[Congressional Record Volume 151, Number 122 (Tuesday, September 27, 2005)]
[Senate]
[Pages S10461-S10470]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                          Disaster Assistance

  Mr. DURBIN. Mr. President, it is very clear from Hurricane Rita and 
Hurricane Katrina that America is now learning how to be prepared for 
disasters. Many more positive things happened as a result of the threat 
of Hurricane Rita than happened just a few weeks before in Louisiana, 
Mississippi, and Alabama. We now know that it is not a question of 
pointing the finger of blame, but those of us in leadership in 
Washington need to get to the bottom of this--not so we can decide who 
was wrong in days gone by but, frankly, to make sure this doesn't 
happen again.
  The American people do not want to know who wins the game of 
``gotcha'' here; they want to know if America is ready for the next 
disaster. We were clearly not prepared for Hurricane Katrina. The 
scenes we all saw night and day on television of helpless victims in 
New Orleans and other communities remind us over and over again that 
the Federal Emergency Management Agency was not prepared for this 
challenge. We came to that realization when Mr. Brown was asked to 
leave FEMA. I believe that was the right decision.

[[Page S10462]]

  But I was stunned to learn that he is still on the payroll. It is 
hard to imagine that this man who was at FEMA with such a thin resume 
and such limited experiences dealing with disasters was asked to leave 
and be replaced and then continues on as a consultant to FEMA. He is 
going to be scrutinized today by a panel in the House of 
Representatives that may ask him some questions about what he did. The 
first thing they should ask him is by what standard is he still on the 
Federal payroll. Why is this man still being paid by the Federal 
Government? The administration clearly cannot investigate itself when 
it comes to Hurricane Katrina, and this decision to keep Mr. Brown on 
the payroll reflects on what he did in the past but, more importantly, 
what he might do in the future. He doesn't have the skill set needed 
for the disasters that could come as soon as tomorrow. Why is he still 
there? I don't believe this is the right way to approach a natural 
disaster or a terrorist disaster. We need to put people in place who 
understand how to deal with it.
  I believe the President was right in removing Mr. Brown and putting 
in his place Commander Allen from the Coast Guard. I have met with him 
in New Orleans. He is a man who apparently takes control of the 
situation and does it very well, and I believe we should give him a 
chance to lead--to make certain that we handle that past disaster but 
also that we are prepared for the next one.
  But this is a recurring problem. It isn't just a question of Michael 
Brown being replaced by Commander Allen. It is a question of whether 
there are people in other key spots in this Government who do not have 
the qualifications to lead.
  Make no mistake about it: Every President brings in people of their 
own political persuasion and friendship. This happened from time 
immemorial. It is understandable that sometimes these people do an 
excellent job. I can recall when President Clinton suggested that Jamie 
Lee Witt from Arkansas, his emergency management director, was coming 
up to run FEMA in Washington. I want to tell you that when I heard 
that, I thought: Here we go again, an old political friend is going to 
come up here and run this important agency. This could be awful. I am 
happy to report I was wrong. Jamie Lee Witt did an extraordinary job. I 
never heard a word of criticism about the job he did for 8 years in 
Washington. He had skills, extraordinary skills, and brought them to 
the job. But we need at this moment in time to ask critical questions 
as to whether there are men and women in this administration such as 
Michael Brown who are not prepared to deal with the next challenge to 
the United States.
  I ask unanimous consent to have printed in the Record an article from 
Time magazine of this week entitled ``How Many More Mike Browns Are Out 
There?''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  [From TIME Magazine, Sep. 25, 2005]

                How Many More Mike Browns Are Out There?

           (By Mark Thompson, Karen Tumulty, and Mike Allen)

       In presidential politics, the victor always gets the 
     spoils, and chief among them is the vast warren of offices 
     that make up the federal bureaucracy. Historically, the U.S. 
     public has never paid much attention to the people the 
     President chooses to sit behind those thousands of desks. A 
     benign cronyism is more or less presumed, with old friends 
     and big donors getting comfortable positions and impressive 
     titles, and with few real consequences for the nation.
       But then came Michael Brown. When President Bush's former 
     point man on disasters was discovered to have more expertise 
     about the rules of Arabian horse competition than about the 
     management of a catastrophe, it was a reminder that the 
     competence of government officials who are not household 
     names can have a life or death impact. The Brown debacle has 
     raised pointed questions about whether political connections, 
     not qualifications, have helped an unusually high number of 
     Bush appointees land vitally important jobs in the Federal 
     Government.
       The Bush Administration didn't invent cronyism; John F. 
     Kennedy turned the Justice Department over to his brother, 
     while Bill Clinton gave his most ambitious domestic policy 
     initiative to his wife. Jimmy Carter made his old friend Bert 
     Lance his budget director, only to see him hauled in front of 
     the Senate to answer questions on his past banking practices 
     in Georgia, and George H.W. Bush deposited so many friends at 
     the Commerce Department that the agency was known internally 
     as ``Bush Gardens.'' The difference is that this Bush 
     Administration had a plan from day one for remakmg the 
     bureaucracy, and has done so with greater success.
       As far back as the Florida recount, soon-to-be Vice 
     President Dick Cheney was poring over organizational charts 
     of the government with an eye toward stocking it with people 
     sympathetic to the incoming Administration. Clay Johnson III, 
     Bush's former Yale roommate and the Administration's chief 
     architect of personnel, recalls preparing for the inner 
     circle's first trip from Austin, Texas, to Washington: ``We 
     were standing there getting ready to get on a plane, 
     looking at each other like: Can you believe what we're 
     getting ready to do?''
       The Office of Personnel Management's Plum Book, published 
     at the start of each presidential Administration, shows that 
     there are more than 3,000 positions a President can fill 
     without consideration for civil service rules. And Bush has 
     gone further than most Presidents to put political stalwarts 
     in some of the most important government jobs you've never 
     heard of, and to give them genuine power over the 
     bureaucracy. ``These folks are really good at using the 
     instruments of government to promote the President's 
     political agenda,'' says Paul Light, a professor of public 
     service at New York University and a well-known expert on the 
     machinery of government. ``And I think that takes you well 
     into the gray zone where few Presidents have dared to go in 
     the past. It's the coordination and centralization that's 
     important here.''
       The White House makes no apologies for organizing 
     government in a way that makes it easier to carry out Bush's 
     agenda. Johnson says the centralization is ``very 
     intentional, and it starts with the people you pick . . . 
     They're there to implement the President's priorities.'' 
     Johnson asserts that appointees are chosen on merit, with 
     political credentials used only as a tie breaker between 
     qualified people. ``Everybody knows somebody,'' he says. 
     ``Were they appointed because they knew somebody? No. What we 
     focused on is: Does the government work, and can it be caused 
     to work better and more responsibly? . . . We want the 
     programs to work.'' But across the government, some 
     experienced civil servants say they are being shut out of the 
     decision making at their agencies. ``It depresses people, 
     right down to the level of a clerk-typist,'' says Leo Bosner, 
     head of the Federal Emergency Management Agency's (FEMA's) 
     largest union. ``The senior to mid-level managers have really 
     been pushed into a corner career-wise.''
       Some of the appointments are raising serious concerns in 
     the agencies themselves and on Capitol Hill about the 
     competence and independence of agencies that the country 
     relies on to keep us safe, healthy and secure. Internal e-
     mail messages obtained by TIME show that scientists' drug-
     safety decisions at the Food and Drug Administration (FDA) 
     are being second-guessed by a 33-year-old doctor turned stock 
     picker. At the Office of Management and Budget, an ex-
     lobbyist with minimal purchasing experience oversaw $300 
     billion in spending, until his arrest last week. At the 
     Department of Homeland Security, an agency the Administration 
     initially resisted, a well-connected White House aide with 
     minimal experience is poised to take over what many consider 
     the single most crucial post in ensuring that terrorists do 
     not enter the country again. And who is acting as watchdog at 
     every federal agency? A corps of inspectors general who may 
     be increasingly chosen more for their political credentials 
     than their investigative ones.
       Nowhere in the federal bureaucracy is it more important to 
     insulate government experts from the influences of politics 
     and special interests than at the Food and Drug 
     Administration, the agency charged with assuring the safety 
     of everything from new vaccines and dietary supplements to 
     animal feed and hair dye. That is why many within the 
     department, as well as in the broader scientific 
     community, were startled when, in July, Scott Gottlieb was 
     named deputy commissioner for medical and scientific 
     affairs, one of three deputies in the agency's second-
     ranked post at FDA.
       His official FDA biography notes that Gottlieb, 33, who got 
     his medical degree at Mount Sinai School of Medicine, did a 
     previous stint providing policy advice at the agency, as well 
     as at the Centers for Medicare and Medicaid Services, and was 
     a fellow at the American Enterprise Institute, a conservative 
     think tank. What the bio omits is that his most recent job 
     was as editor of a popular Wall Street newsletter, the 
     Forbes/Gottlieb Medical Technology Investor, in which he 
     offered such tips as ``Three Biotech Stocks to Buy Now.'' In 
     declaring Gottlieb a ``noted authority'' who had written more 
     than 300 policy and medical articles, the biography neglects 
     the fact that many of those articles criticized the FDA for 
     being too slow to approve new drugs and too quick to issue 
     warning letters when it suspects ones already on the market 
     might be unsafe. FDA Commissioner Lester Crawford, who 
     resigned suddenly and without explanation last Friday, wrote 
     in response to e-mailed questions that Gottlieb is ``talented 
     and smart, and I am delighted to have been able to recruit 
     him back to the agency to help me fulfill our public-health 
     goals.'' But others, including Jimmy Carter-era FDA 
     Commissioner Donald Kennedy, a former Stanford University 
     president and now executive editor-in-chief

[[Page S10463]]

     of the journal Science, say Gottlieb breaks the mold of 
     appointees at that level who are generally career FDA 
     scientists or experts well known in their field. ``The 
     appointment comes out of nowhere. I've never seen anything 
     like that,'' says Kennedy.
       Gottlieb's financial ties to the drug industry were at one 
     time quite extensive. Upon taking his new job, he recused 
     himself for up to a year from any deliberations involving 
     nine companies that are regulated by the FDA and ``where a 
     reasonable person would question my impartiality in the 
     matter.'' Among them are Eli Lilly, Roche and Proctor & 
     Gamble, according to his Aug. 5 ``Disqualification Statement 
     Regarding Former Clients,'' a copy of which was obtained by 
     TIME. Gottlieb, though, insists that his role at the agency 
     is limited to shaping broad policies, such as improving 
     communication between the FDA, doctors and patients, and 
     developing a strategy for dealing with pandemics of such 
     diseases as flu, West Nile virus and SARS.
       Would he ever be involved in determining whether an 
     individual drug should be on the market? ``Of course not,'' 
     Gottlieb told TIME. ``Not only wouldn't I be involved in that 
     . . . But I would not be in a situation where I would be 
     adjudicating the scientific or medical expertise of the [FDA] 
     on a review matter. That's not my role. It's not my 
     expertise. We defer to the career staff to make scientific 
     and medical decisions.''
       Behind the scenes, however, Gottlieb has shown an interest 
     in precisely those kinds of deliberations. One instance took 
     place on Sept. 15, when the FDA decided to stop the trial of 
     a drug for multiple sclerosis during which three people 
     had developed an unusual disorder in which their bodies 
     eliminated their blood platelets and one died of 
     intracerebral bleeding as a result. In an e-mail obtained 
     by TIME, Gottlieb speculated that the complication might 
     have been the result of the disease and not the drug. 
     ``Just seems like an overreaction to place a clinical 
     hold'' on the trial, he wrote. An FDA scientist rejected 
     his analysis and replied that the complication ``seems 
     very clearly a drug-related event.'' Two days prior, when 
     word broke that the FDA had sent a ``non-approvable'' 
     letter to Pfizer Inc., formally rejecting its Oporia drug 
     for osteoporosis, senior officials at the FDA's Center for 
     Drug Evaluation and Research received copies of an e-mail 
     from Gottlieb expressing his surprise that what he thought 
     would be a routine approval had been turned down. Gottlieb 
     asked for an explanation.
       Gottlieb defends his e-mails, which were circulated widely 
     at the FDA. ``Part of my job is to ask questions both so I 
     understand how the agency works, and how it reaches its 
     decisions,'' he told TIME. However, a scientist at the agency 
     said they ``really confirmed people's worst fears that he was 
     only going to be happy if we were acting in a way that would 
     make the pharmaceutical industry happy.''
       The Oporia decision gave Pfizer plenty of reason to be 
     unhappy: the drug had been expected to produce $1 billion a 
     year in sales for the company. Pfizer's stock fell 1.4% the 
     day the rejection was announced. The FDA has not revealed why 
     it rejected the drug, and Pfizer has said it is ``considering 
     various courses of action'' that might resuscitate its 
     application for approval.
       Health experts note that Gottlieb's appointment comes at a 
     time of increased tension between the agency and drug 
     companies, which are concerned that new drugs will have a 
     more difficult time making it onto the market in the wake of 
     the type of safety problems that persuaded Merck to pull its 
     best-selling painkiller Vioxx from the market last year. The 
     agency's independence has also come under question, most 
     recently with its decision last month to prevent the 
     emergency contraceptive known as Plan B from being sold over 
     the counter, after an FDA advisory panel recommended it could 
     be. That Gottlieb sits at the second tier of the agency, 
     critics say, sends anything but a reassuring signal.
       David Safavian didn't have much hands-on experience in 
     government contracting when the Bush Administration tapped 
     him in 2003 to be its chief procurement officer. A law-school 
     internship helping the Pentagon buy helicopters was about the 
     extent of it. Yet as administrator of the Office of Federal 
     Procurement Policy, Safavian, 38, was placed in charge of the 
     $300 billion the government spends each year on everything 
     from paper clips to nuclear submarines, as well as the $62 
     billion already earmarked for Hurricane Katrina recovery 
     efforts. It was his job to ensure that the government got the 
     most for its money and that competition for federal 
     contracts--among companies as well as between government 
     workers and private contractors--was fair. It was his job 
     until he resigned on Sept. 16 and was subsequently arrested 
     and charged with lying and obstructing a criminal 
     investigation into Republican lobbyist Jack Abramoff's 
     dealings with the Federal Government.
       Safavian spent the bulk of his pregovernment career as a 
     lobbyist, and his nomination to a top oversight position 
     stunned the tightly knit federal procurement community. A 
     dozen procurement experts interviewed by TIME said he was the 
     most unqualified person to hold the job since its creation in 
     1974. Most of those who held the post before Safavian were 
     well-versed in the arcane world of federal contracts. 
     ``Safavian is a good example of a person who had great party 
     credentials but no substantive credentials,'' says Danielle 
     Brian, executive director of the Project on Government 
     Oversight, a nonprofit Washington watchdog group. ``It's one 
     of the most powerful positions in terms of impacting what the 
     government does, and the kind of job--like FEMA director--
     that needs to be filled by a professional.'' Nevertheless, 
     Safavian's April 2004 confirmation hearing before the Senate 
     Governmental Affairs Committee (attended by only five of the 
     panel's 17 members) lasted just 67 minutes, and not a single 
     question was asked about his qualifications.
       The committee did hold up Safavian's confirmation for a 
     year, in part because of concerns about work his lobbying 
     firm, Janus-Merritt Strategies, had done that he was required 
     to divulge to the panel but failed to. The firm's filings 
     showed that it represented two men suspected of links to 
     terrorism (Safavian said one of the men was ``erroneously 
     listed,'' and the other's omission was an ``inadvertent 
     error'') as well as two suspect African regimes. Ultimately, 
     the committee and the full Senate unanimously approved 
     Safavian for the post.
       His political clout, federal procurement experts say 
     privately, came from his late-1990s lobbying partnership with 
     Grover Norquist, now head of Americans for Tax Reform and a 
     close ally of the Bush Administration. Norquist is an antitax 
     advocate who once famously declared that his goal was to 
     shrink the Federal Government so he could ``drag it into the 
     bathroom and drown it in the bathtub.'' As the U.S. 
     procurement czar, Safavian was pushing in that direction by 
     seeking to shift government work to private contractors, 
     contending it was cheaper. Federal procurement insiders say 
     his relationship with Norquist gave Safavian the edge in 
     snaring the procurement post. But Norquist has ``no memory'' 
     of urging the Administration to put Safavian in the post, 
     says an associate speaking on Norquist's behalf. A White 
     House official said Norquist ``didn't influence the 
     decision.'' Clay Johnson, who was designated by the White 
     House to answer all of TIME's questions about administration 
     staffing issues and who oversaw the procurement post, says 
     Safavian was ``by far the most qualified person'' for the 
     job. Perhaps it also didn't hurt that Safavian's wife 
     Jennifer works as a lawyer for the House Government Reform 
     Committee, which oversees federal contracting.
       In addition, Safavian had worked at a law firm in the mid-
     '90s with Jack Abramoff, one of the capital's highest-paid 
     lobbyists, a top G.O.P. fund raiser and a close friend of 
     House majority leader Tom DeLay. Abramoff was indicted last 
     month on unrelated fraud and conspiracy charges. In 2002, 
     Abramoff invited Safavian on a weeklong golf outing to 
     Scotland's famed St. Andrews course (as Abramoff had done 
     with DeLay in 2000). Seven months after the trip, an 
     anonymous call to a government hotline said lobbyists had 
     picked up the tab for the jaunt. That wasn't true; 
     Safavian paid $3,100 for the trip. But the government 
     alleges that he lied when he repeatedly told investigators 
     that Abramoff had no business dealings with the General 
     Services Administration, where Safavian worked at the 
     time. Prosecutors alleged last week, however, that 
     Safavian worked closely with Abramoff--identified only as 
     ``Lobbyist A'' in the criminal complaint against 
     Safavian--to give Abramoff an inside track in his efforts 
     to acquire control of two pieces of federal property in 
     the Washington area. Safavian, who is free without bail, 
     declined to be interviewed for this story. His attorney, 
     Barbara Van Gelder, said the government is trying to 
     pressure her client to help in its probe of Abramoff. 
     ``This is a creative use of the criminal code to secure 
     his cooperation,'' she said.
       Three days after the Sept. 12 resignation of FEMA's Michael 
     Brown, Julie Myers, the Bush Administration's nominee to head 
     Immigration and Customs Enforcement (ICE) came before the 
     Senate Homeland Security and Governmental Affairs Committee. 
     The session did not go well. ``I think we ought to have a 
     meeting with [Homeland Security Secretary] Mike Chertoff,'' 
     Ohio Republican George Voinovich told Myers. ``I'd really 
     like to have him spend some time with us, telling us 
     personally why he thinks you're qualified for the job. 
     Because based on the resume, I don't think you are.''
       Immigration and Customs Enforcement is one of 22 agencies 
     operating under the umbrella of the Department of Homeland 
     Security, but its function goes to the heart of why the 
     department was created: to prevent terrorists from slipping 
     into the U.S. If that weren't enough, the head once must also 
     contend with money launderers, drug smugglers, illegal-arms 
     merchants and the vast responsibility that comes with 
     managing 20,000 government employees and a $4 billion budget. 
     Expectations were high that whoever was appointed to fill the 
     job would be, in the words of Michael Greenberger, head of 
     the University of Maryland's Center for Health and Homeland 
     Security, ``a very high-powered, well-recognized intelligence 
     manager. ``
       Instead the Administration nominated Myers, 36, currently a 
     special assistant handling personnel issues for Bush. She has 
     experience in law enforcement management, including jobs in 
     the White House and the Commerce, Justice and Treasury 
     departments, but she barely meets the five-year minimum 
     required by law. Her most significant responsibility has been 
     as Assistant Secretary for Export Enforcement at the Commerce 
     Department, where, she told Senators, she supervised 170 
     employees and a $25 million budget.
       Myers may appear short on qualifications, but she has 
     plenty of connections. She

[[Page S10464]]

     worked briefly for Chertoff as his chief of staff at the 
     Justice Department's criminal division, and two days after 
     her hearing, she married Chertoff's current chief of staff, 
     John Wood. Her uncle is Air Force General Richard Myers, 
     the outgoing Chairman of the Joint Chiefs of Staff. Julie 
     Myers was on her honeymoon last week and was unavailable 
     to comment on the questions about her qualifications 
     raised by the Senate. A representative referred TIME to 
     people who had worked with her, one of whom was Stuart 
     Levey, the Treasury Department's Under Secretary for 
     Terrorism and Financial Crime. ``She was great, and she 
     impressed everyone around her in all these jobs,'' he 
     said. ``She's very efficient, and she's assertive and 
     strong and smart, and I think she's wonderful.''
       To critics, Myers' appointment is a symptom of deeper ills 
     in the Homeland Security Department, a huge new bureaucracy 
     that the Bush Administration resisted creating. Among those 
     problems, they say, is a tendency on the part of the 
     Administration's political appointees to discard in-house 
     expertise, particularly when it could lead to additional 
     government regulation of industry. For instance, when 
     Congress passed the intelligence reform bill last year, it 
     gave the Transportation Security Administration (TSA) a 
     deadline of April 1, 2005, to come up with plans to assess 
     the threat to various forms of shipping and transportation--
     including rail, mass transit, highways and pipelines--and 
     make specific proposals for strengthening security. Two 
     former high-ranking Homeland Security officials tell TIME 
     that the plans were nearly complete and had been put into 
     thick binders in early April for final review when Deputy 
     Secretary Michael Jackson abruptly reassigned that 
     responsibility to the agency's policy shop. Jackson was 
     worried that presenting Congress with such detailed proposals 
     would only invite it to return later and demand to know why 
     Homeland Security had not carried them out. ``If we put this 
     out there, this is what we're going to be held to,'' says one 
     of the two officials, characterizing Jackson's stance. Nearly 
     six months after Congress's deadline, in the wake of the 
     summer's subway bombings in London, TSA spokeswoman Amy Von 
     Walter says the agency is in the process of declassifying the 
     document and expects to post a short summary on its website 
     soon.
       In the meantime, Myers' nomination could be in trouble. 
     Voinovich says his concerns were satisfied after a 35-minute 
     call with Chertoff, in which the Homeland Security Secretary 
     argued forcefully on Myers' behalf. But other senators are 
     raising questions, and Democrats have seized on Myers' 
     appointment as an example of the Bush Administration's 
     preference for political allies over experience.
       The Post-Watergate law creating the position of inspector 
     general (IG) states that the federal watchdogs must be hired 
     ``without regard to political affiliation,'' on the basis of 
     their ability in such disciplines as accounting, auditing and 
     investigating. It may not sound like the most exciting job, 
     but the 57 inspectors general in the Federal Government can 
     be the last line of defense against fraud and abuse. Because 
     their primary duty is to ask nosy questions, their 
     independence is crucial.
       But critics say some of the Bush IGs have been too cozy 
     with the Administration. ``The IGs have become more political 
     over the years, and it seems to have accelerated,'' said A. 
     Ernest Fitzgerald, who has been battling the Defense 
     Department since his 1969 discovery of $2 billion in cost 
     overruns on a cargo plane, and who, at 79, still works as 
     a civilian Air Force manager. A study by Representative 
     Henry Waxman of California, the top Democrat on the House 
     Government Reform Committee, found that more than 60% of 
     the IGs nominated by the Bush Administration had political 
     experience and less than 20% had auditing experience--
     almost the obverse of those measures during the Clinton 
     Administration. About half the current IGs are holdovers 
     from Clinton.
       Johnson says political connections may be a thumb on the 
     scale between two candidates with equal credentials, but 
     rarely are they the overriding factor in a personnel 
     decision. Speaking of all such appointments, not just the 
     IGs, he said, ``I am aware of one or two situations where 
     politics carried the day and the person was not in the job a 
     year later.''
       Still, several of the President's IGs fit comfortably into 
     the friends-and family category. Until recently, the most 
     famous Bush inspector general was Janet Rehnquist, a daughter 
     of the late Chief Justice. Rehnquist had been a lawyer for 
     the Senate Permanent Subcommittee on Investigations and 
     worked in the counsel's office during George H.W. Bush's 
     presidency before becoming an IG at the Department of Health 
     and Human Services. In that sense, she was qualified for the 
     job. But a scathing report by the Government Accountability 
     Office asserted that she had ``created the perception that 
     she lacked appropriate independence in certain situations'' 
     and had ``compromised her ability to serve as an effective 
     leader.'' Rehnquist also faced questions about travel that 
     included sightseeing and free time, her decision to delay an 
     audit of the Florida pension system at the request of the 
     President's brother, Governor Jeb Bush of Florida, and the 
     unauthorized gun she kept in her office. She resigned in June 
     2003 ahead of the report.
       Three weeks ago, however, Joseph Schmitz supplanted 
     Rehnquist as the most notorious Bush IG. Schmitz, who worked 
     as an aide to former Reagan Administration Attorney General 
     Ed Meese and whose father John was a Republican Congressman 
     from Orange County, Calif., quit his post at the Pentagon 
     following complaints from Senate Finance Committee chairman 
     Charles Grassley, Republican of Iowa. In particular, Grassley 
     questioned Schmitz's acceptance of a trip to South Korea, 
     paid for in part by a former lobbying client, according to 
     Senate staff members and public lobbying records, and 
     Schmitz's use of eight tickets to a Washington Nationals 
     baseball game. But those issues aren't the ones that led to 
     questions about his independence from the White House. Those 
     concerns came to light after Schmitz chose to show the White 
     House his department's final report on a multiyear 
     investigation into the Air Force's plan to lease air-
     refueling tankers from Boeing for much more than it would 
     have cost to buy them. After two weeks of talks with the 
     Administration, Schmitz agreed to black out the names of 
     senior White House officials who appeared to have played a 
     role in pushing and approving what turned out to be a 
     controversial procurement arrangement. Schmitz ultimately 
     sent the report to Capitol Hill, but Senators are irked that 
     they have not yet received an original, unredacted copy.
       Congressional aides said they are still scratching their 
     heads about how Schmitz got his job. He now works for the 
     parent company of Blackwater USA, a military contractor that, 
     in his old job, he might have been responsible for 
     investigating.

  Mr. DURBIN. Mr. President, I will tell you, when we hear about the 
contracts that are being let for Hurricane Katrina and other natural 
disasters, it raises similar questions. Just last week, the head of 
procurement in the White House, Mr. Safavian, was arrested. He was the 
top man in the White House when it came to procurement and contracts. 
Because of some misrepresentations that he apparently made--it has been 
alleged that he made these misrepresentations--he has been asked to 
step down from this spot in the White House.
  But we have to ask about the contracts that are being let now for 
Hurricane Katrina. The Senate and House approved some $60 billion for 
emergency aid. So far, 80 percent of the contracts that FEMA has let 
are no-bid contracts. They have just awarded them to companies without 
any competitive bidding whatsoever.
  The New York Times on September 26 said as follows:

       More than 80 percent of the $1.5 billion of contracts 
     signed by FEMA alone were awarded without bidding, or with 
     limited competition, government records show, provoking 
     concerns among auditors and government officials about the 
     potential for favoritism and abuse. Already questions have 
     been asked about the political connection of major contracts.

  And the article goes on:

       Questions are being raised as to whether this money is 
     actually going to the victims and is actually being well 
     spent. It raises a question of compensation, not just to make 
     certain these victims and communities get back on their feet 
     as quickly as possible but to make certain we are prepared 
     for the next disaster that may face the United States. We 
     have seen and read of serious problems which have occurred 
     with Hurricane Katrina. Some of the same occurred with 
     Hurricane Rita.

  In Texas, in Express News on September 26, it is written that:

       Jefferson County Texas Judge Carl Griffith said the county 
     has encountered problems gaining access to troops, equipment 
     and supplies needed to help rebuild the storm-battered 
     region. The judge said local authorities weren't able to use 
     about 50 generators the State had prepositioned at an 
     entertainment complex until late Sunday night because no 
     clearance had been given to release them. Mr. Johnson, 
     Jefferson County Administrator, said he had asked for 
     generators to supply power to St. Elizabeth's Hospital and 
     was told there were none available. Then he said, ``I had to 
     show the FEMA representatives the generators were sitting in 
     the parking lot.''

  So there clearly is a need for us to increase the level of competency 
and performance when it comes to dealing with these disasters.
  The bottom line is this: If we want to find out what went wrong and 
learn how to avoid it in the future, there is one thing that we can do 
and do now as a Congress which will reach that goal--an independent, 
nonpartisan commission, not a commission created by Republicans or 
Democrats in Congress of their own Members, nor an investigation 
initiated by the administration to look at wrongdoing that it might 
have committed itself, but an independent, nonpartisan commission. Some 
have argued against it, saying we waited a year for the 9/11 
Commission, why shouldn't we wait a year to look into the problems of 
Katrina? We waited a year because the White House opposed

[[Page S10465]]

the creation of that Commission. Ultimately, it was created and did a 
great service to this country.
  The force that kept the 9/11 Commission moving--this independent, 
nonpartisan commission--was the families who were victims of 9/11. That 
same force needs to come forward here. The victims of Hurricane Katrina 
and Hurricane Rita should be the moving force for the creation of an 
independent, nonpartisan commission.
  The Republican leadership in Congress and the Democratic leadership 
in Congress should acknowledge the obvious: If we are going to get 
clear answers as to what went wrong so those mistakes will not be made 
again, we need an independent, nonpartisan commission. We shouldn't be 
fearful of them. If they point a finger of blame at Congress, so be it. 
If they point a finger of blame at State and local leaders, so be it. 
The important thing is not who was wrong before, the important thing is 
let us make certain that America is safe in the future.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, what is the time allocation?
  The PRESIDING OFFICER. The time between 10 a.m. and 11 a.m. is under 
the control of the majority leader or his designee.
  Mr. HATCH. Thank you.
  Mr. President, I rise once again to speak in favor of the nomination 
of John Roberts. I urge all of my colleagues in the Senate to vote to 
make John Roberts the next Chief Justice of the United States.
  The central focus this week is properly on the nomination of Judge 
Roberts. In addition, the manner in which the Senate acts on this 
nomination also will be subject to public scrutiny. In this regard, I 
join those who have commended Senator Specter and Senator Leahy and 
other members of the Judiciary Committee for working together to plan 
and carry out a fair series of hearings on the Roberts nomination.
  This week, the full Senate faces the challenge of debating the merits 
of John Roberts to serve as our Nation's 17th Chief Justice. A widely 
respected journalist, David Broder, observed about the Roberts 
nomination:

       He is so obviously ridiculously well equipped to lead 
     government's third branch that it is hard to imagine how any 
     Democrat can justify a vote against his confirmation.

  To put a fine point on it, if Democrats do not vote for John Roberts, 
is it fair to ask whether some Democrats will ever give a fair shake to 
any Republican Supreme Court nominee?
  I recognize that many leftwing special interest groups are putting a 
lot of pressure on Democratic Senators to vote against this 
extraordinarily qualified nominee. For example, last Wednesday, 
September 21, 2005, the newspaper Rollcall contained an article with 
the headline ``Liberal Groups Lecture Democrats on Roberts.'' Let me 
read a portion of this article:

      . . . Sens. Dick Durbin and Charles Schumer received a sharp 
     rebuke at a weekend meeting in Los Angeles from wealthy 
     activists such as television producer Norman Lear over 
     Roberts' glide path to confirmation.
       At an event on behalf of People for the American Way, the 
     first of the major liberal groups to announce opposition to 
     Roberts, Lear lashed out at the Democrats for not mounting 
     more determined resistance to the nomination, according to 
     several sources familiar with the event.
       Schumer, chairman of the Democratic Senatorial Campaign 
     Committee, confirmed that the event included a `frank 
     discussion' between activists and the Senators.

  That says it all, the pressure on our colleagues on the other side: 
lectures, sharp rebukes, frank discussions. It sounds as if there may 
be some dissension in ``All in the Family.'' One can only wonder if 
``the Meathead'' took part in this harangue against the Senators. I 
have no doubt that pressure from some liberal groups was substantial.
  There are compelling reasons why the health of both the Senate and 
Judiciary require that this vote should be about, and only about, John 
Roberts' qualification to serve as Chief Justice. Some leftwing special 
interest groups seem to be urging a ``no'' vote on this highly 
qualified nominee in large part to somehow send a message to President 
Bush, as he deliberates on how to fill the remaining vacancy on the 
Supreme Court. If that is the case, it is a garbled, misguided message.
  I understand the political fact of life that some outside interest 
groups normally affiliated with the Republican side of the aisle might 
have preferred that Republican Senators would have voted against the 
Supreme Court nominees of President Clinton. But I also respect the 
political reality that he who wins the White House has the right under 
the Constitution to nominate judicial nominees, including filling 
Supreme Court vacancies.
  In undertaking our advice and consent role, the Senate, due to the 
Constitution, prudence, and tradition, owes a degree of deference to 
Presidential nominees. This helps explain why the two Supreme Court 
nominations made by President Clinton were given broad bipartisan 
support by the Senate once they were found to possess the intellect, 
integrity, character, and mainstream judicial philosophy necessary to 
serve on the Court. When the votes were counted for these two Clinton 
nominees, both of whom were known as socially liberal, Justice Breyer 
was confirmed by 87 to 9, and Justice Ruth Bader Ginsburg was approved 
by a 96-to-3 vote. Given the already stated opposition of both the 
minority leader and the assistant minority leader and many other 
Democratic Senators, it does not appear likely that Judge Roberts will 
receive the same level of support from Democrat Senators as Republican 
Senators provided for the last two Democrat nominees. This is 
unfortunate, unjustified, and unfair. Comity must be a two-way street.
  At least during the debate of this extremely well-qualified nominee 
the distinguished Senator from Massachusetts has not renewed his over-
the-top pledge ``to resist any Neanderthal that is nominated by this 
President of the United States.''
  Frankly, I do not think that much of the opposition against the 
nominee can be wholly explained by anything that Judge Roberts said or 
did or did not say over the course of his exemplary 25-year career as a 
lawyer.
  I commend the growing number of Democrats, including the ranking 
Democrat member of the Senate Judiciary Committee, Senator Leahy, for 
their decisions to support Judge Roberts. I hope many others across the 
aisle will join them.
  I also commend President Bush for consulting closely with the Senate 
and for sending a truly outstanding nominee in John Roberts. By all 
accounts, the President is continuing his practice of consulting widely 
with the Senate in filling the remaining vacancy on the Court.
  Turning to the merits of this nomination, I take a few moments to 
briefly discuss John Roberts' education and experience to help explain 
why so many think so highly of this nominee. Too often in this debate, 
Judge Roberts' opponents quickly acknowledged his brilliance and 
qualifications before launching into a series of speculative if's, 
and's, or but's that somehow justify a vote against the confirmation in 
their eyes.

  The American public realizes John Roberts has the right stuff. John 
Roberts graduated from Harvard College summa cum laude in 3 years. He 
went on to Harvard Law School where he graduated magna cum laude and 
was managing editor of the Harvard Law Review.
  Judge Roberts began his career by clerking for two leading Federal 
appellate judges, Judge Henry Friendly and Justice William Rehnquist. 
Judge Roberts began his career in the executive branch by serving as a 
Special Assistant to Attorney General William French Smith. Next, he 
was Associate Counsel in the White House Counsel's Office.
  In the administration of President George H.W. Bush, John Roberts 
served as Principal Deputy Solicitor General of the Department of 
Justice. Upon departing Government and moving back into private 
practice, he was justifiably recognized as one of the leading appellate 
lawyers in the country. He has argued an almost astounding number of 39 
cases before the Supreme Court.
  John Roberts has represented a diverse group of clients, including 
environmental, consumer, and civil rights interests and has taken 
seriously his obligation to provide voluntary legal services to the 
poor, including criminal defendants.

[[Page S10466]]

  Just 2 years ago, John Roberts was confirmed in the Senate without 
objection; not one Senator raised an objection to his nomination for a 
seat on the U.S. Court of Appeals for the District of Columbia Circuit. 
The American Bar Association evaluated Judge Roberts four times in the 
last 4 years, and each time he earned the highest ABA rating of ``well-
qualified.'' And four times in a row this ``well-qualified'' rating was 
unanimous. This must be some kind of a record for ABA ratings.
  John Roberts has the temperament, integrity, intelligence, judgment, 
and judicial philosophy to lead the Supreme Court and Federal Judiciary 
well into the 21st century.
  The Senate and the American public heard directly from John Roberts 
as he testified for over 20 hours before the Judiciary Committee. Most 
of us liked what we saw and heard. Judge Roberts told us he would bring 
back to the Supreme Court no agenda--political, personal, or otherwise. 
He told us he would consider each case based solely on the merits of 
the relevant facts and the applicable laws. With Judge Roberts, all 
litigants will continue to receive the bedrock American right of equal 
justice under the law.
  Here is what Judge Roberts said about the rule of law during his 
hearing:

       Somebody asked me, ``Are you going to be on the side of the 
     little guy?'' And you want to give an immediate answer. But 
     if you reflect on it, if the Constitution says the little guy 
     should win, the little guy should win in court before me. But 
     if the Constitution says the big guy should win, well, the 
     big guy should win, because my obligation is to the 
     Constitution. . . .The oath that a judge takes is not that 
     ``I'll look out for special interests'' . . . the oath is to 
     uphold the Constitution and laws of the United States and 
     that's what I would do.

  It seems to me that Judge Roberts got it exactly right. I cannot say 
the same thing about those, including the distinguished Senator from 
Massachusetts and the distinguished Senator from California, Mrs. 
Boxer, who embraced results-oriented litmus tests when they repeatedly 
asked just whose side will Judge Roberts be on in deciding cases. As 
Judge Roberts explained, a judge has to hear the case and consider the 
law before he or she decides who should prevail under the law.
  I also greatly appreciated Judge Roberts' comments on judicial 
activism and judicial restraint. Judge Roberts believes that in our 
system of government, judges ``do not have a commission to solve 
society's problems, but simply to decide cases before them according to 
the rule of law.''
  I found enlightening Judge Roberts' description about how he decides 
cases through a careful process of reviewing briefs, participating in 
oral arguments, conferring with other judges at conference, and, 
finally, writing the decision. He noted that he often adjusts his view 
of the case throughout the course of the deliberative process.
  Both in his opening testimony and in answering questions, Judge 
Roberts stressed the response of judges exercising institutional and 
personal modesty and humility. I have no doubt that this view is 
genuinely held by this nominee. I can say that an overwhelming majority 
of my fellow Utahans say they are fairly impressed with Judge Roberts' 
attitude toward the law and the role of judges.
  Some, particularly many leftwing special interest groups, do not 
share my enthusiasm for Judge Roberts. Despite the fact that Judge 
Roberts answered dozens of questions on many topics, some complain that 
Judge Roberts did not answer all the questions.
  Let us be clear. Under the Cannons of Judicial Ethics, it would have 
been inappropriate for Judge Roberts to comment on matters that could 
come before the Court. These liberal groups apparently have forgotten 
that back in 1993 when Democrat nominee, Ruth Bader Ginsburg, appeared 
before the Judiciary Committee in connection with her 96-to-3 
confirmation to the Supreme Court, she took a position of ``no hints, 
no forecasts, no previews,'' on many questions.
  This was consistent with what the distinguished Senator from 
Massachusetts, Mr. Kennedy, said back in 1967 with respect to the 
Supreme Court nomination of Thurgood Marshall. He said:

       We have to respect that any nominee to the Supreme Court 
     would have to defer any comments on any matters which are 
     either before the court or very likely to appear before the 
     court.

  Some critics argue that the administration should have turned over 
memos that Judge Roberts wrote in his former capacity as Deputy 
Solicitor General, when the fact is that several years ago a bipartisan 
group of seven former Solicitors General, four of whom were Democrats, 
wrote to the Judiciary Committee to tell us that, generally, providing 
these documents to the Senate and making them public was a bad idea 
given the unique role of the Solicitor General's Office.
  Some critics assert that Judge Roberts is insufficiently sensitive to 
their views in some areas of the law, including civil rights, voting 
rights, women's rights, and abortion, Presidential power and the 
commerce clause. A careful analysis of Judge Roberts' professional 
record over the last 25 years, coupled with the rigorous review of the 
hearing transcript, leads to the conclusion that Judge Roberts is well 
within the mainstream on his general perspectives on these issues and 
has pledged to be fair and openmined on any future litigation involving 
these and other areas. I take him at his word.
  For example, the distinguished Senator from Massachusetts has 
attempted to suggest that Judge Roberts is somehow against voting 
rights and other civil rights. Yet in response to questions from 
Senator Kennedy, Judge Roberts clearly stated that he believed that 
voting is the preservative of all other rights. It is this principle 
that undergirds the leading case of Baker v. Carr that brought us into 
the one man-one vote era that changed the political landscape of 
America.
  Moreover, Judge Roberts acknowledges the importance of the Voting 
Rights Act, and he has supported its reauthorization and said he is 
unaware of any fundamental legal deficiency in the statute.
  While in the Solicitor General's Office, John Roberts joined several 
briefs urging the Supreme Court to adopt broad interpretations of the 
Voting Rights Act. For example, in the 1993 case of Voinovich v. 
Quilter, Roberts successfully argued in a brief on behalf of the United 
States for a reading of the Ohio redistricting plan that made it easier 
to create minority legislative districts. The Supreme Court concurred.

  To claim John Roberts is hostile to voting rights is simply not true. 
Nor is he hostile to, or predisposed against, any other rights, 
interests, or legal claims. John Roberts is committed to hearing every 
case in a fair, unbiased manner.
  Let me conclude by saying that some, including some members of the 
Judiciary Committee, having failed to make a substantial case against 
this stellar nominee, have resorted to suggesting we are somehow 
``rolling the dice'' or ``betting the house'' with this nominee.
  To me, supporting John Roberts is a sound investment and, I will say, 
a sound investment in our Nation's future, not some long-shot bet.
  John Roberts' long and distinguished record as an advocate and judge 
over the past 25 years, buttressed by his recent confirmation hearing 
testimony, demonstrates he is a bright, careful, and thoughtful legal 
professional of the highest integrity and character. He is not an 
ideologue inclined to, or bent on, high court mischief.
  I think it likely one day historians will conclude that in making 
John Roberts our 17th Chief Justice, the President and Senate made a 
wise choice that helped maintain and advance the rule of law for all 
present and future citizens of the United States.
  Mr. President, I will vote aye to confirm Judge Roberts, and I hope 
the vast majority of Senators will do likewise.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. STEVENS. Mr. President, I ask unanimous consent that I be allowed 
to speak for a minute as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Stevens are printed in today's Record under 
``Morning Business.'')
  Mr. STEVENS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.

[[Page S10467]]

  Mr. GRAHAM. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAHAM. Mr. President, I would like to be recognized to speak on 
behalf of Judge Roberts.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. GRAHAM. Mr. President, as Senator Hatch indicated, I do not think 
we are ``rolling the dice'' at all to vote for this uniquely qualified 
man. It is not about whether he gets confirmed. He will be confirmed in 
the Senate by the close of business on Thursday, unless something major 
happens that no one anticipates now. Judge Roberts will then become the 
17th Chief Justice of the U.S. Supreme Court, and his confirmation will 
receive somewhere in the range of 70-plus votes probably. So his 
nomination is not in doubt.
  But I think this whole process will be viewed by scholars of the 
Court and those who follow the confirmation process, in the Senate 
particularly, in a very serious way because the vote totals do matter. 
He will get well over 50 votes, but the reasons being offered to vote 
``no'' I think suggest a change in standard from the historical point 
of view of how the Senate approaches a nominee.
  One of the things I think they will look at in the Roberts 
confirmation process is: What is the standard? If it is an objective 
standard of qualifications, character, integrity, has the person lived 
their life in such a way as to be able to judge fairly, not to be 
ideologically driven to a point where they cannot see the merits of the 
case, then Judge Roberts should get 100 votes. The reason I say that 
is, not too long ago in the history of our country President Clinton 
had two Supreme Court vacancies occur on his watch. One was Justice 
Ginsburg, who sits on the Court now. I believe she received 96 votes. 
The other was Justice Breyer, who sits on the Court now, who received 
well over 90 votes. Shortly before that, under President Bush 1's 
watch, Justice Scalia--a very well-known conservative--received 98 
votes.
  What is the difference between then and now? I think that is a very 
important point for the country to spend some time talking about. If he 
receives 70 or 75 votes, then, obviously, there has been a reduction in 
the vote total for someone who I think is obviously qualified. But in 
terms of qualifications, I am going to read some excerpts from what 
some Senators have said about Judge Roberts.
  Senator Biden: Incredible. Probably one of the most schooled 
appellate lawyers . . . at least in his generation.
  Senator Boxer: A brilliant lawyer. Well qualified. Well spoken. 
Affable. Unflappable.
  Senator Corzine: Eloquen[t]. A great lawyer. A great litigator.
  Senator Durbin: A judge [who] will be loyal and faithful to the 
process of law, to the rule of law. A great legal mind.
  Senator Feinstein: Very full and forward-speaking. Eloquent. Very 
precise.
  Senator Kennedy: An outstanding lawyer. A highly intelligent nominee. 
Well-educated and serious. A very pleasant person. Intelligent.
  Senator Kerry: Obviously qualified in his legal education and 
litigation experience. Earnest. Friendly. Incredibly intelligent. A 
superb lawyer.
  Senator Landrieu: Very well credentialed.
  Senator Obama: Qualified to sit on the highest court in the land. 
Humble. Personally decent. Very able. Very intelligent. Unflappable.
  Senator Reid: A very smart man. An excellent lawyer. A very affable 
person. A thoughtful mainstream judge on the D.C. Circuit Court of 
Appeals.
  Senator Schumer: Brilliant. Accomplished. Clearly brilliant. A very 
bright and capable man. Very, very smart man. Outstanding lawyer. 
Without question, an impressive, accomplished and brilliant lawyer. A 
decent and honorable man.
  There is more, and I will read those later. I would hope half that 
could be said about me in any job I pursued. The reason those 
testimonials were offered is, it is obvious to anyone who has been 
watching the hearings and paid any attention to what has gone on here 
in the last week or so that we have in our midst one of the most well-
qualified people in the history of our Nation to sit on the Supreme 
Court--probably the greatest legal mind of his generation or maybe of 
any other generation. I think when history records President Bush's 
selection of Judge Roberts, it will be seen historically as one of the 
best picks in the history of this country.
  The man is a genius. I was there in his presence a whole week. He 
never took a note. He never asked anybody how to say something or what 
to say, or get any advice from anyone as to how to answer a question. 
He had almost complete total recall of memos from 20-some years in the 
past. Not only did he understand every case he was questioned upon 
without notes, he understood how the dissenting opinions did not 
reconcile themselves. I have been around a lot of smart people. I have 
never been around anyone as capable as Judge Roberts.

  Now, why would he not get 96 or 98 or 100 votes? Well, some people 
have said all these glowing things but said that is not enough. There 
comes the problem. If him being intelligent, brilliant, a superb 
lawyer, the greatest legal mind of our generation, and well qualified 
is not enough, what is? What are some of the reasons that have been 
offered in terms of why anyone could not support this eminently 
qualified man?
  Most of the reasons I think have to do with a subjective analysis of 
the nominee that apparently was not used before. Because if a 
conservative went down the road of something other than qualifications, 
character, and integrity, I doubt if a conservative could have voted 
for Justice Ginsburg or Justice Breyer, if you wanted to use some 
subjective test as to how they might vote on a particular case or if 
you had a philosophical test in place of a qualifications test. I will 
talk about that a bit later.
  One of the reasons people have offered for a ``no'' vote is that 
during the questioning period he would not give complete answers to 
constitutional issues facing the country. I think Senator Kerry said: 
He is a superb, brilliant lawyer, but I can't vote for him because I 
don't know how he will come out on the great constitutional issues of 
our time.
  Well, I would say that is good. You are not supposed to know how he 
is going to decide the great constitutional questions of our time 
because that is done in a courtroom with litigants before the judge. It 
is not done in a confirmation process where you have to tell people 
before you go on the Court how you are going to rule.
  At least one Senator has said: I can't vote for this man because he 
won't tell me if he will buy into the right of privacy and uphold Roe 
v. Wade. If that becomes the standard, the hearing could be limited to 
one question: Will you uphold Roe v. Wade, yes or no? And that is the 
end of the deal.
  I would argue if we go down that road as a nation, using one case, an 
allegiance to one line of legal reasoning, or a particular case, 
whether you uphold it or whether you will reverse it, then you have 
done a great disservice to the judiciary because we are not looking for 
judges to validate our pet peeves as Senators in terms of law. We are 
looking for judges to sit in judgment of our fellow citizens who will 
wait until the case is being litigated, listen to the arguments, read 
the briefs, and then decide.
  That is not unknown to the Senate. The idea that Court nominees in 
the past would refuse to give specific answers to specific cases is not 
unknown at all.
  Mr. President, I have excerpts from past nominees and questions that 
were asked.
  I will read some of these excerpts.
  This is an abortion question by Senator Metzenbaum to Justice 
Ginsburg: After the Casey decision, some have questioned whether the 
right to choose is still a fundamental right. In your view, does the 
Casey decision stand for the proposition that the right to choose is a 
fundamental constitutional right?
  That is a very direct question: Do you buy into the precepts of Roe 
v. Wade?
  Ginsburg: What regulations will be permitted is certainly a matter 
likely to be before the Court. Answers depend in part, Senator, on the 
kind of record presented to the Court. It would not be appropriate for 
me to go beyond the Court's recent reaffirmation that abortion is a 
woman's right guaranteed by

[[Page S10468]]

the 14th amendment. It is part of the liberty guaranteed by the 14th 
amendment.
  She recited the current law and said: There will be lines of attack 
on the right to privacy. I am going to wait until the record is 
established.
  Good answer.
  Voting rights. Senator Moseley-Braun: I guess my concern in Presley 
really is a matter of your view of the language of the statute, the 
specific language of section 5 of the Voting Rights Act, and given the 
facts of that case whether or not the Court gave too narrow an 
interpretation of the language in such a way that essentially 
frustrated the meaning of the statute as a whole.
  That is a topic before the Senate now.
  Ginsburg: I avoided commenting on Supreme Court decisions when other 
Senators raised that question, so I must adhere to that position.
  The death penalty. Senator Specter: Let me ask you a question 
articulated the way we ask jurors, whether you have any conscientious 
scruple against the imposition of the death penalty.
  Ginsburg: My own view of the death penalty I think is not relevant to 
any question I would be asked to decide as a judge. I will be 
scrupulous in applying the law on the basis of the Constitution, 
legislation, and precedent.
  Who does that sound like?
  Ginsburg: As I said in my opening remarks, my own views and what I 
would do if I were sitting in the legislature are not relevant to the 
job for which you are considering me, which is the job of a judge.
  A very good answer.
  Ginsburg: So I would not like to answer that question any more than I 
would like to answer the question of what choice I would make for 
myself, what reproductive choice I would make for myself. It is not 
relevant to what I will decide as a judge.
  Now, within that answer she does two things that I think are 
important. She refuses to give a personal view of the death penalty 
based on the idea that: My personal views are not going to decide how I 
will judge a particular case. And for me to start commenting in that 
fashion will compromise my integrity as a judge. She also said: I am 
not going to play the role of being a legislator because that is not 
what judges do.
  So I would argue not only did she give the right answers, but that is 
all Judge Roberts has done. When he is advising the President of the 
United States about conservative policies initiated by the Reagan 
administration, he is doing so as a lawyer, advising a client. He 
several times indicated that his personal views about matters are not 
going to dictate how he decides the case. What will dictate how he 
decides the case are the facts presented, the law in question, and the 
record.
  All right, more about the death penalty.
  Senator Hatch: But do you agree with all the current sitting members 
that it is constitutional, it is within the Constitution?
  Again, talking about the death penalty. This is Senator Hatch trying 
to get Judge Ginsburg to comment on sitting members of the Court.
  Ginsburg: I can tell you that I agree that what you have stated is 
the precedent and clearly has been the precedent since 1976. I must 
draw the line at that point and hope you will respect what I have tried 
to tell you, that I am aware of the precedent and equally aware of the 
principle of stare decisis.
  Now, who does that sound like? That sounds like Roberts on Roe v. 
Wade, but she is talking about the death penalty.
  Hatch: It isn't a tough question. I mean I am not asking----
  Ginsburg: You asked me what was in the fifth amendment. The fifth 
amendment used the word ``capital.'' I responded when you asked me what 
is the state of current precedents. But if you want me to take a pledge 
that there is one position I am not going to take, that is what you 
must not ask a judge to do.
  So Senator Hatch was trying to draw her out on the death penalty and 
follow a particular line of reasoning. She says, no, I am not going to 
pledge to get on the Court to tip my hand there.
  Hatch: But that is not what I asked you. I asked you, is it in the 
Constitution, is it constitutional?
  Again, he was talking about the death penalty.
  Ginsburg: I can tell you the fifth amendment reads, no person shall 
be held to answer for a capital or otherwise infamous crime unless, and 
the rest. But I am not going to say to this committee that I reject the 
position out of hand in a case as to which I have never expressed an 
opinion. I have never ruled on a death penalty case. I have never 
written about it. I have never spoken about it in a classroom.
  Specter, on women's rights: Would you think it is appropriate for the 
court to employ in general terms the original understanding of the 14th 
amendment which you wrote about in the Washington University Law 
Quarterly as interpretive to women's rights?
  Ginsburg: I have no comment on that, Senator Specter. I have said 
that these issues will be coming before the Court. I will not say 
anything in the legislative Chamber that will hint or forecast how I 
will vote in cases involving particular classifications.
  It goes on and on. I have 30 pages here. I will put them in the 
Record. The idea that Judge Roberts, during his time before the 
committee, was evasive or unresponsive, different than people who came 
before him, is not supported by the record. What we have in this 
confirmation process is a frontal assault on the nominee in terms of 
pledging allegiance to Roe v. Wade, something that didn't happen to 
Ginsburg as directly.
  There is at least one Senator who appears to be basing her vote on 
the idea that he won't tell me whether he will uphold Roe v. Wade; 
therefore, I can't vote for Judge Roberts. Again, I argue if that is 
the standard for a yes or no vote, the standard has changed 
dramatically. It will be unhealthy for the country as a whole. It will 
do great damage to the judiciary. It will be a standard Democrats would 
not want to be applied in the future, I can assure my colleagues.
  The other issue is about the idea of civil rights, that somehow Judge 
Roberts' position during the Reagan administration was unfriendly to 
civil rights to the point that we can't vote for him. Bottom line is, 
of all the reasons given, that is the most distorted. That is a reason, 
that is a cut-and-paste job we have seen too much of to try to cast 
someone in a bad light for doing what their job required of them. John 
Roberts was in his 20s, working for the Reagan administration. The idea 
that he would be advising President Reagan about conservative policy 
initiatives shouldn't surprise anyone. That was his job.
  The issue of civil rights is important to all of us. One of the worst 
things you can do is try to question someone's character, integrity, to 
the point that it puts a shadow of who they are in terms of being 
sensitive to other people based on race or any other difference. The 
idea that John Roberts, when he was working for the Reagan 
administration, showed a hard heart and insensitivity to people's 
ability to fairly vote is a shameful attack, not supported by the 
record. It is a cut-and-paste job. It is a distortion of what he said 
then, what he said now, and we ought to reject it.
  The issue that was being discussed was whether Ronald Reagan's 
position of reauthorizing the Civil Rights Voting Act as written was 
extreme. The Reagan administration said: We will reauthorize the Voting 
Rights Act as written. The problem in the early 1980s was that you had 
a Supreme Court decision, the Boulder case, where the Supreme Court 
said that when it comes to section 2, where you look at the effects of 
voting patterns and whether there is discrimination being applied based 
on race and voting and representation, the test to determine that would 
be the intent test. Did the people who drew the lines setting up the 
voting procedures and the voting districts, was it their intent to 
racially discriminate and undermine African-American voting rights in 
the States in question. That was the test the Supreme Court applied.
  Senator Kennedy and others wanted to change that test to the effects 
test, where you would look at the effects of how the lines were drawn 
and how the districts were set up. It was an honest debate.
  The third concept no one has talked much about is proportionality. 
The Reagan administration was against

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proportional representation which is basically an electoral quota. You 
look at a district based on race, and you come to the conclusion that 
the elected officials within that district have to mirror the 
population. In other words, you will have a racial quota. If 40 percent 
of the district is of a particular race, then 40 percent of the people 
have to be of that race. I don't think most Americans want that. What 
we want is people to have a chance to run for office, be successful and 
vote their conscience, without anything interfering and without bad 
forces standing in the way. I don't think most Americans want to decide 
the election based on race before you cast any ballot.

  That was the debate in the 1980s. The Reagan administration was 
against proportionality. They were standing for the Civil Rights Act as 
written in the 1960s. Then you had the Supreme Court case that 
interjected a new concept. What Judge Roberts, then a lawyer in the 
Reagan administration, was advising was that the current law was the 
intent test. The Reagan administration was supporting the Supreme 
Court's intent test. How that has been twisted and turned to show or to 
make the argument that John Roberts is insensitive to people's ability 
to vote and has stood in the way of people having their fair day at the 
ballot box, to me is a complete distortion of who he is and the 
position he took.
  At the end of the day, here is what happened. There was a legislative 
compromise. The Supreme Court intent test was replaced by a totality of 
the circumstances test which is somewhere between the effects and 
intent test. I know this is a bit hard to follow, but the bottom line 
is, there was a compromise legislatively dealing with a Supreme Court 
decision. John Roberts' legal advice to the Reagan administration was 
very much in the mainstream of where America is, very much in the 
mainstream of the Reagan position. To say his legal memos arguing that 
proportionality was inappropriate and the intent test was based on 
sound legal reasoning, to somehow go from that legal reasoning to the 
idea that the man, the person, is insensitive to people's voting 
rights, again, is quite shameful.
  He said in the hearing, it is the right of which everything else 
revolves around, the ability to go to the ballot box and express 
yourself.
  This has happened to Judge Pickering, and it is going to happen to 
the next nominee. I will put the Senate on record from my point of 
view, coming from the South, there have been plenty of sins where I 
live in the South. The Voting Rights Act has cured a lot of those sins. 
But one of the things we should not lay on John Roberts is the idea 
that because he represented the Reagan administration, arguing that the 
Supreme Court was right, somehow he, as a person, is insensitive to 
minority rights.
  The reason that is a bogus argument is because there is not one 
person who came before the Senate Judiciary Committee or otherwise to 
say John Roberts has ever lived his life in a way that would suggest he 
is insensitive to people's rights based on race. As a matter of fact, 
one of the witnesses before the committee analyzed the cases Judge 
Roberts presented to the Supreme Court dealing with civil rights. They 
found out he won 71 percent of his cases dealing with civil rights 
issues. That says not only does he understand civil rights law well, he 
is arguing mainstream concepts. When he looked at how Justices agreed 
or disagreed with him, apparently Thurgood Marshall agreed with John 
Roberts, the advocate, over 60 something percent of the time. So if you 
look at the way he has lived his life, the way he has argued the law 
and who he has represented, there is not one ounce of evidence to 
suggest John Roberts the man is in any way insensitive to people's 
ability to vote based on race.
  Tomorrow we will come back and we will look at the other reasons to 
say no to this fine man. I think we are getting into a dicey area, if 
we are going to play this game of voting no based on ``you won't tell 
me how you will vote on a particular case'' or that we take someone's 
legal advice and use the client's position against that person, that 
you are going to set a standard that will chill out a lot of people 
wanting to be members of the Court. There are other things being said 
about this fine man that would be dangerous if the Senate adopted as 
the test in the future. I will talk next time about how the sitting 
Justices would not fare so well. The bottom line is there is a reason 
that Scalia, Ginsberg, and Breyer received well over 90 votes apiece. 
They were well qualified. They were people of good character and good 
integrity.
  If this man, John Roberts, after all that has been said about him in 
terms of his qualifications, doesn't get 90-plus votes, the Senate 
needs to do some self-evaluation because we have gone down the wrong 
road.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, let me associate myself with the remarks of 
the Senator from South Carolina. He so clearly lays out the 
foundational basis by which we ought to be reviewing nominees to our 
highest Court. At the same time, he brings a lot of valid criticism to 
those who would choose to be tremendously selective not by character 
but by philosophy of those who are sent to us to consider.
  Like many of our colleagues engaged in the confirmation process of 
John Roberts to the position of the Chief Justice of the Supreme Court, 
I have been here before. Maybe that is one way of saying it. The last 
time John Roberts came before the Senate, he was confirmed for his 
position by unanimous consent. He was placed on the District of 
Columbia's Circuit Court of Appeals, the second highest in the land as 
it relates to our judicial system. However, unlike most of our 
colleagues, I was a member of the Senate Committee on the Judiciary at 
that time, and his was one of the first confirmations before the 
committee that session. That only increased my sense of duty to 
thoroughly review his fitness for a lifetime appointment to the court.
  Undoubtedly, one of the most serious duties of a Senator is the 
constitutional obligation and opportunity to confirm the President's 
judicial nominees. At that time I was satisfied that John Roberts was a 
superior candidate for the job. A review of his record for the past 20 
months only proves that decision to have been the correct one. Not a 
single question has been raised as to his competence or his character 
during that time serving on the DC Circuit. Furthermore, in his time on 
the court, John Roberts has shown he does not bring an agenda to work 
with him in the morning. Rather, he takes an intellectual approach to 
each case, basing his rulings on the facts and the law, not any 
personal bias.
  To the extent there has been a debate over the nomination, it has not 
been about Judge Roberts' qualifications to sit on the Supreme Court. 
Rather, he has been subject to an ideological litmus test.
  I submit that this is not the job of the Senate. We are not social 
engineers, even though some of my colleagues might like to be, and it 
is not our role to pack the courts with members of certain ideologies.
  Judge Roberts points out that he is not standing for election, and 
appropriately so. I agree with this critical distinction. We are not 
here to debate his politics or whether we agree with them. Our duty is 
to give advice and consent to our President's nominations.
  To politicize this duty of supreme importance, I think is 
fundamentally wrong, but it is occurring with this nominee. For the 
last 2 weeks, we have been subjected to some of that rhetoric coming 
out of the Judiciary Committee which is purely political and an attempt 
to politicize the process. Politicizing the confirmation hearings runs 
contrary to the idea of an unbiased judiciary. As Judge Roberts himself 
has suggested, it undermines the integrity of that judicial process.
  That being the case, we must ask why anyone would want to bring 
issues of politics to the process. The simple answer is that opponents 
of Judge Roberts are not looking impartially. They want a nominee who 
will agree with their beliefs. Judge Roberts has said, time and time 
again, he would not engage in bargaining or state his beliefs on 
specific issues.
  Let me suggest that a Member who votes against this nominee because 
he will not state his position on a specific case or ruling is voting 
against an unbiased judiciary. In other words, they want a bias in the 
Court to fit their political beliefs instead of the unbiased

[[Page S10470]]

Court that our Founding Fathers envisioned.
  While some seem bound and determined to inject politics into the 
Court and have applied intense pressure to secure his assistance in 
that effort, Judge Roberts has stood by his commitment to the rule of 
law, and that is what a judge should do.
  This speaks highly of his integrity, but again his integrity is not 
in question. No one had brought forth any evidence to suggest that he 
is not a person of high moral character. In fact, many of the Members 
who say they will vote against his confirmation say that he appears to 
be a very fine fellow--smart, witty, thoughtful. So where are they 
going and what are they attempting to dredge up? His judicial demeanor 
is also not in question.
  The overwhelming assessment of Judge Roberts' performance before the 
Senate Committee on the Judiciary is that he did an outstanding job. He 
remained calm, thoughtful, impartial, and unshaken. In a word, he was 
judicial.
  I said during my tenure on that committee and during confirmation 
processes, while I may agree or disagree, what I was looking for was 
the character of the individual, the judicial demeanor: How would he or 
she perform on the court? Would they bring integrity to the court in 
those kinds of rulings to which they would be subjecting their mind and 
their talent?
  Some believe that all documents related to Judge Roberts during his 
service as Deputy Solicitor General should be disclosed even though 
this would violate attorney-client and deliberate process privileges. 
He will not infringe upon past employers' rights and privileges. He 
knows this would discourage consultation and new ideas and reduce the 
effectiveness of the Office of Solicitor General. This is a man who 
truly exemplifies integrity. Although he is criticized for not 
releasing some documents, it is his integrity that will not allow that 
to happen. If it were not unethical to disclose these documents, I am 
sure the judge would release them. In fact, those that would not 
infringe upon his integrity have been released.
  We have reviewed some 76,000 pages of documents, including documents 
for more than 95 percent of the cases he worked on in the Solicitor 
General's Office. Our access has been restricted to a mere 16 out of 
327 cases. Finding Judge Roberts unfit to be Chief Justice on the 
grounds of undisclosed privileged internal deliberations is not only 
unfair, I believe it is illegal and, at any test, it is ludicrous.
  Judge Roberts' competence is not being called into question, not in 
any sense by any Senator. It would be very difficult to find a better 
candidate anywhere to serve as Chief Justice. He seems to have done 
extremely well in whatever he has undertaken. Graduating summa cum 
laude says that this man is bright. Managing editor of the Harvard Law 
Review--that only comes to the top of the class. Later, he clerked for 
Judge Friendly of the U.S. court of appeals in Manhattan and for 
Supreme Court Justice William Rehnquist. He has tried 39 cases before 
the Supreme Court, both as a private litigant and as a Government 
litigant while serving as the Deputy Solicitor General. Judge Roberts 
now serves, as I mentioned, on the U.S. Court of Appeals for the DC 
Circuit.
  His credentials are impeccable. This man deserves a unanimous vote, 
as he received 20 months ago. But that will not be the case today 
because some have chosen to inject politics into this process. Thank 
goodness Judge Roberts has stood unwaveringly not allowing that to 
happen when it comes to himself. His integrity is not in question. That 
is why he was nominated by the President of the United States to serve 
as the Chief Justice of our highest Court.

  He deserves my vote. He will get my vote. He deserves the vote of 
every Senator serving in the Senate.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kentucky.