political purposes, and the President talks about 
politics and his Chief of Staff Leon Panetta goes on television this 
morning in some outrageous statement about a vengeance up here--
vengeance--which means they must be losing.
  So I wish Dr. Foster well. No one likes to see someone who may want 
to have a job denied that opportunity. I met with a lot of the families 
who did not even get a vote of any kind because they were Republicans 
in a Democratic Senate. Well, Dr. Foster is getting a vote. I promised 
him that, and he is getting it very quickly, in 2 days.
  I met with him on Monday, and here it is Thursday, and we are going 
to have the second vote. I think his initial lack of candor and 
certainly lack of truthfulness on the part of the White House made this 
nomination in doubt from the start.
  So whether it is his misleading statements concerning his abortion 
record, or his alleged knowledge of the infamous Tuskegee syphilis 
study or involvement in sterilizing several mentally retarded women, 
there are just too many questions. If the Senator from Massachusetts 
can say that somebody lacks candor, maybe we can say it with the same 
credibility on this side of the aisle. Maybe we are not entitled to 
that because we are Republicans, only the liberals are entitled to make 
those judgments. But we are, too.
  As I said yesterday, we need somebody in that position to be 
America's doctor--not Republicans, not pro-life, not pro-choice, not 
Democrats, not conservatives, not liberals, but America's doctors. It 
is not a policy position, it is a public relations job, with a staff of 
six. The world will not come to an end if we do not ever fill this 
office or if it is abolished.
  So it seems to me we do not want somebody to divide us, as the 
previous Surgeon General did, about legalization of drugs and all the 
other statements made by that Surgeon General, but that has nothing to 
do with this nomination. My point is, if there is somebody out there, 
there are thousands and thousands of good people out there who can 
unite America, unite Americans, whatever they can do in that office, 
and this is not the right nomination.
  Again, I agree with Senator Danforth. I wonder sometimes why anybody 
would accept a nomination, but I do not know anybody on this side who 
has been personal about Dr. Foster. I am proud of the fact he is a 
veteran. As far as I can see, he is a good person. We had a nice visit. 
But also we have to have a record, and the record, I think, is the 
problem: His lack of candor.
  So we are proceeding, I think, in a very fair way, as we look at 
history and look at the record and look at how quickly this nomination 
has moved.
  It seems to me cloture should not be invoked and this nomination 
would go back on the calendar, as the unanimous-consent agreement 
indicates.

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