Congressional Record, Volume 150 Issue 82 (Tuesday, June 15, 2004)

[Congressional Record Volume 150, Number 82 (Tuesday, June 15, 2004)]
[Senate]
[Pages S6763-S6773]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2005--Continued

The PRESIDING OFFICER. Under the previous order, the time until 3:40
p.m. will be equally divided between the proponents and opponents on
the Smith amendment.
Who yields time?
The Senator from Virginia.

Amendment No. 3183

Mr. WARNER. Mr. President, it is my understanding that the time is
equally divided between the distinguished Senator from Oregon on this
side and the Senator from Massachusetts on the other. Am I correct on
that?
Mr. LEVIN. As I understand it, Mr. President, both are proponents of
the amendment. I do not know who would be controlling the opponents'
time. Is there opposition? If so, I wonder if the chairman knows who
the opponents are who would be controlling the time.
Mr. WARNER. Mr. President, the distinguished Senator from Michigan
does raise a valid point. I will provide the Senate with the individual
that controls the opponents' time momentarily.
Mr. LEVIN. In terms of the proponents' time, I understand that will
be divided between the Senator from Oregon and the Senator from
Massachusetts.
The PRESIDING OFFICER. The Senator from Oregon will control the time.
The Senator from Oregon.
Mr. SMITH. Mr. President, first may I express my appreciation to
those who have agreed to this time agreement about an issue that is
long overdue for our Senate to take up once again and to vote on its
merits. This is the issue of hate crimes. This is an issue that is much
in the news of late because it is an issue that too often is visited on
the American people, or classes of Americans within the American
community.
We are in the midst of a war on terror, and as we fight that war on
terror abroad, it is important we not forget the war on terror at home.
What Senator Kennedy and I are trying to do in this bill is to simply
remind the American people that there are classes of Americans who are
uniquely vulnerable, who are singled out for violence, and for whom we
need to do something.
It is a fact that hate crimes statutes are on the books of well over
30 States in America. They are even on the books of the U.S.
Government. The Federal Government now has authority to pursue,
prosecute, and punish those who commit hate crimes on the basis of
race, religion, or national origin. What we are proposing to do in this
bill is to add a few categories.
There is one category, one class of Americans that is the problem in
this amendment, as some view it a problem, and that is the gay and
lesbian community.
Now, many may wonder why we are bringing up this issue on a Defense
authorization bill. And the answer is simply because some of the worst
hate

[[Page S6764]]

crimes in recent memory have been committed in the U.S. military. It
clearly is not unique to the American military because it happens all
over the place, even in my State of Oregon, and notably, for example,
in Texas with the death, murder, and dragging of James Byrd, and the
savage beating of Matthew Shepard in Wyoming. But why the military
bill? My answer is, why not? This is a bill that needs to move. It is
important that we pass the defense authorization. It is important that
we deal with this issue of domestic terrorism.
A hate crime is when someone with an ill-motive singles out an
American citizen--or any person, but an America citizen--who, because
of his sexual orientation, is hated and even killed. This happens way
too often. In fact, if it happens at all, it is too often.
As I recounted yesterday in the case of several of our servicemen, a
Navy man and an Army private were literally beaten to death. It is
appropriate that we take up this issue on the Defense authorization
bill.
Many of my colleagues will ask, Why are you trying to punish thought?
I think it is important to recount that we are not punishing thought.
We are not punishing speech. We are, in fact, punishing thought and
speech that amounts to conduct, and that conduct then becomes criminal.
Many people say this is not appropriate to put in statute. We put it
in statute a long time ago in the Federal Government. We did it in
response to civil rights laws that were not being enforced in the
Southern States--or a few of them. And the Federal Government needed to
have some mechanism--some legal reach--to punish and pursue those who
committed hateful things against the communities of African-American
citizens. What this did was generate litigation when the Federal
Government pursued it. It took the litigation all the way to the United
States Supreme Court.
I think it is important that we recount that we are not going after
anybody's hateful thinking or their hateful speaking but for the
combination of those things--with hateful conduct which amounts to
crime.
When this case came to the United States Supreme Court, you might
have expected that conservatives would have struck it down. But it was
an overwhelming vote by the United States Supreme Court, and the
majority opinion affirming hate crimes as a category was written by
none other than William Rehnquist, our current Chief Justice. It is
hard to imagine a more conservative Justice. He made it very clear.
Citing the great Jurist William Blackstone, Rehnquist opined that
``it is reasonable that among crimes of different natures those should
be most severely punished which are the most destructive of the public
safety and happiness.''
Further, Rehnquist added:

Deeply ingrained in our legal tradition is the idea that
the more purposeful is the criminal conduct the more serious
is the offense and, therefore, the more severely it ought to
be punished.

Obviously, in the case of James Byrd, when his murderers were
ultimately subject to the death penalty, you can't punish that any more
severely. But what was different in that case, because it involved
race, was the Federal Government had the statutory right to be there to
back up and help to reinforce the State of Texas should they have
needed it.
In the case of Matthew Shepard--in the case of Wyoming where there is
no authorization for the Federal Government to help because our hate
crimes do not include sexual orientation--the sheriff's office in
Laramie--I met the sheriff, a good Republican--pled for this law. He
said: We needed the help. It was a case of national importance, and we
needed the backup of the Federal Government to manage all that happened
around the pursuit and the prosecution and the punishment of Matthew
Shepard's murderers.

But what is really important to emphasize--and some of my friends
will come to the Senate floor and say we are punishing thought; we are
infringing upon the first amendment because we are going after people
because of what they speak. The answer, as Rehnquist and others have
said, is, no, we are not. We only do it if they act upon it. When
criminal conduct is more serious because it is so heinous with the
evidence around it, you can even more severely punish that crime.
I think it is very important to hit on one other thing before I turn
to my colleague, Senator Kennedy.
Many people wonder why we would do this, why we would add this
category.
My mother used to teach me to treat people the way they would like to
be treated--not just the way I would like to be treated. I cannot think
of a more Christian or decent thing to do than come to the aid of
someone who is in physical peril, or to prosecute their case when they
have been wronged, regardless of what you think of their life or
lifestyle.
I believe the moral imperative that underpins hate crimes legislation
is simply this, and it comes from sacred writ: When people are being
stoned in the public square, we ought to come to their rescue. That
includes the Federal Government, but that does not include the Federal
Government according to our statutes today. What Senator Kennedy and I
propose to do would change that--- and change it for the good.
This is not about endorsing anyone's lifestyle. This is about
protecting Americans in any class or category in which they may find
themselves.
We need to do this. We need to pass this amendment. It is long
overdue.
I understand the reluctance on the part of some of my colleagues
because of their dislike of the entire category of hate crimes, but I
disagree with them. I understand them, but I disagree with them because
of this: The position, if you do not like hate crimes as a category and
don't want to expand it to a new class of people, says you really have
to then strike from our books the hate crimes protections for race,
religion, and national origin. I don't think any of my colleagues would
come down here and try to do that, particularly after those categories
have been found constitutional across the street by the judicial branch
of Government.
But I think, because you can demonstrate clearly the gay and lesbian
community is demonstrably more vulnerable to crime because of their
sexual orientation, we owe it to them as Americans--our American
brothers and sisters--to add this extra measure of law and protection.
I urge my colleagues, I plead with them, to vote for this hate crimes
legislation, known officially as the Local Law Enforcement Enhancement
Act. It is symbolic, yes, but it can be substantive because the law can
teach. The law is a good teacher, and the laws will then teach
Americans that bigotry will not be tolerated. By changing the law, we
can change hearts and minds, and I urge my colleagues to do so--to
change hearts and minds, even change maybe their own minds and join
with me and Senator Kennedy in voting in favor of this most important
and timely amendment.
Congress must take up and carry the torch of freedom and liberty so
cherished by our forefathers. It is only through our ever vigilance
against hate and those acts that threaten life, liberty and happiness
of all Americans that we can achieve a just society.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I yield myself 6 minutes on the
legislation.
I want the history of this legislation to understand what a very
important and significant role my friend and colleague, the principal
sponsor of this legislation, the Senator from Oregon, Gordon Smith, has
played in giving us the opportunity on the floor of the Senate to vote
on an issue of enormous importance and consequence in terms of justice
in our country, and to be able to express what this Nation is really
about; that is, that when we are going to be facing hate crimes, we are
going to use every possible tool we have to deal with these crimes. We
are not going to battle them with one hand tied behind our back.

I have enjoyed the chance to work with Senator Smith on this
legislation over a number of years. We have had some successes in
trying to get it through the Senate, but we have failed. However, I
admire my friend and colleague's perseverance. As Shakespeare says,
perseverance, Lord, make honor bright, and the Senator from Oregon has
enhanced the honor in the Senate

[[Page S6765]]

by giving us an opportunity to address this issue.
For those listening to these remarks, they may not understand how
complicated it is to get a real vote on some matters which are basic
and of fundamental importance. On many occasions when they have opposed
the legislation, Members try to undermine the central thrust of the
legislation, divert it with parliamentary tactics.
The Senator, because of the respect Members have for him, has been
able to ensure that the Senate will address this issue frontally, and
it should, because it is a defining issue in terms of our country and
our society about what this country represents. On the issues dealing
with hate crimes, we find them to be completely unacceptable in this
country.
We have learned from past experience, in other hate crimes
legislation, where the gaps in the legislation have been. This
legislation is very targeted, limited, but an important legislative
effort to try to address those serious loopholes in a way which is both
constitutional, is limited, but also effective and can make an
important difference in terms of reducing the incidence of hate crimes.
I am sure my friend remembers a number of years ago we had the
proliferation of church burnings in this country, primarily focused in
the southern part of this Nation. After a good deal of deliberation, we
were able to get the FBI involved in church burnings. The difference we
saw was virtually almost overnight. Once America understood in
different places of the country that we were serious about making sure
we would use the full resources of our National Government to halt
church burnings, it is amazing how they were effectively halted. There
are still a scattering of them in some communities but effectively the
epidemic we were seeing at that time has halted.
The Senator from Oregon and I believe we can make the similar type of
progress on the issues of hate crimes. That is why this is such an
opportunity.
I will take a few moments later to describe the appropriateness of
this amendment on this legislation and the particular challenges we
have been faced with in the military. As an Armed Services Committee
member who has reviewed and watched that closely, I will come back to
this issue. However, let me point out this is entirely relevant to this
legislation. We have seen that hate crimes have taken place in the
military. A number of occasions I will describe or place in the Record.
On one particular occasion it was based upon race. We saw a
commanding general perform in an extraordinarily exemplary way, and on
another occasion, when dealing with a young gay man, the performance
was abysmal. The fact is, we ought to make sure that certainly the
Armed Forces are going to understand we are not going to tolerate the
issues of hate crimes in the military or in any other place in our
society.

It has been argued that our bill is discriminatory because it singles
out hate crimes from other crimes when, in fact, all crimes are hate
crimes. That is not true. It is not supported by the history or the
law. Every crime is tragic and harmful and has its consequences because
not all crime is based on hate. Hate crimes are based on bigotry or
prejudice. A hate crime occurs when the perpetrator intentionally
selects the victim because of who the victim is.
Mr. WARNER. If the Senator will yield, the Chair inquired as to the
management of the time in opposition, and I ask unanimous consent that
any Senator desiring to speak in opposition could speak for up to 10
minutes. If he or she desires additional time, we can seek an
additional UC for another 10 minutes, and if a quorum is put in it will
be charged equally to both sides.
The PRESIDING OFFICER. Is there objection?
Mr. SMITH. I further ask that the request be modified to reserve to
Senator Kennedy and myself any time unused after his remarks.
Mr. WARNER. Absolutely.
Mr. KENNEDY. I don't expect we will have numerous speakers, but it
could happen that all the time will be taken up by people using 10
minutes.
So as I understand what the Senator is saying, those who want to
speak may speak up to 10 minutes, but within the general timeframe the
total time is divided.
Mr. WARNER. Yes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. I ask that interlude not be charged against my time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. As with acts of terrorism, hate crimes have an impact
far greater than the impact on the individual victims and their
families. They are crimes against entire communities, against the whole
Nation, and against the fundamental ideals of liberty and justice for
all on which America was founded.
As Attorney General Ashcroft has said, criminal acts of hate run
counter to what is best in America, our belief in equality and freedom.
According to the surveys conducted by the Department of Justice, 85
percent of law enforcement officials believe hate-motivated violent
crimes are more serious than similar crimes not motivated by bias. One
need look no further than the current conflict in the Middle East or
recall the ethnic cleansing campaigns in Bosnia, Rwanda, what is
happening in the Sudan today, study the Holocaust itself, to understand
that violence motivated by hate is different and is more destructive.
Or consider the hate crimes committed in America. Most of them are
committed by multiple offenders against a single victim.
Because the victims are attacked simply because of who they are,
there is little that can be done to avoid being a victim of a hate
crime. Hate crimes are twice as likely as other crimes to involve
injury to the victim and four times as likely to require
hospitalization.
In the 1993 decision in Wisconsin v. Mitchell, a unanimous Supreme
Court recognized that bias-motivated crimes are more likely to provoke
retaliatory crimes, inflict distinct emotional harms on their victims,
and incite community unrest.
A hate crime against one member of a group sends a strong message to
the other members that you are next, that certain parts of the country
aren't safe for you to work or travel or live in, that you better watch
your step. This is domestic terrorism, plain and simple, and it is
unacceptable.
Centuries ago, Blackstone commented it was unreasonable that among
crimes of a different nature, those should be most severely punished,
which are the most destructive of the public safety and happiness.
The simple fact is that hate crimes are different. They are more
destructive than other crimes. The Federal Government has a
responsibility to send a clear and unambiguous message that hate-
motivated violence in any form from any source will not be tolerated.
Congress recognized the special harm caused by hate-motivated bias
when it passed the current hate crimes law following the assassination
of Dr. King in 1968, when it passed the Hate Crimes Statistics Act of
1990, and when it passed the Hate Crimes Sentencing Enhancement Act of
1994. Now it is time for Congress to take the next step toward
protecting all Americans from the problems of hate-motivated violence,
by passing the Local Law Enforcement Enhancement Act to address the
obvious deficiencies in the current Federal hate crimes law.
As we mentioned, we are going to have our time. We hope those who
might be in opposition would come over to the Chamber to debate us.
I think before I yielded myself 7 minutes. Do I still have a little
time left on that?
The PRESIDING OFFICER. The Senator has consumed the time.
Mr. KENNEDY. Mr. President, I yield myself 2 additional minutes.
First of all, I know the Senator from Oregon, Mr. Smith, has
described this amendment, but what this amendment does is it authorizes
the Justice Department to assist State and local authorities in hate
crimes cases. It authorizes Federal prosecutions only when a State does
not have jurisdiction or when a State asks the Federal Government to
take jurisdiction or when a State fails to act against hate-motivated
violence.
In other words, the amendment establishes an appropriate backup for

[[Page S6766]]

State and local law enforcement to deal with hate crimes in cases where
States request assistance or cases that would not otherwise be
effectively investigated and prosecuted. So this is very limited and
targeted.
I want to remind the Senate that the original hate crimes preventive
legislation was introduced in 1997 in the 105th Congress. The Senate
Judiciary Committee held hearings in the 105th Congress and the 106th
Congress. We had testimony from State and local law enforcement, the
Justice Department, victims and families, and respected constitutional
lawyers alike.
Our hate crimes bill has passed the Senate twice. In July of 1999, we
passed it as an amendment to the Commerce-Justice-State appropriations
bill. The amendment was stripped out in conference. In June of 2000,
the bill was passed as an amendment to the Department of Defense
authorization bill by a vote of 57 to 42. So there is precedent for
this action. We had good bipartisan support.
Several months later, the House of Representatives voted 232 to 192
to instruct the conferees to accept the hate crimes bill. Again,
however, the bill was stripped in conference.
In the 107th Congress, the Local Law Enforcement Act was introduced
with 51 original cosponsors and favorably reported out of the Judiciary
Committee by a vote of 12 to 7. In June of 2000, the Senate failed to
invoke cloture on it with a vote of 54 to 43, with a clear majority
supporting it.
So this issue has been studied. We have had extensive hearings. We
have listened to the constitutional authorities. We have listened to
local, State, and Federal officials with regard to this issue. We have
also read the newspapers of this country and have studied what has been
happening in the growth of hate crimes.
The PRESIDING OFFICER. The Senator has consumed the time.
Mr. KENNEDY. Mr. President, I will come back to that in a moment.
Mr. SMITH. Mr. President, will the Senator yield for a question?
Mr. KENNEDY. Yes, I yield.
Mr. SMITH. I say to the Senator, I wonder, as you recounted some of
these horrendous acts that have occurred, if you are familiar with the
Wisconsin case that is called Wisconsin v. Todd Mitchell. It is the
1993 case in which Chief Justice William Rehnquist authored the
decision upholding hate crimes legislation. As it says in
this preamble:

The question presented in this case is whether this penalty
enhancement is prohibited by the First and Fourteenth
Amendments. We hold that it is not.

Sir, this was a unanimous decision. And Justice Rehnquist--again, you
would probably agree with me, I say to the Senator--is one of the more
conservative justices. He wrote:

Thus, although the statute punishes criminal conduct, it
enhances the maximum penalty for conduct motivated for a
discriminatory point of view more severely than the same
conduct engaged in for some other reason or for no reason at
all. Because the only reason for the enhancement is the
defendant's discriminatory motive for selecting his victim. .
. .

And that was the man's race.
Justice Rehnquist held it is entirely appropriate to look at the
man's motive in ultimately ascribing the severity of the penalty that
was handed down for this assault that was made by a White man on a
Black man. It was prosecuted under the Federal Hate Crimes Act.
I am sure the Senator is familiar with that. Maybe he can help me to
explain to my conservative colleagues how it is that we are trying to
legislate thought or punish thought and punish speaking. Would the
Senator agree with me that Justice Rehnquist and I are both right in
saying we are only punishing conduct and the evidence that comes from
thought and speech that can be used legitimately, constitutionally to
enhance penalties?
Mr. KENNEDY. Mr. President, I thank the Senator for raising this
issue because this is enormously important. The Senator from Oregon, in
terms of protection of the first amendment, has reviewed the holding in
the Wisconsin case.
As the Senator remembers, this principle was reaffirmed this last
year by the Supreme Court in the cross burning decision in Virginia v.
Black. As we know, as it has been interpreted, this act punishes
violence, not speech. It covers only violent acts that result in death
or bodily injury. It does not prohibit or punish speech, expression, or
association in any way, even hate speech--even hate speech.
Those great lines of Oliver Wendell Holmes:

If there is any principle of the Constitution that more
imperatively calls for attachment than any other it is the
principle of free thought--not free thought for those who
agree with us but freedom for the thought that we hate.

We ensure that even the hate speech is not affected in this. It is
the violence, the physical violence that we are addressing, and it is
enormously important that our colleagues understand that.
Mr. President, I withhold the remainder of the time.
I suggest that we have the quorum call, and I suggest that we have it
on the opponents' time until it reaches where we are, and then we will
charge it to both of us if that is acceptable.
Mr. SMITH. Mr. President, if I can modify the request, I think in
fairness to my colleagues who disagree with me, we better charge it
equally.
I ask unanimous consent that Senator Arlen Specter of Pennsylvania be
added as a cosponsor to this amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SMITH. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. KENNEDY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. Mr. President, I think we had 42 minutes, and we divided
that up formally. May I ask, of the 21 minutes, how much time have I
used?
The PRESIDING OFFICER. The proponents have 12 minutes.
Mr. KENNEDY. Twelve minutes. That is all that remains between both of
us, Senator Smith and I?
The PRESIDING OFFICER. No, for the proponents.
Mr. KENNEDY. We are both proponents.
The PRESIDING OFFICER. The opponents have 37 minutes.
Mr. KENNEDY. Mr. President, I yield myself 2 minutes.
I will put more information in the Record, but I want to point out to
our colleagues the growth of hate crimes in this country, what the
Southern Law Poverty Center has said has taken place. That is the
authoritative group, more so than even the Justice Department. The
number of hate groups in America has expanded exponentially ever since
9/11. The figures we have here are basically dated figures, because
they don't go in until after 9/11, but what we do see is the total
number of hate crimes statistics during the period of the 1990s have
been going higher and higher. Hate crimes based on sexual orientation
have gone up significantly over the last several years. The venom and
the hate against gays and lesbians has increased dramatically.
The backlash since 9/11 has been dramatic with regard to hate crimes
against Muslims. This chart shows the dramatic increase and it is
continuing to go up at an extraordinary level. Hate crimes against Arab
Americans and hate crimes against Arabs have gone up dramatically in
the last 2 years. Beyond that, hate crimes against Jews in the country
and society have gone up exponentially as well. For all of these
groups, I will include accurate information. But this is a real
problem.
There is the possibility of not having a universal solution, and we
don't suggest that with the passage of this amendment all of these
problems are going to go away. But what we are going to say is, we
ought to be battling this with the full force of the U.S. Government.
When we guarantee the kinds of rights and liberties in this country
that are in the Constitution and the Bill of Rights, we ought to make
sure they are going to be enforced with the full power and authority of
the United States. That is what our legislation does in dealing with
the issue of hate crimes.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.

[[Page S6767]]

Mr. SMITH. Mr. President, inasmuch as our colleagues are not here to
debate Senator Kennedy and me, I hope that is a good sign. I thought I
would recount very briefly again the appropriateness of why this is on
the military authorization bill, recounting the stories of two service
people. They are somewhat horrendous, but it is appropriate that
everyone understand why this has a very logical nexus for Senator
Kennedy and me with this piece of legislation and this amendment.
One of these crimes resulted in the death of an Army private and the
other the death of a Navy seaman. In 1992, Navy Seaman Allen R.
Schindler was brutally murdered by his shipmate Terry Helvey in
Okinawa, Japan. Helvey beat and stomped Schindler to death simply
because he was gay. He didn't want his wallet; he didn't want his
watch; he wanted him dead because of his sexual orientation.
Helvey's attack was so vicious that he destroyed every organ in
Schindler's body. He was so badly beaten that Schindler's own mother
could identify him only by the remains of the tattoo on his arm. The
medical examiner compared Schindler's injuries to those sustained by
the victims of fatal airplane crashes.
In another tragic case, PFC Barry Winchell was forced outside his
barracks at Fort Campbell Army Base where he was stationed. In the
early morning hours of July 5, 1999--this is very recent history--
Winchell was repeatedly beaten with a baseball bat by another Army
private. He was beaten with such force and his injuries were so severe
that he died shortly thereafter. Barry was only 21. He was murdered,
again not for his watch, not for his wallet, but simply because he was
gay.
These are appalling examples. Again, I want to say for the Record, I
understand the reluctance of some of my colleagues to deal with issues
that involve a person's sexuality, but I also want to say I don't agree
with them. I think we need to treat people civilly and in the highest
Christian traditions, no matter what we think of their lifestyles. I
think the finest example we can find on this issue--really on point--is
the great New Testament example when, in my view, the greatest person
who ever lived was confronted with a woman being stoned to death
because of her lifestyle. He did not endorse her lifestyle, but He
risked His life to save her life. It does seem to me that if this can
be done in ancient Israel, we ought to be able to do the same in modern
America and have laws that reflect the very best part of the American
people, that we stand and help those in need. You need read no more
into it, no more moral approval in it.
I believe there are real family values, and I believe there are
counterfeit family values. Arguments made to suggest that opposing hate
crimes is a family value are truly misguided. When it comes to human
necessities of making a living and having shelter and enjoying public
safety, having the dignity and respect of law on your side, that is for
all of us, I don't care how we conduct our lifestyles. That is for the
American people. It includes gays and lesbians.
We are not censoring speech. We are not punishing thought. We are
punishing crime. The statutes that are constitutional in this
government, upheld by William Rehnquist as to their constitutionality,
are long overdue to be added to to include this category of the
American people who are gay and lesbian. The need is easy to
demonstrate through statistics, through crimes committed on this
community. Those of us who stand with the President in fighting the war
on terrorism, I say great, but don't forget the war on terrorism at
home. It includes defending gays and lesbians and other Americans and
classes that make them vulnerable and more likely victims of crime. We
owe them that, and we owe them at least that. We owe them more, in
fact.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SESSIONS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Crapo). Without objection, it is so
ordered.
Mr. SESSIONS. Mr. President, the Defense bill we are working on today
is critically important for our Nation. We need to complete that bill.
It is important for us not to be distracted from it by bringing up
amendments about which people feel strongly and which may be important,
but are unrelated to defense and not germane to the issue before us.
I am glad we are able to at least proceed fairly promptly to a vote
on this issue so that we can get back to the purpose with which we are
dealing. We have soldiers in the field who are at risk this very
moment. They need to know we are moving forward on business that
relates to them, that deals with the issues that threaten their lives,
and we need to make sure that we have every possible activity and
report in this authorization bill to help them do their jobs better. I
wanted to say that at the beginning. Sometimes these things happen, and
we can offer amendments, but we do not need to do too much of this, in
my view.
I raise two points about this so-called hate crimes amendment, and
the reason that I will be voting against it. Different people can have
different ideas and different values about how we should deal with this
issue.
First, there is no legitimacy for any attack on any person because of
their sexual orientation in America today. That is unacceptable
behavior. It has always been unacceptable. We need to crack down on it
aggressively. In fact, I believe States are doing so, as they do with
all other crimes that occur throughout our country.
I was a Federal prosecutor for 15 years and dealt with the
distinctions between Federal and State law on a regular basis. Most
people may not realize that if someone robs a gas station, or someone
shoots your daughter on her way home from school, or someone commits a
rape, those are not Federal crimes. They are not prosecuted in Federal
court. They cannot be prosecuted in Federal court under normal
circumstances. They have always been given over to the States for
prosecution. That is very important.
We have developed and expanded over the years the reach of Federal
law, and in some instances that is quite good, I believe--but in some
instances it is very much in dispute. In fact, liberals and
conservatives say Federal law is reaching over and prosecuting and
taking over cases. There are always some State offenses that are
prosecuted in Federal court. Regardless of the debate, what we have
decided to do in the past is each case should be evaluated on its own.
I will make a couple of points.
With regard to this hate crimes legislation, Senator Hatch, the
chairman of the Judiciary Committee, proposed what I thought was a good
piece of legislation some time ago. That legislation said we would
conduct a study, in effect, to see what the need of this legislation
is. I have to tell you, Mr. President, if you want to prosecute
somebody for assaulting, shooting, or harming another person, it is
easier to prosecute that case if you do not have to prove what was in
the mind of the person who did it. That is an additional element of a
crime, one not easily proven. I know the Presiding Officer is a lawyer
and skilled in these matters. It is an additional element to the crime
that must be proven.
If we were to create such a hate crime, we would basically be taking
on an offense that would be a fundamental State crime--an assault, a
murder, or assault with intent to kill. You would be transforming that
kind of crime into a Federal offense, and not only would you have to
prove all the underlying elements that would be true in a State trial,
but you would also have to prove that the person did it for a reason of
hate, but not just any hate. If you dislike U.S. Senators and you beat
up one--there may be a Federal law that protects a Senator, I don't
know.
If there is a State legislator and someone goes and beats them up
because they hate them, because of the way they voted, all right, that
can be taken care of in State court. But what would make it a Federal
offense? Well, if a person hated him, but they hated him for a
particular reason--they hated him because of sexual orientation--that
is why this becomes now a Federal offense rather than a State offense.
One can make arguments that this is all right to do. We did that with
the

[[Page S6768]]

issue of race in America, and there was a very real reason for it. As a
southerner myself, I am sorry to say that in fact and in reality there
were areas in this country where crimes against African Americans were
prosecuted either not at all or not adequately; there was not proper
punishment being imposed in those cases and people were denied civil
rights. At certain periods of time in our Nation's history, feelings
were so strong that cases could not be effectively prosecuted. That was
clear. That was established. That was a fact, unfortunately.
So the Federal Government said those kinds of crimes involving race
could be prosecuted in Federal court under the civil rights statute
even though there may be an underlying State offense. That is how those
came into effect.
Now we are being asked to go one step further. I think maybe we ought
not do that. Senator Hatch's study would have analyzed the question of
whether offenses involving assaults on gays are being adequately
prosecuted in America. If they are being adequately prosecuted--and
most States would have tougher laws. Most States have death penalty
laws. This bill does not provide the death penalty for the murder of
somebody under a hate crime. So are those being adequately prosecuted?
We know in a case in Colorado that a person committed murder because
of the victim's sexual orientation, apparently, and was given the death
penalty in State court. One offense occurred in my home State of
Alabama, and he was tried and given life without parole. So I am not
aware of those offenses being inadequately prosecuted. That is what I
am saying.
In addition, there is this troubling concept of what is in one's
mind. If the Social Security office turned a person down for their
disability and they did not get a disability paycheck and they spent
weeks churning it in their heart and soul and their hatred built and
built and they finally went down to the Social Security office and shot
everybody, well, that would not meet the definition of hate crime under
this statute. It might be a Federal offense because it is the Federal
Social Security agency, but if it had been a local State official it
would not be a Federal crime. There would be no Federal jurisdiction.
So we are being asked to take that extra step into creating a new
offense in Federal law based on the question of what is in somebody's
mind when they commit the crime.
Classical American jurisprudence has been simple and direct. I know
as a student in law school I learned about these things and as a former
prosecutor I have been thinking a lot about it lately. I think
sometimes even we who have been former prosecutors get overly
aggressive about passing statutes to deal with every wrong that comes
up.
Let's take the burglary statute that is in effect in almost every
State in America today. It makes it a State crime to break and enter
into a dwelling with the intent to commit a felony. Some of them are
first degree, such as when the crime involves an occupied dwelling at
night and those are the elements of their crime. That is what we have
done for 200-plus years in America and England. It did not say why a
person broke into somebody's house or even what kind of felony someone
may be intending to commit. It could be rape; it could be robbery; it
could be theft. So that is the clarity with which our law
has traditionally operated.

Now we are saying if someone assaults and kills this person because
they were mad at him over a girlfriend and hated him for it, that is
not a Federal offense, but if a person is angry because of someone
else's sexual orientation, that could be a Federal offense. Maybe that
is justified and some would find it justified, but I think before we
continue down this road of moving into the psychological motivations
for a specific act of committing a crime, we ought to ask ourselves: is
it the kind of problem we know is not being effectively prosecuted and
handled in America today, is not being prosecuted and sentenced
effectively based on the act that was committed, so that now we need to
figure out the motive behind the act and make it a Federal crime? That
is what we need to be thinking about.
I do believe Senator Hatch's legislation that he offered some time
ago I think it even passed this body once, although it did not become
law--said let us do a study of that and analyze where we are so we can
deal with it.
Well, terrorists hate us for various reasons. People hate our
Government. Some of them hate police officers. Would it be a Federal
crime to commit murder against a police officer? Not to my knowledge.
It would not be a crime to do that if someone hates the police officer
or hates the jailer who locks up a person in compliance with the law of
the land. The jailer could be murdered and that would not be a Federal
offense.
This should not be seen as any kind of referendum on how we think
about the treatment of people with various sexual orientations. This is
a great, free country. It is a country that allows behavior people may
agree with or not agree with. In my view, it is just as much a crime to
injure or harm anyone whether it is as a result of their sexual
orientation or any other behavior they may be participating in. Maybe
someone does not like them because they are out there complaining about
George Bush or complaining about John Kerry and they hate them for
that. That would not be a Federal crime if action is taken against
them.
I do not know that we need to take this step today. In fact, I think
we should not. It is something that deserves careful consideration and
is not to be thrown onto the Defense bill as we are moving forward at
this date. Let's think it through. Let's do a study, as Chairman Hatch
has suggested. Let's see if there is a real problem out there. If there
is a problem of failure to enforce the law, then I would say this could
be justified. We have done it before with regard to civil rights
actions. Maybe it would be appropriate to do it now. Frankly, I do not
see that today. I think it is a reach in terms of need and creates the
danger of criminalizing thought processes rather than actions.
I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, I rise to comment on the remarks of the
Senator from Alabama. I join and agree with his remarks. I have said to
the Senator from Oregon on more than one occasion, if I believed hate
crimes were a proper crime for the Federal Government to be passing on,
I would vote for this as well as the others, but I do not believe, as
the Senator from Alabama stated, we should be criminalizing thought,
and that is what this does. I have always said the greatest of the
freedoms we have in this country is the freedom to believe what we want
to believe and the freedom to think what we want to think. I know there
are lots of motivations for people to do things and there are lots of
bad thoughts out there in people's minds, but we do not criminalize
those. We only criminalize them if there are actions taken. We
criminalize the action, not the thought.
I think protecting the freedom of belief and the freedom to think the
way one wants to think is an important concept in our country, somewhat
unique in the American Constitution, and I believe this hate crimes
amendment violates that very premise. So I will vote against this
amendment.
I wanted to be clear, as the Senator from Alabama was clear, it is
not because of the group that happens to be identified in this
amendment to be subject to hate crimes. It could be any group.

I will vote no because I believe the premise underlying this criminal
statute is faulty. I regret to have to oppose our two colleagues who
are trying to take a step forward and bring civility and protection to
certain people who have been the subject of violence. But I do not
believe this is the right way to do it.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. SMITH. Mr. President, have we used all time on our side?
The PRESIDING OFFICER. Yes. Twelve seconds remain to the opponents.
Mr. SMITH. I ask unanimous consent to speak for 2 minutes, and I
probably won't use that.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SMITH. Mr. President, there are few people I like more than my
colleagues who are speaking against this

[[Page S6769]]

amendment. They know that. They know I respect their right to disagree
with me. But I want to state for the record that if I believed what
Senator Kennedy and I were doing was criminalizing thought, I would
vote against this amendment. What we are doing is criminalizing
actions. It is always the case in criminal law that you look at all of
the evidence, and if it can establish that words and thoughts have led
to actions that rise to hate crimes--William Rehnquist, the most
conservative Justice we probably have on the Supreme Court, and maybe
some would argue that a couple others are more conservative--held in a
unanimous Supreme Court decision that existing hate crimes statutes are
constitutional because they do not punish thought. They do not impinge
upon the first amendment. They do not impinge upon the 14th amendment
because it takes action to commit a crime, and the words and the
thoughts are simply evidentiary materials that go into motive to
establish a crime. You have to establish motive.
This is simply an enhanced version of looking at the totality of a
crime. If it can rise to a hate crime, it ought to be prosecuted. This
is the constitutional law of America. We are simply saying there is a
category of Americans out there who ought to be added to settled
constitutional law of the Federal Government. We owe them at least
this; they deserve no less than a vote on this amendment.
I yield the floor.
Ms. MIKULSKI. Mr. President, I rise in strong support of the Smith
amendment on hate crimes. This amendment mirrors the Local Law
Enforcement Enhancement Act, which I have been proud to co-sponsor.
This bill puts America's values of equality and freedom into action.
Hate crimes are one of the most shocking types of violence against
individuals. They are motivated by hatred and bigotry. But hate crimes
target more than just one person--they are crimes against a community
because of who they are--because of their race, gender, sexual
orientation, religion or disability.
We are a nation that cherishes our freedom. All Americans must be
free to go to church, walk through their communities, attend school
without the fear that they will be the target of hate violence. We are
a Nation that is built on a foundation of tolerance and equality. Yet
no Americans can be free from discrimination and have true equality
unless they are free from hate crimes. That's why hate crimes are so
destructive. They tear at our Nation's greatest strength--our
diversity.
This amendment does two things--it helps communities fight these
crimes and it makes sure that those who are most often the target of
hate motivated violence have the full protection of our Federal laws.
The amendment strengthens current law to help local law enforcement
investigate and prosecute hate crimes. It does this by closing a
loophole that prevented the Federal Government from assisting local and
State police at any stage of the investigative process. Simply put--
this bill authorizes Federal law enforcement officers to get involved
if State or local governments want their help. That means local
communities, which often have very limited resources for pursuing these
types of crimes, will have the resources of the FBI and other Federal
law enforcement agencies at their disposal to help them more
effectively prosecute incidents of hate violence.
This amendment also improves current law so it protects more
Americans. It broadens the definition of hate crimes to include gender,
sexual orientation and disability. Today, gay and lesbian Americans,
women and those with disabilities are often targets of hate motivated
violence, but existing Federal laws offer these communities no
safeguards. That is the weakness in our current law. And that is what
this legislation will fix. By passing this legislation today, the
United State Senate says to all Americans that you deserve the full
protection of the law and you deserve to be free from hate violence.
Hate crimes are crimes against more than one person--these crimes
affect whole communities and create fear and terror in these
communities and among all Americans. We need look no further than the
horrific killings of James Byrd and Matthew Shepard to know the anger
and grief that families and communities experience because of hatred
and bigotry. Hate crimes attack the fundamental values of our Nation--
freedom and equality. This bill is another step in the fight to make
sure that in a Nation that treasures these values these crimes do not
occur.
So today I rise to support and urge my colleagues to pass this much
needed and timely legislation. It is time that we put these American
values into action and passed this hate crimes bill. The Local Law
Enforcement Enhancement Act says that all Americans are valued and
protected--regardless of race, religion, gender, sexual orientation or
disability.
Mr. ENZI. Mr. President, I rise in opposition to the Local Law
Enforcement Enhancement Act, Amendment 3183, proposed by my colleague
from Oregon.
I have always believed that we should leave as many decisions as
possible to the States to decide. Only on rare occasions, and with
great and good cause should the Federal Government try to step in and
legislate what the States should do. When we try to legislate ``one
size fits all'' solutions to the problems facing the States more often
than not we create more problems than we solve.
Before we act on this amendment, we should ask ourselves if this new
law that we would create would reduce crime. After all, that should be
our primary reason for passing new criminal laws. In this case,
although I know it is a well meaning effort to address a serious
problem, it won't prevent crime, it will only make a statement about
it. That's one of the problems with a Federal hate crime bill. If it
passes, we may think we have taken care of the problem. Unfortunately,
although it may make us feel good, a law like this will do little to
slow down or stop the cycle of violence in our cities and towns.
Another problem with the hate crime bill is its definition of hate
crimes. All of the predicate offenses that would qualify as hate crimes
are already illegal and they are already being prosecuted under
traditional categories of crimes. In other words, the States are
already aware of the problem and using existing law to address it. In
those cases where additional legislation is needed, the States are
taking the lead and deciding the matter for themselves. They don't need
or want us to step in and tell them what they should do.
In addition, if we pass this amendment Federal agents and prosecutors
will be put in a position in which they will be second guessing the
efforts of local officials and substituting their own judgment or
political motivations for the judgment of local law enforcement
personnel who are dealing with the problem of hate crimes at the scene
where they are committed.
The Smith amendment could essentially federalize most crimes. Such an
explosion in Federal jurisdiction would require a tremendous expansion
in the size and scope of Federal law enforcement and Federal
prosecutors at a time when the States have the capability of
prosecuting these crimes themselves--and they are doing it. Federal
prosecutors already have the tools at their disposal to address issues
like hate crimes--they just have to make better use of them.
All crimes are in some way hate crimes. By enacting hate crime
legislation we ironically serve the principle of inequality that this
type of legislation seeks to fight against. Violent crimes are horrific
and should be punished equally, regardless of the particular ``bias''
of the perpetrator. A vicious murder should be prosecuted to the
fullest extent of the law--no matter who the victim is. The value of an
individual's life should not depend on their heritage, ethnicity or
lifestyle. If life truly is a sacred gift we should treat every life
with the same dignity and respect we all deserve.
To try to read someone's mind, or guess what their real motivation
was for committing a crime will never be possible. Crimes aren't
thoughts, they're actions, and actions which are crimes need to be
addressed as soon as they are committed. To try to gauge the
seriousness of a crime based on someone's thoughts is to put an
additional burden on law enforcement personnel and prosecutors, not to
mention the judge and jury who will have to work on and ultimately
decide the

[[Page S6770]]

case. Clearly, putting a greater value on some lives inherently
devalues others, and it goes against a basic principle of our legal
foundation which is that all are equal in the eyes of the law. Justice
is swifter when the accused are tried on the basis of what they did
without adding some speculation on the thoughts they might have had
while committing the crime.
We have State and Federal laws to punish murder, assault, battery,
and a long list of other crimes. If these laws are not strong enough
then we should make them stronger. We should also be making our
feelings known to our neighbors, to our children, in our papers and
through our broadcast media that hatred in any form is wrong. We should
not, however, try to make statements with laws that weaken State
authority or the rights granted to individuals in the Constitution.
Our society must continue to participate in a dialogue on the issues
of racism, bigotry, and hate. We must pray for direction and guidance
and work together to ensure that we avoid the kind of hate that may
give rise to such crimes in the first place. Hatred in any form is
destructive to the very foundation upon which our society is built.
If we are to truly address the problem of hate crimes, we must come
together as one, our families, our spiritual and church leaders, our
local and community leaders, and the citizens of our communities to
foster and reinforce in our children and all our citizens the
importance of treating each other as we would wish to be treated. It is
such a simple lesson--it is never permissible to hurt another. Somehow,
some of our children never learned it. Recent and past events make it
clear that it is a lesson about which every child must be taught, and
every adult constantly reminded.
Mr. HATCH. Mr. President, I rise today in opposition to the Local Law
Enforcement Enhancement Act of 2003, offered as an amendment by my dear
friend from Oregon, Senator Smith.
Those who have been instrumental in drafting hate crimes legislation
in the past several Congresses--Senators Kennedy, Smith and others--
know I care deeply about this issue. They know I believe that hate
crimes are insidiously harmful, that they should be forcefully
prosecuted, and that the Federal Government has a role to play in
reducing the incidence of these crimes in our Nation. The concerns I
have voiced have always been about what Congress should do at the
national level, not about whether we should act.
In past Congresses, and again here today, I have felt compelled to
voice my opposition to Senator Smith's hate crimes legislation which
has essentially remained unchanged over the past several years, and is
now being offered as an amendment. My primary concern has been, and
remains to this day, that this legislation invades an area historically
and constitutionally reserved to State and local law enforcement
authorities, without a demonstrated need for Federal intervention. In
an effort to do what we believe is right, we simply cannot ignore core
principles of our Constitution.
While there is little evidence that the States are failing to
prosecute hate crimes, I firmly believe that local law enforcement
authorities need our help. They need our resources, and they need our
expertise. And we, the Federal Government, should stand ready and able
to provide such assistance. We must proceed, however, in a manner that
does not offend the authorities conferred upon the States by our
Constitution.
As all of my colleagues are aware, this body has considered this
issue in almost every session of Congress since 1999. I recognize that
Senator Smith has the necessary support in this body to pass his
amendment. Indeed, his amendment has prevailed twice before.
Recognizing that a majority of the Members of this body have supported
Senator Smith's proposal in the past, and in view of the substantial
concerns I have about the amendment, over the past few months I have
worked diligently to improve the legislation so that it may receive
much broader bipartisan support. I have suggested that the proposal
include Federal assistance and a study and an analysis of available
statistics. I have also suggested that the amendment be broadened to
include the possibility of the death penalty for those who commit the
most heinous of crimes. I also think that the definition and intent
elements of what is considered to be a hate crime should be
significantly narrowed so that we do not capture every crime that
happens to be committed against a member of a particular class. With
these changes, the legislation would stand a better chance of becoming
law and surviving constitutional challenges, which we know are certain
to occur. Despite those concessions, it appears clear that we were
unable to come to an agreement and I must, therefore, once again stand
in opposition to two of my dear friends.
If we genuinely want to make a difference, if we want to pass
legislation that both Houses of Congress will support, let us find a
baseline of common ground and resist the temptation to make this a
divisive political issue. I urge my colleagues to oppose the amendment.
I yield the floor.

Nomination of Virginia Hopkins

Mr. HATCH. Mr. President, I rise in support of the confirmation of
Virginia Hopkins for the United States District Court for the Northern
District of Alabama. I have reviewed her record and I find her to be an
excellent choice for the federal bench. Virginia Hopkins possesses 25
years of legal experience that will serve her well on the federal
bench.
Upon graduating from the University of Virginia School of Law in
1977, Ms. Hopkins joined the Birmingham, Alabama law firm of Lange,
Simpson, Robinson & Sommerville, LLP. There she had a broad civil
practice that included appellate matters, tax and estate planning,
business dispute resolution and planning, and labor disputes. She also
worked for another widely respected law firm, Taft, Stettinius &
Hollister LLP. in Washington D.C.
In 1991, Ms. Hopkins returned to Alabama to join the firm of Campbell
& Hopkins LLP., where she is currently a partner. Over the past 12
years, she has developed a broad civil practice, including litigation,
tax and estate planning, business dispute resolution and planning,
trademark and copyright registrations and disputes, trade secret
disputes, confidentiality agreement disputes, and trade name disputes.
I am confident that she will make a fine addition to the Northern
District of Alabama.
Thank you, Mr. President. I yield the floor.
Mr. LEAHY. Mr. President, today we vote on the nomination of Virginia
Hopkins to the Northern District of Alabama. Ms. Hopkins has been an
attorney at the firm Campbell & Hopkins in Alabama, and has the support
of both of her home State Senators. In particular, Senator Shelby
deserves praise for diligently pressing forward, and this confirmation
rewards his constant attention to this nomination. Senator Shelby has
always been a pleasure with whom to work, whether I was serving as
chairman or ranking member. Senator Shelby has always been someone who
plays it straight and shows good judgment. He is fair and forthright.
I must note that since May 18, the date of the agreement on judicial
confirmations this year involving Senator Daschle, Senator Frist and
the White House, the Senate has confirmed seven judges, including two
circuit court nominees. We confirmed Marcia Cooke to the district court
in Florida, Judge Van Antwerpen to the Third Circuit in Pennsylvania,
and Ray Gruender to the Eighth Circuit the first week of that
agreement. The following week, the Senate confirmed the nominations of
Dennis Saylor, Sandra Townes, Ken Karas, and Judith Herrera to the
Federal district courts.
Last week, the Republican leadership did not schedule any judicial
nominations for a vote and considered other business during that
shortened work week. In the month since the agreement to have a floor
vote on 25 judicial nominees, the Republicans have asked for votes on
only seven judicial nominees and have scheduled debate on a variety of
matters other than judicial nominees. That is their choice. The
Republican leadership knows that some of the remaining nominees in the
agreement for votes this year require significant time for debate.
I do not want to see the Democrats blamed for any delay in
confirmation votes when Republicans have been advised for weeks now
that it is going to

[[Page S6771]]

take time for the Senate to process all of the nominees in the
agreement. Members of the Senate deserve time to consider the merits of
the nominees for lifetime positions. Democrats have been working
cooperatively on judges but the Republican leadership has not worked
with us to schedule the debate and votes on the many remaining judicial
nominees that we had hoped could be considered before June 25. After
today's three votes, 15 judicial nominees remain to be scheduled for
debates and votes. I hope that we can make progress on more nominees
this week and next. At the pace the Republican leadership has chosen to
proceed, there is now a strong likelihood that debate and votes on some
of these judicial nominees will extend past June 25.
On the occasion of the confirmation of this Alabama nominee, I would
note that some in the Senate have falsely alleged that Democratic
Senators have treated southern nominees unfairly. Some extreme
partisans tried to divide the American people for partisan political
gain with their false accusations against Democratic Senators. The
truth is that Democrats have treated judicial nominees from the South
very fairly: Southern States comprise about 25 percent of the States in
the Nation, yet out of the 181 judicial nominees of President Bush that
we have confirmed as of this vote, 59 nominees, or one-third of the
confirmed nominees, have been to judicial seats in the South. In
particular, I would note that six of President Bush's judicial nominees
have already been confirmed to United States district courts in Alabama
since he took office: Judge Karon Bowdre, Northern District; Judge
Callie Granade, Southern District; Judge Mark Everett Fuller, Middle
District; Judge L. Scott Coogler, Northern District; Judge R. David
Proctor, Northern District; and Judge William Steele, Southern
District. Judge Steele, as you may recall, was initially nominated by
President Bush to the Eleventh Circuit, but President Bush pulled down
the elevation of this then-U.S. magistrate judge in order to put
forward the even more controversial William Pryor, who was recess
appointed earlier this year despite the serious objections of numerous
Senators. Recent news articles about Judge Pryor's actions on the bench
have only underscored the concerns of many that he lacks the political
independence and fairness to serve as a judge.
Ms. Hopkins received a partial ``Not Qualified'' rating from the
American Bar Association. Following the White House's exclusion of the
ABA from reviewing judicial candidates before they have the President's
stamp of approval, a dismaying number of this President's nominees have
received ``Not Qualified'' ratings. Indeed, four of his nominees were
rated ``Not Qualified'' by a majority of the ABA rating committee, and
24--more than 10 percent--were rated ``Not Qualified'' by some members
of the ABA's standing committee.
The weight that should be accorded an ABA rating was called into
question after the debacle in which Republican partisan Fred Fielding
prepared Miguel Estrada's ABA rating recommendation. Mr. Fielding not
only served on the White House transition team advising the President
about Cabinet appointments, he subsequently cofounded the Committee for
Justice, which attacks anyone opposed to the President's judicial
nominees. Similarly, the ABA's rating to Judge Pickering after his
judicial ethics were called into question by national ethics experts
undermined the confidence that some in the Senate had in the
evaluations of the ABA's rating committee. Also, the ABA's ratings do
not take into account the President's effort to put so many ideologues
and extremists into these lifetime positions on the bench.
In Ms. Hopkins' case, the ABA rating may reflect her modest trial
experience: She has been the sole or chief counsel in only two of the
cases she has tried to verdict. Ms. Hopkins has been active in
Republican fundraising like many of the President's nominees, but I am
hopeful, given the confidence Senator Shelby has reposed in her, that
she will leave her partisan roots behind upon confirmation. Out of
deference to Senator Shelby, I will vote in favor of her confirmation.
I congratulate Ms. Hopkins on her confirmation.

Nomination of Ricardo Martinez

Mr. HATCH. Mr. President, I am pleased today to speak in support of
Judge Ricardo Martinez, who has been nominated to the United States
District Court for the Western District of Washington. Since 1998,
Judge Martinez has served as a federal magistrate judge--an experience
which undoubtedly has prepared him well for the district court bench.
Judge Martinez has a compelling story. The son of former migrant
workers, he lived in a migrant camp for several years during his
childhood, where he worked with his parents on the farms. Neither he
nor his parents understood English, but with the help of his teachers,
he mastered the language and became the family's interpreter. He also
became the first in his family to attend high school. Incidentally, he
was one of two boys to graduate from high school with honors.
Judge Martinez then attended the University of Washington, where he
earned a Bachelor of Science degree in psychology. He subsequently
graduated from the university's law school, where he had been a member
of the Order of the Coif.
Following graduation from law school, Judge Martinez spent 10 years
as an assistant prosecutor with the King County Prosecuting Attorney's
Office where he became chief of the drug unit. After his appointment as
a judge on the King County Superior Court in 1990, he started the
State's first drug court, which allows those who are arrested on minor
drug-related charges to have the charges dropped in exchange for
staying drug-free, completing their education and seeking employment.
I applaud President Bush for his nomination of Judge Martinez and am
confident that he will serve on the bench with compassion, integrity
and fairness.
Thank you, Mr. President. I yield the floor.
Mr. LEAHY. Mr. President, today the Senate considers the nomination
of Ricardo Martinez, to be a United States District Judge for the
Western District of Washington. For the past 6 years, he has been a
widely respected United States Magistrate Judge for the Western
District of Washington. Previously, Judge Martinez served as a Superior
Court Judge and as an assistant prosecutor in King County, WA. He is a
graduate of the University of Washington and of the University of
Washington Law School, and has substantial trial experience. In light
of his significant judicial experience it is not surprising that he
received a unanimous rating of ``Well-Qualified'' from the American Bar
Association.
Judge Martinez's nomination is the product of a bipartisan judicial
nominating commission that Senators Murray and Cantwell insisted upon
in spite of Bush administration opposition. The State of Washington is
well-served by its bipartisan judicial nominating commission which
recommends qualified, consensus nominees on whom members of both
parties can agree. It is difficult to understand why President Bush has
opposed similar bipartisan selections commissions since they help
Democrats and Republicans work together and help maintain an
independent judiciary. I thank Senators Murray and Cantwell for their
steadfast efforts in maintaining the commission.
While some people have accused Democrats of being anti-Hispanic, our
record of confirming Hispanic nominees is excellent. Democrats have
supported the swift confirmation of President Bush's Latino nominees
already, with four more waiting only for a vote on the Senate floor.
While President Clinton nominated 11 Latino nominees to circuit court
positions, five of those 11 were blocked by the Republican Senate, and
four of those five were not even granted hearings. President Bush has
only nominated four Latino jurists to circuit court positions, three of
whom have already been confirmed with unanimous Democratic support.
President Bush's 21 Latino nominees constitute less than 10 percent of
his 225 judicial nominees.
Regrettably the President has been more concerned with nominating
those affiliated with the Federalist Society. He has nominated 45 such
nominees. Twice as many nominees have been affiliated with the
Federalist Society as have been Hispanic. In fact, all of his Hispanic,
Asian and African American judicial nominees combined do not

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equal the number of those affiliated with the Federalist Society.
This confirmation marks the 182nd lifetime judicial appointment
approved by the Senate during this Presidential term. That is more than
is all of President Reagan's term from 1981 through 1984 and more than
in all of President Clinton's more recent term from 1997 through 2000.
We have also approved more judicial nominees this Congress than in
either of the last two Congresses preceding the Presidential elections
in 1996 or 2000.
I strongly support his nomination and I congratulate Judge Martinez
and his family on his confirmation.
Ms. CANTWELL. Mr. President, it is my privilege today to discuss the
incredibly talented nominee for vacancy on the District Court for the
Western District of Washington, Judge Ricardo Martinez. The people of
western Washington will be well-served by this talented and fair
jurist.
Given Judge Martinez's reputation for even-handedness and
thoroughness, it is fitting that he was recommended by a bipartisan
selection committee that I believe is a sound model for other States.
Members of Washington State's legal community, the White House, and my
colleague Senator Patty Murray and I worked together to review a group
of applicants. Together, we all agreed that Judge Martinez is the right
person for the job.
Judge Martinez has ably served the people of Washington State as a
public servant for more than two decades: as prosecutor in the State's
largest county for 10 years; as a Superior Court judge for 8 years; and
as a United States Magistrate judge in the Western District of
Washington for the past 5 years.
While serving on the King County Superior Court, Judge Martinez took
the lead in helping to create an innovative ``drug court'' to address
the unique challenge of recidivism among drug offenders. He helped
build a consensus to try a new approach, and preside over the new court
for three years.
And it worked. The``drug court,'' one of the first in the Nation, has
helped reduce recidivism rates among those people who successfully
complete the program and it has been emulated by many jurisdictions
across the country.
Judge Martinez's commitment to his community extends beyond the
courtroom. He has volunteered countless hours to help those in need and
the homeless; to mentor young people as a coach in several sports; and
to raise money for college scholarships for young men from
disadvantaged backgrounds.
Those who have worked with Judge Martinez attest to his fundamental
sense of fairness and justice. The ABA rated him as ``well-
qualified''--its highest rating--on a unanimous vote. He also enjoys
support from the Federal bench, and was encouraged to apply for the
vacancy by all of the incumbent judges of the Western District.
I am pleased to offer Judge Ricardo Martinez my full support, and I
urge my fellow Senators to approve his nomination.

Nomination of Gene Pratter

Mr. HATCH. Mr. President, I rise today in support of the nomination
of Gene Pratter to be United States District Judge for the Eastern
District of Pennsylvania.
Gene Pratter, has contributed much to the legal community over her 29
year legal career, specifically in the areas of ethics and professional
conduct. Upon graduation from University of Pennsylvania Law School,
Ms. Pratter joined the law firm of Duane Morris & Heckscher--now Duane
Morris LLP. She has remained with this firm since her first days as an
associate and is currently a partner in and general counsel of the
firm.
She has represented numerous clients in commercial litigation and
professional liability. She has also represented licensed law,
financial and other professionals before State and national licensing
boards and in litigation throughout the country in both federal and
State courts. She has practiced in a variety of legal issues including
litigation and alternative dispute resolution, with emphasis on
commercial, securities, employment contract, real estate, insurance
coverage, RICO, professional and business ethics, and professional
liability litigation. She has also represented the Philadelphia Zoo.
Additionally, Ms. Pratter has served as an expert witness and has
overseen legal issues for her law firm, Duane Morris, for a number of
years while also holding the position of vice-chair of the firm's Trial
Department. She has also been named as a Judge Pro Tem in the
Philadelphia Court of Common Pleas and a mediator for the U.S. District
Court for the Eastern District of Pennsylvania.
Ms. Pratter has been a guest faculty member at the University of
Pennsylvania Law School, where she lectured on the legal profession and
professional responsibility. She also served on the School's Board of
Overseers from 1993 to 1999. She is active in numerous professional and
community associations.
I have every confidence that she will make an excellent federal
judge. I commend President Bush for nominating her, and I urge my
colleagues to join me in supporting this nomination.
Thank you, Mr. President. I yield the floor.
Mr. LEAHY. Mr. President, today we vote to confirm another district
court nominee, Gene Pratter to the U.S. District Court for the Eastern
District of Pennsylvania. Ms. Pratter is currently a partner at the
firm Duane Morris LLP, where she has worked her entire career.
A look at the Federal judiciary in Pennsylvania demonstrates yet
again that President Bush's nominees have been treated far better than
President Clinton's and shows dramatically how Democrats have worked in
a bipartisan way to fill vacancies despite the fact that Republicans
blocked more than 60 of President Clinton's judicial nominees. With
this confirmation, 17 of President Bush's nominees to the Federal
courts in Pennsylvania will have been confirmed--a rate not matched in
any other State but California.
With this confirmation, President Bush's nominees will make up 17 of
the 42 active Federal circuit and district court judges for
Pennsylvania--that is more than one-third of the Pennsylvania Federal
bench. On the Pennsylvania district courts alone, President Bush's
influence is even stronger as his nominees will hold 14 of the 33
active seats--or more than 42 percent of the current active seats. With
the additional Pennsylvania district court nominees pending on the
floor and likely to be confirmed soon, nearly half of the district
court seats in Pennsylvania will be held by President Bush's
appointees. Republican appointees will outnumber Democratic appointees
by nearly two to one.
This is in sharp contrast to the way vacancies in Pennsylvania were
left unfilled during Republican control of the Senate when President
Clinton was in the White House. Republicans denied votes to nine
district and one circuit court nominees of President Clinton in
Pennsylvania alone. Despite the efforts and diligence of the senior
Senator from Pennsylvania, Senator Specter, to secure the confirmation
of all of the judicial nominees from every part of his home State,
there were 10 nominees by President Clinton to Pennsylvania vacancies
who never got a vote. Despite records showing them to be well-qualified
nominees, many of their nominations sat idle before the Senate for more
than a year without being considered. Such obstruction provided
President Bush with a significant opportunity to shape the bench
according to his partisan and ideological goals.
Recent news articles in Pennsylvania have highlighted the way that
President Bush has been able to reshape the Federal bench in
Pennsylvania. For example, The Philadelphia Inquirer, on November 27,
2003, said that the significant number of vacancies on the Pennsylvania
courts ``present Republicans with an opportunity to shape the judicial
makeup of the court for years to come.''
Democratic support for the confirmation of Gene Pratter is yet
another example of our extraordinary cooperation despite an
uncompromising White House and a record that shows Republicans' refusal
to cooperate on President Clinton's Pennsylvania nominees when they
controlled the Senate and a Democrat resided at 1600 Pennsylvania
Avenue.
Like so many of President Bush's nominees, Ms. Pratter is a member of
the Federalist Society and has been involved in numerous Republican
Party campaigns. She has no judicial experience although she comes from
a well-

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respected law firm. Her record of defending businesses raises concerns
about her ability to balance business and individual interests. In her
answers to my written questions, however, she assured me that she would
be fair to all parties that come before her. I hope that she will be a
person of her word. I hope that she will follow the law. I hope that
she will treat all who appear before her with respect. I hope she will
not abuse the power and trust of her position. Sometimes we have to
take a risk to allow a nominee to be confirmed.
I congratulate Ms. Pratter on her confirmation today.
Mr. SANTORUM. Mr. President, I yield the remainder of time in
opposition.
Mr. SMITH. Mr. President, I believe we have used all our time.
Therefore, I believe we are ready to vote.
The PRESIDING OFFICER. All time has expired.
Mr. KENNEDY. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SANTORUM. Mr. President, I ask unanimous consent that the order
for the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.

____________________