[Congressional Record Volume 148, Number 88 (Thursday, June 27, 2002)]
[Senate]
[Pages S6230-S6235]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             UNANIMOUS CONSENT REQUEST--EXECUTIVE CALENDAR

  Mr. LOTT. Mr. President, I ask unanimous consent that the Senate now 
proceed to executive session for consideration of the following 
nominations on the calendar: Nos. 810, 825 through 828, 840, 862 
through 867, 887 through 889; I further ask that the nominations be 
confirmed, en bloc; that the motions to reconsider be laid upon the 
table; that the President be immediately notified of the Senate's 
action; and that the Senate then resume legislative session.
  Before the Chair rules, I wish to indicate this request is with 
respect to 15 judicial nominations, some of which have been on the 
calendar since May 2. These are nominations that are pending in the 
Senate, not in the Judiciary Committee. They are ready for 
consideration by the entire Senate with only one exception; I know of 
no objections.

[[Page S6231]]

  I will be giving a statement with regard to this matter later, but in 
consideration of Senator Reid's and others' time, I thought I would 
make this unanimous consent request first and make my statement on this 
matter later.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, as we speak, there are negotiations going on 
at the White House dealing with a wide range of appointments and 
nominations. I hope this can be worked out. I was confident a day or 
two ago that the majority leader and the Republican leader, together 
with the White House, had worked something out on nominations on which 
we could move forward, but that did not come to be. We also know there 
is someone on the other side of the aisle who has asked that we on his 
behalf object, and I am doing that now. I object.

  The PRESIDING OFFICER. The objection has been heard.
  The Republican leader.
  Mr. LOTT. Mr. President, I understand there may be another unanimous 
consent request in a moment, but it could lead to some discussion back 
and forth, so at this time I yield myself leader time so I can address 
the issue that was just objected to.
  The PRESIDING OFFICER. The Senator has that right.
  Mr. LOTT. Mr. President, the Senate, the American people, and the 
House of Representatives have all expressed their outrage at the 
decision by the Ninth Circuit Court of Appeals yesterday which ruled 
that the Pledge of Allegiance is unconstitutional because it contains 
the phrase ``under God.'' People are understandably stunned and find it 
not only unbelievable, but indefensible.
  Senators and the American people are shocked that two Federal circuit 
judges were capable of making such an absurd decision. The fact that 
they did points up, once again, how vitally important these Federal 
judicial appointments are in guiding not only the country's present, 
but its future as well. Judges are important at every level, but 
particularly at the appellate court, the circuit court level.
  This preposterous decision about the Pledge of Allegiance, which 
Senators have been outraged about, was handed down by three circuit 
court judges who voted 2-1 that reciting the Pledge violated the 
Constitution's Establishment Clause protections.
  I should note that the vigorous dissent in the case was filed by 
Judge Ferdinand Fernandez, who was appointed by the first President 
Bush, and who went into great detail since echoed by many members of 
this chamber--as to why the other two judges views and reading of the 
law are both unfounded and inappropriate.
  An interesting fact about these three judges is that two of the three 
are actually on senior status which means they are not considered 
active judges and are semi-retired. The fact that semi-retired judges 
were deciding is an indication in and of itself that there are problems 
in this circuit court and there are clearly major problems in the Ninth 
Circuit Court of Appeals.
  Mr. President, we have been arguing for years about how the Ninth 
Circuit should be changed. It is a huge circuit which includes not only 
Hawaii and California, but Nevada, Arizona, Idaho, Oregon, Washington, 
and Montana as well. It is not surprising that the states in the 
circuit also have very different cultural views of the world. 
Therefore, geographically and ideologically, many Senators encompassed 
by the Ninth Circuit want it split into at least two, if not three, 
circuits.
  The Ninth Circuit is also by far the court that has been reversed the 
most by the United States Supreme Court. Indeed, the 9th Circuit 
decisions that have been reviewed by the Supreme Court have been 
reversed over 80% of the time over the last 6 years. And these have not 
been close cases in the Supreme Court either. On average, the Ninth 
Circuit's decisions have received just two votes from the Supreme 
Court's nine justices.
  Mr. President, I should also point that one of the judges who did 
decide to hold that the Pledge of Allegiance to the flag is 
unconstitutional was Stephen Reinhardt. This active judge, who was 
appointed in the last year of Jimmy Carter's Presidency, holds the 
record for the most unanimous reversals by the Supreme Court in a 
single court term--five. He has been reversed a total of 11 times since 
the court's 1996-1997 term. He has been involved in such infamous, 
ridiculous decisions as striking down California's ``three strikes and 
you're out'' criminal law this spring. He has a long record of other 
extremely unpopular and, in my opinion, inaccurate and unfounded 
interpretations of the law and/or the Constitution. So, this judge has 
engaged in a pattern of using his position on the court to become an 
activist for social change instead of interpreting the law as passed 
and voted on by Congress or as written by the Nation's Framers.

  Twenty-eight active judges are authorized for the Ninth Circuit and 
five of those seats are vacant. Due to the heavy caseload in the 
Circuit, all five of those vacancies have been declared judicial 
emergencies by the Administrative Office of the Courts. President Bush 
has nominated individuals to fill three of those five vacancies, one 
from Hawaii who is supported by both of the Democrat Senators from his 
state has pending on the Executive Calendar since May 16, another from 
California has been held up in the Committee since June 22nd of last 
year without even a hearing, and the third from Nevada has been in the 
Committee for two months.
  As we can see from this case that has everyone up in arms, these 
circuit judges do make a difference, and that is why President Bush's 
Circuit Court nominees are being held up. He and I agree that we should 
not be putting judges on the appellate courts who will render decisions 
such as this. The judgment of such judges really has to be questioned 
by the vast majority of Americans.
  Despite the vacancies and the judicial emergencies on the Ninth 
Circuit and all the federal circuits, the Senate continues to have a 
problem confirming judges without undue and unjustifiable delay. There 
are some 45 judicial nominees pending before the Senate at one level or 
another. Yet, we have not confirmed one judge since before the Memorial 
Day Recess.
  As I have already noted, as of this morning, there were 15 judges on 
the Executive Calendar who are ready to go if a few Senators would only 
let them. Three of the 15 are Circuit Court judges. And there are 
several circuits around the country that are having real problems 
handling their caseloads because they do not have enough judges to fill 
all of their seats--indeed one circuit, the Sixth, has half of its 16 
judgeships vacant.
  Around the country there are 89 judicial vacancies. Thirty-one are 
Circuit Court vacancies, 17 of which have been declared judicial 
emergencies by the Administrative Office of the Courts and the 
Judiciary Committee is holding 11 nominees President Bush has named to 
fill those 17 emergencies. There are currently 57 vacancies at the 
District Court level, 18 of which have been declared judicial 
emergencies.
  I expect we are going to hear arguments back and forth about the 
numbers, well, it is because you guys did not confirm enough judges 
during the President Clinton's last 2 years. But whatever the history 
may have been, we have a problem now with our circuits that must and 
can be fixed.
  Mr. President, another example of how important these judicial 
appointments can be and what the effect on the nation can be is the 
decision handed down by the Supreme Court today by a 5-4 vote upholding 
Cleveland's school voucher program. Frankly, I was amazed it was that 
close. Again, it points up the importance of even a single judge on the 
Supreme Court or on a circuit court.
  I think that says a lot about the real reasons behind what is going 
on in the Committee with the President's judicial nominees. There are a 
number of people in the Senate who say that if the President tries to 
put a conservative, strict constructionist judge on the Supreme Court 
who will follow the law and not write it from the bench as the judges 
did in the Pledge of Allegiance case they are going to oppose him no 
matter how temperamentally, professionally, intellectually, or 
ethically qualified he or she is.

  However, as I have said before, many of us on this side of the aisle, 
voted for

[[Page S6232]]

Justice Ginsburg when she went through the Senate when President 
Clinton was in office. We knew we would not agree with most if not all 
of her future decisions but we felt we had to admit that she was 
competent, ethical, and qualified for the job despite our 
philosophically differences with her.
  There are several other Clinton judges, particularly one or two out 
in the California circuit, that I voted whose future decisions I will 
probably live to regret for as long as I live. But there is something 
worse than bad judges, I guess, and that is no judges, which then 
expands the power of the bad judges like Judge Goodwin and Judge 
Reinhardt that are on the Circuit Courts of Appeal now.
  I will take a moment to note that the Supreme Courts 5-to-4 decision 
on school vouchers will prove immensely important to thousands of low-
income parents whose children are trapped in failing schools. Low-
income children need an education even more than other children since 
it is often their only means of escaping poverty for the rest of their 
lives. So, when public schools are not succeeding, they and their 
parents shouldn't be sentenced to failure year after year. They deserve 
a system and a process that offers them a hand up, and if need be a 
hand out of a failing school, to find another avenue to succeed. The 
Supreme Court upheld a process where the money that is being expended 
on their child in a failing school, or in a school that is drug 
infested or riddled with crime, can be used instead to lift the child 
out of the failure and into a setting where they can get an real 
academically sound education. Is that such an awful result for the 
thousands of low-income children trapped in dysfunctional and failing 
schools?
  In Philadelphia, PA, I understand the State has taken over the 
running of the public schools. What a tragedy.
  When Cleveland's system was failing, the city seized the initiative 
to try and improve things, and so have other areas. In this Cleveland's 
case, they put in place a voucher program that is working. It is 
helping children get an education that will last the rest of their 
lives.
  Mr. President, getting back to the absurd decision in San Francisco, 
it is easy for us all to say the Pledge of Allegiance with gusto and 
mean it, but we need to look behind this decision--how in the world it 
happened. It is that America's voters understand that these Federal 
judgeships, and who fills them, do make a difference in the kind of 
society that not only will we live in, but our children's children will 
live in. That is why I have tried to find a way to get an agreement to 
move the President's eminently qualified nominees.
  Senator Daschle and I have been talking about it for about 3 weeks. I 
thought we had it all worked out. I think, frankly, we did have it 
worked out, but now our friend Senator McCain says he is going to 
object to any and all nominations until he gets some sort of guarantee 
with regard to a nominee for the Federal Election Commission (FEC). Her 
nomination was not agreed to for 5 months, and now that the President 
has started the routine vetting process in order to formally send her 
nomination to the Senate, Senator McCain is saying that if the 
nomination is not moved on immediately, he is going to hold up every 
single nomination pending in the Senate.

  The investigation and FBI clearance process, for all nominees--and 
this is a Democrat nominee--usually takes about 2 months now and she 
will have to go through that process the same as everyone else. So, the 
President could not appoint her right now if he wanted to. She has not 
had the clearance check. So, evidently every nominee is going to be 
held up today, this week, and all of July over a single nominee to the 
FEC. That means that lifetime appointments of Federal judges on the 
circuit and district courts, both Democrat and Republican, some who 
have been waiting for a year or more, will have to wait for months on 
this single nominee who could not be confirmed today even if everyone 
was in agreement about her.
  I do not get it, Mr. President. I think this is a real sad commentary 
and not becoming, quite frankly, of the Senate, if she should allow 
this unjustifiable obstruction of all nominees to occur.
  I have made an effort, as has Senator Daschle. I thought we had made 
real progress and were ready to go forward with an agreement that would 
move nonjudicial nominations, judicial nominees, marshals, U.S. 
attorneys, and a lot of folks who have been waiting a long time. Then 
we hit a stone wall yet again.
  I had hoped that one way to do overcome this obstacle would be to 
move these nominees en bloc. As everyone knows, I do not usually move 
to Executive Calendar nominations on my own because that is normally 
the majority leader's prerogative, but if all else fails, you have to 
take advantage of whatever avenue is available to you.
  I hope the American people, and the Senate, will take another look at 
these judicial nominations--and how we can move them and get them 
confirmed. If it is a continuation of tit for tat when will it ever 
end? Maybe it will fall to my lot--no pun intended--to some day say 
that we are going to end this, and we are going to move these 
nominations unless there is a big ethical problem or they are obviously 
not qualified.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Before the Republican leader leaves, I am not going to give 
a long statement regarding judicial appointments because I have done 
that on a number of occasions. Suffice it to say, the majority leader 
went through this. As has been said by the majority leader, and I have 
said it on a number of occasions, this is not tit for tat, this is not 
payback time.

  I served and practiced law for many years and argued cases before the 
Ninth Circuit. I have two sons in the Ninth Circuit--Leif Reid is the 
administrative assistant for the circuit judge; the other was a law 
clerk to the chief judge--and I am familiar with the circuit. There are 
very fine men and women serving in that court. I am not here today to 
defend in any way President Nixon's appointment to the court or 
President Carter's appointment to the court the two people who wrote 
that decision. We would all acknowledge it is wrong. I am confident 
that the Ninth Circuit, when they meet en banc, will stay that decision 
made by the two judges.


                       Unanimous Consent Request

  Mr. REID. I ask unanimous consent that upon completion of the county 
reform bill, the Senate proceed to immediate consideration of Calendar 
No. 414, S. 2039, the National Aviation Capacity Expansion Act for 
2002.
  The PRESIDING OFFICER. Is there objection?
  Mr. FITZGERALD. I object.
  The PRESIDING OFFICER. The objection is heard.
  Mr. REID. It is unfortunate we cannot get consent to move forward 
with this bill. It is a bill that enjoys strong bipartisan support.
  In April, the Commerce Committee voted 19 to 4 in favor of this very 
important legislation. More than 60 Senators indicated their support by 
sending a letter to the two leaders asking for this bill to come before 
the Senate immediately. I simply believe this is a national priority. I 
have flown into O'Hare many times and understand how busy and important 
that airport is for the country, not just for the people of Illinois. I 
believe we have the votes to pass this bill and to do so very quickly.
  I say to my friend, the junior Senator from Illinois, to object to 
this point only delays the inevitable and stands in the way of 
addressing a national aviation capacity problem in the Chicago region 
which affects the whole country. It jeopardizes jobs and stalls 
economic development. I am very disappointed.
  Mr. DURBIN. Will the Senator yield?
  Mr. REID. I am happy to yield to my friend.
  Mr. DURBIN. I thank the majority whip for the unanimous consent 
request and would like to ask him a question as to whether he has any 
plans or discussion with the majority leader in reference to proceeding 
on this matter.

  Mr. REID. I have spoken to the majority leader on several occasions. 
This legislation enjoys strong support and is a priority for the 
majority leader. It is fair to say the majority leader will use all 
appropriate avenues to bring this legislation to final passage.
  When an impressive coalition and supermajority of the Senate, labor,

[[Page S6233]]

business, aircraft controllers, pilots, airlines, general aviation, and 
five former Secretaries of Transportation write, call, or in some way 
visit with the majority leader in support of this legislation, it is 
hard for the majority leader to ignore this, I respond to my friend.
  Mr. DURBIN. If the majority whip will continue to yield, the purpose 
of this unanimous consent request was to make it clear on the record 
what I personally believed would occur when my colleague from the State 
of Illinois objected. There were some who said that would not happen, 
that once this bill had been reported from the committee, had gone 
through the regular order, with two hearings before the Senate Commerce 
Committee, on which my colleague from Illinois serves, a hearing both 
in Chicago as well as in Washington, when ample opportunity had been 
given both sides to present their point of view, when amendments were 
considered and offered by my colleague from Illinois, when the final 
vote on the committee was a substantial bipartisan vote of 19 to 4, it 
was the belief--and I am sorry to say the mistaken belief--of some of 
my colleagues in the Senate that my colleague from Illinois would 
accept a debate on this issue and would accept the consequences, up or 
down.
  Apparently that is not to be the case. It leads us in a position, 
today, where those colleagues on the floor who have any doubt in their 
mind should have it dispelled. The objection by the Senator from 
Illinois makes it clear that he is prepared to delay this as long as 
possible.
  The Senator from Nevada has put his finger on the issue. What is at 
stake is the safety of O'Hare, the world's busiest airport. What is at 
stake is the efficiency of that airport. What is at stake are hundreds 
of thousands of jobs in Illinois and literally the future of our 
economy. That may sound like hyperbole from a Senator, but what I have 
said is supported by the Chamber of Commerce on a national and State 
basis, the national AFL-CIO and the State AFL-CIO, all of the major 
business organizations, economic development organizations which 
support this bill and oppose the position taken by the junior Senator 
from Illinois.
  This is not a bill just being offered by me but, rather, with the 
cooperation and the active participation of my colleague, Senator 
Grassley of Iowa, Senator Harkin as well, and a bipartisan coalition. 
As the majority whip has noted, 61 Senators have signed on in support 
of this bill and sent a letter to the majority leader and Republican 
leader to indicate that support. My junior colleague from the State of 
Illinois certainly does not have that kind of support. He has said he 
is going to try to delay this and try to avoid it for as long as 
possible.
  In making this unanimous consent and making this statement, I hope it 
is clear on the record that at this point in time we will use any 
appropriate means to bring this issue forward. We will not be enslaved 
by the threat of filibuster. I say to my colleague from the State of 
Illinois, if he will accept a debate on this issue for a reasonable 
period of time, offer the amendments, and bring it up for a vote, I 
will accept the consequences. Let the Senate make its decision, yes or 
no. If the merits of his argument are compelling, he will succeed. If 
they are not compelling, he will lose. The same is true for my 
position. That is the nature of the legislative body. It is the nature 
of fair play. I hope my colleague from the State of Illinois will 
reconsider his dedication to these delays.


                         Ninth Circuit Opinion

  Mr. REID. Mr. President, while I still have the floor, I will respond 
more specifically to my friend, but I want to go off subject a little 
bit with some good news.
  As I just stated, I had a couple of sons who worked the Ninth 
Circuit. My son Leif Reid is administrative assistant to the Ninth 
Circuit. He just called the cloakroom and indicated the Ninth Circuit 
stayed the order that was issued yesterday. The pledge is intact. He is 
faxing me the opinion of the court.
  I am, frankly, amazed they did it as quickly as they did, but I am 
happy they did this.
  Back to O'Hare, again I am speaking--and I rarely do this, but on 
this occasion I am speaking for the majority leader of the Senate, Tom 
Daschle. Senator Daschle has authorized me to say to Senator Durbin 
that he will use all his options, all the options of the Senate, to 
pass this legislation this year.
  On behalf of the many people who support this legislation, I say to 
my friend, Senator Durbin, he has done great work on this issue. I 
appreciate the support of Senator Grassley and Senator Harkin but 
especially the Senator from Illinois for his hard work on behalf of 
frustrated fliers everywhere. We have frustrated fliers at McCarran in 
Las Vegas, the sixth busiest airport in America. This is unfortunate to 
frustrated fliers. When fliers at O'Hare are less frustrated, we have 
more people coming to Las Vegas. It affects not only the Chicago area, 
the State of Illinois, but the entire country. That is a massive 
airport and is a feeder to the rest of the world.
  I salute Senator Durbin for such patience. The Senate is going to act 
on this legislation in some way. There are ways to do this. We are 
going to do it in some way, shape, or form, and we will do it as 
quickly as we can. The Senator has the full support of the majority 
leader.
  Mr. DURBIN. I ask unanimous consent to be recognized for 10 minutes 
in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I again thank my colleague from the State 
of Nevada. Let me explain for a moment what the issue is before us so 
those who are not familiar with it can come to understand it. O'Hare is 
pretty well known across America. It is our busiest airport. In the 
year 2001, despite September 11, it turned out to have more flights and 
passengers than virtually any airport in America.
  But O'Hare is an airport that was designed and built in 1959, 43 
years ago, with an anticipated annual volume of 20 million passengers. 
It now has some 67 million passengers annually. The runways that were 
designed in 1959 were designed to standards and expectations of that 
era--standards and expectations that have changed dramatically.
  What we have seen in 43 years is larger planes, more frequent 
flights, changes in air traffic control. All of these have challenged 
O'Hare and every airport in the country to modernize. But O'Hare has 
been stuck with the same runway configuration now for over 40 years.
  Part of it has to do with politics because in my State of Illinois 
the Governor has the final word when it comes to the construction of 
airports. Politically, it meant that a Democratic mayor of Chicago and 
a Republican mayor from some other part of our State would rarely find 
common ground or agreement on the future of O'Hare. But last year, 
there was finally a breakthrough. Gov. George Ryan, a Republican, and 
Mayor Richard Daley of Chicago, a Democrat, came to an agreement about 
how to change O'Hare, modernize it, improve it, and make it safer. Many 
people thought it could not occur, but it did happen, and because of 
that decision and because of that agreement we now have a chance to 
make that airport modern and safe by 21st century standards.
  Some say that seems to be obvious. Who would object to it? It turns 
out that a handful of communities around O'Hare naturally are concerned 
about the prospects of changing flight patterns or expanding service to 
that airport. They would object, as one might expect.
  The elected officials in that area created a coalition to oppose 
these changes at O'Hare. My colleague in the Senate, the junior Senator 
from Illinois, has announced his opposition to any plans to change 
O'Hare. I understand that. But there comes a moment in time when you 
have to say: What is in the best interests of our entire State? What is 
in the best interests of the region? What is in the best interests of 
the Nation?
  I think what the people of Illinois have said in overwhelming numbers 
is they believe this historic agreement is in our best interests. We 
have the support, as I mentioned earlier, of the National Chamber of 
Commerce, the Illinois State Chamber of Commerce, the National AFL-CIO, 
the Illinois State AFL-CIO, the Airline Pilots Association, the air 
traffic controllers, general

[[Page S6234]]

aviation, virtually all major airlines. They have all signed onto this.
  So as some might suggest, this is a unanimous opinion of the experts 
in aviation that this plan moving forward makes sense.
  Of course, every item in the planned agreement between the Governor 
and the mayor would be subject to the same types of scrutiny and 
restriction as any other airport design. What I have here is the report 
of the Committee on Commerce, Science, and Transportation, which 
presents this bill, S. 2039, to the Senate. They make it clear here in 
precise language:
       Nothing in the bill guarantees any funding for the O'Hare 
     or Peotone project, or mandates that a specific set of runway 
     configurations be approved, as the FAA retains all its 
     existing discretion to analyze, review, and, if all relevant 
     tests are met, approve the O'Hare project.

  They go on to to say:

       The FAA has discretion to modify the plan, if necessary, 
     for efficiency, safety, or other concerns.

  It says of the bill that it:

       Requires any redesign plan to conform with the Clean Air 
     Act and to conform with all other environmental mandates to 
     the maximum extent possible, while requiring the State use 
     its customarily practices to analyze any Clean Air Act 
     requirements.

  And it goes on to say this bill:

       Provides no Federal priority for federal funding of any 
     O'Hare projects, including the runway design plan.

  My colleague will stand up here and tell you what I said is a lie; it 
is not true. But what I put before you is the report of his committee, 
which says in black and white that the FAA has the last word. The FAA 
can reject it. The FAA can say this runway plan will not work. He can 
stand here, as he has repeatedly, and say those words are not true. I 
stand behind the committee, his committee, and the report they have 
given to the Senate.
  I think what they have said is true because I wrote the bill and I 
know what is in it. When the Senator from Illinois offered an amendment 
in committee and said: I want to make sure the FAA has the last word, 
we said we will take the amendment. We accept it. Still, it is not 
enough.
  It has really come down to the point where it will never be enough 
when it comes down to what my colleague is asking for in this bill.
  We have a situation where we have 61 Senators here who have signed 
onto a letter to the leadership, saying they are prepared to move 
forward on this bill. I can tell you an additional two Senators this 
week have told me they are prepared to support this as well. Another 10 
Senators on the Republican side of the aisle have said they will 
support it when it comes to a vote. So the vote will be substantial.
  The question before us, though, is when and where this will take 
place. The Senator from Illinois, my colleague, has made it clear by 
his objection that he is prepared to filibuster this bill. He has said 
as much--in Illinois and here in Washington. It is no great surprise.
  But some of my colleagues in the Senate have said: Oh, no, he won't 
do that; when it is all over, he is going to bring it up and offer his 
amendments and take a vote and then it will all be over.
  I said: No, I don't think so. Let's go ahead and make this unanimous 
consent request so it is clear on the record his intention and design 
to lead this to a filibuster, and I think we have done that today. In 
the course of doing that, I think what we have established is that we 
have to find whatever appropriate means are available, working to bring 
this issue for a vote in the Senate.
  I am prepared to accept the decision of the Senate on this issue. I 
think that is why we are elected to this body, to bring our best ideas 
forward and say to the assembled Senators: We hope you will support us. 
If you do not, then it is understood we have lost our day, our 
opportunity. But I think now, in the best interests of safety at 
O'Hare, hundreds of thousands of jobs in our State, and the best 
interests of business in the region, that we should pass this bill as 
quickly as possible.
  The PRESIDING OFFICER. The majority leader.
  Mr. DASCHLE. Mr. President, I come to the floor just to compliment 
the distinguished Senator from Illinois for his determination and the 
effort that he continues to make to ensure success. I will guarantee 
that before the end of this session, one way or the other, we are going 
to resolve this successfully. We will do whatever it takes to ensure 
that the people of Illinois, the business community at and around 
O'Hare and the tremendous service it provides are protected and that 
the priority it deserves is given on the Senate floor.
  The Senator from Illinois has been relentless in his determination 
and in his advocacy. He has spoken in the caucus on countless 
occasions, in leadership, and on the Senate floor. I just wanted to 
assure him publicly, as I have privately, that we will continue to work 
on this until we get it done. It will happen.
  I am convinced that 95, maybe 98 Senators support what the Senator 
from Illinois is attempting to do. I have every confidence that once we 
get to the vote, it is going to be overwhelming. So I will assure the 
Senator that we will continue to work with him and find a way to do it 
and make sure that it gets done in a time that will send the right 
message to the people of Illinois, the people of Chicago, the people 
who are concerned about safety, concerned about jobs, concerned about 
economic development--that the Senate understands that and, thanks to 
the leadership of the Senator from Illinois, we are going to deliver.
  I simply wanted to add my voice to the many who support the Senator's 
efforts. I appreciate very much his coming to the floor this afternoon, 
again, to reiterate the extraordinary importance that this issue and 
this project has for the people of his State. I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I express my appreciation for this 
expression of personal support from the majority leader. I thank him. 
He has been cooperative from the start. He understands, as we all do, 
this is not a Chicago issue. This is a national issue. It is an issue 
that Senators across the Nation understand as we sit, hour after weary 
hour, in airports, wondering: What is wrong at O'Hare now?
  What is wrong is a 40-year-old runway design that needs to be 
modernized; it needs to be safer; it needs to be improved. We cannot 
allow this issue to die. For the good of that airport, for national 
aviation, for jobs in Illinois, stopping this bill is a job killer in a 
State that needs jobs desperately. Stopping this bill is a business 
killer in a State that desperately needs businesses to expand. Stopping 
this bill is putting a dagger in the heart of the single most important 
public works project in the history of our State. I am not going to let 
that happen without a fight. I am happy to have the majority leader in 
my corner.

  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  The Senator is recognized.
  Mr. FITZGERALD. I thank the Chair.
  Mr. President, I would like to respond to what my colleague from 
Illinois just said. I think there are a number of points that were 
glossed over.
  I do oppose Senator Durbin's bill with respect to O'Hare. Mr. Durbin 
said it is necessary to pass this bill in order to expand O'Hare 
Airport. But I would point out that never in the history of our 
country, that I am aware of, has any airport in this country had a 
special bill mandating that the FAA approve its particular expansion 
plans.
  The fact is, if Mayor Daley of Chicago wants to expand O'Hare 
Airport, he can simply file an application with the FAA to expand 
O'Hare Airport. The trouble is, if that were the case--if Mayor Daley 
were simply to file an application similar to all the other airports in 
the country--his application would have to be judged on the mere 
merits.
  So Senator Durbin and Mayor Daley came up with the idea of drafting a 
statute. They put that into bill form and are now asking Congress to 
pass it.
  The purpose of that bill is twofold:
  No. 1, the bill would straightjacket the FAA so that they would have 
no choice but to approve Mayor Daley's specific runway design at O'Hare 
Airport.

  I could go on for a very long time. But maybe I will save that for a 
later date to tell you why it is in fact a bad runway design that Mayor 
Daley is trying to mandate in Federal law.

[[Page S6235]]

  The bill of Senator Durbin--I don't care what the committee report 
says--says that the FAA shall implement a Federal policy in favor of 
approving six parallel runways running in the east-west direction at 
O'Hare Airport. It says east-west. It is very specific.
  I take issue with my colleague's comments or suggestions that the FAA 
could change it. In fact, it would be illegal for the FAA to reposition 
those runways in a northwest-southeast direction. Mayor Daley's and 
Senator Durbin's exact runway design will be locked into Federal 
statutory law if my colleague's bill passes.
  That is one of the objectives my colleague has. He wants to 
straightjacket the FAA, put a gun to the FAA's head, and force them to 
approve a bad runway design that has never been reviewed by any Federal 
aviation expert. It has never been tested in any modeling. In fact, it 
appears to be the back-of-a-napkin design.
  Mayor Daley was before the Senate Commerce Committee, and he admitted 
that the city of Chicago had never itself done any studies to back up 
that design.
  There is another goal my colleague is trying to accomplish with S. 
2039. Right now, the city of Chicago has the power to condemn lands 
around O'Hare Airport and communities around O'Hare Airport, provided 
Mayor Daley gets a permit from the State of Illinois to do that. 
Senator Durbin's bill would remove the requirement that Mayor Daley get 
a permit from the State before he condemns the communities around 
O'Hare. They cannot pass legislation in the State senate that would get 
rid of the permit requirement. So they have decided to come to Congress 
in Washington and to strip away the State's law and permit requirement 
at the Federal level.
  If my colleague's bill passes, that will mean Mayor Daley could 
condemn all the communities around O'Hare without getting a permit from 
anybody. He would have an unfettered ability to condemn properties in 
communities that are outside the city of Chicago.
  Imagine if the mayor of Minneapolis could go willy-nilly and condemn 
communities all around Minneapolis. Imagine what the communities around 
Minneapolis would think.
  I think the State legislature was wise in imposing a requirement that 
the mayor of Chicago, before he goes out and condemns communities 
around his city, get a permit from the State of Illinois. I think the 
Federal Government would unbalance that wise State law if we were to 
remove that permit requirement.
  If one person had the ability to willy-nilly condemn all parts of the 
Chicago area around O'Hare Airport, that would literally give the mayor 
of Chicago unfettered license to run over anybody he wanted at any time 
he wanted. I don't think this body should be part of conferring that 
kind of unfettered ability to run over people on the mayor of Chicago.
  There are delays at O'Hare Airport right now. That is no doubt true. 
I stood right here 2 years ago and warned Congress not to lift the 
delay controls at O'Hare Airport. From 1969 to 1999--for 30 years--the 
FAA had delay controls at O'Hare Airport so that the airlines didn't 
schedule more flights than the airport had the capacity to handle.
  In 1999, Congress took off the delay controls, allowing the airlines 
to schedule more flights than O'Hare had the capacity to handle. I 
warned that we would have horrible delays if we lifted those delay 
controls. That happened. There were interim studies by the FAA which 
showed that if the delay controls at O'Hare were lifted, delays would 
go up exponentially, and they have.
  In my judgment, that was a deliberate attempt by United Airlines and 
American Airlines to cause delays at O'Hare and to build pressure to 
further expand O'Hare in an attempt to block a third airport which has 
been needed in Chicago for nearly 30 years. That is what we now see.
  I also note that while Senator Durbin's legislation would require the 
FAA, or force, or command the FAA to approve a runway expansion plan at 
O'Hare that would increase the capacity of the runways by 78 percent, 
at the same time the plan is to build new terminals which would only 
add 12 new gates.
  This is a very bizarre plan that Congress is entering into. We are 
going to expand runway capacity by 78 percent, but we are only going to 
add 12 new gates. That really means that once runway capacity is 
expanded at O'Hare, it will be possible under this plan to land a plane 
but you will have nowhere to park it. It doesn't make any sense. It is 
not appropriate for Congress to be wresting control of airport design 
from the FAA and curtailing the FAA's discretion. We should leave the 
FAA's discretion intact.
  If Senator Durbin believes his runway design for O'Hare Airport has 
merit, then he should file an application with the FAA and see if the 
FAA approves it. He should not seek an end-run around the rules that 
all the other airports in the country abide by, nor should this body be 
part of stripping away the State of Illinois' requirement that the 
mayor of the city of Chicago get a permit before he condemns properties 
and communities that are outside the city of Chicago.
  It is not right to give the mayor of Chicago unfettered ability to 
run over anyone he wants at any time he wants.
  S. 2039 is an unfortunate piece of legislation. I will do everything 
I can to prevent its passage.
  I note one good development. The House of Representatives took this 
bill up in just the last couple of days--I believe on Wednesday--a 
House companion bill to S. 2039. The House committee stripped out the 
language that had the effect of putting a straightjacket around the FAA 
and commanding the FAA to approve a specific runway design at O'Hare 
Airport. Even the House committee recognizes the impropriety of 
Congress putting a gun to the head of the FAA and forcing them to 
approve a specific runway design.
  The House legislation simply allows Chicago to file a plan with the 
FAA and to be considered the same way any other airport expansion 
program or proposal is considered anywhere else in the country. 
Unfortunately, however, the House legislation does have the language 
giving the mayor of the city of Chicago unfettered condemnation 
authority, which I think is, as I pointed out earlier, a big mistake.
  So with that, I do look forward to the debate. I am sure the debate 
will be coming. And if I cannot defeat this legislation, I ultimately 
want to change or modify it to make it less egregious than it now is. 
In its current form, it is such an egregious piece of legislation that 
I think it would be inappropriate for our Senate to devote time to it 
when we have Medicare prescription drug issues, homeland security, and 
13 appropriations bills we still have not addressed.
  With that, Mr. President, I thank this body for affording me this 
time to speak. I yield the floor and wish all my colleagues a good 
Fourth of July recess.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Nelson of Florida). The clerk will call 
the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Reid pertaining to the introduction of S. 2697 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')

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