[Congressional Record Volume 151, Number 59 (Monday, May 9, 2005)]
[Senate]
[Pages S4614-S4637]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             TRANSPORTATION EQUITY ACT: A LEGACY FOR USERS

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of H.R. 3, which the clerk will 
report.
  The assistant legislative clerk read as follows:

       A bill (H.R. 3) to authorize funds for Federal-aid 
     highways, highway safety programs, and transit programs, and 
     for other purposes.

  Pending:

       Inhofe amendment No. 567, to provide a complete substitute.
       Salazar amendment No. 581 (to amendment No. 567), to modify 
     the percentage of apportioned funds that may be used to 
     address needs relating to off-system bridges.

  The ACTING PRESIDENT pro tempore. The Senator from Texas.
  Mr. CORNYN. Mr. President, I ask unanimous consent to speak as in 
morning business.
  Mr. LEAHY. Reserving the right to object--I will not object--I ask 
unanimous consent to follow the Senator from Texas as in morning 
business.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. REID. Reserving the right to object, would the distinguished 
Senator from Texas give us a general outline of how long he is going to 
speak.

[[Page S4615]]

  Mr. CORNYN. Mr. President, I think maybe 15 minutes.
  Mr. REID. Just so we have a general idea. I ask unanimous consent 
then that the normal 10-minute rule be waived for the distinguished 
Senator from Texas and that he have up to 15 minutes to speak as in 
morning business.
  Mr. LEAHY. And that I then be recognized for the same amount of time.
  The ACTING PRESIDENT pro tempore. The minority leader is reminded 
there is no 10-minute rule.
  Mr. REID. There is no 10-minute rule unless it is ordered.
  The ACTING PRESIDENT pro tempore. That is correct.
  Mr. REID. We have no morning business today?
  The ACTING PRESIDENT pro tempore. That is correct.
  Mr. REID. I amend my request to ask unanimous consent that the 
Senator from Texas be recognized for 15 minutes and the Senator from 
Vermont be recognized for 15 minutes.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The Senator from Texas.


                      Nomination of Priscilla Owen

  Mr. CORNYN. Mr. President, 4 years ago, the President nominated Texas 
Supreme Court Justice Priscilla Owen to serve on the United States 
Court of Appeals for the Fifth Circuit. Justice Owen is an exceptional 
jurist, a devoted public servant, and an extraordinary Texan. Yet after 
4 years, she still awaits an up-or-down vote on the floor of the 
Senate. Four years today and we are still waiting for a vote.
  Although a bipartisan majority of the Senate stands ready to confirm 
this outstanding nominee, a partisan minority obstructs the process and 
refuses to allow that vote on her nomination. What is more, the 
partisan minority now insists, for the first time in history, that she 
must be supported by a supermajority of 60 Senators rather than the 
constitutional standard and the Senate tradition of majority vote.
  I know Justice Owen personally, having served with her on the Texas 
Supreme Court for 3 years. She is a distinguished jurist and public 
servant who has excelled at virtually everything she has set out to do. 
She was a top graduate of Baylor Law School at the remarkable age of 23 
and scored the top score on the Texas bar exam. She entered the legal 
profession at a time when relatively few women did. After a 
distinguished record in private practice, she reached the pinnacle of 
the Texas bar, the Texas Supreme Court. In doing so, she was supported 
by a larger percentage of Texans than any of her colleagues during her 
last election, receiving around 84 percent of the vote, after enjoying 
the endorsement of virtually every newspaper in Texas. She has been 
honored as the Baylor Young Lawyer of the Year and the Baylor 
University Outstanding Alumna.
  Priscilla Owen enjoys significant bipartisan support. Three 
Democratic judges on the Texas Supreme Court and a bipartisan group of 
15 presidents of the State Bar of Texas support her nomination.
  The Houston Chronicle, in September of 2000, called Owen ``[c]learly 
academically gifted,'' stating that she ``has the proper balance of 
judicial experience, solid legal scholarship and real-world know-how to 
continue to be an asset on the high court.''
  The Dallas Morning News wrote in support of Owen on September 24, 
2002:

       She has the brainpower, the experience and temperament to 
     serve ably on an appellate court.

  The Washington Post wrote on July 24, 2002:

       She should be confirmed. Justice Owen is indisputably well 
     qualified.

  Lori Ploeger, Justice Owen's former law clerk, wrote in a letter to 
Senator Leahy on June 27, 2002:

       During my time with her, I developed a deep and abiding 
     respect for her abilities, her work ethic, and, most 
     importantly, her character. Justice Owen is a woman of 
     integrity who has profound respect for the rule of law and 
     our legal system. She takes her responsibilities seriously 
     and carries them out diligently and earnestly.

  Ms. Ploeger continued:

       Justice Owen is a role model for me and for other women 
     attorneys in Texas.

  Mary O'Reilly, a lifetime member of the NAACP and a Democrat, in a 
letter to Senator Dianne Feinstein, dated August 14, 2002, wrote:

       I met Justice Owen in January of 1995, while working with 
     her on the Texas Supreme Court Gender Neutral Task Force . . 
     . I worked with Justice Owen on Family Law 2000, an important 
     state-wide effort initiated in part by Justice Owen . . . In 
     the almost eight years I have known Justice Owen, she has 
     always been refined, approachable, even-tempered and 
     intellectually honest.

  Priscilla Owen is not just intellectually capable and legally 
talented; she is also a fine human being with a big heart. The depth of 
her humanity and compassion is revealed through her significant free 
legal work and community activity.
  Priscilla has spent much of her life devoting time and energy in 
service of her community. She has worked to ensure that all citizens 
are provided access to justice as the court's representative on the 
Texas Supreme Court Mediation Task Force and to statewide committees, 
as well as in her successful efforts to prompt the Texas legislature to 
provide millions of dollars per year in legal services for the poor. 
She was instrumental in organizing a group Ms. O'Reilly spoke of known 
as Family Law 2000 which seeks to find ways to educate parents about 
the effect divorce can have on children and seeks to lessen the 
negative impacts it has on them. She also teaches Sunday school at St. 
Barnabas Episcopal Mission in Austin, TX, where she is an active 
member.
  It is plain from these and so many other examples that Justice Owen 
is a fine person and a distinguished leader in the legal community. One 
would think that after 4 long years, she would be afforded the simple 
justice of an up-or-down vote. I remain optimistic. While I know the 
Democratic leader has offered a UC to consider the nomination of one of 
the justices currently being filibustered, I don't see why that same 
principle would not apply to all of the justices, and we would just say 
that any nominee of any President, whether they be Republican or 
Democrat, where a bipartisan majority stands ready to confirm them, 
should receive that up-or-down vote on the Senate floor. I remain 
hopeful the current 4-year violation of long-term Senate tradition, the 
imposition of this new supermajority requirement, will be laid aside in 
the interest of proceeding with the people's business, a job my 
colleagues and I were elected to faithfully execute.
  For more than 200 years, it was a job that we did indeed execute. 
Senators from both sides exercised mutual restraint and did not abuse 
the privilege of debate out of respect for two coequal branches of 
government--the executive that has the constitutional right to choose 
his or her nominees and an independent judiciary. Indeed, until 4 years 
ago, colleagues on both sides of the aisle have consistently opposed 
the use of the filibuster to prevent nominees from receiving an up-or-
down vote where they clearly had bipartisan majority support.
  Senator Kennedy, the distinguished senior Senator from Massachusetts, 
said in 1998:

       Nominees deserve a vote. If our . . . colleagues don't like 
     them, vote against them. But don't just sit on them--that is 
     obstruction of justice.

  And Senator Leahy, the distinguished ranking member of the Judiciary 
Committee, who was just on the floor, said in 1998:

       I have stated over and over again on the floor that I would 
     refuse to put an anonymous hold on any judge; that I would 
     object and fight against any filibuster on a judge, whether 
     it is somebody I opposed or supported; that I felt the Senate 
     should just do its duty.

  I could not agree more with these comments made by Senator Leahy and 
Senator Kennedy. But today we are doing a disservice to this fine 
nominee in our failure to afford her that up-or-down vote that they 
advocated a few short years ago. The new requirement this partisan 
minority is now imposing, that nominees won't be confirmed without 
support of 60 Senators, is, by their own admission, wholly 
unprecedented in Senate history.
  The reason for this is simple: The case for opposing this fine 
nominee is so weak that using a double standard and changing the rules 
is the only way they can defeat her nomination. What is more, they know 
it, too.
  Before her nomination got caught up in this partisan fight, the 
ranking Democrat on the Judiciary Committee

[[Page S4616]]

predicted that Justice Owen would be swiftly confirmed. On the day of 
the announcement of the first group of nominees, 4 years ago, including 
Owen, he said he was ``encouraged'' and that ``I know them well enough 
that I would assume they would all go right through.''
  Notwithstanding the change of attitude by the partisan minority, this 
gridlock is not really about Priscilla Owen, certainly not about 
Priscilla Owen the person. Indeed, just a few weeks ago, the Democratic 
leader announced that Senate Democrats would give Justice Owen an up-
or-down vote, albeit only if other nominees were defeated or withdrawn 
or simply thrown overboard.
  Obviously, this debate is not about principle. It is all about 
politics. It is shameful. Any fair examination of Justice Owen's record 
demonstrates how unconvincing the critics' arguments are.
  For example, Justice Owen is accused of ruling against injured 
workers, against those seeking relief from employment discrimination, 
and other sympathetic parties on some occasions. Never mind, however, 
that good judges such as Judge Owen do their best to follow the law 
regardless of which party will win and which party will lose. Never 
mind that many of her criticized rulings were unanimous or near 
unanimous decisions of a nine-member Texas Supreme Court. Never mind 
that many of these rulings simply followed Federal precedent authored 
and agreed to by appointees of Presidents Carter and Clinton or by 
other Federal judges unanimously confirmed by the Senate. Never mind 
that judges often disagree, especially when the law is ambiguous and 
requires careful and difficult interpretation.
  The Democratic leader raised the frequent objection and that is 
criticized Justice Owen for attempting to interpret and enforce a 
popular Texas law requiring parental notification before a minor can 
obtain an abortion. Her opponents allege that in one parental 
notification case, then-Justice Alberto Gonzales accused her of 
judicial activism. That charge is untrue. I read myself the opinions 
again this weekend and the charge is simply untrue. Gonzales did not 
accuse Owen of judicial activism. Not once did he say Justice Owen was 
guilty of judicial activism. To the contrary, he never mentioned her 
name or her opinion in the opinion the critics cite.
  Furthermore, our current Attorney General has since testified under 
oath that he never accused Owen of any such thing. What is more, the 
author of the parental notification law in question supports Justice 
Owen, as does the pro-choice Democratic law professor who was appointed 
to the Texas Supreme Court's advisory committee to implement that law. 
In other words, Owen simply did ``what good appellate judges do every 
day. If this is activism, then any judicial interpretation of a 
statute's terms is judicial activism.''
  Mr. President, I ask unanimous consent this letter be printed in the 
Record at the close of my remarks.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (See exhibit 1).
  Mr. CORNYN. The American people know a controversial ruling when they 
see one, be it the redefinition of a traditional institution such as 
marriage, the expulsion of the Pledge of Allegiance, and other 
expressions of faith from the public square, the elimination of the 
``three strikes and you're out'' law, and other penalties for convicted 
criminals, or the forced removal of military recruiters from college 
campuses. Justice Owen's rulings fall nowhere near this standard or 
category. There is a whole world of difference between struggling to 
interpret the ambiguous expressions of a legislature and refusing to 
obey a legislature's directives altogether.
  It is clear Justice Owen deserves the broad bipartisan and 
enthusiastic support she obviously enjoys across the political 
spectrum. It is equally clear her opposition comes only from a narrow 
band on the far left fringes of that political spectrum. If the Senate 
were merely to observe 200 years of consistent Senate and 
constitutional tradition dating back to our Founders, there would be no 
question about her ability to be confirmed. She would be sitting on the 
Fifth Circuit Court of Appeals.
  Legal scholars across the political spectrum have long concluded what 
we in this body know instinctively, and that is to change the rules of 
confirmation as a partisan minority has done badly politicizes the 
judiciary and hands over control of the judiciary to special interest 
groups. One Professor Michael Gerhardt, who advises Senate Democrats on 
judicial confirmation, has written that a supermajority requirement for 
confirming judges would be ``problematic, because it creates a 
presumption against confirmation, shifts the balance of power to the 
Senate, and enhances the power of special interests.''
  DC Circuit Judge Harry Edwards, a respected Carter appointee, has 
written that the Constitution forbids the Senate from imposing a 
supermajority rule for confirmation. After all, otherwise, ``the 
Senate, acting unilaterally, could thereby increase its own power at 
the expense of the President'' and ``essentially take over the 
appointment process from the President.'' Judge Edwards thus concluded 
that ``the framers never intended for the Congress to have such 
unchecked authority to impose supermajority voting requirements that 
fundamentally change the nature of our democratic process.''
  Mr. President, I think I have about 5 more minutes of my remarks. I 
ask unanimous consent that I be given an additional 5 minutes and the 
Senator from Vermont be given the same.
  Mr. LEAHY. I have no objection.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. CORNYN. I thank the Chair. I thank the Senator from Vermont.
  Georgetown Law Professor Mark Tushnet has written that ``the 
Democrats' filibuster is a repudiation of a settled preconstitutional 
understanding.'' He has also written, ``There's a difference between 
the use of the filibuster to derail a nomination and the use of other 
Senate rules--on scheduling, on not having a floor vote without prior 
committee action, etc.--to do so. All those other rules can be 
overridden by a majority of the Senate whereas the filibuster cannot be 
overridden in that way. A majority of the Senate could ride herd on a 
rogue Judiciary Committee chair who refused to hold a hearing on some 
nominee; it can't do that with respect to a filibuster.''
  Georgetown Law Professor Susan Bloch has condemned supermajority 
voting requirements for confirmation, arguing that they would allow the 
Senate to ``upset the carefully crafted rules concerning appointment of 
both executive officials and judges and to unilaterally limit the power 
the Constitution gives the President in the appointment process. This, 
I believe, would allow the Senate to aggrandize its own rules and would 
unconstitutionally distort the balance of powers established by the 
Constitution.''
  In summary, the record is clear. The Senate tradition has always been 
majority vote, at least up until the last 4 years. The desire by some 
to alter that Senate tradition has been roundly condemned by legal 
experts across the political spectrum. And now the 100 Members of this 
body have a decision to make. Do we accept this dramatic and dangerous 
departure from 200 years of Senate precedent or do we work to restore 
the tried and true Senate tradition and practice?
  I know the majority leader and, indeed, the Democratic leader have 
been working trying to find a way. I prefer, though, a way that would 
allow our nominees, all nominees, whether they be Republican or 
Democrat, to receive an up-or-down vote where a majority of the Senate 
stands ready to confirm them. I believe we should choose collaboration 
over contention any day of the week, if possible. But bipartisanship is 
a two-way street. Both sides must agree to certain fundamental 
principles and the most fundamental principle is fairness. Fairness 
means the same rules apply, the same standards, whether the President 
is a Republican or Democrat. But bipartisanship is difficult when long-
held understandings and the willingness to abide by basic agreements 
and principles have unraveled so badly. When fairness falters, 
bipartisanship, too, will fail.
  So I ask my colleagues what are we to do when these basic principles, 
commitments, and understandings have been so badly trampled upon? What 
are

[[Page S4617]]

we to do when nominees are attacked for doing their jobs, when they are 
attacked for following precedents adopted and agreed to by Presidents 
Carter and Clinton, and when they are singled out for rulings agreed to 
by a unanimous, or near unanimous court? What are we to do when these 
nominees are demonized and caricatured beyond recognition, when they 
are condemned as unqualified while at the same time they are deemed 
unanimously well qualified by organizations Democrats used to revere? 
What are we to do when Senate and constitutional traditions are 
abandoned for the first time in more than two centuries, when both 
sides once agreed nominees should never be blocked by filibuster and 
then one side denies the existence of that very agreement, when their 
interpretation of Senate tradition changes based on who is in the Oval 
Office?
  It is time to fix the broken judicial confirmation process. It is 
time to end the blame game and fix the problem and move on. And it is 
time to end the wasteful and unnecessary delay in the process of 
selecting judges that hurts our justice system and harms all Americans.
  Mr. President, I thank the Chair. I thank my colleague from Vermont 
and yield the floor.

                               Exhibit 1


                                Southern Methodist University,

                                          Dallas, TX, May 3, 2005.
     Re Priscilla Owen

     Senator John Cornyn,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Cornyn: I write in support of the nomination 
     of Priscilla Owen to the United States Court of Appeals for 
     the Fifth Circuit. I write as a law professor who specializes 
     in constitutional law. I write as a pro-choice Texan, who is 
     a political independent and has supported many Democratic 
     candidates. And I write as a citizen who does not want the 
     abortion issue to so dominate the political debate that good 
     and worthy judicial candidates are caught in its cross hairs, 
     no matter where they stand on the issue.
       Justice Owen deserves to be appointed to the Fifth Circuit. 
     She is a very able jurist in every way that should matter. 
     She is intelligent, measured, and approaches her work with 
     integrity and energy. She is not a judicial activist. She 
     does not legislate from the bench. She does not invent the 
     law. Nothing in her opinions while on the Texas Supreme Court 
     could possibly lead to a contrary conclusion, including her 
     parental notification opinions. I suspect that Priscilla 
     Owen's nomination is being blocked because she is perceived 
     as being anti-choice on the abortion issue.
       This perception stems, I believe, from a series of opinions 
     issued by the Texas Supreme Court in the summer of 2000 
     interpreting the Texas statute that requires parental 
     notification prior to a minor having an abortion. The statute 
     also provides for what is called a ``judicial bypass'' to 
     parental notification. Justice Owen wrote several concurring 
     and dissenting opinions during this time. She has been 
     criticized for displaying judicial activism and pursuing an 
     anti-choice agenda in these opinions. This criticism is 
     unfair for two reasons.
       First, the Texas statute at issue in these cases contains 
     many undefined terms. Further, the statutory text is not 
     artfully drafted. I was a member of the Texas Supreme Court's 
     Advisory Committee that drafted rules in order to help judges 
     when issuing decisions under this parental notification 
     statute. My involvement in this process made it clear to me 
     that in drafting the parental notification statute, the Texas 
     Legislature ducked the hard work of defining essential terms 
     and placed on the Texas courts a real burden to explicate 
     these terms through case law.
       Moreover, the statute's legislative history is not useful 
     because it provides help to all sides of the debate on 
     parental notification. Several members of the Texas 
     Legislature wanted a very strict parental notification law 
     that would permit only infrequent judicial bypass of this 
     notification requirement. But several members of the Texas 
     Legislature were on the other side of the political debate. 
     These members wanted no parental notification requirement, 
     and if one were imposed, they wanted courts to have the power 
     to bypass the notification requirement easily. The resulting 
     legislation was a product of compromise with a confusing 
     legislative history.
       In her decisions in these cases, Justice Owen asserts that 
     the Texas Legislature wanted to make a strong statement 
     supporting parental rights. She is not wrong in making these 
     assertions. There is legislative history to support her. 
     Personally, I agree with the majority in these cases. But I 
     understand Justice Owen's position and legal reasoning. It is 
     based on sound and clear principles of statutory 
     construction. Her decisions do not demonstrate judicial 
     activism. She did what good appellate judges do every day. 
     She looked at the language of the statute, the legislative 
     history, and then decided how to interpret the statute to 
     obtain what she believed to be the legislative intent.
       If this is activism, then any judicial interpretation of a 
     statute's terms is judicial activism. Justice Owen did not 
     invent the legislative history she used to reach her 
     conclusion, just as the majority did not invent their 
     legislative history. We ask our judges to make hard decisions 
     when we give them statutes to interpret that are not well 
     drafted. We cannot fault any of these judges who take on this 
     task so long as they do this work with rigor and integrity. 
     Justice Owen did exactly this.
       Second, we must be mindful that the decisions for which she 
     is being criticized had to do with abortion law. I do not 
     know if Justice Owen is pro-choice or not, but it does not 
     matter to me. I am pro-choice as I stated before, but I would 
     not want anyone placed on the bench who would look at 
     abortion law decisions only through the lens of being pro-
     choice. Few categories of judicial decisions are more 
     difficult than those dealing with abortion. A judge has to 
     consider the fact that the fetus is a potential human, and 
     this potential will be ended by an abortion. All judges, 
     including those who are pro-choice, must honor the spiritual 
     beauty that is potential human life and should grieve its 
     loss. But a judge has other important human values to 
     consider in abortion cases. A judge also has to consider 
     whether a woman's independence and rights may well be 
     unconstitutionally compromised by the arbitrary application 
     of the law. All this is further compounded when a minor is 
     involved who is contemplating an abortion. I want judges who 
     will make decisions in the abortion area with a heavy heart 
     and who, therefore, will make sure of the legal reasoning 
     that supports such decisions.
       I think the members--all the members--of the Texas Supreme 
     Court did exact1y this when they reached their decisions in 
     the parental notification cases. I was particularly struck by 
     the eloquence of Justice Owen when she discussed the harm 
     that may come to a minor from having an abortion. She 
     recognized that the abortion decision may haunt a minor for 
     all her life, and her parents should be her primary guides 
     in making this decision. Surely, those of us who are pro-
     choice have not come to a point where we would punish a 
     judge who considers such harm as an important part of 
     making a decision on parental notification, especially 
     when legislative history supports the fact that members of 
     the Texas Legislature wanted to protect the minor from 
     this harm. As a pro-choice woman, I applaud the 
     seriousness with which Justice Owen looked at this issue.
       If I thought Justice Owen was an agenda-driven jurist I 
     would not support her nomination. Our founders gave us a 
     great gift in our system of checks and balances. The judicial 
     branch is part of that system, and it is imperative that it 
     be respected and seen as acting without bias or predilection, 
     especially since it is not elected. Any agenda-driven 
     jurist--no matter the issue--threatens the honor accorded the 
     courts by the American people. This is not Priscilla Owen. So 
     even though I suspect Justice Owen is more conservative than 
     I am and even though I disagree with some of her rulings, 
     this does not change the reality that she is an extremely 
     well-qualified nominee who should be confirmed.
       It would be unfair to place Priscilla Owen in the same 
     category with other nominees who, in my opinion, are judicial 
     activists and who I do not support. Some of these other 
     nominees appear to want to dismantle programs and policies 
     based on a political or economic agenda not supported by 
     legal analysis or constitutional history. They appear to want 
     to push their views on the country while sitting on the 
     bench. Priscilla Owen should not be grouped with them. 
     Justice Owen possesses exceptional qualities that have made 
     and will make her a great judge. I strongly urge her 
     confirmation.
           Sincerely,
                                                    Linda S. Eads,
                                       Associate Professor of Law.

  Mr. WYDEN addressed the Chair.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont is 
recognized under unanimous consent.
  Mr. LEAHY. Mr. President, I understand the Senator from Oregon wishes 
to make a unanimous consent request.
  Mr. WYDEN. Mr. President, I ask unanimous consent to speak in morning 
business after the distinguished Senator from Vermont has completed his 
remarks.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. CORNYN. Reserving the right to object, I would ask the Senator 
through the Chair whether he would agree Senator Lott be recognized to 
speak after the Senator from Oregon on the same basis. He also 
apparently wishes to come to the floor and speak.
  The ACTING PRESIDENT pro tempore. Would the Senator so modify his 
request.
  Mr. WYDEN. I would modify my request, Mr. President, that after the 
distinguished Senator from Vermont has completed his remarks, I would 
be next for 20 minutes, and the Senator from Mississippi, Mr. Lott, 
would come after me.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered. The Senator from Vermont.

[[Page S4618]]

  Mr. LEAHY. Mr. President, could the Senate always be so agreeable in 
moving things along, we in the country would be better off.
  I listened to this discussion of nuclear option and judges and all 
that. It may seem arcane. There is nothing in the Constitution that 
says 50 votes or 40 votes or 60 votes or 80 votes. It is up to the 
rules of the Senate. It is when the rules are either reviewed or 
ignored that you have a problem. As I mentioned earlier today, when 
President Clinton was in office, the Republicans used the rules to say 
if one Republican, one objected, then you would not have a vote on the 
nominee. 61 of President Clinton's nominees for judgeships were not 
allowed to move because one Republican objected. Actually a couple 
hundred of his executive nominations, by the same token, because one 
Republican objected. So there they are requiring 100 votes to confirm 
somebody.
  So you wonder when you are talking about a tiny handful of judges--
and no President in history, from George Washington on, has ever gotten 
all judges through the Senate--why there is so much attention on this. 
I was thinking about it and I thought, you know, this all began about 4 
years ago when we started talking about this. Four years ago things 
were a lot different in this country. Let's look at the differences.
  In the last 4 years--and maybe this is why they would rather talk 
about judges instead of talking about what's going on--in the last 4 
years under President Bush, unemployment has gone up 26 percent. During 
this same time, this last 4 years, the price of gas has gone up 57 
percent. You can hold hands with all the Saudi princes you want, but it 
has still gone up. The number of uninsured in this country has gone up 
10 percent. The budget deficit has gone up $50 billion. Actually, 
President Bush inherited the largest budget surplus of any President in 
the history of the United States. President Clinton had followed the 
Reagan and Bush administrations, which tripled the national debt and 
created huge deficits. President Clinton's administration not only 
balanced the budget, but created a surplus, and started paying down the 
debt. President Bush inherited the largest surplus of any President in 
our whole history and he has turned it into the largest deficit.
  Then there is the trade deficit. That has gone up 69 percent. I 
mention these things that have gone up under the Bush Presidency. 
Obviously they don't want to talk about it. It means the Saudis and the 
Chinese, Japanese, Koreans, and others who are holding our debt thus 
influence our foreign policy.
  We will not just be holding hands with Saudi princes, we will 
probably be holding hands with everybody from all these other 
countries, too, so they do not call our IOUs.
  During those 4 years, unemployment has gone up by 26 percent, the 
price of gas has gone up by 57 percent, the number of uninsured 
Americans has gone up by 10 percent, the budget deficit has increased 
by $350 billion, and the trade deficit has gone up by 69 percent. But 
there is one indicator that has shown improvement: the number of 
judicial vacancies has dropped 48 percent.
  So why are they complaining they are not getting enough judges? 
During those 4 years of President Bush's Presidency, the number of 
judicial vacancies has gone way down because we confirmed so many 
judges. In fact, 4 years ago, the vacancy rate in our Federal courts 
was nearly 10 percent, and now it is around 5 percent. Mr. President, 
95 percent of the Federal judiciary is filled. Most people would 
consider 95 percent a pretty good record.
  I remember talking with President Bush 4 years ago. I said: You might 
get 90, 95 percent of your judges through. He thought that was pretty 
good. He wished he had a record like that when he owned a baseball 
team.
  Four years ago today, I went to the White House in a gesture of 
cooperation to hear the President announce his first judicial 
nominations. Some criticized me for going, but I said I wanted to help. 
The President, during his campaign, said he wanted to be a uniter, not 
a divider, and now was the time to do so, and I said I would help.
  Unfortunately, that is not what President Bush had in mind. The 
nominations he announced that spring day 4 years ago were largely 
controversial, confrontational choices. Typically, when a President--
Republican or Democrat--selects nominations to the circuit courts, he 
consults at length with home State Senators and the Senate leadership 
to be sure those selected will be considered favorably by the Senate. 
This President has not done that. In fact, President Clinton, his 
predecessor, and his White House Counsel and staff were in regular 
contact with the Republican leadership. Senator Hatch talked in his 
book about how much President Clinton consulted with the Republicans.
  Instead, here my Republican colleagues say: No, we do not want the 
checks and balances of the Senate; we do not want an independent, 
nonpartisan judiciary; we are going to put a Republican stamp on the 
judiciary.
  Remember, the Federal judiciary should not be Democratic or 
Republican, it should be independent and free of political pressure.
  They say: No, we cannot do that. We will break all the rules possible 
and make sure that we get rid of checks and balances.
  This effort by the Republicans also, of course, belies what has 
happened. Back 4 years ago in June, with the change in the Senate, I 
became chairman of the Senate Judiciary Committee. Even though it was 
already June and the Republicans had been in charge since the beginning 
of the year, there had not been a single judicial nomination hearing 
held on President Bush's nominations. I inherited what seemed to be an 
impossibly large number of 110 vacancies. There were so many because, 
of course, there had been pocket filibusters of over 60 of President 
Clinton's nominations. But we worked hard, and in 17 months we were 
able to whittle that number down to 60 vacancies.
  Incidentally, it is interesting that with the Republican majority, 
look how the vacancies skyrocketed in the judiciary. The Democrats came 
in and they shot down. Now, of course, they are heading back up under 
Republican leadership.
  It takes a lot of work to lower the number of vacancies. I held 
hearings during recess periods and confirmed President Bush's nominees. 
Senator Daschle and I received a deadly anthrax attack, so deadly that 
people who touched the outside of the envelopes of letters addressed to 
us that we were supposed to open were killed. They were murdered, and 
we still held the hearings. We held hearings in the aftermath of the 9/
11 attacks when the airlines were shut down. We had a nominee volunteer 
to drive from Mississippi to Washington to be included in a hearing I 
was holding. We had the anthrax attacks, the PATRIOT Act, and all the 
rest, and we kept on going, and in 17 months we confirmed 100 of 
President Bush's judges.
  The Republicans took nearly twice as long when they were in control 
to confirm the same number of judges for President Bush. They say we 
are the ones holding things up? They ought to be ashamed of themselves. 
Maybe they ought to work as hard as we did to get them through. In 
fact, when Congress adjourned last December, there were only 27 
vacancies out of 875 Federal judgeships, the lowest number in over a 
generation. In President Bush's first term, 204 judges were confirmed--
more than confirmed in either of President Clinton's two terms, more 
than during the term of the President's father, more than in Ronald 
Reagan's first term when he had a Republican Senate. We confirmed a 
couple more nominees before we broke a week ago, and the distinguished 
Democratic leader has suggested we bring up another one of President 
Bush's nominees for a vote.
  We have seen the talking points that have come out from the 
Republicans. They say we are holding up Thomas Griffith. The record is 
clear that I have--we have objected to him. After all, he did practice 
law illegally for 4 years in one jurisdiction and practiced law 
illegally in another jurisdiction, and the President wants to put him 
on the second highest court in the land. We said that should be an 
impediment. In any other administration, it would be an impediment. 
They want to go forward with him. The record is equally clear that I do 
not intend to support a filibuster of this nomination.
  The distinguished Democratic leader said: Fine, bring him up. We will 
give you a time agreement and vote on it. He will either be confirmed 
or will not

[[Page S4619]]

be confirmed. If he is confirmed, it shows what the standards are of 
this administration.

  We can look at all the people turned down on the other side, but we 
never heard this complaint. We are prepared to move forward on Mr. 
Griffith's nomination despite the fact that the Republicans pocket 
filibustered 61 of President Clinton's nominees, even though those 
nominees included the current dean of Harvard Law School, a former 
attorney general from Iowa, a former clerk to Chief Justice Rehnquist, 
women, men, Hispanics, African Americans, and many others.
  We heard talks about Judge Owen this afternoon. One of her opinions 
was criticized by Alberto Gonzales when he served on the Texas Supreme 
Court. However, we held a hearing for her, a very fair hearing. The 
Senator from California, Mrs. Feinstein, conducted it. It was 
acknowledged by both Republicans and Democrats as being totally fair. 
She was voted down in the committee, and for the first time in history, 
a nominee voted down in committee was resubmitted by the President.
  This is not a time to be breaking the rules of the Senate. The rules 
are there because we want a check and balance. That is all we are 
saying. For example, a home State newspaper of one of the nominees 
referred to a speech she gave recently that sounded as if it came from 
an Islamic jihadist, a very activist judge, who believes that child 
labor laws, minimum wage laws, even Social Security represent something 
wrong in this country. I am not really sure that is the sort of person 
we want on the bench making decisions about child labor laws, Social 
Security, and minimum wage.
  Let's forget this end justifies the means. Let the Senate be what it 
always has been: A check and balance, whether it is a Democratic 
President or Republican President, a real check and balance but an 
honest one.
  Do away with anonymous holds. I said that before. Do away with the 
secret one-person filibuster. I know the distinguished Senator from 
Oregon has spoken consistently that way, I believe from the very first 
day he entered this great body. Do away with the anonymous holds. Do 
away with those things, but follow the Senate rules. Do not violate the 
rules. Do not let us, those who are supposed to judge the judges, break 
our own laws and our own rules.
  As I have noted, 4 years ago today, on May 9, 2001, I went to the 
White House in a gesture of cooperation to hear the President announce 
his first judicial nominations. Some criticized me for going, but I 
wanted to indicate my willingness to work with the new President. After 
all, during the campaign he had told the American people he wanted to 
be a uniter, not a divider. He had lost the popular vote in a much-
disputed 2000 election, and the country was deeply divided. I hoped 
that he would be a President who would understand the need to work 
across the aisle and to bring people together and to consult with both 
Democratic and Republican Senators. I thought that judicial 
nominations, particularly those to the important circuit courts where 
Republicans had prevented almost two dozen of President Clinton's 
qualified and moderate nominees from being considered, would be a good 
place to start.
  Unfortunately, that was not what President Bush had in mind. The 
nominations that President Bush announced that spring day, years ago, 
were largely controversial, confrontational choices. Although I was 
then the Ranking Democratic Member of the Senate Judiciary Committee, 
and was soon to become the Committee's Chair, the White House had not 
reached out to discuss any of these controversial nominees beforehand. 
By and large, home-state Senators had not been consulted about the 
nominees, nor had any sort of bipartisan, independent group of 
attorneys or legal scholars. That was the President's choice and has, 
unfortunately, remained his way of identifying and selecting nominees 
to be lifetime judicial appointments to the federal bench. This White 
House appears to rely on a tight circle of Federalist Society members, 
Republican Party activists and law professors steeped in ideology. This 
President has nominated what may be the most ideological-driven group 
of nominees ever presented to the Senate at one time.
  Typically, when a President selects nominations to the circuit 
courts, he consults at length with home-state Senators and the Senate 
leadership to ensure that those selected will be considered favorably 
by the Senate and confirmed. That has not been the true with this 
Administration. By way of example, I cannot recall a single occasion 
during which this President picked up the phone to discuss these 
judicial nominations during the entire four and a half years that he 
has been President--not at the beginning of his Administration, not 
during the 17 months that I chaired the Senate Judiciary Committee, and 
not since.
  That stands in sharp contrast to traditional practice dating back to 
George Washington and, in particular, to the manner in which President 
Clinton had worked with Senator Hatch when he was the Ranking Minority 
Member of the Senate Judiciary Committee or its Chair. Not only were 
President Clinton, his White House Counsel and his staff in regular 
contact with Senator Hatch and his staff; with respect to the most 
important nominations, the President and he had direct, meaningful 
consultation. In his book, ``Square Peg,'' for example, Senator Hatch 
wrote that he ``had several opportunities to talk privately with 
President Clinton about a variety of issues, especially judicial 
nominations.''
  He described how, when the first Supreme Court vacancy arose during 
the Clinton presidency in 1993, ``it was not a surprise when the 
President called to talk about the appointment and what he was thinking 
of doing.'' Senator Hatch went on to describe that the President was 
thinking of nominating someone who would require a ``tough, political 
battle'' but that he advised President Clinton to consider other 
candidates.
  According to his book, Senator Hatch suggested then-D.C. Circuit 
Judge Ruth Bader Ginsburg, as well as then-First Circuit Judge Stephen 
Breyer. They were nominated to fill the vacancies that arose on the 
Supreme Court in 1993 and 1994. Both were approved by the Senate with 
strong, bipartisan support. Justice Ginsburg was confirmed by a vote on 
96-3. Justice Breyer was confirmed by a vote of 87-9.

  That sort of consultation did not occur before this President's 
initial nominations were made 4 years ago, and I am sorry it did not.
  Sadly, this lack of consultation was not just the situation for these 
first nominations, it has continued to this day. Senate Democrats have 
not stopped trying to offer the advice called for by the Constitution 
and have never stopped being available to help in the selection 
process. Just a few weeks ago, on April 11, the Democratic Leader and I 
wrote to the President offering to help with the more than two dozen 
current judicial vacancies for which the President has not yet sent a 
nomination to the Senate. We urged him to disavow the ``nuclear 
option'' in favor of working with us to identify consensus judicial 
candidates who could be confirmed easily and who would be fair, 
impartial judges that would preserve the independence of the judiciary. 
The number of current judicial vacancies without a nominee has since 
risen to 29. It is now May, we are more than a third of the way through 
the year, and the President has still sent only one new judicial 
nomination to the Senate all year. Meanwhile almost a month has passed 
and Senator Reid and I have yet to receive the courtesy of a reply to 
our offer to help and to work together. Unilateralism has become their 
standard operating practice, and abuse of power has become increasingly 
common. Indeed, to this day I have yet to meet, talk to or even receive 
a telephone call from the President's new White House Counsel. The go-
it-alone conduct of this Administration makes clear that this President 
has little use of the Senate's role in the constitutional process of 
selecting federal judges.
  Under pressure from the White House, over the last 2 years, the 
former Republican chairman of the Judiciary Committee led Senate 
Republicans in breaking with longstanding precedent and Senate 
tradition. With the Senate and the White House under control of the 
same political party we have witnessed Committee rule after Committee 
rule broken or misinterpreted away. The Framers of the Constitution

[[Page S4620]]

warned against the dangers of such factionalism, undermining the 
structural separation of powers. Republicans in the Senate have utterly 
failed to defend this institution's role as a check on the President in 
the area of nominations. It surely weakens our constitutional design of 
checks and balances.
  As I have detailed elsewhere, the list of broken rules and precedents 
is long--from the way that home-state Senators were treated, to the way 
hearings were scheduled, to the way the Committee questionnaire was 
unilaterally altered, to the way the Judiciary Committee's historic 
protection of the minority by Committee Rule IV was repeatedly 
violated. In the last Congress, the Republican majority of the 
Judiciary Committee destroyed virtually every custom and courtesy that 
had been used throughout Senate history to help create and enforce 
cooperation and civility in the confirmation process.
  We suffered through 3 years during which Republican staff stole 
Democratic files off the Judiciary computers during what has been a 
``by any means necessary'' approach. Their approach to our rules and 
precedents follows their own partisan version of the Golden Rule, which 
is that ``he with the gold, rules.'' That has not been helpful to the 
process, the Senate or the country. It is as if those currently in 
power believe that that they are above our constitutional checks and 
balances and that they can reinterpret any treaty, law, rule, custom or 
practice they do not like or they find inconvenient.
  Some of these interpretations are so contrary to well-established 
understandings that it is like we have fallen down the rabbit hole in 
``Alice in Wonderland.'' I am reminded that the imperious Queen of 
Hearts rebuked Alice for having insufficient imagination to believe 
contradictory things, saying that some days she had believed six 
impossible things before breakfast. I have seen things I thought 
impossible on the Judiciary Committee during the last few years, things 
impossible to square with the past practices of Committee and the 
history of the Senate. Our Committee is entrusted by the Senate to help 
determine whether judicial nominees will follow the law. It is 
unfortunate that the Committee that judges the judges has not followed 
its own rules but has bent or broken them to achieve a predetermined 
result.
  Under our Constitution, the Senate has an important role in the 
selection of our judiciary. The brilliant design of our Founders 
established that the first two branches of government would work 
together to equip the third branch to serve as an independent arbiter 
of justice. As columnist George Will once wrote:

       A proper constitution distributes power among legislative, 
     executive and judicial institutions so that the will of the 
     majority can be measured, expressed in policy and, for the 
     protection of minorities, somewhat limited.

  The structure of our Constitution and our own Senate rules of self-
governance are designed to protect minority rights and to encourage 
consensus. Despite the razor-thin margin of recent elections, the 
majority party is not acting in a measured way but in complete 
disregard for the traditions of bipartisanship that are the hallmark of 
the Senate. It has acted to ignore precedents and reinterpret 
longstanding rules to its advantage. This practice of might makes right 
is wrong.
  Now the White House's hand-picked majority leader seems intent on 
removing the one Senate protection left for the minority, the 
protection of debate in accordance with the longstanding tradition of 
the Senate and its Standing Rules. In order to remove the last 
remaining vestige of protection for the minority, the Republican 
majority is poised to break the Senate Rules and end the filibuster 
with the votes of the barest of majorities. They seem intent on doing 
this to force through the Senate this President's most controversial 
and divisive judicial nominees.

  As the Reverend Martin Luther King wrote in his famous Letter from a 
Birmingham Jail: ``Let us consider a more concrete example of just and 
unjust laws. An unjust law is a code that a numerical or power majority 
group compels a minority group to obey but does not make binding on 
itself. This is difference made legal. By the same token, a just law is 
a code that a majority compels a minority to follow and that it is 
willing to follow itself. This is sameness made legal.'' Fair process 
is a fundamental component of the American system of law. If we cannot 
have a fair process in these halls or in our courts, how will the 
resulting decisions be viewed? If the rule of law is to mean anything 
it must mean that it applies to all equally.
  In the last Congress, I am sorry to report that the rule of law was 
broken, spindled and mutilated to serve the interests of President 
George W. Bush and his party. No man and no party should be above the 
law. That has been one of the strengths of our democracy. Our country 
was born in reaction to the autocracy and corruption of King George, 
and we must not forget our roots as a nation of both law and liberty. 
The best guarantee of liberty is the rule of law, meaning that the 
decisions of government are not arbitrary and that rules are not 
discretionary or enforced to help one side and then ignored to aid 
another. James Madison, one of the Framers of our Constitution, warned 
in Federalist Number 47 of the very danger that is threatening our 
great nation, a threat to our freedoms from within:

       [The] accumulation of all powers legislative, executive and 
     judiciary in the same hands . . . may justly be pronounced 
     the very definition of tyranny.

  Our freedoms as Americans are the fruit of too much sacrifice to have 
the rules broken in the United States Senate by a party colluding with 
the White House to try to appoint loyalists to courts who have been 
chosen with the hope that they will re-interpret precedents and 
overturn the very laws that have protected our most fundamental rights 
as Americans. The American people deserve better than we have seen with 
the destruction of rule after rule by a majority willing to sacrifice 
the role of the Senate as a check and balance in order to aid a 
President determined to pack the federal courts.
  How does the record of judicial confirmations for President George W. 
Bush compare to administrations before his? Very well. In President 
Bush's first term, the 204 judges confirmed were more than were 
confirmed in either of President Clinton two terms, more than during 
the term of this President's father, and more than in Ronald Reagan's 
first term when he was being assisted by a Republican majority in the 
Senate. With the four judges confirmed so far this year, the total 
number of confirmations of this President's judicial nominees has risen 
to 208. It would rise further and faster yet, if the White House would 
only work with us to identify qualified, consensus nominees for the 29 
current vacancies without a nominee. The President has sent only one 
new nominee to the Senate so far this year, and it is already May. If 
the President wanted to pick judges instead of fights, he could work 
with us rather than divide us.
  And what happened to those 11 nominees the President started us off 
with 4 years ago? Considering the strong ideological bent of this 
group, the President has been quite successful. One has been withdrawn 
from consideration and 8 of the remaining 10 have been confirmed, 80 
percent. The confirmations of Clinton circuit court nominees during his 
second term, from 1997-2000, while a Republican Senate majority was in 
control, were nowhere near as successful. Over those 4 years 35 of 51 
Circuit Court nominees were confirmed, 69 percent.
  If we looked at 1999 and 2000, the 106th Congress, the numbers are 
even worse. Fewer than half of the President's circuit court nominees 
were confirmed, 15 of 34. Outstanding and qualified nominees were never 
allowed a hearing, a committee vote or Senate consideration of any 
kind. These nominees include the current dean of the Harvard Law 
School, a former attorney general from Iowa, a former clerk to Chief 
Justice Rehnquist and many others--women, men, Hispanics, African 
Americans, a wide variety of qualified nominees.
  So on this anniversary, let us understand that 8 of the 10 nominees 
we will hear complaints about have been confirmed.
  With respect to the remaining two, I should note that in the years 
that Republicans held the Senate majority and Senator Hatch was the 
committee chair, Judge Terry Boyle was one of

[[Page S4621]]

the very few nominees he chose not to consider. Thus, Judge Boyle is 
still before the Judiciary Committee. Senator Specter held a hearing on 
that controversial nomination and the committee is still receiving 
copies of Judge Boyle's unpublished opinions for its review.
  The remaining nominee is one whose opinions were criticized by 
Alberto Gonzales when he served on the Texas Supreme Court with her. 
Indeed, many of her positions were too conservative and activist for 
her conservative Republican colleagues on the Texas Supreme Court. When 
I chaired the committee in 2002, in another gesture of good will, I 
proceeded on a number of controversial nominations in spite of the 
recent mistreatment of President Clinton's nominees. One of those 
hearings was for Priscilla Owen.
  I was not required to schedule that hearing. I could have followed 
the example of my immediate predecessor and denied her consideration 
before the committee. It would have been a much easier path than the 
alternative I chose. Instead, I proceeded. Senator Feinstein conducted 
the hearing in a fair manner. After the hearing, I then did something 
else that my predecessor as Chair so often did not: I proceeded to have 
the committee consider the nomination on its merits even though I knew 
I would not support it. The committee debated the nomination fairly and 
openly. Objections to her confirmation, based on her record as a 
Justice on the Texas Supreme Court, were aired and honestly debated. A 
vote was taken and instead of hiding behind anonymous holds or hidden 
blue slips, Senators put themselves on the record. The result was that 
the Owen nomination was rejected by a majority of the committee and not 
recommended to the Senate.

  Since that time much of what has happened has been unprecedented. 
Despite the rejection of the nomination by the committee, the President 
resubmitted the nomination the next year. I do not believe that had 
ever been done before in our history. Then, on a party-line vote, 
Republicans forced the nomination to the floor. It was debated 
extensively and the Senate withheld its consent. After a series of 
cloture votes, cloture was not agreed upon in accordance with the rules 
of the Senate. Nonetheless, the President took further unprecedented 
action in, again, resubmitting the nomination to the Senate. That 
nomination is now pending, again, on the Senate Executive Calendar.
  By any measure the President's first nominees were treated fairly. 
Judge Parker, Judge Shedd, Judge Clement, Judge Cook, Judge Sutton, 
Judge McConnell, Judge Gregory and Judge Roberts are each serving 
lifetime appointments on important circuit courts. The first slate of 
nominees has now all been accorded hearings. All but Judge Boyle have 
been considered by the Judiciary Committee. All but one of those has 
been confirmed.
  This is no basis on which to break the rules of the Senate. This is 
not justification to end the Senate's role as a check and balance on 
the Executive. This is not reason for the majority to take the drastic 
and irreversible step of ending protection of the minority through the 
tradition of extended debate in the Senate.
  The White House and the Senate Republican leadership's campaign for 
``nuclear option'' seeks to end the role of the Senate serving as a 
check on the Executive. But that is precisely what the Constitution 
intends the Senate to provide. Supporters of an all-powerful Executive 
have gone so far as to seek to inject an unconstitutional religious 
test into the debate and to characterize those who oppose the most 
extreme of the President's nominees as ``against people of faith'' and 
to call for mass impeachments of judges and other measures to 
intimidate the judiciary. Our independent judiciary is an essential 
check on the political branches.
  Pat Robertson says that he believes that federal judges are ``a more 
serious threat to America than Al Qaeda and the September 11 
terrorists'' and ``more serious than a few bearded terrorists who fly 
into buildings'' and ``the worst threat America has faced in 400 
years--worse than Nazi Germany, Japan and the Civil War.'' This is the 
sort of incendiary rhetoric that is paving the way to the ``nuclear 
option.'' It is wrong, it is destructive and it is short-sighted.
  Chief Justice Rehnquist is right to refer to the federal judiciary as 
the crown jewel of our system of government. It is an essential check 
and balance, a critical source of protection of the rights of all 
Americans, including our religious freedoms. In ``A Man For All 
Seasons'' Sir Thomas More speaks about the rule of law and the need for 
its protections. When his family confronts him and demands that he 
break the law to get at the Devil, he replies:

       What would you do? Cut a great road through the law to get 
     after the Devil? . . . And when the last law was down, and 
     the Devil turned 'round on you, where would you hide, Roper, 
     the laws all being flat?
       This country is planted thick with laws, from coast to 
     coast, Man's laws, not God's! And if you cut them down . . . 
     do you really think you could stand upright in the winds that 
     would blow then?
       Yes, I'd give the Devil benefit of law, for my own safety's 
     sake!

  Our Federal judges are not the Devil and are not in the service of 
the Devil. Democratic Senators are not the Devil and are seeking to 
uphold the Senate as a check on the most extreme actions of the 
Executive. I pray that Republican Senators will think about that and 
reflect on the protections that our constitutional checks and balances 
provide. I trust that they will honor the protections of the minority 
that make this institution what it is. I hope that they will show the 
courage to protect the Senate and the minority that the senior Senator 
from Pennsylvania spoke about in his important statement a few weeks 
ago.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Oregon.
  Mr. WYDEN. Mr. President, as the Senate resumes debating the nuclear 
option for resolving the debate about judges, I would like to ask that 
the Senate pursue a conventional option, the disappearing art of 
bipartisanship. Rather than calling for breaking out the nuclear 
weapons, I believe the Senate should call for breaking out some 
bipartisanship, and I want to give an example this afternoon of what 
the possibilities could be for real bipartisanship in this area of 
judicial nominations.
  When President Clinton was elected, even though I was a Member of the 
House, I was the senior Democrat in my State. So I was faced with the 
challenge then as a Member of the other body of working with two 
Senators with close to 60 years of experience in the Senate--Mark 
Hatfield and Bob Packwood. Both of them were extremely gracious in 
their efforts to work with me.
  I created a formal judicial selection committee. I gave Senators 
Hatfield and Packwood representation on that committee. We worked 
together in a bipartisan way and my first selection was confirmed 
without controversy.
  I continued that bipartisan selection committee when I was elected to 
serve in the Senate. Three of my recommendations are now serving on the 
Federal bench thanks, in great measure, to the bipartisan cooperation 
of my friend and colleague Senator Gordon Smith.
  After President Bush was elected in 2000, Senator Smith retained a 
similar bipartisan judicial selection process, and I was pleased to be 
able to assist him and the Bush administration in moving their nominee 
through the process.
  Now our bipartisanship has been put to the test. In fact, twice, both 
with respect to myself and with respect to Senator Smith, we had 
nominees who proved to be controversial to some Senators. In each case, 
the Senator in the minority party upheld his commitments and shepherded 
these individuals through the Senate. Doing tough bipartisan work at 
the front end of the judicial selection process, neither Senator Smith 
nor I were pulled into a partisan squabble later on as the process went 
forward.
  This is precisely the sort of bipartisan cooperation that is now 
missing between the White House and the Senate, and what is needed is 
more bipartisan conventional options for resolving this judicial debate 
and fewer nuclear threats.
  It seems to me, going nuclear will change the Senate in a very 
dramatic way. I think it will make it harder, for example, to have 
breakthroughs in health care such as Senator Hatch helped me achieve 
when we passed the Health Care That Works for All Americans law. I 
think it is going to make it

[[Page S4622]]

harder to have a bipartisan breakthrough to producing a new energy 
policy. If ever there was a red, white and blue issue for our country, 
it is getting a new bipartisan energy policy that would shake us free 
of our dependence on foreign oil.
  As I held open community meetings last week at home in Pendleton, 
Irrigon, Monroe, Fossil, Tillamook, and throughout my home State, there 
were no rallies and citizens calling for the use of a nuclear option. 
There were an awful lot of people asking: What are you going to do 
about health care costs that are going through the stratosphere? And I 
talked to them about the efforts that I and Senator Hatch have put in 
place.
  They wanted to know about what is going to be done to deal with 
crumbling roads. I see our friend from Oklahoma who would like to pull 
together a bipartisan bill to deal with our country's infrastructure.
  So folks were talking about health care, creating jobs and a fresh 
energy policy. They know the only way the Senate is going to achieve 
any of that is through bipartisanship.
  I also see the distinguished chairman of the Judiciary Committee, my 
friend Senator Specter. Today the Senate has a choice. Tomorrow or the 
next day there may not be a choice. I hope my colleagues will choose 
the conventional option we have been using in Oregon that Senator 
Hatfield and Senator Packwood assisted me with and that Senator Gordon 
Smith has assisted me with. I hope we will choose what I call the 
Oregon conventional option and seek a renewed bipartisan commitment to 
resolving this matter.
  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senator from Mississippi is to be recognized.
  Mr. LOTT. Mr. President, parliamentary inquiry.
  The ACTING PRESIDENT pro tempore. The Senator will state his inquiry.
  Mr. LOTT. I have been in the cloakroom waiting for the opportunity to 
speak on the highway bill and to speak on behalf of the commerce safety 
portion of that highway bill. Are we now going to turn to the highway 
legislation?
  The ACTING PRESIDENT pro tempore. We are on the highway legislation. 
We were under a unanimous consent request, with the Senator recognized 
to speak next.
  Mr. LOTT. Mr. President, I am pleased this afternoon to talk about 
title VII of this very important Surface Transportation Improvement Act 
of 2005. I remind my colleagues that the highway and transportation 
legislation, TEA-21, that we passed back in 1998, effectively expired 
September of 2003--not 2004 but 2003. We are now on the sixth extension 
of this very important legislation. This week we need to complete 
action on this very important bill.
  It is about building decent highways and bridges and transit 
authorities, but it is about more than that. If we do not have decent 
infrastructure, if we do not have decent highways and bridges, if we do 
not have transit capability, if we do not have border roads, we are not 
going to have economic development. Most importantly, and that is why I 
am here as the chairman of the Surface Transportation and Merchant 
Maritime Subcommittee, safety provisions are not improved and extended. 
We should care an awful lot about this.
  The safety portion of the legislation was reported out of the 
Commerce Committee, with the support of Chairman Ted Stevens and the 
ranking Democrat, who is referred to in our committee as cochairman, 
Senator Inouye. It is bipartisan, and I believe it is very strong 
legislation.
  I care about the safety portion of it, and maybe I care about the 
safety provisions more than some people because I have had a family 
tragedy myself that has affected my thinking on this. My father was 
killed in an automobile accident, without a seatbelt, involving 
alcohol, on a narrow, two-lane, hilly road. This section of this 
legislation would affect all of that. It would give additional 
incentives for States to do more to stop driving while under the 
influence of alcohol. It would give incentives for people to use 
seatbelts. It would improve our roads and bridges and widen our roads. 
So this is personal with me, and I care an awful lot about it.
  Before I get to that section of the legislation, I want to talk about 
the broader perspective. When we look at history and at infrastructure 
and the ancient Roman Empire, many would say it was their advanced 
infrastructure and efficient highways that allowed them to build the 
empire that they had. That highway system was critical to the expansion 
and protection of their empire. It allowed rapid troop movement. It 
facilitated trade. It enabled ease of movement for diplomats and 
couriers. It provided rapid expansion of the Roman sphere of influence. 
It afforded military protection from invaders and facilitated 
communication between distant parts of the empire.
  We do not want to replicate everything we saw in the Roman Empire, 
but it also is interesting to note that that empire eventually went 
away, and some people say it was partially attributable to the fact 
that they quit building the infrastructure; they let the country start 
decaying and the infrastructure go into disrepair. I think that is what 
we are beginning to experience in America.
  One of the reasons why we have been able to continue to grow, do 
well, and move around this country is because of our infrastructure: 
highways, bridges, railroads and ports and harbors. The whole package 
is critical. It is what enables America to have our great system. 
Whether people are from Maine, Mississippi, California, Virginia, 
Florida or Washington, we have access to virtually all the same 
products, and it is because of our infrastructure.
  On September 11 and in the days immediately following, we saw that 
our highways were absolutely critical to movement of goods and our 
people and that we need to have a balanced and complete infrastructure 
package. So it is time that we act. Our interstate system in America is 
50 years old. States have been doing their part, but a lot of the 
States are struggling with their budgets and a lot of the highway 
departments have been living on these extensions. So we have lost an 
opportunity. We have lost ground.
  Thirty-two percent of our major roads are in poor or mediocre 
condition, almost a third. Almost 30 percent of our Nation's bridges 
are structurally deficient and obsolete. Quite frankly, I am afraid 
where we are headed. If we do not do something about this, there will 
be a loss of the jobs that would have been generated, and it would 
contribute to the slowing down of our economy.
  TEA-21 did an awful lot for our country, but it is time that we move 
to the next step. The U.S. Department of Transportation has said that 
for every $1 billion in Federal transportation infrastructure 
investment, 47,500 jobs would be created. So just think about that when 
looking at what is involved in this bill. We are talking about many 
thousands of jobs being created. We need to have this 5-year extension. 
In the general sense, I urge my colleagues to work together in a 
bipartisan way and work with the administration to get this legislation 
completed before this next extension expires.

  The portion of the bill that I am directly responsible for is from 
the Commerce Committee, and it is the safety provisions that would be 
in the reauthorization. I will describe what is in this Safety 
Improvement Act of 2005. It is a comprehensive reauthorization of many 
of the Department of Transportation safety programs that we passed in 
1998. It includes trucking and bus safety, highway and vehicle safety 
and hazardous material safety. The bill also includes provisions to 
protect consumers from fraud in the moving industry and to reauthorize 
the boat safety and sport fishing programs. It is designed to improve 
the safety of all of our constituents and its enactment will save lives 
and reduce injuries.
  Just last month, the Department of Transportation released 
preliminary traffic fatality data for 2004. The good news is the 
fatality rate on our highways is down slightly, but that data still 
shows there is much to be done. The programs authorized in this bill 
are authorized to do that.
  Through the leadership of Chairman Stevens, we have met with all of 
the interested parties in business, labor, safety advocates, as well as 
State representatives. We made sure everybody had some input in the 
drafting of this legislation.

[[Page S4623]]

  We still have to make note of the almost 18,000, or 56 percent, of 
the people who died last year in highway accidents were not wearing a 
seatbelt. The quickest and most effective way of increasing safety is 
to get people to wear their seatbelts. So we have included a program to 
give States incentive grants to pass primary seatbelt enforcement laws. 
Some people would like to turn this around and say if States do not 
pass the seatbelt acts, we are going to take money away from them. That 
sort of approach has been tried in the past. It did not work, and it 
will not work now.
  I believe in States such as mine, with an incentive to pass these 
primary seatbelt laws, there is a good chance we would comply. But if 
we are told we are going to be punished if we do not, the odds are we 
will not. So we have drafted this in a way that I believe every State 
will strive to have significant increases in their safety numbers and a 
decline in the fatalities on their highways. So we will be supporting 
this provision in our part of the highway bill.
  The data also shows that alcohol is a factor in almost 40 percent of 
all crashes. Funds are included for States to enforce drunk driving 
laws and include incentives to toughen their laws. These safety 
programs should have been authorized almost 2 years ago, but due to 
disputes we have not been able to improve our safety provisions, 
improve our safety incentives, and therefore some of the culpability 
for the amount and severity of accidents and the deaths should be 
placed at our doorsteps. We need to work with the States to ensure 
these programs make sense and they are carried out effectively. We 
should have funding levels that reflect the commitment that we are 
making to highways and to safety on our highways.

  I hope the Senate will pass this legislation this week and that 
Congress will pass the final conference report this month so the States 
do not miss the summer's construction season.
  I again thank my colleagues on both sides of the aisle for working 
with us to develop the safety provisions that will be included in the 
substitute package I believe the chairman will offer.
  The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.
  Mr. INHOFE. Mr. President, we are overdue getting on the highway 
bill. We are preparing right now to offer a substitute amendment. We 
are prepared to do that, but Senator Specter had said he wanted to 
speak for a period of time as in morning business. He has been planning 
to do that, and I will yield 15 minutes to him for that purpose.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. BOND. Mr. President, will the chairman yield? Mr. Chairman, we 
are ready. We are open to do business. There have been a great many 
discussions about the highway title. We have people ready to take those 
amendments who are ready to discuss those with our colleagues on the 
other side of the aisle to see which ones we can accept. Is it my 
understanding that we only have 3\1/2\ days to complete work on this 
very complex bill that covers not only the EPW section but commerce, 
finance, and the other sections? Is that correct?
  Mr. INHOFE. That is my understanding. You remained here with me all 
last week inviting Members to bring their amendments down. We said we 
would be getting close. Who knows, we may even get a cloture vote, and 
then at the last minute hysteria will set in. Now is the time to bring 
them down and consider them.
  Let me comment on the great work the chairman of the transportation 
subcommittee, Senator Bond, has done. We need to get to it now. This is 
probably very likely the most important single bill of this session.
  Mr. BOND. I thank the chairman. I hope we can get on with it while 
our colleague is speaking. I hope other Members and staff will come to 
the floor and share their amendments and begin the discussion that is 
going to have to move very quickly if we are to finish this bill this 
week and stay on schedule to try to avoid another extension.
  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senator from Pennsylvania is recognized for 15 minutes.
  Mr. SPECTER. Mr. President, I thank the Chair for the recognition, 
but 15 minutes--if I could have the attention of the chairman of the 
committee, my colleague, Senator Inhofe? Fifteen minutes is 
insufficient. I had been seeking time since last week and had been 
assured by the floor staff that I could have 45 minutes starting at 
3:10.
  I understand the importance of the highway bill. I am here to talk 
about the constitutional or nuclear option in my capacity as chairman 
of the Judiciary Committee. I know the highway bill is important, and I 
have been pressing to bring it up, but the matter I wanted to speak on 
is perhaps of greater importance.
  I had asked for 45 minutes and thought I might do it in 25, but it 
was reduced in a negotiating session with Senator Inhofe to 15, and I 
cannot do it in 15. So I will be back another time.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.
  Mr. INHOFE. Mr. President, in a few minutes it is our intention to 
bring up the substitute amendment, to have the pending amendment 
withdrawn and bring up the substitute amendment. We are not quite ready 
for that. We are waiting for a few things to be done in a few minutes. 
I think it will be worked out, but the managers' amendment is going to 
do a lot of things to offset some of the problems people had with the 
bill. When that time comes, we want a chance to go over it in detail 
and make this a reality.
  The amendment is going to bring the total size of the bill up to $251 
billion. This includes $199 billion for highways, $5.8 billion for 
highway safety, and $46.6 billion for mass transit. This amendment 
would add $6.8 billion in additional receipts to the highway account of 
the highway trust fund, all of which are offset in the amendment--also, 
thanks to the good work of Senator Grassley and Senator Baucus of the 
Finance Committee. They have made a yeoman effort and have been able to 
have us increase this highway funding and have it paid for.
  Highway funding would increase by $8.9 billion over the EPW-reported 
bill. That is the bill that came out of our committee. It includes a 
5.1-percent increase in both apportioned and allocated programs. It 
also increases the minimum rate of return to donor States to 91 percent 
immediately. Right now, as you know, it is 90.5 percent. It would raise 
it to 91 percent in 2006 through 2008. This increases the growth 
ceilings so more States get to 92 percent more quickly.
  In other words, we are to go to 91 percent immediately, and in 2006, 
and then eventually all States will be at 92 percent in this period of 
time.
  The donee States, the ones that are actually getting back an amount 
that is in excess of the amount that is paid in, they would have a 
guaranteed minimum growth rate being increased from 10 percent to 15 
percent every year. The average growth rate increases from just under 
25 percent to almost 31 percent.
  The amendment also includes firewalls to ensure the highway trust 
fund dollars are spent on this Nation's transportation needs. There has 
been a problem over a long period of time. People have been very 
offended by the fact that these trust funds have been raided and 
somehow these moneys are diverted to other causes. Senator Bond and I, 
and I think the vast majority, and certainly 76 percent of this Senate, 
agree that we should have firewalls; we should protect that money and 
make sure it goes to highway spending.
  Finally, the mass transit funding increased by $2.3 billion to $46.6 
billion. This represents a dramatic increase in the transit share of 
the bill from 18.18 percent under TEA-21--that is what it was when we 
passed it 7 years ago--to 18.48 percent. The safety programs have 
increased, which Senator Lott has talked about in the purview of his 
committee. They have increased their funding over levels in S. 1072, 
last year's bill, which was funded at $318 billion.
  Last year, during consideration of the $318 billion Transportation 
bill, the Senate voted 76 to 21 in favor of funding the highway bill at 
$255 billion, in mass transit at $56 billion. This vote should be even 
more of a resounding victory for adequate funding levels for 
transportation, especially considering this bill is funded at a lower 
level.

[[Page S4624]]

  I remind my colleagues of the vote on the Talent amendment to this 
budget resolution which received over 80 votes from Senators who voted 
to support it.
  This amendment gave flexibility to increase the funding for the bill 
as long as it was offset, which is exactly what Senators Grassley and 
Baucus have done in their portion of this amendment.
  This is the amendment we do want to bring up. We are not quite ready 
to seek unanimous consent to bring it up.
  I ask Senator Bond, the subcommittee chairman, if he seeks 
recognition now. Let me have him recognized. If he wants to yield to 
Senator Inouye, he can do that.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri.
  Mr. BOND. Mr. President, I was going to do what the chairman of the 
full committee said, but I see our friend from Hawaii is here. We have 
already had a discussion of the commerce title. I am happy to defer to 
my colleague from Hawaii.
  The ACTING PRESIDENT pro tempore. The Senator from Hawaii.
  Mr. INOUYE. Mr. President, let me begin by thanking Surface 
Transportation and Merchant Marine Subcommittee Chairman Trent Lott and 
Commerce Committee Chairman Ted Stevens for their efforts to develop a 
consensus, bipartisan bill to reauthorize highway safety and boating 
safety programs under the Commerce Committee's jurisdiction.
  Together, with the help of other members of our committee, including 
Senators Mark Pryor, Jay Rockefeller, Conrad Burns, Byron Dorgan, Frank 
Lautenberg, and Barbara Boxer, we have crafted legislation that 
advances the safety of all motorists on our Nation's highways.
  Our committee considered the Surface Transportation Safety 
Improvement Act of 2005 on April 14 and reported this measure without 
amendment.
  Our national highway transportation network is a tremendous national 
asset and a first-class system. It allows us the freedom to travel and 
fosters economic growth. The benefits of mobility that our highways 
provide, however, come with a staggering cost of injury, property 
destruction, and death.
  Recent safety trends indicate that the dangers of operating a vehicle 
on this network are still disturbingly high. According to the National 
Highway Traffic Safety Administration, highway fatalities and injuries 
increased from 42,643 in 2003 to 42,800 in 2004. Large truck crash 
fatalities increased by 3.7 percent from 4,986 in 2003 to 5,169 in 
2004.
  To put these numbers in context, the United States suffered more than 
58,000 casualities during the entire Vietnam War. We are now losing 
nearly 43,000 Americans on our highways every year.
  As we consider ways to improve the infrastructure and operation of 
our highways, we must do more to increase the safety of cars and 
trucks, and their drivers.
  The Commerce Committee's section of H.R. 3 incorporates many of the 
administration's recommendations, and those of safety advocates, 
regarding auto and truck safety, as well as the safety of hazardous 
materials transportation. The bill also strengthens consumer 
protections for those who entrust their belongings to a moving company, 
and provides more robust, predictable funding for boating safety and 
sport fish restoration programs.
  We have been at loggerheads with the administration over the funding 
levels needed to improve our transportation system for more than a 
year. I am hopeful that these disagreements can be resolved so that we 
may finalize this important safety bill this session. I support more 
resources for all of our surface transportation programs and believe 
that we should seek funding closer to the levels that a majority of 
this chamber supported last year.
  If we do provide additional funding, a pro-rata share should be 
allocated to our Nation's transportation safety programs.
  The Commerce Committee's titles of the highway bill have received 
broad support by incorporating many initiatives proposed by the 
administration, industry, and safety advocates. However, we are always 
searching for ways to improve the bill and to reduce the risk of death 
and injuries on our Nation's highways.
  I encourage those who might have amendments to offer to the Commerce 
Committee's titles to come forward so that we may work to incorporate 
these requests, to the extent possible.
  I urge my fellow Senators to support the significant safety 
provisions contained within our section. The safety of the traveling 
public depends on it.
  Mr. President, I request unanimous consent to have printed in the 
Record a document which summarizes each of the bill's key provisions.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  Summary of Commerce Committee Titles


                     Title 1--Motor Carrier Safety

       Title 1 of our bill focuses on truck and bus safety. The 
     Federal Motor Carrier Safety Administration (FMCSA) is the 
     federal agency responsible for truck safety through strong 
     enforcement of safety regulations, targeting high-risk motor 
     carriers and commercial motor vehicle drivers. While much 
     progress has been made in motor carrier safety, accidents 
     involving large trucks remain a significant safety and 
     economic concern. To improve truck safety, our bill:
       Reauthorizes the Motor Carrier Safety Assistance Program 
     (MCSAP) for the years 2006 through 2009 at an average annual 
     funding level of $200 million, more than double the 
     Transportation Equity Act (TEA 21) level, and consistent with 
     the Administration's proposal. Grants from this program are 
     distributed via formula to states to enforce motor carrier 
     safety rules and regulations.
       Provides $20 million to modernize the Commercial Driver's 
     License Information System (CDLIS). This system is the 
     primary method for tracking the safety and qualification of 
     truck and bus drivers. The funding will be used to modernize 
     an outdated computer system and will help efforts to prevent 
     truckers from holding multiple driver's licenses.
       Updates the medical program for commercial drivers in the 
     wake of several high-profile truck accidents that raised 
     concerns about the current process. The bill establishes a 
     Medical Review Board to recommend standards for the physical 
     examinations of commercial drivers and a registry for 
     qualified medical examiners. Medical examiners who perform 
     the exams are required to receive training to be listed on 
     the registry.
       Replaces the current Single State Registration System 
     (SSRS) with a new system that requires truckers to register 
     in only one state, while preserving state revenues collected 
     through the current system.
       Improves the maintenance and safety of intermodal chassis. 
     For many years, there has been a dispute about who should be 
     responsible for the safety of truck trailers, known as 
     intermodal chassis, that are owned by railroad and steamship 
     companies, but are hauled by truckers. The bill contains 
     provisions, agreed to by the trucking, railroad, and 
     steamship companies, that delineates responsibility for 
     safety among the various parties.
       Requires the FMCSA to provide outreach and training to 
     ensure that states are properly enforcing operating authority 
     requirements for foreign commercial vehicles. It also 
     requires a study of whether current or future Canadian and 
     Mexican truck fleets that operate or are expected to operate 
     in the United States meet U.S. truck safety standards.


                 TITLE II--HIGHWAY AND VEHICULAR SAFETY

       This title reauthorizes highway safety programs designed to 
     reduce deaths and injuries resulting from motor vehicle 
     crashes. These programs are administered by the National 
     Highway Traffic Safety Administration (NHTSA), which was 
     established by the Highway Safety Act of 1970. To improve 
     highway safety, our bill:
       Provides $700 million a year in grants to states to 
     increase seat belt use and reduce drunk driving. Grants are 
     awarded to states that enact primary seat belt laws and enact 
     specific strategies to combat drunk driving.
       Provides $24 million a year for national advertising 
     campaigns to increase seat belt use known as the ``Click-It-
     Or-Ticket'' campaign, and to reduce drunk driving. These 
     advertising campaigns purchased at the national level are 
     complimented by states coordinating police enforcement at the 
     local level.
       Provides substantial funding for NHTSA to conduct research 
     on reducing traffic deaths and injuries. States rely on this 
     research to target safety strategies in the most cost-
     effective way.
       Requires NHTSA to issue a rule by 2009 that requires 
     automobiles sold in the United States to have new stability 
     control technologies that reduce the likelihood of rollover 
     crashes, better door locks to reduce the likelihood of 
     passenger ejection in a rollover crash, and stronger roofs to 
     protect occupants in a rollover crash.
       Requires NHTSA to issue a rule by 2008 that sets new safety 
     standards for automobiles sold in the United States to better 
     protect occupants in a side-impact crash.
       Requires window stickers on new cars to display safety 
     ``star'' ratings in a similar manner that gas mileage is 
     displayed on window stickers.


          TITLE III--HAZARDOUS MATERIALS TRANSPORTATION SAFETY

       Title III of our bill is designed to improve the safety and 
     security of the transportation

[[Page S4625]]

     of hazardous materials. The hazardous materials (HAZMAT) 
     transportation safety programs, now administered by the 
     Pipeline and Hazardous Materials Safety Administration 
     (PHMSA), have gone unauthorized since 1998. In 2004, there 
     were 14,515 HAZMAT incidents, resulting in 8 deaths and 206 
     injuries and in the aftermath of recent HAZMAT accidents in 
     South Carolina and heightened security concerns in this new 
     era of global terrorism, reauthorization of these programs is 
     a Committee priority. Title III:
       Reauthorizes the Department of Transportation's (DOT) 
     HAZMAT safety programs at $25 million in FY 2005, $29 million 
     in FY 2006, and $30 million for each fiscal year from FY 
     2007-2009.
       Provides $21,800,000 annually for community HAZMAT planning 
     and training grants and allows states flexibility to use some 
     of their planning money for training programs as needed. 
     Additionally, the bill provides $4 million annually for 
     HAZMAT ``train the trainer'' grants, and allows these funds 
     to be used to train HAZMAT employees directly.
       Requires Mexican and Canadian commercial motor vehicle 
     operators transporting HAZMAT in the U.S. to undergo a 
     background check similar to those for U.S. HAZMAT drivers. 
     Additionally, the bill improves current HAZMAT background 
     check procedures and requires a study on background check 
     capacity.
       Increases civil penalties to up to $100,000 for HAZMAT 
     violations that result in severe injury or death and raises 
     the minimum penalties for violations related to training.
       Authorizes $5 million for FY 2005-2009 for the Operation 
     Respond Emergency Information System to improve the real time 
     delivery of information about HAZMAT in transportation to 
     first responders.
       Authorizes the Secretary of Transportation to establish a 
     program of random inspections to determine the extent to 
     which undeclared HAZMAT is transported in commerce through 
     U.S. points of entry. It also creates a HAZMAT research 
     cooperative through the National Academy of Sciences' 
     Transportation Research Board.
       Streamlines federal responsibilities for ensuing the safety 
     of food shipments. Primary responsibility is transferred from 
     DOT to the Department of Health and Human Services (HHS) 
     which would set practices to be followed by shippers, 
     carriers, and others engaged in food transport. Highway and 
     railroad safety inspectors would be trained to spot threats 
     to food safety and to report possible contamination.


                       TITLE IV--HOUSEHOLD GOODS

       The purpose of Title IV is to provide greater protection to 
     consumers entrusting their belongings to a moving company. 
     While most of movers operate reputable businesses, a small 
     number of ``rogue'' movers continue to defraud thousands of 
     consumers annually. The oversight of the interstate household 
     goods moving industry is the responsibility of the Federal 
     Motor Carrier Safety Administration (FMCSA). FMCSA is tasked 
     with issuing regulations, conducting oversight activities, 
     and taking enforcement actions on consumer complaints that 
     have averaged about 3,000 per year since 2001. Title IV:
       Allows a state authority that enforces state consumer 
     protection laws and State Attorneys General to enforce 
     federal laws and regulations governing the transportation of 
     household goods in interstate commerce.
       Authorizes a penalty, of not less than $10,000, for a 
     broker who provides an estimate to a shipper before entering 
     into an agreement with a carrier to move the shipper's goods. 
     A $10,000 penalty and up to a 24-month suspension of 
     registration are authorized also for failure to give up 
     possession of a shipper's household goods, and if convicted, 
     that person shall be fined or imprisoned for up to five 
     years.
       Authorizes the Secretary of Transportation to register a 
     person to provide transportation of household goods only 
     after that person meets certain requirements. In addition, 
     the bill authorizes a penalty, of not less than $25,000, for 
     carriers and brokers who transport household goods but do not 
     register with DOT.
       Codifies existing regulations that require a carrier to 
     give up possession of the household goods provided the 
     shipper pays the mover 100% of a binding estimate of the 
     charges or 110% of a non-binding estimate of the charges. The 
     bill permits a carrier to charge only a prorated amount for 
     the partial delivery of a shipment in the case of a lost or 
     damaged shipment, and limits the amount of impracticable 
     charges that must be paid upon delivery.
       Establishes that a carrier is liable for the pre-determined 
     total value of goods shipped unless otherwise authorized by 
     the shipper. The current standard liability is at a rate of 
     60 cents per pound of a consumer's goods.
       Directs the Secretary of Transportation to modify existing 
     regulations to require a carrier's or broker's website to 
     provide certain information. In addition, the Secretary would 
     be required to establish a system and database for complaints 
     and solicitation of State information regarding the number 
     and type of complaints about a carrier. The bill directs the 
     carrier to provide the shipper information about their 
     rights.


         title v--aquatic resources trust fund reauthorization

       Title V reauthorizes activities funded by two of the 
     Nation's most effective ``user-pay, user-benefit'' programs--
     the Sport Fish Restoration Fund, administered by the Fish and 
     Wildlife Service, and the Recreational Boating Safety Fund, 
     administered by the U.S. Coast Guard. These programs 
     constitute the ``Wallop-Breaux'' program, which is funded 
     through the Aquatic Resources Trust Fund. This 
     reauthorization will allow continued funding of programs that 
     benefit boating safety, coastal wetland protection and 
     restoration and sportfish restoration, as well as Clean 
     Vessel Act grants that help to keep our waterways clean. The 
     title is supported by a large coalition of recreational and 
     boating groups, who are members of the American League of 
     Anglers and Boaters.
       As our nation's coastal population and tourism industry 
     grows, these coastal programs are more popular than ever. But 
     boating safety is also vitally important. State programs are 
     nearly 100% funded through the Boating Safety fund, which 
     allows state law enforcement to perform boating safety 
     patrols, as well as train recreational boaters. The presence 
     of these law enforcement boats on the water not only benefits 
     recreational boaters, but also helps meet Coast Guard needs 
     and enforce port security. Title V:
       Renames the Trust Fund the Sport Fish Restoration and 
     Boating Trust Fund, and eliminates the separate Boating 
     Safety Account.
       Reauthorizes the Marine Sanitary Devices pump-out program, 
     the Boating Infrastructure Grant Program, and Outreach 
     programs.
       Increases the Boating Safety Grants to a three-to-one 
     match, the same match as the Sport Fish Restoration grants.
       Funds most of the programs on a percentage basis, which 
     provides both simplicity and fairness. Conforming changes to 
     the Internal Revenue Code will be included in the sections 
     offered by the Finance Committee.
       Annual revenues to the Fund total approximately $500 
     million, but the amounts vary from year to year. Under the 
     new agreement, all programs will share in the rise and fall 
     of these revenues, less the $9 million set aside for 
     administration, and the $3 million set aside for multi-state 
     grants. Title V establishes the following funding shares for 
     the Trust Fund programs:
       Sport Fish Restoration, 57% (including 15% for Boating 
     Access); Boating Safety Grants, 18.5%; Coastal Wetlands Act, 
     18.5%; Boating Infrastructure, 2.0%; Outreach, 2.0%; Clean 
     Vessel Act, 2.0%.
       The growing popularity of recreational boating and fishing 
     has created safety, environmental, and access needs that have 
     been addressed successfully by the Recreational Boating 
     Safety and Sport Fish Restoration programs. The Trust Fund 
     program reauthorizations and funding adjustments contained in 
     Title V are important for the safety of boaters, the 
     continued enjoyment of fishermen, and improvement of our 
     coastal areas and waterways.

  The ACTING PRESIDENT pro tempore. The Senator from Missouri.
  Mr. BOND. Mr. President, I thank my colleague from Hawaii. I am 
hoping we can get started on this bill as quickly as possible because 
this time during this week has been set aside for the bill with all of 
the titles--EPW, commerce, finance--and we have a very complex bill. We 
need to work on these amendments right away.
  There is discussion about holds on both sides. I hope if anybody has 
a problem with the bill they will come down and work with us and not 
hold up the bill because we cannot do our job and get this measure 
passed if we are blocked from bringing it up by people phoning in their 
holds.
  I would like to have any Member who has a problem to talk to our 
staffs, realize there are lots of things that many people want to 
change, but that is what this whole process is about. We are trying to 
craft a bill that has been reported out of several different 
committees. Our highway title has been out there for 10 days, and 
everyone has had a chance to work on it. We have cleared numerous 
amendments on both sides of the aisle to take care of needs that 
various Members have. We cannot get this bill completed if people phone 
in holds and say: No, we are not going to let you go to the floor. It 
is very important that Members come down. This is going to be a very 
difficult bill.
  Mr. LOTT. Will the Senator yield?
  Mr. BOND. I am happy to yield.
  Mr. LOTT. What is the present situation that would block the Senate 
from moving forward with this legislation and amendments being offered? 
Can't you just ask consent to go to the legislation?
  Mr. BOND. My understanding from the cloakrooms is there are Members 
who have phoned in their concerns about moving to it.
  Mr. LOTT. Mr. President, if the Senator will further yield, who is 
the cloakroom--is he a Senator? This is highway legislation that has 
been held up for 2\1/2\ years that is causing people to get killed, 
that is keeping us from creating jobs.
  The Senator from Missouri and the Senator from Oklahoma and all other

[[Page S4626]]

Senators trying to manage this legislation have been very effective, 
very helpful of everyone, very considerate, but it is time we get this 
legislation going. The very idea that a Senator on Monday afternoon is 
calling in here or hiding out in his office or calling from some 
airport saying they object to us going to this legislation--I would 
like for them to explain that to their constituents. The Senate has 
been playing around long enough this year delaying everything, slow-
walking everything.
  By the way, this is not partisan; it is on both sides. This 
legislation is critical. It is time the Senate starts acting as a 
Senate instead of a kindergarten. I hope the Senators will give the 
consent this Senator from Missouri needs to get on this legislation and 
get it out of here. If we do not, our constituents are going to know 
who is the problem and why we are not getting this job done. It is time 
we get some Senators by the nape of the neck and tell them to put up or 
shut up because this legislation is critical. It is time to get it 
done. We ought to be having votes on amendments this afternoon. The 
very idea of Senators hiding in their offices saying, I am not ready, 
or I don't want to come, or I object--get over here and legislate and 
start acting like adults.
  I thank the Senator from Missouri for yielding to me for that calm 
expression of concern.
  Mr. BOND. I certainly hope the Senator from Mississippi feels better. 
I feel better because he has expressed my sentiments very clearly. We 
have been waiting 2\1/3\ years to have this bill in the Senate, and we 
have plenty to work on. I hope we are ready to move forward.
  I will add to what the chairman of the EPW committee, my colleague 
from Oklahoma, has said. Recognize that last year during the 
consideration of the Transportation bill, the Senate voted 76 to 21 in 
favor of funding the highway bill at $255 billion, mass transit at $56 
billion. This vote was a strong signal that the Members of the Senate 
believe we need to spend more dollars for safety, for our economy, for 
jobs, for our long-term growth and future on highways.
  We did adopt in this budget resolution the provision presented by my 
colleague, Senator Talent, and the Senator from Michigan, to give the 
Finance Committee the opportunity to increase funding for the bill as 
long as it was properly offset, and 80 Senators voted in support of it. 
That is exactly what the chairman and the ranking member, Senators 
Grassley and Baucus, have done in their amendment.
  I urge we support this amendment because we are still going to be 
short of where we were last time. No one is going to be able to get, 
for their particular areas of interest, their particular priorities, 
the same amount of money that would have been available under $318 
billion. This measure does increase the funding somewhat over the 
figure written into the budget, but it is in pursuant to the provision 
included in the transportation section of the highway bill that there 
could be an add-on.
  I hope people will see this is a critical time to move forward on 
this measure. If there are people who have amendments, I hope they will 
be ready to come forward.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.
  Mr. DURBIN. Will the Senator yield?
  Mr. INHOFE. Yes, I yield for a question.
  Mr. DURBIN. Just for a question.
  I came to the Senate and heard Senator Lott. He was exasperated and 
frustrated. He said Members were not offering amendments, so I came to 
the Senate quickly to find out the extent of it.
  Would the Senator from Oklahoma clarify, is it not true that we now 
have, in effect, a new bill--about 1,000 pages, the substitute--that is 
being copied now and being shared for the first time? Members who seek 
to amend the bill should at least be given a chance to review this new 
version of the bill so their amendments are in order.
  Mr. INHOFE. I respond to the Senator from Illinois, I am not sure 
what was shared with all the Democrats. I do know that Senator Jeffords 
and Senator Baucus--we have been working together. They are the ranking 
members of the subcommittee and whole committee. We have done this 
jointly. This has been done all together. Whether that was shared with 
all the Members, I have no way of knowing.
  Mr. DURBIN. If the Senator will yield, I share the sentiment and 
understand his frustration 3 years into this process still trying to 
come up with a bill. I want to see this done as quickly as possible. I 
will urge the staff that is now reviewing this new substitute 
amendment--some are just seeing it for the first time--to move quickly 
and to urge all colleagues on both sides, Democrats and Republicans, to 
bring their amendments to the floor and let's get on with it.
  I say to the Senator, I understand his feelings, and if it is in the 
form of a question, does the Senator believe he is deserving of my 
empathy?
  Mr. INHOFE. I thank the Senator from Illinois.
  I remind the Senator, as chairman of this committee I went first to 
Illinois before going anywhere else to have a field hearing, which we 
had in Chicago and went over some of the needs. They made it very clear 
to me that there are needs in Illinois, and the Senators from Illinois 
are very anxious to get this bill under consideration.
  Again, the only frustration I have on amendments is that for 4 days 
last week we talked about this, begging people to bring down 
amendments.
  The Senator from Illinois knows as well as I know what could very 
well happen: we could get into a cloture situation where then we would 
be out of time.
  It seems as if it is the nature of the Senate that you just do not do 
anything until you have to do it. Now you have to do it. So we want 
them to come down. It is our hope now to get to the managers' 
substitute. We are not in a position to quite do that yet; however, we 
can certainly entertain amendments and have amendments discussed and 
lined up. Then we can talk about the necessity of having this bill. 
That is essentially what we are doing right now.
  I can assure the Senator from Mississippi, his frustration is no 
greater than mine because I will have people stop and talk to me about 
amendments--fine, bring them down; let's discuss them--and they do not 
show up. That is what we want to make sure happens.
  I think the Senator from Illinois is right. We are on our sixth 
extension now. We worked on this bill for 2 years prior to the time we 
brought it to the floor last year. So this has been a 3-year process. 
My concern is if we end up just getting another extension, we are not 
going to get anything done that really needs to be done. If we are 
concerned about doing something for donor States, we are not going to 
do it with an extension because it is going to be the same thing as we 
have been having under TEA-21 as of 7 years ago.
  If our concern is about the Safety Corps, the Senator from 
Mississippi is right. It is his committee that deals with the Safety 
Corps programs. Certainly the State of Oklahoma is high on the list of 
deaths on the highways. We have to get this done.
  I suggest it is a matter of life and death that we get a bill because 
if we operate off of extensions, we are not going to do anything to 
improve safety on the highways. The Senator from Mississippi made that 
very clear. We are not going to have any real streamlining of 
environmental reviews. We have some good elements in this bill that are 
going to be able to help us build roads faster with less money than we 
could on an extension. If we are operating on an extension and do not 
have a bill, we are not going to have any increase in our ability to 
have innovative financing thereby giving the States more tools.
  What we have tried to do in this bill is to give a lot more of the 
power back to the States. It has been my belief, and I think shared by 
most members of my committee, that the closer you get to home, the more 
people are aware of their specific needs. There are a lot of people who 
have some excellent ideas on innovative financing that the States are 
going to be able to do. This is in the bill.
  The Safe Routes to School Program--the Senator from Vermont is very 
much interested in that. It is one that is handled in this bill. 
However, if we go on an extension, extension No. 7, we are not going to 
have the Safe Routes to School Program.
  The States are considered to have uncertainty. We have come back from

[[Page S4627]]

about a 7-day recess. I talked to our people, our highway people, our 
department of transportation in Oklahoma, and they cannot have any kind 
of planning for any kind of certainty as to knowing what is going to 
happen in the next year and the year after that and for the next five 
years unless we pass this bill. They are begging, pleading: Why can't 
you get this done because it has to be done in order for us to plan for 
the future.
  I am particularly concerned about this because as to bridges, for 
example, in my State of Oklahoma, we are dead last in the Nation in 
terms of the condition of our bridges. And we cannot get anything done 
and plan for the future unless we get a bill.

  There are a lot of people in a lot of States who are concerned about 
the borders program. It is critical to the border States that are 
dealing with the NAFTA traffic. This bill deals with that. With an 
extension, it is not going to happen. If we do not do this bill, we 
will have a delay in the establishment of this national commission to 
explain new ways to fund transportation.
  I can tell you we have not done it any differently than when Dwight 
D. Eisenhower was President of the United States. He came along and 
recognized a problem in our transportation system as a result of the 
problem he had during World War II in moving troops and equipment 
around. Looking at our transportation system, the first thing he did 
when he became President of United States was to set up a National 
Highway Program and get it started. We have been funding our roads and 
our highways and our improvements and our bridges and infrastructure 
the same as we did during the Eisenhower administration. The bill sets 
up a national commission to go over some creative types of changes in 
funding where we can do a better job.
  Right now, we are looking at the consideration, shortly, of the 
managers' amendment. If we do, it has been reported that even that 
amount, which is higher than the amount that was reported out of my 
committee, is going to do nothing more than just maintain what we have 
today. It is not really going to provide anything new. So we need to 
recognize that.
  I have to say this, too. There are a lot of different philosophies 
that are represented in this Chamber. I am one of the most conservative 
Members. Yet there are some areas where conservatives do spend more 
money, and one is in infrastructure, which is what we are supposed to 
be doing here. We do not want to delay this national commission we set 
up in this legislation. I believe it is time to make a change for the 
better.
  With the bill, we have increased the opportunity to address the 
chokepoints for intermodal transportation. This is kind of interesting. 
People do not realize this is not just a roads bill. This is an 
intermodal bill that considers chokepoints between channels and 
railroads and roads. We deal with that. It is an intermodal bill. A lot 
of people are not aware of the fact that in my State of Oklahoma, we 
are actually navigable. We have a navigation channel. This bill deals 
with the chokepoints between rail, road, water, and other air 
transportation.
  And there is the firewall. If there is one thing that has bothered me 
over the years I have been on this committee--I have been on this 
committee for 11 years; and before that, in the other body, I was on 
the Transportation Committee for 8 years, so that is 19 years. During 
that time, when I have gone back to my State, the thing people are 
offended by is that there are always raids on the highway trust fund.
  People have their own programs, they may be good programs, but they 
try to go in and get money out of the highway trust fund to support 
those programs. We have seen this happen over and over again in 
establishing policies in the Senate, that they highway fund it. How 
should we fund it? Let's fund it with transportation funds.
  I believe that is a moral issue.
  When the American people go to the pump, they do not mind paying a 
tax, but when they find out that tax is not going to highway 
construction and highway improvements and highway maintenance and 
intermodal transportation, they are understandably very nervous and 
very offended.
  We have the firewall protection of the highway trust fund to make 
sure that these trust funds are not going to be vulnerable to raids in 
order to pay for other programs. I know there are a lot of people who 
feel they are not as excited about the way the formula was put 
together. I would like to say something about that. This is 
significant.
  There are two ways to do a highway bill. I know one of the ways that 
was a little more prevalent in the other body was to come up with 
projects. You have 435 Members who have projects of significance. 
Instead, we believe that decisions on the priority of expenditure of 
transportation dollars should be made at the local level. In other 
words, it is easy to come up here and pass something and go home and 
say: Look what I got for you; I am bringing this home.
  What we prefer is to have an equitable distribution of moneys that 
come into the highway trust fund to go back to the States and then let 
the States make these decisions. If there are States that don't want to 
do this, that is fine. But in the State of Oklahoma, I can assure you 
the closer to the people at home, the better the decisions. The people 
in the eight transportation districts in my State of Oklahoma are far 
better informed on the needs and priorities of where money should be 
spent on transportation than they are here in Washington. There are a 
lot of people who think that no decision is a good decision that is 
made in Washington. I don't agree with that.
  We have a different way of doing it than the other body. We have a 
formula. Our formula takes everything into consideration. We are 
talking about interstate lane miles; vehicle miles traveled on the 
interstate; the contributions to the highway trust fund; the lane miles 
and principal arteries, excluding the interstate VMT on principal 
arteries; surface transportation programs; total lane miles--all these 
things are considered--the Bridge Replacement and Rehabilitation 
Program; we have rankings to see what is really nationwide that should 
be attributed to this. Certainly, I am a little bit prejudiced, being 
from Oklahoma where our bridges are in the worst shape of any of the 50 
States. We are going to correct that, and we can correct that with this 
bill.
  We have congestion mitigation, air quality improvement programs, and 
these are very significant. These are the things that come in under the 
formula that goes out to the States. We have the Recreational Trails 
Program. We know all about that. We take into consideration low-income 
States. There are some States that are lower income States, and the 
people are not really able to pay for quite as much as some other 
States. We have low-population States, but they still have to have 
roads. Consequently, that has to be a part of the formula. We have low 
population density States. Some States have much higher fatalities than 
other States. That tells you they need to do something. The SAFETEA 
core program is in this base bill and will be continued. If we get 
around to the managers' amendment, then we will have something in 
there. Guaranteed minimum growth, you have to have some consideration 
in there because there are States that are growing very rapidly. Some 
States are on the other side.
  We have donor States, donee States. These are things that are 
considered. A lot of people realize we have many States, including my 
State of Oklahoma, that are donor States. In other words, we don't get 
back as much money as we send to Washington to go into the highway 
trust fund. In TEA-21, we put in a minimum figure of 90.5 percent. In 
the bill we had last year, it would bring all these donee States all 
the way up to 95. That was good, but it took $318 billion over 6 years 
to do that. We were not able to get it out of conference.
  By the way, as the Senator from Missouri said, that bill passed the 
Senate by 76 to 21. That gives you an idea. If we get the bill up here, 
all we have to do is get by all these procedures, and we will pass a 
bill. It will take into consideration all the things I mentioned. This 
is not just a political table. In fact, politics didn't enter into it. 
We don't have projects in this Senate bill. The House bill does. When 
we go to conference, we are going to iron those things out, and we are 
going to come out with a good bill. But you can't do that until you get 
all the amendments in and get a vote.

[[Page S4628]]

  I encourage Members to offer their amendments and to discuss the 
highway bill. I know there are some Members who were requesting time 
for that purpose.
  I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. KENNEDY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. KENNEDY. Mr. President, I see the floor manager of the highway 
bill.
  Mr. INHOFE. Will the Senator yield for a question?
  Mr. KENNEDY. I will.
  Mr. INHOFE. It is my understanding you want to speak as in morning 
business.
  Mr. KENNEDY. Yes.
  Mr. INHOFE. Can you hold it to, say, 25 minutes?
  Mr. KENNEDY. Yes.
  Mr. INHOFE. I further ask unanimous consent that the time you take be 
the time, following you, given to Senator Specter, who is wanting to 
have about that amount of time.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. INHOFE. It is my understanding then that the Senator from 
Massachusetts will go for 25 minutes. Then the Senator from 
Pennsylvania will go for 25 minutes.
  The ACTING PRESIDENT pro tempore. That was the Chair's understanding.
  The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I thank the floor manager. This is very 
important legislation, enormously important to my State as other 
States. We need the kinds of investments in our roads and bridges to 
ensure their safety and security and that they will continue to be the 
vital avenues for an expanding and growing economy. I look forward to 
working with the committee.


                           Iraq Supplemental

  I appreciate having the opportunity to address the Senate on what I 
anticipate will be the matter that will be before the Senate later this 
evening and through tomorrow, and that is the Iraq supplemental 
conference report. As I mentioned, I expect that it will be laid down 
in the next few hours, and I expect there will be a final resolution of 
this sometime tomorrow.
  I welcome the opportunity to address some of the important provisions 
that are included in the conference report and bring them to the 
attention of our colleagues and to the American people.
  I intend to support the Iraq spending bill. Although I disagree 
strongly with some of the bill's provisions, these funds are clearly 
needed for our troops. All of us support our troops. We obviously want 
to do all we can to see that they have proper equipment, vehicles, and 
everything else they need to protect their lives as they carry out 
their missions. It is scandalous that the administration has kept 
sending them into battle in Iraq without proper equipment. No soldier 
should be sent into battle unprotected. No parent should have to go in 
desperation to the local Wal-Mart to buy armor plates and mail them to 
their sons and daughters serving in Iraq.
  Our military is performing brilliantly under enormously difficult 
circumstances, and we need to give them our support--not just from our 
words but from our pockets, too. One aspect of this bill that I am 
particularly proud of is the increased funding for humvees for our 
troops on patrol in Iraq. The Bayh-Kennedy amendment adds additional 
funds to keep production at increased levels. Some opponents claim that 
the Army already had enough armed humvees and objected to any further 
increase. But a front-page article in the New York Times, on April 25, 
told us the troop side of the real need for more armor and the 
difference it can make.

  Company E, a Marine Corps unit based at Camp Pendleton, returned from 
6 months in Ramadi last year, and its members were so frustrated with 
this problem that they decided to tell their story. They did not have 
enough armored vehicles. Thirteen of the twenty-one marines from 
Company E who were killed in Iraq had been riding in humvees that 
failed to protect them from bullets or bombs. They saw problems up 
close.
  A year ago, eight of them were killed when their humvees were 
ambushed on the way to aid another unit under fire. The cargo section 
of the humvee where the troops were riding did not even have hillbilly 
armor to protect them from the blast. They were totally unprotected. As 
one marine described the attack: All I saw was sandbags, blood, and 
dead bodies. There was no protection in the back.
  Captain Kelly Royer, Company E's unit commander, asked his superiors 
when he would be getting more armored humvees. He was told that 
additional armor had not been requested and that there were production 
constraints.
  Another marine says they complained about the shortages every day to 
anybody we could. They told us they were listening, but we did not see 
it.
  These marines on the front line knew the armor meant the difference 
between life and death, the difference between an essential mission and 
a suicide mission. They were desperate to get more armor. Day after day 
they saw the brutal consequences of the Pentagon's incompetence and 
delay.
  The lessons learned from the war in Iraq are said to help us in 
future conflicts, but for all forces facing death every day, the future 
was yesterday. In fact, the Marines are requesting funds for the coming 
fiscal year to develop and produce new armored vehicles to avoid these 
deadly threats.
  The need is so clear that the request was submitted under the Marine 
Corps Urgent Universal Needs Statement which was created to streamline 
the acquisition process and get equipment to the field faster. They 
have a plan to meet the future need, but what about the urgent need 
today?
  We do not have the luxury of time to wait for these new vehicles to 
roll off a future assembly line. The need for armored humvees is now. 
The hillbilly armor they scavenge for and add to their unprotected 
humvees does not provide adequate protection.
  The Army says of the new requirement approved this month, none of it 
is designated for the Marine Corps. The Pentagon refuses to make this a 
top priority. They continue to drag their feet.
  In a report to Congress this month, the Government Accounting Office 
describes month after month of mismanagement by the Pentagon in 
supplying the armored humvees our troops urgently need to carry out 
their missions and stay alive.
  The GAO report found the Army still had no long-term plan to increase 
the number of armored humvees. The war in Iraq has been going on for 2 
full years. Our troops are under fire every day, and the Pentagon still 
does not have a plan to protect them.
  I have in my hand an April 2005 GAO report, ``Defense Logistics 
Agency, Actions Needed to Improve Availability of Critical Items during 
Current and Future Operations.'' On page 123, it states that there two 
primary causes for the shortages of uparmored vehicles and add-on armor 
kits. First, a decision was made to pace production rather than use the 
maximum available capacity.
  This is the General Accounting Office in their report of April of 
this year.
  Second, the funding allocations did not keep up with rapidly 
increasing requirements.
  That is the General Accounting Office about whether we need to have 
more uparmored humvees and whether we have to give it a higher priority 
and whether there is a need in Iraq today. Our troops are under fire 
every day, and the Pentagon still does not have a plan to protect them.
  In a briefing prepared by marines for Congress, they specifically 
state, in their vehicle hardening strategy, that ``funding assistance 
is required to achieve optimum levels of armor protection.''
  The GAO report clearly points out that the Pentagon's bureaucratic 
mentality infected its decisions. They tried to solve the problem in a 
slow and gradual manner instead of solving it quickly. As the GAO 
report states, there were two primary causes for the shortages: 
``First, a decision was made to pace production.'' Translated into 
layman's language, that means there

[[Page S4629]]

was not a sense of urgency by the Pentagon. That is what ``pace 
production'' means. And then ``rather than use the maximum available 
capacity'' means they didn't get off their tail and increase 
production. And ``Second, funding allocations did not keep up with 
rapidly increasing requirements.''

  I am going to come to the statements by the responsible DOD officials 
before the Armed Services Committee on which I serve.
  It is equally obvious that in addition to the bureaucratic mentality 
of the Pentagon, their cakewalk mentality is also a major part of the 
problem. Week after week, month after month they refuse to believe that 
the insurgency will continue. They want to believe it will soon be 
over. They do not feel they need to waste dollars on armored humvees 
that soon will not be needed in Iraq. So month after month, our troops 
keep paying with their lives. The light the Pentagon sees at the end of 
the tunnel turns out to be the blinding flash of another roadside bomb 
exploding under another unprotected humvee in Iraq.
  They cannot even get their story right. Armor Holdings, the company 
that makes the armored humvee, told my office recently that its current 
contract with the Army will actually mean sharp cutbacks in production. 
Right now, they produce 550 armored humvees a month. Their contract 
reduces that number to 239 in June, zero in July and then back to 40 in 
August and 71 in September. The company is now negotiating for slightly 
higher levels of production in June, July, and August, but it still 
expects to decrease production to 71 by September.
  What possible justification can there be for the Pentagon to slow 
down current production so drastically in the months ahead when armored 
humvees are so urgently needed? The Pentagon keeps saying: We will work 
it out. On nine different occasions, we have asked the Pentagon for 
their requirements for humvees, and nine times they have been wrong. 
Nine times they have made their presentation before the Armed Services 
Committee, and nine times they have been wrong in underestimating the 
importance of needs, and American service men and women have been 
paying with their lives.
  This bill tells the Department of Defense that we will not let them 
get it wrong for a tenth time. For the sake of our troops, Congress 
acted and the Pentagon should not ignore it. The contract should be 
amended immediately to obtain the maximum possible production of 
armored humvees for the months ahead. Our troops are waiting for an 
answer, and their lives depend on it.
  Another important part of this bill will be the periodic report it 
requires on the progress our forces are making in Iraq. Our military is 
performing brilliantly under enormously difficult circumstances, but 
they do not want, and the American people do not want, an open-ended 
commitment. After all the blunders that took us into war, we need to be 
certain that the President has a strategy for success.
  The $5.7 billion in this bill for training Iraqi security forces is a 
key element of a successful strategy to stabilize Iraq and withdraw 
American forces. The report will provide the straight answer that we 
have not had before about how many Iraqi security forces are adequately 
trained and equipped.
  We are obviously making progress, but it is far from clear how much. 
The American people deserve an honest assessment that provides the 
basic facts, but that is not what we have been given so far.
  According to a GAO report in March, U.S. Government agencies do not 
report reliable data on the extent to which Iraqi security forces are 
trained and equipped. There it is, March: The General Accounting Office 
says U.S. Government agencies do not report reliable data on the extent 
to which the Iraqi security forces are trained and equipped.
  The American people do not know the answer. When they do not know, it 
means pretty clearly that they are not getting the kind of training and 
priority they should, and the longer it takes to train them the longer 
American servicemen are going to be over there risking their lives.
  The report goes on to say that the Departments of State and Defense 
no longer report on the extent to which Iraqi security forces are 
equipped with their required weapons, vehicles, communications, 
equipment, and body armor. Imagine that. According to the General 
Accounting Office, the Departments of State and Defense no longer 
report on the extent to which the Iraqi security forces are equipped 
with their required weapons, vehicles, communications, equipment, and 
body armor.
  It is clear from the administration's own statements that they are 
using the notorious fuzzy math tactic to avoid an honest appraisal.
  On February 4, 2004, Secretary Rumsfeld said:

       We have accelerated the training of Iraqi security forces, 
     now more than 200,000 strong.

  A year later, on January 19, 2005, Secretary of State Condoleezza 
Rice said:

       We think the number right now is somewhere over 120,000.

  On February 3, 2005, in response to questions from Senator Levin at a 
Senate Armed Services Committee hearing, GEN Richard Myers, Chairman of 
the Joint Chiefs of Staff, conceded that only 40,000 Iraqi security 
forces are actually capable. He said:

       48 deployable (battalions) around the country, equals about 
     40,000, which is a number that can go anywhere and do 
     anything.

  Obviously, we need a better accounting of how much progress is being 
made to train and equip effective Iraqi security forces.
  The President's commitment to keep American troops in Iraq as long as 
it takes and not a day longer is not enough for our soldiers and their 
loved ones. They deserve a clearer indication of what lies ahead, and 
so do the American people. I am encouraged that the administration is 
finally being required by this bill to tell Congress how many U.S. 
troops will be necessary in Iraq through the end of 2006. The American 
people, and especially our men and women in uniform, and their 
families, deserve to know how much real progress is being made in 
training Iraqi troops and how long our forces will be in Iraq. 
Hopefully, the administration will submit these reports in good faith 
and not attempt to classify this vital information.
  Those are two of the major provisions that I think require support 
for this legislation. There was an additional provision that I support 
that I will mention briefly, and then I will conclude in mentioning a 
provision which I find very unacceptable, troublesome, and unworkable.
  The provision that was added by Senator Mikulski, the H-2B visas for 
seasonal workers, which I had the opportunity to join with her, remains 
in this legislation, and it will make a great deal of difference. It 
will be a lifeline for small family businesses in my State on Cape Cod 
and many other firms that rely overwhelmingly on seasonal workers to 
meet their heavy summer needs. Many use the programs year after year 
because it is the only way to legally fill temporary and seasonal 
positions when no American workers are available. Without this 
amendment, they would be out of luck this summer, and many will be out 
of business.
  This is a short-term solution to the current visa crisis. The bill is 
a 2-year fix, and without it many businesses will be forced to shut 
their doors. I appreciate the support of our colleagues on this issue. 
It will help many hard-working small businesses and industries across 
the country.
  Unfortunately, not all the immigration provisions included in the 
bill have this kind of broad support. Included in the conference 
agreement are the so-called REAL ID immigration provisions that are 
highly controversial, harmful, and unnecessary. The Intelligence Reform 
Act we approved overwhelmingly last year provides real border security 
solutions. The so-called REAL ID bill added by the House to this 
spending bill contains controversial provisions we rejected last year 
and likely would have rejected again if we had had a chance to debate 
them on the Senate floor. They are a false solution on border security, 
and they serve no purpose except to push an anti-immigrant agenda. More 
than ever we need to take the time to get border security reform right 
as opposed to pushing through legislation to meet the demands of anti-
immigrant extremists. The stakes are simply too great.
  In addition to the numerous substantive problems with the REAL ID, 
the process through which they have

[[Page S4630]]

been forced into this conference report is flawed and unacceptable. The 
Republican leadership in the House and Senate shut Democrats out of the 
conference negotiations. Why? Because the House bill has controversial 
provisions that have questionable support in the Senate and with the 
American people. Strongarm tactics are offensive and do a great deal of 
disservice to the important issues of our time. The White House too, 
once rejected these provisions, yet, they now support them. What 
important issues will the White House flip-flop on next?
  Those who pushed through these REAL ID provisions continue to say 
that loopholes exist in our immigration and asylum laws that are being 
exploited by terrorists. They claim these provisions will close them. 
In fact, they do nothing to improve national security and leave other 
big issues unresolved.
  They want us to believe that its changes will keep terrorists from 
being granted asylum. But current immigration laws already bar persons 
engaged in terrorist activity from asylum. Before they receive asylum, 
all applicants must also undergo extensive security checks, covering 
all terrorist and criminal databases at the Department of Homeland 
Security, the FBI, and the CIA.
  Asylum seekers will find no refuge. Battered women and victims of 
stalking will be forced to divulge their addresses in order to get 
driver's licenses, potentially endangering their lives. Many Americans 
will have other problems with their driver's license. All legal 
requirements, including labor laws, can now be waived to build a wall. 
For the first time since the Civil War, habeas corpus will be 
prohibited. The REAL ID provisions contain other broad and sweeping 
changes to laws that go to the core of our national identity.
  Each year, countless refugees are forced to leave their countries, 
fleeing persecution. America has always been a haven for those 
desperate for such protection. At the very beginning of our history, 
the refugee Pilgrims seeking religious freedom landed on Plymouth Rock. 
Ever since, we have welcomed refugees, and it has made us a better 
Nation. Refugees represent the best of American values. They have stood 
alone, at great personal cost, against hostile governments for 
fundamental principles like freedom of speech and religion. We have a 
responsibility to examine our asylum policies carefully, to see that 
they are fair and just.
  But, the REAL ID bill tramples this noble tradition and will be 
devastating for legitimate asylum-seekers fleeing persecution. It will 
make it more difficult for victims fleeing serious human rights abuses 
to obtain asylum and safety, and could easily lead to their return to 
their persecutors.
  Another section of conference report contains a provision that would 
complete the U.S.-Mexico border fence in San Diego. But it goes much 
farther than that. It gives the Department of Homeland security 
unprecedented and unchecked authority to waive all legal requirements 
necessary to build such fences, not only in San Diego, but anywhere 
else along our 2,000 mile border with Mexico and our 4,000 mile border 
with Canada. Building such fences will cost hundreds of millions of 
dollars, and they still will not stop illegal immigration. What we need 
are safe and legal avenues for immigrants to come here and work, not 
more walls.
  A major additional problem in the REAL ID provisions is that it could 
result in the deportation even of long-time legal permanent residents, 
for lawful speech or associations that occurred 20 years ago or more. 
It raises the burden of proof to nearly impossible levels in numerous 
cases.
  A person who made a donation to a humanitarian organization involved 
in tsunami relief could be deported if the organization or any of its 
affiliates was ever involved in violence. The burden would be on the 
donor to prove by clear and convincing evidence that he knew nothing 
about any of these activities. The spouse and children of a legal 
permanent resident could also be deported too based on such an 
accusation, because of their relationship to the donor.
  The provision could be applied retroactively, so that a permanent 
resident who had once supported the lawful, nonviolent work of the 
African National Congress in South Africa, Sinn Fein in Northern 
Ireland, the Northern Alliance in Afghanistan, or the Contras in 
Nicaragua would be deportable. It would be no defense to show that the 
only support was for lawful nonviolent activity. It would be no defense 
to show that the United States itself supported some of these groups.
  The driver's license provisions do not make us safer either. Let me 
explain what these provisions really do. They repeal a section of the 
Intelligence Reform Act which sets up a process for States and the 
Federal Government to work together to establish Federal standards for 
driver's licenses and identification cards. Progress is already being 
made to implement these important measures, but this bill replaces them 
with highly problematic and burdensome requirements. The National 
Conference of State Legislatures says that these provisions are 
``unworkable, unproven, costly mandates that compel States to enforce 
Federal immigration policy rather than advance the paramount objective 
of making State-issued identity documents more secure and verifiable.''
  Indeed, it is a costly unfunded mandate on the States. The CBO 
estimate on the implementation of the driver's license provisions is 
$20 million over a 5-year period to reimburse States for complying with 
the legislation. But, that is not all; the provisions require States to 
participate in an interstate database that would share information at a 
cost of $80 million over 3 years.
  The driver's license provisions do nothing to address the threat of 
terrorists or to address legitimate security concerns. It would not 
have prevented a single 9/11 hijacker from obtaining a driver's 
license, or a single terrorist from boarding a plane. All 13 hijackers 
could have obtained licenses or IDs under this proposal, and foreign 
terrorists can always use their passports to travel.
  The result of these restrictive driver's license provisions will be 
raised insurance rates, higher numbers of fatalities on America's 
roadways, and an increased black market for false and fraudulent 
documents. The REAL ID actually undercuts the original purpose of 
traffic safety. It is better to have licensed, insured, and trained 
drivers on our roads.
  Preventing immigrants from obtaining driver's licenses undermines 
national security by pushing people into the shadows and fueling the 
black market for fraudulent identification documents.
  The REAL ID provisions do nothing to combat the threat of terrorists 
or to deal with legitimate security concerns. They have taken away 
precious time that could have been used to address genuine pressing 
issues.
  Hundreds of organizations across the political spectrum continue to 
oppose this legislation. A broad coalition of religious, immigrant, 
human rights, civil liberties and state groups have expressed their own 
strong opposition.
  In these difficult times for our country, we know that the threat of 
terrorism has not ended, and we must do all we can to enact genuine 
measures to stop terrorists before they act, and to see that law 
enforcement officials have the full support they need. The provisions 
of the REAL ID bill in the conference report today will not improve 
these efforts. They will not make us safer or prevent terrorism. They 
are an invitation to gross abuses, and a false solution to national and 
border security.
  The REAL ID bill with its controversial provisions should have been 
considered by the Senate through debate and discussion, not attached to 
a critical piece of legislation needed by our troops.
  I urge the Senate to get serious about immigration reform that will 
make genuine improvements where they are needed, and not in the 
piecemeal fashion that is contained in this report.
  This bill also provides nearly $12 million to remedy a crisis in off-
site judicial security for our Federal judges. With this bill, we have 
taken a small, but necessary step toward increasing security for the 
distinguished men and women of our country who have been appointed to 
the courts. In the wake of the recent murders of the husband and mother 
of Federal Judge Joan Lefkow at her home in Chicago, and the courtroom 
killings in Atlanta, it is clear we

[[Page S4631]]

must do more to enhance judicial security. This is a matter of the 
highest urgency.
  The tragic deaths of Judge Lefkow's family demonstrate that judges 
may be safe inside the walls of our wellguarded courthouses, but they 
are vulnerable to disgruntled litigants in other places, even in their 
own homes. In, fact, security in the homes of judges has long been a 
concern for the Judicial Conference, the principal decision-making 
group for the Federal courts. Sadly, three judges had previously been 
killed in their homes: Judge John Wood of Texas, in 1979; Judge Richard 
Daronco of New York, in 1988; and Judge Robert Vance, of Alabama, in 
1989.
  The vast majority of threats are received from people who are angry 
with the outcome of a case in court. In the 10 years since the first 
world trade center bombing, the Federal judiciary has handled an 
increasing number of ``high threat'' matters.
  Judge Lefkow was the victim of an act of domestic terrorism stemming 
from what should have been a routine civil matter. Matthew Hale, the 
leader of a White Supremacist group known as the World Church of the 
Creator, was convicted in April 2004 of soliciting an undercover FBI 
informant to murder Judge Lefkow in retaliation for her ruling against 
him in a trademark dispute. This example highlights the environment in 
which our Federal judges toil every day.
  The Marshals Service, underfunded and understaffed as it is, 
struggles to keep up with security needs in the new high-risk age, but 
there is no reason why our judges should continue to remain so 
vulnerable 16 years after Judge Vance was killed in his home. We need 
to stand up for an independent judiciary. We can do so by providing the 
funds to make their homes safe.
  There were provisions in this legislation to do that. It says 
something about the nature of our dialog here when we have to provide 
the kind of extraordinary additional security to judges because of the 
nature of the political dialog. Words have consequences. Words have 
results. Words have meanings. The idea that individuals in responsible 
positions continue to threaten members of the judiciary too often can 
result in serious consequences to those judicial members. We have 
attempted to provide some additional security to protect those 
individuals. The best protection would be for more restraint on the 
part of those who talk about an independent judiciary.
  Mr. President, I ask unanimous consent that an article dated April 
25, 2005, from the New York Times be printed in the Record.
  There being no objection, it was so ordered.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Apr. 25, 2005]

         Bloodied Marines Sound Off About Want of Armor and Men

                           (By Michael Moss)

       On May 29, 2004, a station wagon that Iraqi insurgents had 
     packed with C-4 explosives blew up on a highway in Ramadi, 
     killing four American marines who died for lack of a few 
     inches of steel.
       The four were returning to camp in an unarmored Humvee that 
     their unit had rigged with scrap metal, but the makeshift 
     shields rose only as high as their shoulders, photographs of 
     the Humvee show, and the shrapnel from the bomb shot over the 
     top. ``The steel was not high enough,'' said Staff Sgt. Jose 
     S. Valerio, their motor transport chief, who along with the 
     unit's commanding officers said the men would have lived had 
     their vehicle been properly armored. ``Most of the shrapnel 
     wounds were to their heads.''
       Among those killed were Rafael Reynosa, a 28-year-old lance 
     corporal from Santa Ana, Calif., whose wife was expecting 
     twins, and Cody S. Calavan, a 19-year-old private first class 
     from Lake Stevens, Wash., who had the Marine Corps motto, 
     Semper Fidelis, tattooed across his back.
       They were not the only losses for Company E during its six-
     month stint last year in Ramadi. In all, more than one-third 
     of the unit's 185 troops were killed or wounded, the highest 
     casualty rate of any company in the war, Marine Corps 
     officials say.
       In returning home, the leaders and Marine infantrymen have 
     chosen to break an institutional code of silence and tell 
     their story, one they say was punctuated not only by a lack 
     of armor, but also by a shortage of men and planning that 
     further hampered their efforts in battle, destroyed morale 
     and ruined the careers of some of their fiercest warriors.
       The saga of Company E, part of a lionized battalion 
     nicknamed the Magnificent Bastards, is also one of fortitude 
     and ingenuity. The marines, based at Camp Pendleton in 
     southern California, had been asked to rid the provincial 
     capital of one of the most persistent insurgencies, and in 
     enduring 26 firefights, 90 mortar attacks and more than 90 
     homemade bombs, they shipped their dead home and powered 
     on. Their tour has become legendary among other Marine 
     units now serving in Iraq and facing some of the same 
     problems.
       ``As marines, we are always taught that we do more with 
     less,'' said Sgt. James S. King, a platoon sergeant who lost 
     his left leg when he was blown out of the Humvee that 
     Saturday afternoon last May. ``And get the job done no matter 
     what it takes.'' The experiences of Company E's marines, 
     pieced together through interviews at Camp Pendleton and by 
     phone, company records and dozens of photographs taken by the 
     marines, show they often did just that. The unit had less 
     than half the troops who are now doing its job in Ramadi, and 
     resorted to making dummy marines from cardboard cutouts and 
     camouflage shirts to place in observation posts on the 
     highway when it ran out of men. During one of its deadliest 
     firefights, it came up short on both vehicles and troops. 
     Marines who were stranded at their camp tried in vain to hot-
     wire a dump truck to help rescue their falling brothers. That 
     day, 10 men in the unit died. Sergeant Valerio and others had 
     to scrounge for metal scraps to strengthen the Humvees they 
     inherited from the National Guard, which occupied Ramadi 
     before the marines arrived. Among other problems, the armor 
     the marines slapped together included heavier doors that 
     could not be latched, so they ``chicken winged it'' by 
     holding them shut with their arms as they traveled.
       ``We were sitting out in the open, an easy target for 
     everybody,'' Cpl. Toby G. Winn of Centerville, Tex., said of 
     the shortages. ``We complained about it every day, to anybody 
     we could. They told us they were listening, but we didn't see 
     it.'' The company leaders say it is impossible to know how 
     many lives may have been saved through better protection, 
     since the insurgents became adept at overcoming improved 
     defenses with more powerful weapons. Likewise, Pentagon 
     officials say they do not know how many of the more than 
     1,500 American troops who have died in the war had 
     insufficient protective gear. But while most of Company E's 
     work in fighting insurgents was on foot, the biggest danger 
     the men faced came in traveling to and from camp: 13 of the 
     21 men who were killed had been riding in Humvees that failed 
     to deflect bullets or bombs. Toward the end of their tour 
     when half of their fleet had become factory-armored, the 
     armor's worth became starkly clear. A car bomb that the 
     unit's commander, Capt. Kelly D. Royer, said was at least as 
     powerful as the one on May 29 showered a fully armored Humvee 
     with shrapnel, photographs show. The marines inside were left 
     nearly unscathed.
       Captain Royer, from Orangevale, Calif., would not accompany 
     his troops home. He was removed from his post six days before 
     they began leaving Ramadi, accused by his superiors of being 
     dictatorial, records show. His defenders counter that his 
     commanding style was a necessary response to the extreme 
     circumstances of his unit's deployment.
       Company E's experiences still resonate today both in Iraq, 
     where two more marines were killed last week in Ramadi by the 
     continuing insurgency, and in Washington, where Congress is 
     still struggling to solve the Humvee problem. Just on 
     Thursday, the Senate voted to spend an extra $213 million to 
     buy more fully armored Humvees. The Army's procurement 
     system, which also supplies the Marines, has come under 
     fierce criticism for underperforming in the war, and to this 
     day it has only one small contractor in Ohio armoring new 
     Humvees.
       Marine Corps officials disclosed last month in 
     Congressional hearings that they were now going their own way 
     and had undertaken a crash program to equip all of their more 
     than 2,800 Humvees in Iraq with stronger armor. The effort 
     went into production in November and is to be completed at 
     the end of this year.
       Defense Department officials acknowledged that Company E 
     lacked enough equipment and men, but said that those were 
     problems experienced by many troops when the insurgency 
     intensified last year, and that vigorous efforts had been 
     made to improve their circumstances.
       Lt. Gen. James N. Mattis of Richland, Wash., who commanded 
     the First Marine Division to which Company E belongs, said he 
     had taken every possible step to support Company E. He added 
     that they had received more factory-armored Humvees than any 
     other unit in Iraq.
       ``We could not encase men in sufficiently strong armor to 
     deny any enemy success,'' General Mattis said. ``The tragic 
     loss of our men does not necessarily indicate failure--it is 
     war.''


                         trouble from the start

       Company E's troubles began at Camp Pendleton when, just 
     seven days before the unit left for Iraq, it lost its first 
     commander. The captain who led them through training was 
     relieved for reasons his supervisor declined to discuss. 
     ``That was like losing your quarterback on game day,'' said 
     First Sgt. Curtis E. Winfree.
       In Kuwait, where the unit stopped over, an 18-year-old 
     private committed suicide in a chapel. Then en route to 
     Ramadi, they lost

[[Page S4632]]

     the few armored plates they had earmarked for their vehicles 
     when the steel was borrowed by another unit that failed to 
     return it. Company E tracked the steel down and took it back.
       Even at that, the armor was mostly just scrap and thin, and 
     they needed more for the unarmored Humvees they inherited 
     from the Florida National Guard.
       ``It was pitiful,'' said Capt. Chae J. Han, a member of a 
     Pentagon team that surveyed the Marine camps in Iraq last 
     year to document their condition. ``Everything was just 
     slapped on armor, just homemade, not armor that was given to 
     us through the normal logistical system.''
       The report they produced was classified, but Captain Royer, 
     who took over command of the unit, and other Company E 
     marines say they had to build barriers at the camp--a former 
     junkyard--to block suicide drivers, improve the fencing and 
     move the toilets under a thick roof to avoid the insurgent 
     shelling. Even some maps they were given to plan raids were 
     several years old, showing farmland where in fact there were 
     homes, said a company intelligence expert, Cpl. Charles V. 
     Lauersdorf, who later went to work for the Defense 
     Intelligence Agency. There, he discovered up-to-date imagery 
     that had not found its way to the front lines.
       Ramadi had been quiet under the National Guard, but the 
     Marines had orders to root out an insurgency that was using 
     the provincial capital as a way station to Falluja and 
     Baghdad, said Lt. Col. Paul J. Kennedy, who oversaw Company E 
     as the commander of its Second Battalion, Fourth Marine 
     Regiment. Before the company's first month was up, Lance Cpl. 
     William J. Wiscowiche of Victorville, Calif., lay dead on the 
     main highway as its first casualty. The Marine Corps issued a 
     statement saying only that he had died in action. But for 
     Company E, it was the first reality check on the constraints 
     that would mark their tour.


                           Sweeping for Bombs

       A British officer had taught them to sweep the roads for 
     bombs by boxing off sections and fanning out troops into 
     adjoining neighborhoods in hopes of scaring away insurgents 
     poised to set off the bombs. ``We didn't have the time to do 
     that,'' said Sgt. Charles R. Sheldon of Solana Beach, Calif. 
     ``We had to clear this long section of highway, and it 
     usually took us all day.'' Now and then a Humvee would speed 
     through equipped with an electronic device intended to block 
     detonation of makeshift bombs. The battalion, which had five 
     companies in its fold, had only a handful of the devices, 
     Colonel Kennedy said. Company E had none, even though 
     sweeping roads for bombs was one of its main duties. So many 
     of the marines, like Corporal Wiscowiche, had to rely on 
     their eyes. On duty on March 30, 2004, the 20-year-old lance 
     corporal did not spot the telltale three-inch wires sticking 
     out of the dust until he was a few feet away, the company's 
     leaders say. He died when the bomb was set off.
       ``We had just left the base,'' Corporal Winn said. ``He was 
     walking in the middle of the road, and all I remember is 
     hearing a big explosion and seeing a big cloud of smoke.''
       The endless task of walking the highways for newly hidden 
     I.E.D.'s, or improvised explosive devices, ``was nerve 
     wracking,'' Corporal Winn said, and the company began using 
     binoculars and the scopes on their rifles to spot the bombs 
     after Corporal Wiscowiche was killed.
       ``Halfway through the deployment marines began getting good 
     at spotting little things,'' Sergeant Sheldon added. ``We had 
     marines riding down the road at 60 miles an hour, and they 
     would spot a copper filament sticking out of a block of 
     cement.'' General Mattis said troops in the area now have 
     hundreds of the electronic devices to foil the I.E.D.'s.
       In parceling out Ramadi, the Marine Corps leadership gave 
     Company E more than 10 square miles to control, far more than 
     the battalion's other companies. Captain Royer said he had 
     informally asked for an extra platoon, or 44 marines, and had 
     been told the battalion was seeking an extra company. The 
     battalion's operations officer, Maj. John D. Harrill, said 
     the battalion had received sporadic assistance from the Army 
     and had given Company E extra help. General Mattis says he 
     could not pull marines from another part of Iraq because 
     ``there were tough fights going on everywhere.''
       Colonel Kennedy said Company E's area was less dense, but 
     the pressure it put on the marines came to a boil on April 6, 
     2004, when the company had to empty its camp--leaving the 
     cooks to guard the gates--to deal with three firefights.
       Ten of its troops were killed that day, including eight who 
     died when the Humvee they were riding in was ambushed en 
     route to assist other marines under fire. That Humvee lacked 
     even the improvised steel on the back where most of the 
     marines sat, Company E leaders say.
       ``All I saw was sandbags, blood and dead bodies,'' Sergeant 
     Valerio said. ``There was no protection in the back.'' 
     Captain Royer said more armor would not have even helped. The 
     insurgents had a .50-caliber machine gun that punched huge 
     holes through its windshield. Only a heavier combat vehicle 
     could have withstood the barrage, he said, but the unit had 
     none. Defense Department officials have said they favored 
     Humvees over tanks in Iraq because they were less imposing to 
     civilians. The Humvee that trailed behind that day, which did 
     have improvised armor, was hit with less powerful munitions, 
     and the marines riding in it survived by hunkering down. 
     ``The rounds were pinging,'' Sergeant Sheldon said. ``Then in 
     a lull they returned fire and got out.''
       Captain Royer said that he photographed the Humvees in 
     which his men died to show to any official who asked about 
     the condition of their armor, but that no one ever did. 
     Sergeant Valerio redoubled his effort to fortify the Humvees 
     by begging other branches of the military for scraps. ``How 
     am I going to leave those kids out there in those Humvees,'' 
     he recalled asking himself.
       The company of 185 marines had only two Humvees and three 
     trucks when it arrived, so just getting them into his shop 
     was a logistical chore, Sergeant Valerio said. He also 
     worried that the steel could come loose in a blast and become 
     deadly shrapnel. For the gunners who rode atop, Sergeant 
     Valerio stitched together bulletproof shoulder pads into 
     chaps to protect their legs.
       ``That guy was amazing,'' First Sgt. Bernard Coleman said. 
     ``He was under a vehicle when a mortar landed, and he caught 
     some in the leg. When the mortar fire stopped, he went right 
     back to work.''


                            A Captain's Fate

       Lt. Sean J. Schickel remembers Captain Royer asking a high-
     ranking Marine Corps visitor whether the company would be 
     getting more factory-armored Humvees. The official said they 
     had not been requested and that there were production 
     constraints, Lieutenant Schickel said.
       Recalls Captain Royer: ``I'm thinking we have our most 
     precious resource engaged in combat, and certainly the wealth 
     of our nation can provide young, selfless men with what they 
     need to accomplish their mission. That's an erudite way of 
     putting it. I have a much more guttural response that I won't 
     give you.'' Captain Royer was later relieved of command. 
     General Mattis and Colonel Kennedy declined to discuss the 
     matter. His first fitness report, issued on May 31, 2004, 
     after the company's deadliest firefights, concluded, ``He has 
     single-handedly reshaped a company in sore need of a leader; 
     succeeded in forming a cohesive fighting force that is 
     battle-tested and worthy.'' The second, on Sept. 1, 2004, 
     gave him opposite marks for leadership. ``He has been 
     described on numerous occasions as `dictatorial,' '' it said. 
     ``There is no morale or motivation in his marines.'' His 
     defenders say he drove his troops as hard as he drove 
     himself, but was wrongly blamed for problems like armor. 
     ``Captain Royer was a decent man that was used for a dirty 
     job and thrown away by his chain of command,'' Sergeant 
     Sheldon said.
       Today, Captain Royer is at Camp Pendleton contesting his 
     fitness report, which could force him to retire. Company E is 
     awaiting deployment to Okinawa, Japan. Some members have 
     moved to other units, or are leaving the Marines altogether. 
     ``I'm checking out,'' Corporal Winn said. ``When I started, I 
     wanted to make it my career. I've had enough.''

  Mr. KENNEDY. Mr. President, I yield the remainder of my time.
  Mr. INHOFE. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, I ask unanimous consent that I may 
proceed as in morning business for as much time as I may consume.
  Mr. INHOFE. Reserving the right to object.
  The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.
  Mr. INHOFE. Mr. President, a few minutes ago we had an agreement that 
we would allow the Senator from Massachusetts to speak up to 25 minutes 
as in morning business and that the Senator would follow him with the 
same amount of time. That is what we would intend to do. We thought 
that would be satisfactory to the Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, may I proceed then?
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. INHOFE. I object, yes.
  The ACTING PRESIDENT pro tempore. Objection is heard. The Senator is 
recognized under the previous order to speak for 25 minutes.
  Mr. INHOFE. That is correct.
  The ACTING PRESIDENT pro tempore. As in morning business.


                          Judicial Nominations

  Mr. SPECTER. Mr. President, I have sought recognition to urge my 
colleagues to explore ways to avoid a Senate vote on the nuclear, or 
constitutional, option. It is anticipated that we may vote this week or 
this month to reduce from 60 to 51 the number of

[[Page S4633]]

votes to invoke cloture or cut off debate on judicial nominations. If 
the Senate roll is called on that vote, it will be one of the most 
important in the history of this institution.
  The fact is that all or almost all Senators want to avoid the crisis. 
I have repeatedly heard colleagues on both sides of the aisle say it is 
a matter of saving face. But as yet we have not found the formula to do 
so.
  I suggest the way to work through the current impasse is to proceed 
to bring to the floor circuit nominees, one by one, for up-or-down 
votes. There are at least five and perhaps as many as seven pending 
circuit nominees who could be confirmed or at least voted up or down. 
If the straitjacket of party loyalty were removed by the Democrats, 
even more might be confirmed.
  As a starting point, it is important to acknowledge that both sides, 
Democrats and Republicans, have been at fault. Both sides claim they 
are victims and that their party's nominees have been treated worse 
than the other's. Both sides cite endless statistics. I have heard so 
many numbers spun in so many different ways that even my head is 
spinning. I think even Benjamin Disraeli, the man who coined the 
phrase, ``there are lies, damned lies, and statistics,'' would be 
amazed at the creativity employed by both sides in contriving the 
numbers in this debate.
  The history of Senate practices has demonstrated that in the last 2 
years of President Reagan's administration and through 4 years of the 
administration of President George Herbert Walker Bush, the Democrats 
slowed down the nomination process. When we Republicans won the 1994 
elections and gained the Senate majority, we exacerbated the pattern of 
delay and blocking nominees. Over the course of President Clinton's 
presidency, the average number of days for the Senate to confirm 
judicial nominees increased for district nominees as well as for 
circuit nominees. That was followed by the filibuster of many qualified 
judicial nominees by the Democrats following the 2002 elections. In an 
unprecedented move, President Bush responded by making, for the first 
time in the Nation's history, two recess appointments of nominees who 
had been successfully filibustered by the Democrats. That impasse was 
then broken when President Bush agreed to refrain from further recess 
appointments.
  Against this background of bitter and angry recriminations, with each 
party serially trumping the other to get even, or to dominate, the 
Senate now faces dual threats--one called the filibuster and the other 
the constitutional or nuclear option, which rivals the United States-
Union of Soviet Socialist Republic confrontation of mutually assured 
destruction. Both situations are accurately described by the acronym 
MAD.
  We Republicans are threatening to employ the option to require only a 
majority vote to end filibusters. The Democrats are threatening to 
retaliate by stopping the Senate agenda on all matters except national 
security and homeland defense. Each ascribes to the other the 
responsibility for blowing the place up. This gridlock occurs at a time 
when we expect a U.S. Supreme Court vacancy within the next few months. 
If the filibuster would leave an eight-person Court, we could expect 
many 4-to-4 votes, since the Court now often decides cases with a 5-to-
4 vote. A Supreme Court tie vote would render the Court dysfunctional, 
leaving in effect circuit court decisions with many splits among the 
circuits. So the rule of law would be suspended on many major issues.
  In moving in the Judiciary Committee to select nominees for floor 
action, in my capacity as Chairman I have first selected William Myers 
because two Democrats had voted in the 108th Congress not to filibuster 
him, and one candidate for the Senate in 2004, since elected, made a 
campaign statement that he would vote to end the Myers filibuster and 
to confirm him. Adding those three votes to 55 Republicans, we were 
within striking distance to reach 60 or more.
  I carefully examined Myers' record. Noting that he had opposition 
from some groups such as the Friends of the Earth and the Sierra Club, 
it was nonetheless my conclusion that his environmental record was 
satisfactory, or at least not a disqualifier, as detailed in my 
statement at the Judiciary Committee executive session on March 17 of 
this year. To be sure, critics could pick at the Myers record as they 
could at any Senator's record, but overall Myers was, in my opinion, 
worthy of confirmation.
  I then set out to solicit others' views on Myers, including ranchers, 
loggers, miners, and farmers. In those quarters I found a significant 
enthusiasm for Myers' confirmation, so I urged those groups to have 
their members contact Senators who might be swing votes. I then 
followed up with personal talks to many of those Senators and found 
several prospects to vote for cloture. Then the screws of party loyalty 
were applied and tightened and the prospects for obtaining the 
additional few votes to secure cloture vanished.
  I am confident if the party pressure had not been applied, the Myers 
filibuster would have ended and he would have been confirmed. That 
result could still be obtained if the straitjacket of party loyalty 
were removed on the Myers nomination.

  Informally, but authoritatively, I have been told the Democrats will 
not filibuster Thomas Griffith or Judge Terrence Boyle. Griffith is on 
the calendar now awaiting floor action, and Boyle is on the next agenda 
for committee action. Both could be confirmed by the end of this month.
  There are no objections to three nominees from the State of Michigan 
for the Sixth Circuit--Richard Griffin, David McKeague, and Susan Bakke 
Neilson--but their confirmations are being held up because of 
objections to a fourth nominee. I urge my Democratic colleagues to 
confirm the three uncontested Michigan Sixth Circuit nominees and fight 
out the remaining fourth vacancy and Michigan District Court vacancies 
on another day. The Michigan Senators do make a valid point on the need 
for consultation on the other Michigan vacancies, and that can be 
accommodated.
  In the exchange of offers and counteroffers between Senator Frist, 
the majority leader, and Senator Harry Reid, the Democratic leader, 
Democrats have made an offer to avoid a vote on the nuclear or 
constitutional option by confirming one of the four filibustered 
judges--Priscilla Owen, Janice Rogers Brown, William Pryor, or William 
Myers--with a choice to be selected by Republicans. An offer to confirm 
any one of those four nominees is in reality an explicit concession 
that each is qualified for the court, and they are being held hostage 
as pawns in a convoluted chess game which has spiraled out of control.
  If the Democrats believe each is qualified, a deal for confirmation 
for any one of them is repugnant to the basic democratic principle of 
individual fair and equitable treatment and further violates Senators' 
oath on the constitutional confirmation process. Such dealmaking would 
further confirm public cynicism about what goes on in Washington behind 
closed doors.
  Instead, let the Senators consider each of the four without the 
constraints of party line voting. Let us revert to the tried and tested 
method of evaluating each nominee individually.
  By memorandum dated April 7, I circulated an analysis of Texas 
Supreme Court Justice Priscilla Owen's records demonstrating she was 
not hostile to Roe v. Wade and that her decisions were based on solid 
judicial precedence. No one has challenged that legal analysis.
  Similarly, I distributed a memorandum containing an analysis of Judge 
William Pryor's record since he has been sitting on the Eleventh 
Circuit. It shows a pattern by Judge Pryor of concern to protect the 
rights of those often overlooked in the legal system. Similarly, no one 
has refuted that analysis.
  California Supreme Court Justice Janice Rogers Brown has been 
pilloried for her speeches. If political or judicial officials were 
rejected for provocative or extreme ideas and speeches, none of us 
would hold public office. The fact is, the harm to the Republic, at 
worst, by confirmation of all pending circuit court nominees, is 
infinitesimal compared to the harm to the Senate, whichever way the 
vote would turn out, on the nuclear or constitutional option.
  None of these circuit judges could make new law because all are bound 
and each one has agreed on the record to follow U.S. Supreme Court 
decisions. While it is frequently argued

[[Page S4634]]

that Supreme Court decisions are in many cases final because the 
Supreme Court grants certiorari in so few cases, the circuit courts sit 
in panels of three so that no one of these nominees could unilaterally 
render an unjust decision since at least one other circuit judge on the 
panel must concur.
  While it would be naive to deny that ``quid pro quo'' and 
``logrolling'' are not frequent congressional practices, those 
approaches are not the best way to formulate public policy or make 
governmental decisions. The Senate has a roadmap to avoid ``nuclear 
winter'' in a principled way. Five of the controversial judges can be 
brought up for up-or-down votes on this state of the record. The others 
are entitled to individualized treatment on the filibuster issue. It 
may be that the opponents of one or more of these judges may persuade a 
majority of Senators that confirmation should be rejected. A group of 
Republican moderates has, with some frequency, joined Democrats to 
defeat a party-line vote. The President has been explicit in seeking 
up-or-down votes as opposed to commitments on confirmations.
  The Senate has arrived at this confrontation by exacerbation as each 
side has ratcheted up the ante in delaying and denying confirmation to 
the other party's Presidential nominees. A policy of consultation/
conciliation could diffuse the situation.
  This has already been offered by the Democrats informally, signaling 
their intentions not to filibuster Griffith or Boyle, and by offering 
no objections to the three Michigan nominees. Likewise, it has been 
reported that Senator Reid has privately told Republicans he does not 
intend to block votes on any Supreme Court nominee except in extreme 
cases. A public statement of confirmation with an amplification on what 
constitutes ``extreme case'' could go a long way to diffusing the 
situation.
  Senator Schumer praised White House Counsel Gonzales during his 
confirmation hearings for times in which now-Attorney General Gonzales 
consulted with Senator Schumer on President Bush's judicial nominees 
affecting the State of New York. On April 11 of this year, a nominee 
pushed by Senator Schumer, Paul Crotty, was confirmed for the federal 
court in New York. Both New Jersey Senators, Senators Torricelli and 
Corzine, approved all five district court nominations for their State 
in the 107th Congress. And in that Congress, Florida's Democratic 
Senators, Bob Graham and Bill Nelson, appointed representatives to a 
commission which recommended federal judges to President Bush. 
President Bush recently nominated Minority Leader Harry Reid's pick for 
the District Court for the District of Nevada.
  So there have been some significant signs of consultation and 
conciliation by the Republicans on choices by Democratic Senators.

  I have reason to believe the President is considering consultation 
with the Michigan Senators on some federal judicial vacancies in their 
state and perhaps beyond.
  One good turn deserves another. If one side realistically and 
sincerely takes the high ground, there will be tremendous pressure on 
the other side to follow suit. So far, the offers by both sides have 
been public relations maneuvers to appear reasonable to avoid blame and 
place it elsewhere. Meanwhile, the far left and far right are urging 
each side to shun compromise. ``Pull the trigger,'' one side says. 
``Filibuster forever,'' the other side retorts. Their approaches would 
lead to extreme judges at each end of the political spectrum as control 
of the Senate inevitably shifts from one party to another.
  The Senate today stands on the edge of an abyss. Institutions such as 
our Senate are immortal but not invulnerable. If we fail to step back 
from the abyss, we will descend into a dark protracted era of divided 
partisanship. But if we cease this aimless and endless game of 
political chicken, we could restore the Senate to its rightful place as 
the world's greatest deliberative body. That will require courage, 
courage from each Senator, courage to think and act with independence.
  Our immortal Senate is depending on that courage. Now the question 
remains as to whether we have it.
  Since the United States and the Union of Soviet Socialist Republics 
avoided the nuclear confrontation in the Cold War by concessions and 
confidence-building measures, why couldn't Senators do the same by 
crossing the aisle in the spirit of compromise?
  As a result of the time constraints, I have abbreviated the oral 
presentation of this statement. I ask unanimous consent the full text 
be printed at the conclusion of this statement, including my statement 
which I now make that the text is necessarily repeated to a substantial 
extent of what I have delivered orally, but it is included so that a 
full text may be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Mr. SPECTER. Mr. President, I seek recognition to urge my 
     colleagues to explore ways to avoid a Senate vote on the 
     nuclear or constitutional option. It is anticipated that we 
     may vote this week or this month to reduce from 60 to 51 the 
     number of votes required to invoke cloture or cut off debate 
     on judicial nominations. If the Senate roll is called on that 
     vote, it will be one of the most important in the history of 
     this institution.
       The fact is that all, or almost all, Senators want to avoid 
     the crisis. I have had many conversations with my Democratic 
     colleagues about the filibuster of judicial nominees. Many of 
     them have told me that they do not personally believe it is a 
     good idea to filibuster President Bush's judicial nominees. 
     They believe that this unprecedented use of the filibuster 
     does damage to this institution and to the prerogatives of 
     the President. Yet despite their concerns, they gave in to 
     party loyalty and voted repeatedly to filibuster Federal 
     judges in the last Congress.
       Likewise, there are many Republicans in this body who 
     question the wisdom of the constitutional or nuclear option. 
     They recognize that such a step would be a serious blow to 
     the rights of the minority that have always distinguished 
     this body from the House of Representatives. Knowing that the 
     Senate is a body that depends upon collegiality and 
     compromise to pass even the smallest resolution, they worry 
     that the rule change will impair the ability of the 
     institution to function.
       I have repeatedly heard colleagues on both sides of the 
     aisle say it is really a matter of saving ``face''; but, as 
     yet, we have not found the formula to do so. I suggest the 
     way to work through the current impasse is to proceed to 
     bring to the floor circuit nominees one by one for up or down 
     votes. There are at least five and perhaps as many as seven 
     pending circuit nominees who could be confirmed; or, at least 
     voted up or down. If the straightjacket of party loyalty were 
     removed, even more might be confirmed.
       For the past 4 months since becoming Chairman of the 
     Judiciary Committee, my first priority has been to process 
     the nominees through committee to bring them to the floor. As 
     a starting point, it is important to acknowledge that both 
     sides, Democrats and Republicans, have been at fault. Both 
     sides claim that they are the victims and that their party's 
     nominees have been treated worse than the other's. Both sides 
     cite endless statistics. I have heard so many numbers spun so 
     many different ways that my head is spinning. I think even 
     Benjamin Disraeli, the man who coined the phrase, ``there are 
     lies, damned lies and statistics,'' would be amazed at the 
     creativity employed by both sides in contriving numbers in 
     this debate.
       In 1987, upon gaining control of the Senate and the 
     Judiciary Committee, the Democrats denied hearings to seven 
     of President Reagan's circuit court nominees and denied floor 
     votes to two additional circuit court nominees. As a result, 
     the confirmation rate for Reagan's circuit nominees fell from 
     89 percent prior to the Democratic takeover to 65 percent 
     afterwards. While the confirmation rate decreased, the length 
     of time it took to confirm judges increased. From the Carter 
     administration through the first 6 years of the Reagan 
     administration, the length of the confirmation process for 
     both district and circuit court seats consistently hovered at 
     approximately 50 days. For Reagan's final Congress, however, 
     the number doubled to an average of 120 days for these 
     nominees to be confirmed.
       The pattern of delay and denial continued through 4 years 
     of President George H.W. Bush's administration. President 
     Bush's lower court nominees waited, on average, 100 days to 
     be confirmed, which was about twice as long as had 
     historically been the case. The Democrats also denied 
     committee hearings for more nominees. President Carter had 10 
     nominees who did not receive hearings. For President Reagan, 
     the number was 30. In the Bush Sr. administration the number 
     jumped to 58.
       When we Republicans won the 1994 election and gained the 
     Senate majority, we exacerbated the pattern of delaying and 
     blocking nominees. Over the course of President Clinton's 
     presidency, the average number of days for the Senate to 
     confirm judicial nominees increased even further to 192 days 
     for district court nominees and 262 days for circuit court 
     nominees. Through blue slips and holds, 60 of President 
     Clinton's nominees were blocked. When it became clear that 
     the Republican-controlled Senate would not allow the 
     nominations to move forward, President Clinton

[[Page S4635]]

     withdrew 12 of those nominations and chose not to re-nominate 
     16.
       After the 2002 elections, with control of the Senate 
     returning to Republicans, the Democrats resorted to the 
     filibuster on ten circuit court nominations, which was the 
     most extensive use of the tactic in the Nation's history. The 
     filibuster started with Miguel Estrada, one of the most 
     talented and competent appellate lawyers in the country. The 
     Democrats followed with filibusters against nine other 
     circuit court nominees. During the 108th Congress, there were 
     20 cloture motions on 10 nominations. All 20 failed.
       To this unprecedented move, President Bush responded by 
     making, for the first time in the Nation's history, two 
     recess appointments of nominees who had been successfully 
     filibustered by the Democrats. That impasse was broken when 
     President Bush agreed to refrain from further recess 
     appointments.
       Against this background of bitter and angry recriminations, 
     with each party serially trumping the other party to ``get 
     even'' or, really, to dominate, the Senate now faces dual 
     threats, one called the filibuster and the other the 
     constitutional or nuclear option, which rival the US/USSR 
     confrontation of mutually assured destruction. Both 
     situations are accurately described by the acronym ``MAD.''
       We Republicans are threatening to employ the constitutional 
     or nuclear option to require only a majority vote to end 
     filibusters. The Democrats are threatening to retaliate by 
     obstructing the Senate on a host of matters. Each ascribes to 
     the other the responsibility for ``blowing the place up.''
       The gridlock occurs at a time when we expect a United 
     States Supreme Court vacancy within the next few months. If a 
     filibuster would leave an 8 person court, we could expect 
     many 4 to 4 votes since the Court now often decides cases 
     with 5 to 4 votes. A Supreme Court tie vote would render the 
     Court dysfunctional, leaving in effect the circuit court 
     decision with many splits among the circuits, so the rule of 
     law would be suspended on many major issues.
       In moving in the Judiciary Committee to select nominees for 
     floor action, I first selected William Myers because two 
     Democrats had voted in the 108th Congress not to filibuster 
     him, and one candidate for the Senate in 2004, since elected, 
     made a campaign statement that he would vote to end the Myers 
     filibuster and to confirm him. Adding those three votes to 55 
     Republicans, we were within striking distance to reach 60 or 
     more. I carefully examined Myers' record. Noting that he had 
     opposition from some groups such as Friends of the Earth and 
     the Sierra Club, it was my conclusion that his environmental 
     record was satisfactory, or at least not a disqualifier, as 
     detailed in my statement at the Judiciary Committee Executive 
     Session on March 17, 2005. To be sure, critics could pick at 
     his record as they could at any Senator's record; but overall 
     Mr. Myers was worthy of confirmation.
       I then set out to solicit others' views on Myers, including 
     the ranchers, loggers, miners, and farmers. In those 
     quarters, where I found significant enthusiasm for the Myers 
     confirmation, I urged them to have their members contact 
     Senators who might be swing votes. I then followed up with 
     personal talks to many of those Senators and found several 
     prospects to vote for cloture. Then the screws of party 
     loyalty were applied and tightened, and the prospects for 
     obtaining the additional few votes to secure cloture 
     vanished. I am confident that if party pressure had not been 
     applied, the Myers filibuster would have ended and he would 
     have been confirmed. That result could still be obtained if 
     the straitjacket of party loyalty were removed on the Myers 
     nomination.
       Informally, but authoritatively, I have been told that the 
     Democrats will not filibuster Thomas Griffith or Judge 
     Terrence Boyle. Griffith is on the Senate calendar awaiting 
     floor action, and Boyle is on the next agenda for committee 
     action. Both could be confirmed by mid-May.
       There are no objections to three nominees from the State of 
     Michigan for the Sixth Circuit: Richard Griffin, David 
     McKeague and Susan Bakke Neilson; but their confirmations are 
     held up because of objections to a fourth nominee. I urge 
     my Democratic colleagues to confirm the three uncontested 
     Michigan Sixth Circuit nominees and fight out the Fourth 
     Circuit vacancy and Michigan district court vacancies on 
     another day. The Michigan Senators make a valid point on 
     the need for consultation on the other Michigan vacancies 
     and that can be accommodated.
       In the exchange of offers and counteroffers between Sen. 
     Frist, majority leader and Sen. Harry Reid, the Democrat 
     leader, Democrats have made an offer to avoid a vote on the 
     nuclear or constitutional option by confirming one of the 
     four filibustered judges: Priscilla Owen, Janice Rogers 
     Brown, William Pryor, or William Myers with the choice to be 
     selected by Republicans.
       An offer to confirm any one of the those four nominees is 
     an explicit concession that each is qualified for the court 
     and that they are being held hostage as pawns in a convoluted 
     chess game which has spiraled out of control. If the 
     Democrats really believe each is unqualified, a ``deal'' for 
     confirmation for anyone of them is repugnant to the basic 
     democratic principle of individual, fair, and equitable 
     treatment and violates Senators' oaths on the constitutional 
     confirmation process. Such ``deal-making'' confirms public 
     cynicism about what goes on behind Washington's closed doors.
       Instead, let the Senate consider each of the four without 
     the constraints of party line voting. Let us revert to the 
     tried and tested method of evaluating each nominee 
     individually. By memorandum dated April 7, 2005, I circulated 
     an analysis of Texas Supreme Court Justice Priscilla Owen's 
     record demonstrating she was not hostile to Roe vs. Wade and 
     that her decisions were based on solid judicial precedent. No 
     one has challenged that legal analysis.
       By memorandum dated January 12, 2005, I distributed an 
     analysis of decisions by Judge William Pryor that shows his 
     concern to protect the rights of those often overlooked in 
     the legal system. Similarly, no one has refuted that 
     analysis. California Supreme Court Justice Janice Rogers 
     Brown has been pilloried for her speeches. If political or 
     judicial officials were rejected by provocative/extreme ideas 
     in speeches, none of us would hold public office.
       The fact is that the harm to the Republic, at worst, by the 
     confirmation of all pending circuit court nominees is 
     infinitesimal compared to the harm to the Senate, whichever 
     way the vote would turn out, on the nuclear or constitutional 
     option. None of these circuit judges could make new law 
     because all are bound, and each one agreed on the record, to 
     follow U.S. Supreme Court decisions. While it is frequently 
     argued that circuit court opinions are in many cases final 
     because the Supreme Court grants certiorari in so few cases, 
     circuit courts sit in panels of three so that no one of these 
     nominees can unilaterally render an unjust decision since at 
     least one other circuit judge on the panel must concur.
       While it would be naive to deny that the ``quid pro quo'' 
     and ``logrolling'' are not frequent congressional practices, 
     those approaches are not the best way to formulate public 
     policy or make governmental decisions. The Senate has a 
     roadmap to avoid ``nuclear winter'' in a principled way. Five 
     of the controversial judges can be brought up for up-or-down 
     votes on this state of the record. The others are entitled to 
     individualized treatment on the filibuster issue.
       It may be that the opponents of one or more of these judges 
     may persuade a majority of Senators that confirmation should 
     be rejected. A group of Republican moderates has, with some 
     frequency, joined Democrats to defeat a party line vote. 
     The President has been explicit in seeking up-or-down 
     votes as opposed to commitments on confirmations.
       The Senate has arrived at this ``confrontation by 
     exacerbation'' as each side ratcheted up the ante in delaying 
     and denying confirmation to the other party's Presidential 
     nominees. A policy of conciliation/consultation could diffuse 
     the situation. This has already been offered by the 
     Democrats, informally signaling their intentions not to 
     filibuster Griffith or Boyle. Likewise, it has been reported 
     that Senator Reid has privately told Republicans that he 
     doesn't intend to block votes on any Supreme Court nominees, 
     except in extreme cases. A public statement with an 
     amplification of what constitutes an ``extreme case'' could 
     go a long way.
       Sen. Schumer praised White House Counsel Gonzales's 
     consultation with him on President Bush's judicial nominees. 
     On April 11, 2005, the President's nominee for the U.S. 
     District Court for the Southern District of New York, Paul 
     Crotty, supported by Senator Schumer, was confirmed. Both New 
     Jersey Senators, Bob Torricelli and Jon Corzine, approved all 
     five district court nominations for their state in the 107th 
     Congress. In the 107th Congress, Florida's Democratic 
     Senators, Bob Graham and Bill Nelson, appointed 
     representatives to a commission which recommended Federal 
     judges to President Bush.
       President Bush recently nominated Minority Leader Harry 
     Reid's pick for the U.S. District Court for the District of 
     Nevada. I have reason to believe the President is considering 
     consultation with the Michigan Senators on some Federal 
     judicial vacancies in their State and perhaps beyond.
       One good turn deserves another. If one side realistically 
     and sincerely takes the high ground, there will be tremendous 
     pressure on the other side to follow suit. So far, the offers 
     by both sides have been public relations maneuvers to appear 
     reasonable to avoid blame and place it elsewhere.
       Meanwhile, the far left and the far right are urging each 
     side to shun compromise: pull the trigger; filibuster 
     forever. Their approaches would lead to extreme judges at 
     each end of the political spectrum as control of the Senate 
     inevitably shifts from one party to the other.
       The Senate today stands on the edge of the abyss. 
     Institutions like the Senate are immortal but not 
     invulnerable. If we fail to step back from the abyss, we will 
     descend into a dark, protracted era of divisive partisanship. 
     But if we cease this aimless game of political chicken, we 
     can restore the Senate to its rightful place as the world's 
     greatest deliberative body. That will require courage. 
     Courage from each senator. Courage to think and act with 
     independence. Our immortal Senate is depending on our 
     courage. Do we have it?
       Since the U.S. and USSR avoided a nuclear confrontation in 
     the Cold War by concessions and confidence-building measures, 
     why couldn't Senators do the same by crossing the aisle in 
     the spirit of compromise.
  Mr. SPECTER. I suggest the absence of a quorum.

[[Page S4636]]

  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. NELSON of Florida. I ask unanimous consent that the order for the 
quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                      Amendment No. 518, Withdrawn

  Mr. NELSON of Florida. Mr. President, on behalf of Senator Salazar, I 
ask unanimous consent that amendment No. 581 be withdrawn.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The Senator from Florida is recognized.
  (The remarks of Mr. Nelson of Florida pertaining to the introduction 
of S. 980 are located in today's Record under ``Statements on 
Introduced Bills and Joint Resolutions.'')
  Mr. NELSON of Florida. I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri.


                 Amendment No. 600 to Amendment No. 567

  Mr. TALENT. Mr. President, I have an amendment at the desk.
  The ACTING PRESIDENT pro tempore. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Missouri [Mr. Talent], for himself, and 
     Mr. Dodd, proposes an amendment numbered 600 to amendment No. 
     567.

  Mr. TALENT. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The amendment is as follows:

 (Purpose: To require notice regarding the criteria for small business 
         concerns to participate in Federally funded projects)

       At the end of subtitle H of title I, add the following:

     SEC. 18__. NOTICE REGARDING PARTICIPATION OF SMALL BUSINESS 
                   CONCERNS.

       The Secretary of Transportation shall notify each State or 
     political subdivision of a State to which the Secretary of 
     Transportation awards a grant or other Federal funds of the 
     criteria for participation by a small business concern in any 
     program or project that is funded, in whole or in part, by 
     the Federal Government under section 155 of the Small 
     Business Reauthorization and Manufacturing Assistance Act of 
     2004 (15 U.S.C. 567g).

  The ACTING PRESIDENT pro tempore. The Senator from Missouri is 
recognized.
  Mr. TALENT. Mr. President, I wish to take a few minutes to discuss 
this amendment which I am offering with Senator Dodd. It has been 
accepted by the managers on both sides, and I am grateful for that.
  The amendment is the next step in lifting a very significant burden 
off minority contractors around the country who want to do business 
with the Government. Very simply, it would direct the Secretary of 
Transportation to inform State and local governments that receive 
Federal dollars through the highway bill of a new law, a law that 
provides that minority contractors who have already been certified as 
8(a) contractors under Federal law are automatically certified under 
State law as minority contractors on any contract that is funded in 
whole or in part by Federal dollars. Let me explain the background.
  As Senators know, the 8(a) Program is one of the programs that small 
businesses use to get certified as a minority contractor in doing 
business with the Federal Government. State and local governments have 
similar certifications for doing business as a minority contractor with 
their governments. This has presented a serious obstacle for minority 
small businesses that want to do business or take advantage of goals or 
setaside programs because they have in the past been required to get 
additional certifications at both the State and local levels after 
already having been certified under the Federal Government's 8(a) 
Program. As a result, countless small minority-owned businesses have 
spent thousands and thousands of dollars and countless hours getting 
certified at the State and local levels just to learn that the 
contracting opportunity they originally sought was, by the time they 
were certified, no longer open.
  In short, getting multiple certifications at the State and local 
levels after you have already done it at the Federal level is a time-
consuming, expensive, and unnecessary process that in the past has left 
many highly qualified minority small business contractors shut out from 
the competition of Government contracts. So last year, I added an 
amendment on the JOBS bill that provides that section 8(a) contractors, 
those who have already been certified on the Federal level, are 
automatically certified as minority contractors in any State or local 
program funded in whole or in part by Federal dollars.
  I have already heard from small businesses from Missouri and around 
the country. I am pleased to report this provision is saving minority 
small business people thousands of dollars and many hours and a lot of 
headaches. In many cases, it is making it possible for them to 
participate in programs and projects that they would not have been able 
to participate in in the past without maneuvering through the obstacles 
of getting additional State or local certifications. Now we need to get 
the word out about the new law.
  So today, the amendment of Senator Dodd and myself directs the 
Secretary of Transportation to inform State and local governments of 
the new law that prohibits them from requiring federally certified 8(a) 
minority firms from obtaining State and local certifications on any 
State or local project that receives Federal funding.
  This amendment is the natural followup to last year's law. It should 
not cost money. It has the support of minority small business 
associations around the country. I am pleased that it has majority and 
minority support on the Senate floor, and I am very pleased that the 
handlers on both sides of the aisle have accepted the amendment.
  I thank the National Black Chamber of Commerce, the United States 
Hispanic Chamber of Commerce, as well as the Hispanic Chamber of 
Greater Kansas City, the Minority Business Council of St. Louis, and 
the Hispanic Chamber of Metropolitan St. Louis for their continued 
support in providing 8(a) contractors equal access to all projects 
receiving Federal funding.
  I also want to thank the Senator from Connecticut for his work and 
effort on behalf of the amendment and his continued leadership on 
behalf of small business issues. I urge the Senate to adopt the 
amendment. I understand that the handlers are desirous of a rollcall 
vote so I ask for the yeas and nays on the amendment.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  The ACTING PRESIDENT pro tempore. The minority leader.
  Mr. REID. Mr. President, what was the request?
  The ACTING PRESIDENT pro tempore. Ordering the yeas and nays.
  Mr. TALENT. My understanding was that the handlers wanted the yeas 
and nays on the amendment. I will withdraw the request if that is not 
the case.
  The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.
  Mr. INHOFE. I ask unanimous consent that at 5:30 this evening the 
Senate proceed to a vote in relation to the Talent amendment, with the 
time equally divided until the vote and no second-degree amendments in 
order to the amendment prior to the vote.
  The ACTING PRESIDENT pro tempore. Is there an objection?
  Mr. REID. Reserving the right to object.
  The ACTING PRESIDENT pro tempore. The minority leader.
  Mr. REID. I have no problem voting on this Talent amendment. I am 
disappointed that we have not been able to clear a resolution 
expressing support for the withdrawal of troops from Georgia. The 
President is there today. I am so glad he is visiting Georgia. I was 
there with a bipartisan congressional delegation a few weeks ago, and I 
repeat I am disappointed we could not do this while he is in country.
  The leaders of Georgia would be so ecstatic if we could do this. In 
Georgia, there are leftovers from the Soviet Union military bases that 
are controlled by Russians, that are staffed by Russians. They will not 
leave that little country of Georgia. We have to do what we can in 
exerting influence to get Russia to pull their troops out of this 
little country. I hope the majority will look this resolution over and 
that

[[Page S4637]]

it can be approved in the immediate future. It would have tremendous 
significance with our President being there at this present time.
  So I have no objection to the request by my friend from Oklahoma.
  The ACTING PRESIDENT pro tempore. The minority leader withdraws his 
reservation.
  Without objection, the unanimous consent request is agreed to.
  The Senator from Missouri.
  Mr. BOND. Mr. President, I rise to express my support for the effort 
that my colleague from Missouri is making. When the Senator from 
Missouri was in the House, he was chairman of the House Small Business 
Committee when I was chairman of the Senate Small Business Committee. 
We took great pride in the tremendous contribution that small business 
made to our State, both in terms of the jobs they produced as well as 
the tremendous boost that the small businesses were able to provide to 
our productive sector.
  Again, I commend the Senator from Missouri for the action he took 
last year to make sure that these minority small business contractors 
could be qualified. This will go a long way toward easing the procedure 
to make sure that minority small business operations have a chance to 
get in on the work of the highway bill. It is very important that we 
move forward with our highway construction, and having the minority 
small businesses providing jobs in their community and representing the 
communities that will be served is a very worthy goal.
  This small measure would have a big impact. So I urge the adoption of 
this amendment.
  I thank the Chair and yield the floor.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. INHOFE. I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. INHOFE. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  All time has expired. The question is on agreeing to the amendment. 
The yeas and nays have been ordered and the clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. The following Senators were necessarily absent: the 
Senator from Tennessee (Mr. Alexander), the Senator from Mississippi 
(Mr. Cochran), the Senator from Wyoming (Mr. Enzi), the Senator from 
Arizona (Mr. Kyl), the Senator from Arizona (Mr. McCain), and the 
Senator from Alaska (Ms. Murkowski).
  Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden), 
the Senator from Minnesota (Mr. Dayton), the Senator from North Dakota 
(Mr. Dorgan), the Senator from Iowa (Mr. Harkin), and the Senator from 
Maryland (Mr. Sarbanes) are necessarily absent.
  The PRESIDING OFFICER (Mr. Cornyn). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 89, nays 0, as follows:

                      [Rollcall Vote No. 116 Leg.]

                                YEAS--89

     Akaka
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Bingaman
     Bond
     Boxer
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Coburn
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     DeMint
     DeWine
     Dodd
     Dole
     Domenici
     Durbin
     Ensign
     Feingold
     Feinstein
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McConnell
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Santorum
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner
     Wyden

                             NOT VOTING--11

     Alexander
     Biden
     Cochran
     Dayton
     Dorgan
     Enzi
     Harkin
     Kyl
     McCain
     Murkowski
     Sarbanes
  The amendment (No. 600) was agreed to.
  The PRESIDING OFFICER. The Senator from Ohio.

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