[Congressional Record (Bound Edition), Volume 149 (2003), Part 3]
[Senate]
[Pages 4152-4163]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

   NOMINATION OF MIGUEL A. ESTRADA, OF VIRGINIA, TO BE UNITED STATES 
               CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will now go into executive session and resume consideration of 
Executive Calendar No. 21, which the clerk will report.
  The legislative clerk read the nomination of Miguel A. Estrada, of 
Virginia, to be United States Circuit Judge for the District of 
Columbia.
  The ACTING PRESIDENT pro tempore. The distinguished acting majority 
leader.
  Mr. BENNETT. Mr. President, like every Senator, I am sure, I have had 
the experience this last week and a half of listening to the arguments 
both for and against Miguel Estrada as we have gone through the first 
filibuster of this particular session. When we come back on February 
24, we will undoubtedly be back into the filibuster. At that time, I 
would expect the focus perhaps to shift from a discussion of Miguel 
Estrada's shortcomings or qualifications to a discussion of the 
obstruction of the business of the Senate by members of the minority.
  As I have listened to this debate, I have realized something in what 
I would consider a larger context than the fight over Miguel Estrada. 
There is something going on about which, as Members of this 
institution, we need to stop and think. It is something that is quite 
significant and potentially a major sea change in the way the Senate 
does its business--and I hope I am not overdramatizing it--perhaps a 
major sea change in the institution itself. Like most major changes, it 
has crept up on us. It is not something that anyone sat down, thought 
through, proposed, and adopted.
  Going back in the Senate's history, I will outline what I see 
happening. I hope I can put it in context. There was a time--and it was 
not that long ago--when nominees, be they to executive positions or to 
the bench, were almost automatically approved by the Senate unless, in 
the course of the confirmation hearings, something truly disabling was 
discovered.
  The President has the right to nominate. The Senate has the right to 
consent, or advise and consent, in the language of the Constitution. 
That meant, historically, that the Senate automatically would approve 
the nominee unless they found something significantly disabling. Along 
the way--and I cannot put my finger on who started it or when it 
started or which party was involved--the idea came: Well, maybe there 
is nothing disqualifying about this nominee, but for one reason or 
another--usually partisan considerations or ideological ideas--we just 
do not like him. So let's start to use our power to examine his record 
in the confirmation process as a means to blacken his record, as a 
means to denigrate this individual, in the hope that we can change some 
votes and perhaps deny this President the opportunity to put in place 
the people he wants.
  As one party would do it and then the power in the Senate would shift 
with the next election, the other party would say: Well, let's do it, 
too. Let's do what we can to make this individual look far less 
qualified. Even though we know he is qualified, let's find something we 
can argue about, let's find something we can quibble over, and maybe in 
the process, even though it is

[[Page 4153]]

damaging to him personally, we can succeed in preventing this President 
from being able to have his nominee confirmed.
  It reached such a point in the nomination of Robert Bork to the 
Supreme Court that a new verb entered the political vocabulary. There 
are not very many political leaders who have verbs named after them. 
One of them is Joe McCarthy, and we now have the phrase 
``McCarthyism.'' Everybody knows what it means, even if they have never 
heard of Joe McCarthy.
  When I was an intern in the Senate in the early 1950s, I used to 
follow Senator McCarthy around. That was my assignment, to follow him 
around. I would take notes and see how he was really performing as 
opposed to how the press reported his performance.
  I attended every session of the Governmental Affairs Committee, then 
known as the Government Operations Committee, where Senator McCarthy 
was presiding as chairman and paid attention to his methods as a 
chairman. I reported back to my Senator that Senator McCarthy is 
smarter than the press gives him credit for; he is, when he is not on 
the issue of communism, a competent chairman, and runs his committee in 
a legitimate kind of a way.
  My Senator wanted to get that flavor because he knew McCarthy 
personally in other ways but he was not a member of the committee and 
he just wanted some eyes and ears in the committee to see what was 
going on.
  I have that view of Senator McCarthy, but if I use the term 
``McCarthyism'' now, everyone knows what I mean. Senator McCarthy's 
methods with respect to communism became so extreme that his name 
entered the world as part of the political lexicon.
  Robert Bork, like Senator McCarthy, has been forgotten by anyone who 
does not have experience with him or with the circumstance, but the 
word ``Bork'' has entered the political lexicon as a verb. It comes 
from those who were opposed to Robert Bork's appointment to the Supreme 
Court, who then said, after they had savaged his reputation, savaged 
him and his privacy to the point where we actually have what is known 
as the Bork law, which makes it illegal to check out one's record at a 
video store. In other words, it is now against the law because of the 
Bork law to monitor which videos one might check out at Blockbuster 
video because it is considered an invasion of your privacy. Prior to 
the Bork law, those who ``Borked'' Robert Bork went so far into his 
life as to determine which videos he checked out and then made those 
public and said that any man who would watch these particular videos is 
obviously not qualified to sit on the Supreme Court.
  When we had other nominations come up, those who savaged Robert 
Bork's reputation used his name as a verb and spoke prospectively of 
these nominees and said ``we will Bork him'' or ``we will Bork her,'' 
and everyone knew what they meant. We saw that in the confirmation 
process of Clarence Thomas.
  I suggest to all of my colleagues they read the biography of our 
colleague from Pennsylvania, Senator Specter. He played a pivotal role 
in both the confirmation fight over Robert Bork and the confirmation 
fight over Clarence Thomas. He was against Mr. Bork. He was for Justice 
Thomas. He describes in his book the reasons why. Once you read his 
book, you find that his reasons for voting against Robert Bork had 
nothing to do with any videos that Mr. Bork may have checked out, 
nothing to do with the character assassination campaign that was raised 
against him, but a genuine concern on the part of Senator Specter as to 
what kind of a Justice Robert Bork would make. When it came to Clarence 
Thomas, Senator Specter applied the same standard and came to the 
conclusion that Clarence Thomas was qualified to sit on the Supreme 
Court.
  I hope I don't embarrass my colleague from Pennsylvania when I quote 
one of the lines out of his book, the White House called him and asked 
him how he felt about Clarence Thomas, and he said: Well, he is no 
Brandeis, but he will do. And he has subsequently said in his writing--
he, Senator Specter--that he is satisfied with the job Clarence Thomas 
is doing on the Supreme Court and feels that Clarence Thomas has grown 
as a Supreme Court Justice and has a clear understanding of the law and 
is performing more than adequately in his present assignment.
  Clarence Thomas used a phrase that may have been forgotten now but 
that struck me with great power at the time. He referred to the way he 
was being treated as a ``high-tech lynching.'' That was very emotional 
language for many people who come out of the portion of the country 
where lynchings regrettably used to be a part of the culture. He said 
this is a high-tech lynching because he was being ``Borked'' on 
television, he was being ``Borked'' on the cable channels, he was being 
``Borked'' on National Public Radio by those journalists who decided 
because, we do not like his ideology, we will destroy his reputation, 
besmirch his integrity and turn him into a caricature of the man he 
really is. An escalation, if you will, once again, of this trend that 
moved from the old attitude, if he is not incompetent we will 
automatically vote to confirm him, to the new attitude, if we disagree 
with him, we will savage him in some way.
  After the Clarence Thomas affair, things continued to go forward and 
escalate. I remember in my campaign when I spoke out against this 
tendency to savage people. Republicans would come up to me and say we 
agree with you. You are right. We are going to elect you to the Senate 
because that is the way you stand on it. And then one Republican said 
to me, what if Governor Clinton is elected and you are in the Senate 
and he nominates Mario Cuomo to the Supreme Court, what will you do? 
This was a question asked of four of us who were running for the 
Republican nomination. The other three all said: I will fight Mario 
Cuomo to the last ounce of my strength. I will use every sinew in my 
body to see that Mario Cuomo does not get on the Court. I said: I am 
sorry, I just told you that I deplore this process of savaging 
individuals. Mario Cuomo is not the person I would appoint to the 
Supreme Court if I were to be President. Mario Cuomo does not represent 
the judicial philosophy that I think is right for a member of the 
Supreme Court, but Mario Cuomo is qualified to be a Supreme Court 
Justice and if Bill Clinton is elected President and he nominates Mario 
Cuomo, unless something comes out in the hearings that we do not know, 
I would vote to confirm him.
  Many of my conservative friends were horrified I would say that. But 
I said: Look, we have to do something to get back to the historic 
pattern of civility and trust and acceptance of difference of opinions 
and get away from the process of Borking people, be they Republicans or 
Democrats.
  I was very interested to have an individual come up to me and say: I 
don't agree with you on a whole series of things but I am going to vote 
for you for one reason only. And I said: Well, that is fine, I am 
always glad to get your vote; what's the reason? He said: You are 
consistent. Your answer, with respect to Mario Cuomo, convinced me that 
even if I don't agree with you, I can depend on you to do what you will 
say, even if it is not for your political benefit.
  Fortunately in my view, President Clinton never nominated Mario Cuomo 
for the Supreme Court. But if he had, unless something disqualifying 
had come out in the confirmation process, I would have voted for him.
  We were in a very close Senate, 50-50, with the Vice President 
breaking the tie with what the voters left us with in the last Senate. 
Now it is 51-48-1, which is what the voters have left us with in this 
Senate, a barely workable majority.
  We were in the last years of President Clinton's Presidency; in the 
weekly policy luncheons that we Republicans hold during the same time 
the Democrats are in their weekly policy lunches, members of our 
conference would stand up and rail at Orrin Hatch and say you've got to 
stop this judge or that judge from going forward. We have to make sure 
this person doesn't go on the bench.
  And Orrin said:


[[Page 4154]]

       I can't hold him up any longer. Fairness requires that they 
     get a hearing and that they get a vote.
       Well let's filibuster them. If they get on the floor we can 
     prevent them from passing, we can prevent them from getting 
     60 votes.

  To his credit, Senator Hatch said:

       Let's not even think of going there. Let us not escalate 
     this process to the point where 60 votes are routinely 
     required to put anybody on the bench.

  Senator Lott, the majority leader, said exactly the same thing when 
Bill Clinton was President, and some of those, perhaps a little more 
passionate in their ideological purity than the rest of us, were 
demanding a Republican filibuster against some Democratic judges. 
``No,'' said Senator Hatch, the chairman of the Judiciary Committee; 
``no,'' said Senator Lott, the majority leader, ``we will not get 
there. We should not escalate this to that point.''
  Now the decision has been made to escalate it to that point. Miguel 
Estrada is fully qualified by the standards of everybody who has 
examined him, from an objective point of view.
  We hear that one of his past supervisors has written a letter: I 
think he was something of an ideologue--no. I made the point before and 
repeat it here. If that is what he thought, why did he continue to 
employ him and why did he leave a paper trail of glowing 
recommendations?
  I have been the CEO of a company. I have done annual performance 
appraisals. I know what you put down on paper, in writing, as to the 
performance appraisal of that individual is what you have to live with. 
You better be honest in that appraisal because if you decide to puff 
that appraisal up and put that in writing just so you don't offend 
somebody, and then later on you say he is not qualified and you are 
going to fire him, the lawyer who represents that somebody is going to 
pull out the file and the record and say:

       If he really wasn't any good, why did you put this down on 
     paper at the time he had his appraisal? You are the one who 
     is not honest, not him, if that is what you have done.

  I have that same attitude towards--I believe it is Professor Bender, 
who now is saying Miguel Estrada is not qualified; that when he had the 
responsibility, not in a political setting, to lay down Miguel 
Estrada's qualifications and performance, he in writing said he was 
absolutely outstanding in every way. So I have little or no sympathy 
for the current verbal statements of Professor Bender.
  I don't know why the Democrats have decided to escalate this historic 
fight, that has been escalating all these years, to the new level of 
saying it will now take 60 votes to confirm any judge. They could have 
picked somebody, I think, a little more sympathetic to their cause as 
their poster child for this particular decision. But for whatever 
reason, they have decided they are going to escalate the whole process, 
set a new standard and a new requirement for the Senate on the issue of 
Miguel Estrada.
  Senators have stood here and held up the copy of the Constitution and 
told us how much they revere and admire it, and have taken an oath to 
uphold and defend the Constitution, and they say we are only doing our 
constitutional duty. The Senate has a constitutional duty which we 
would abrogate if we do not filibuster this nomination.
  There is nothing in the Constitution with respect to a filibuster. 
The filibuster comes out of the Senate rules, not the Constitution. 
Furthermore, the Constitution does clearly and specifically assume some 
circumstances so important that they do, in fact, require a 
supermajority. The Constitution clearly and specifically says you 
cannot consent to a treaty without 67 votes. The Constitution clearly 
and directly says you cannot convict a Federal official, be it the 
President or a Federal judge who has been impeached by the House, 
unless you have 67 votes. The Constitution very clearly lays out those 
areas that are so important that what we refer to as a supermajority is 
required. Confirming a judge is clearly and specifically not one of 
those situations. To argue that we have a constitutional duty to change 
the rules with respect to judges is, in my view, to misunderstand the 
Constitution. In my view, the Founding Fathers clearly intended the 
Senate to consent to the President's choices on a majority vote.
  I hope over this recess, as we go out and meet our constituents, we 
discover that they have issues on their mind other than the Senate 
rules; they are concerned with something different than supermajorities 
and cloture votes and filibusters. We are going to hear today what the 
inspectors will say after their latest trip to Iraq. We don't know 
absolutely what they will say but the preliminary press reports tell us 
that the inspectors are going to tell us that Iraq remains in material 
breach of the United Nations resolution and continues to violate all of 
the instructions the United Nations have given.
  Our President has told us on this issue that time is running out. The 
papers are suggesting that military action in Iraq is not months but 
perhaps only weeks or maybe even days away. Our constituents are 
concerned about al-Qaida and the possibility of attacks from the 
terrorist organization to which the Iraqis have given refuge and 
significant aid. They are concerned about what will happen to their 
sons, their daughters, their wives, their nieces and nephews who are in 
uniform.
  When we come back on the 24th of February, I hope we can look at this 
whole fight over Miguel Estrada in the historical context I have tried 
to lay down here this morning and say to ourselves it is time to step 
back a little from what President Clinton called the politics of 
personal destruction. It is time to step back a little from the 
escalation that has been going on in both parties for decades over the 
confirmation fight. It is time, in my view, to accept the historic 
pattern that somehow got this country through the first 200 years of 
its existence, that says the Senate does not require a supermajority to 
confirm a circuit judge and, under those circumstances, be in a more 
sober and efficient situation that allows us to focus on the concerns 
on which our constituents and the rest of the world are focused.
  I hope after a week of reflection and experience with our 
constituents, we come to that conclusion and see this nomination 
brought to a vote, and those who feel he was not responsive in his 
answers exercise their constitutional duty and vote against him, and 
those who think that they should, exercise your constitutional duty and 
vote for him, and the matter should be resolved in the manner that our 
Founding Fathers intended, which is by a majority vote on the floor of 
the Senate and not in the manner that has come as a result of the 
escalating partisanship of the past few decades.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I ask unanimous consent to be recognized 
to speak as if in morning business.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. DURBIN. Mr. President, first, let me say to my colleague from 
Utah, Senator Bennett, whom I respect and work with closely on a number 
of items, I thought he came to the floor of the Senate this week and 
made a valuable suggestion. He came to the floor of the Senate and 
said: Let's break this impasse over Mr. Estrada. If he will produce the 
legal documents, which Miguel Estrada has written as a member of staff 
of the Department of Justice, if he will produce those and if he will 
answer the questions, we can finally bring this to a vote.
  He challenged me personally on the floor. He said: What will you do 
if we produce these documents? My response to him was as honest as 
could be. If he is honest and cooperate in producing the information 
and answering the questions, he deserves a vote. That is my personal 
feeling. I don't speak for any other Senator.
  Within hours of that exchange on the floor of the Senate, the White 
House sent a lengthy letter refusing to disclose any of the legal 
memoranda of Miguel Estrada saying that, frankly, it was privileged 
information and that Members of the Senate should not read this man's 
writings about the law. I was sorry to see that happen.

[[Page 4155]]

  I thought Senator Bennett was on to something very good that would 
have broken what appears to be a partisan impasse and finally put the 
information before the Senate and before the American people so Miguel 
Estrada would have moved to a vote.
  Incidentally, having said on the floor what I thought about it, I 
went to a number of Democrats and said: Do you feel as I do? If he will 
disclose his legal memoranda, and if he will answer the questions that 
might arise from that, and perhaps a few that he avoided in the course 
of the hearing, would you vote to give him a vote? The answer was 
affirmative to a person; because, frankly, then we would know for whom 
we are voting.
  But what we are dealing with here is a pattern of concealment by this 
nominee. He is not the first. In fact, it has become almost a tradition 
that judicial nominees come before the Senate--and maybe it harkens 
back to the Senator's earlier reference to Robert Bork. They are afraid 
if they tell people what they think and who they are they will get into 
trouble.
  Mr. BENNETT. Mr. President, will the Senator yield for a question?
  Mr. DURBIN. I am happy to yield for a question.
  Mr. BENNETT. Going back to what happened the other night, as the 
Senator from Illinois understands, I am not burdened with a legal 
education. So when I made my suggestion, it was in the spirit of a 
former CEO trying to resolve a controversy with one of his competitors 
or suppliers. But I understand, and ask the Senator from Illinois if he 
could confirm this understanding, I understand that Miguel Estrada is 
perfectly willing to allow that set of memoranda to which we have 
referred be made public. But he acted as an attorney advising a client, 
and it is the client in this case that says for the client's reasons--
in this case the Department of Justice--we will not allow the memoranda 
to come forward.
  My question is, Under those circumstances, isn't it appropriate that 
the attorney is bound not to release the memoranda by himself?
  Mr. DURBIN. Let me say, in response to the Senator from Utah, that I 
don't apologize for not being a lawyer. I am proud to be one. But when 
the Senator came to the floor with a commonsense solution to this 
impasse, there is a question about Miguel Estrada and what he believes, 
who he is, and what his values are, for goodness' sake, let us put that 
information before the Senate and give the man a vote, which he 
deserves, that is a commonsense response from everyone--I think lawyer 
or otherwise. Then the lawyers got involved. And as the Senator 
mentioned, Miguel Estrada said, I will turn over all of this 
information, and go ahead, read it; there is nothing I want to hide 
here. Then the Department of Justice and the White House stepped in and 
said: No, no, no. We will not release it. This is privileged as 
attorney-client communication, which is one of the privileges under the 
law as I recall from law school.
  But let me show you this chart.
  Mr. BENNETT. If I might pursue just a moment----
  Mr. DURBIN. I yield for a question.
  Mr. BENNETT. Is it not true that Miguel Estrada is under a 
professional requirement in those circumstances not to release this 
information; even though he may want to, his professional ethics 
prevent him from doing so? And, if I may, the second question is, If 
that is, indeed, the case, is it fair to attack him for not being 
responsive when all he is doing is upholding his professional 
responsibilities?
  Mr. DURBIN. In response to the question, let me say that it may be 
arguable as to whether or not there is an attorney-client privilege 
which makes this a confidential communication--these legal memoranda 
that he can't give to the public because his client is not giving 
approval--that may be the case. But let us argue for a moment that it 
is the case. Let's say, forget whether or not it is a questionable 
position. Let's assume it is right; that is, what you say is correct. 
Under the law, the client can always waive the privilege. If I have 
hired an attorney to represent me, and that attorney has written legal 
memoranda inserting a point of law, and then someone asks for that 
legal memoranda, that client or the attorney says, sorry my client, 
Durbin, hasn't given a waiver of this privilege, this is privileged 
communication between the attorney and client, but I, the attorney, 
say, will you waive that privilege, will you disclose it, and if I say, 
yes, I affirmatively waive the privilege, at that point it becomes 
public.
  The obvious question here is, Who was Miguel Estrada's client when 
these legal memoranda were written? His client was the Department of 
Justice. His client was the White House. His client was, in fact, the 
group that has now nominated him to this DC Circuit Court.
  And so here you have a curious situation. Miguel Estrada says, I 
would love to let you see this, but my client won't allow me and won't 
waive the privilege, and, therefore, I can't.
  The client--the White House--is saying, go ahead and approve this 
man. There is nothing to worry about. But we will not let you see what 
he has written. He was our attorney. He wrote for us. We will not let 
you see what he has written.
  Would that raise a question in the Senator's mind, in all honesty and 
good faith? If the Department of Justice won't waive this privilege so 
we can read these documents, does it raise a question in the Senator's 
mind as to whether there is something in there that bothers them and 
worries them?
  Mr. BENNETT. If I might respond to my friend from Illinois, it would 
raise the question that the Senator is concerned about, if indeed the 
papers were written just for this White House. But the historic fact is 
that the papers were written for the first Bush administration and for 
the Clinton administration--specifically for the Solicitors General in 
those two administrations. The specific Solicitors General who were 
involved, Democrat as well as Republican, said, don't allow the 
memoranda to come forward.
  So it is not a case of George W. Bush's administration having hired 
this fellow and gotten information from him and then sent him up here 
while refusing to allow anything he told them to be made public. It is 
a different fact situation.
  I am persuaded by the fact that every living Solicitor General--
Republican or Democrat, old or young, liberal or conservative, everyone 
who is still breathing--has said, don't allow this information to come 
forward. Under those circumstances, I find it difficult to hold Estrada 
to task for his failure to let this come forward when, in fact, the 
decision has been made and unanimously supported by every living person 
who has ever sat in the position of his client.
  Mr. DURBIN. Let me respond in this way. If the Senator accepts what 
the Senator has just argued--that every time we elect a new President 
every lawsuit filed by the U.S. States Government would have to be 
refiled because there is a new President, there is a new Attorney 
General, there is a new Solicitor General--that isn't the case. There 
is a continuity of government. Presidents come and Presidents go. 
Senators come and Senators go. Attorneys General come and go. But the 
U.S. Government continues. For Miguel Estrada to argue that because 
President Bush's father did not waive the privilege then he can't waive 
the privilege today, I think is just plain wrong. I think the 
continuity of government argues otherwise.
  Let me show you this chart that might be helpful in understanding 
what is being asked for is not unusual.
  Look at this chart. The Bush administration claims that the request 
for Mr. Estrada's legal writings is unprecedented, it has never 
happened, it is a matter of privilege. But the Department of Justice 
has provided memos by attorneys during the following nominations: When 
William Bradford Reynolds was nominated to be Associate Attorney 
General, his legal memoranda were produced by the same Department of 
Justice which now argues they cannot do it. Robert Bork was nominated 
to be a Supreme Court Justice, and his legal memoranda were produced by 
the same

[[Page 4156]]

Department of Justice which now says we cannot read Miguel Estrada's 
memoranda.
  For Benjamin Civiletti, when he was nominated to be Attorney General, 
the same ruled applied. The Department of Justice said: Read those so 
you understand who he is. Now they say: You cannot read what Miguel 
Estrada wrote when he worked for us. We also have Stephen Trott, for 
the Court of Appeals for the Ninth Circuit; and Justice William 
Rehnquist, the Chief Justice of the Supreme Court.
  So for the Department of Justice to argue this just is never done, 
here are five specific examples where the Department of Justice has 
waived the privilege and produced the writings.
  It comes down to the basic point and question before us, What is my 
responsibility, what is your responsibility, and the responsibility of 
the Senate when a person seeks a lifetime appointment to the second 
highest court of the land? Do we have a responsibility to just nod 
approval, to stamp ``approved'' on them, and move them through or do we 
have a responsibility to ask basic questions?
  Some of them are obvious: Is this person a person of good character? 
Does this person have a good legal education? Does this person have a 
good mind and a good temperament?
  I would tell you, in each and every one of those categories, I think 
the answer is affirmative when it comes to Miguel Estrada. This is an 
impressive man. What he has done with this life, what he has overcome 
by way of personal challenge and adversity is really inspiring. I say 
that having met him and sat down with him and read his story. All those 
things are true.
  But we also have a responsibility to ask: What is in your mind? What 
are your values? What principles will you bring to this job--not next 
year but 10 years from now if you are still sitting there as a Federal 
circuit court judge? How will you be motivated to make a decision?
  I am not going to ask any judicial nominee to tell me how they will 
decide a specific case. That is not fair; that is not right. But to ask 
a judicial nominee basic questions you would ask of a district court 
judge in Utah and I would in Illinois, that is not unreasonable because 
we want to try to create a mental picture of who this person is and 
what they bring to the job.
  Miguel Estrada did so well--straight A's--on all the things I 
mentioned before: honesty, character, personal background, academic 
achievement, legal achievement as well. All these things, straight A's.
  Then we came to the basic question of: In your mind, who are you? How 
do you view the law? And that is where he failed. That is why his 
nomination is stopped on the floor of the Senate.
  I asked him a question. It is written down here, and I will not 
recount it because I have already put it in the Record. Think about 
this question for a minute. I said to him: Can you identify any Federal 
judge, living or dead, whom you admire, whom you would like to emulate 
if you were appointed to the Federal judiciary? End of question. Not a 
trick question, no. He said: I would not want to answer that question. 
I would not want to name a single Federal judge whom I admire or would 
emulate from the bench.
  That troubles me.
  Mr. BENNETT. Mr. President, will the Senator yield for one final 
comment?
  Mr. DURBIN. I am happy to yield.
  Mr. BENNETT. I promise I will not interrupt the Senator further.
  Mr. DURBIN. No, I am happy to yield.
  Mr. BENNETT. But before we get too far away from the items on his 
chart, I simply want to come back again to the fundamental point I am 
trying to make.
  The Senator from Illinois has, indeed, precedent on his side that 
there are circumstances where the client is willing to waive the 
privilege. Just because the client has been willing to waive the 
privilege in other circumstances does not mean the present client is 
required to waive the privilege in the present circumstance.
  Each one of those circumstances is different. They are tied together 
by the fact that they are nominations and that the Justice Department 
is involved, but the fact situation in every one of them would be 
different from the fact situation here. The fact situation here is that 
Miguel Estrada worked for the Solicitor General, and every single 
living Solicitor General has said, regardless of what happened with 
William Rehnquist or Robert Bork, in this circumstance the memoranda 
should not be disclosed.
  Miguel Estrada has a professional responsibility not to disclose, and 
he is being attacked for his decision to abide by his professional 
responsibility. If the White House and the Justice Department should be 
attacked for their refusal to grant the waiver, go to it, but do not 
take it out on the lawyer who is standing on the basis of his ethics.
  That is the only point I wish to make. I shall not belabor it, and I 
shall not interrupt the Senator from Illinois further. I thank him for 
his courtesy.
  Mr. DURBIN. No. I am happy to have the statement from the Senator 
from Utah. I do not consider it an interruption.
  Let me say as an aside, I think it is healthy for us to have this 
kind of dialog on the Senate floor, and I have made it a policy both in 
the House and in the Senate to always yield for questions. I think if 
this is truly a deliberative body, then opposing points should be 
expressed on the floor, and there isn't enough of it, there isn't 
enough real debate on the floor.
  I thank the Senator from Utah for coming here in good faith and 
stating his position. I may disagree with it, but for the sake of the 
Record and for the sake of public debate, I am glad that he is here. I 
am glad that he asked the question. And I know he feels as I do, he 
opens himself to questions when he comes to the floor. And I think that 
is part of our responsibility.
  I have been advised by my staff--I did not realize this--that when 
White House Counsel Alberto Gonzales replied to our request about the 
documents related to Miguel Estrada, they did not claim a privilege, 
which surprises me; I thought that was what they would say, that there 
was some legal privilege here or some executive privilege. Instead, the 
White House Counsel's Office insists that we already have enough 
information about this nominee, that they don't need to provide this.
  So we had a nice discussion about privilege and whether or not that 
applies. It appears the White House has said: We are not going to argue 
that--because they know they have produced this kind of information in 
the past.
  But let me go on for a moment and try to get to the heart of why this 
is an important debate. This goes way beyond any particular nominee. As 
I said earlier, I have no personal animus against this man, Miguel 
Estrada. I admire him personally. He was an immigrant to the United 
States. My mother was an immigrant to the United States. I think 
immigrants bring a great deal to this country. They bring an energy and 
creativity and a courage that really makes this a great nation.
  Miguel Estrada fits that category. He came here as a teenager from 
Honduras. He learned the English language, went on to be accepted, I 
believe, at Columbia University, where he distinguished himself as a 
student. And that is no mean feat for a person who is new to the 
English language. Then he went on to Harvard Law School, where again he 
distinguished himself as a law student. So in each and every one of 
these categories, this is a man whom you would move toward as a good 
potential nominee for the Federal court.
  But despite all of this knowledge and all of this experience, when it 
came time to ask him who he was, legally what he believed, he just 
refused to answer. And the question is, at that point, Should the 
Senate have said: Well, I guess we tried our best; let's put him on the 
bench for life; let's hope for the best?
  We cannot do that. And I will tell you why we cannot do that. Because 
under the Constitution, which we have sworn to uphold, and which we 
take very seriously, in article II, section 2, it says:

       The President. . . . shall nominate, and by and with the 
     Advice and Consent of the Senate, shall appoint . . . Judges 
     of the supreme

[[Page 4157]]

     Court, and all other Officers of the United States, whose 
     Appointments are not herein otherwise provided for. . . .

  This tells those who are watching that what is at stake here is not 
just a discretionary decision by the Senate as to whether or not we 
will investigate a judicial nominee. We have a constitutional 
obligation. And if we believe in that investigation that a nominee is 
wanting, might not be a person suited to serve in the Federal 
judiciary, I think we are duty bound to vote against him.
  Let's look at the record with George W. Bush, a Republican President, 
and the Senate, which for 16 or 17 months was under Democratic control. 
What happened? Did the Democratic Senate say to the White House: You 
cannot have Federal judges? We are Democrats. You are a Republican. 
Stop sending us Republican nominees? No. No. That did not happen.
  In the course of that period of time, 100 judges, nominated by 
President Bush--Republican nominees--were approved by the Democratic 
Senate Judiciary Committee. I sat on that committee. I voted on 
virtually every one of those nominees in committee and on the floor. 
Those nominees were approved, knowing full well that the President had 
his right as the President to name his judges.
  How many were rejected? If 100 nominees of the Bush White House were 
approved, how many were rejected by the Democrats when they were in 
charge of the Judiciary Committee? Two. One hundred approved; two 
disapproved--Judge Pickering of Mississippi and Judge Owens of Texas. 
Of the 100 that were approved, trust me, overwhelmingly, these were 
people of a conservative political philosophy, people who reflected the 
President's political philosophy and probably his legal philosophy. We 
knew it going in. That is the name of the game. The President has that 
authority. We asked the basic questions, were satisfied with the 
answers; the nominee moves forward. Two were rejected.
  Now Miguel Estrada comes before us. Last Monday three more of 
President Bush's nominees were approved unanimously by the Senate, but 
Miguel Estrada still is on the calendar.
  The question that has been raised on the Republican side is, why are 
you asking these difficult questions of Miguel Estrada? It is 
interesting to look at statements made by Republican Senators who are 
now arguing on behalf of Miguel Estrada. The first, of course, comes 
from Senator Orrin Hatch, a friend of mine, my colleague in the Senate, 
chairman of the committee. When he led the fight to oppose a Hispanic 
nominee, Rosemary Barkett, this is what he said:

       I led the fight to oppose [Judge Rosemary Barkett's] 
     confirmation because . . . [her] judicial records indicated 
     that she would be an activist who would legislate from the 
     bench.

  Senator Hatch is entitled to that decision whether she is Hispanic or 
not. But when we ask similar questions today about Miguel Estrada, we 
are being called unfair. He could ask questions and have doubts in his 
mind about whether this judicial nominee by President Clinton would be 
an activist. We are not allowed to ask the same questions about Miguel 
Estrada without being accused of being unfair to Hispanics. This is by 
any measure a double standard.
  Let me give you another quote from Senator Hatch, who quoted 
Alexander Hamilton when he said:

       The Senate's task of advise and consent is to advise and to 
     query--ask questions--on the judiciousness and character of 
     nominees.

  It isn't just the character, it is the judiciousness, the judicial 
judging of nominees. That is a reasonable thing to ask. I could see a 
person with the most outstanding legal credentials, academic 
credentials and personal integrity, bring a philosophy to the bench 
which I think would be damaging to the country and our Constitution. 
Should I ignore it? I can't. I am dutybound because I have sworn to 
uphold the Constitution, to put men and women on the bench who will 
uphold it as well, and make decisions which are consistent with our 
values. Senators may see those values differently, but at a minimum we 
should be able to ask the questions of the nominees: What do you 
believe? What is important to you? When we asked those questions of 
Miguel Estrada, he evaded them completely.
  Senator Schumer from the State of New York, on the Judiciary 
Committee, asked him a question similar to the one I referred to 
earlier, when Miguel Estrada refused to name one single Federal judge 
living or dead who he admired or would try to emulate. Senator Schumer 
decided to take a different approach. He asked Miguel Estrada to name a 
Supreme Court decision with which he disagreed. First he asked within 
the last 40 years and then he said, just in general, any Supreme Court 
decision you would disagree with?
  Miguel Estrada, having served as a law clerk at the Supreme Court, in 
the Solicitor General's Office in the Department of Justice, with all 
of his background, having argued cases 15 times before the Supreme 
Court, refused to name one case in the history of the Court with which 
he disagreed.
  What springs to mind? You don't need to be a lawyer. The Dred Scott 
decision, decided by the Court in the 1850s, which institutionalized 
slavery and led to the Civil War. Was that a wrong decision by the 
Supreme Court? I don't know of anyone who argues it was not. Miguel 
Estrada, who wants to go to the second highest court in the land, 
wouldn't name Dred Scott as a wrong decision.
  Let's take another, Plessy v. Ferguson. This was a case which said 
when it came to race relations in the United States, the standard would 
be separate but equal, leading to a pattern of segregation in America 
finally broken by Brown v. the Board of Education in the 1950s and the 
civil rights laws. I don't know of a single person, other than some of 
the strangest and most radical, who wouldn't argue that Plessy v. 
Ferguson was a bad decision by the Supreme Court. Miguel Estrada, 
despite all of his background, wouldn't name Plessy v. Ferguson as a 
bad decision.
  So to those who say the Democrats are nitpicking, you are really 
holding this man to an impossible standard, think about that.
  I failed to add this. The same question about Supreme Court decisions 
you disagree with is a common question asked of judicial nominees. In 
fact, Republican Senator Sessions of Alabama asked that exact question 
of a Hispanic nominee, Richard Paez, nominated by President Clinton. 
When he asked the question, Democrats didn't stand up and say, that is 
unfair, that is a foul ball, you can't ask that question. Not at all. 
Paez answered the question, and for his forthrightness and candor 
before the Republican-controlled Senate Judiciary Committee, his 
nomination was held up over 4 years before finally a cloture motion was 
filed and it was brought to the floor.
  For those who are following this, the standard being applied to 
Miguel Estrada is one that has been time tested on both sides. His 
response, sadly, does not meet the measure of what we should expect 
nominees for a lifetime appointment to the Federal bench.
  Senator Larry Craig has also commented about this process. He is a 
conservative Republican. He would be proud of that description. He 
said:

       Any notion that there is a rebuttable presumption on behalf 
     of a nomination--that the Senate ought to be basically pliant 
     in response to a nomination--is altogether unconstitutional, 
     even anticonstitutional.

  These were arguments made by Republican Senators when the nominees 
came from a Democratic White House. Now with this one nominee being 
questioned as to whether he is going to answer the basic queries, we 
are being told we are unfair. Senator Craig said to do otherwise is to 
avoid our constitutional responsibility.
  What is this approach we are seeing by judicial nominees where they 
are unresponsive to questions? It is not new. If you followed the 
televised hearings involving Clarence Thomas, you can recall when he 
was asked and replied that he had no opinion on the issue of abortion. 
Clarence Thomas, no opinion on abortion, this man who had been a 
Catholic seminarian, who had been a law student when Roe v. Wade

[[Page 4158]]

was decided, said he had no opinion. He was allowed to get away with 
that answer. I think we learned a lesson there. We have learned it over 
and over. If nominees won't be open and honest with us when it comes to 
their beliefs, it puts us at a disadvantage in terms of trying to 
understand what they will do on the bench. It was predictable what 
Clarence Thomas was likely to do on the Supreme Court as a Justice. We 
have seen that has been borne out in more cases than not. The fact he 
would say to the Judiciary Committee with a straight face, I have no 
opinion on the issue of abortion, raises in my mind a question of his 
candor and a question of the Judiciary Committee's meeting its 
responsibility.
  This is a statement or a quote from the Legal Times newspaper last 
year. This was Larry Silberman, who is a DC Circuit Court judge. It 
says:

       President George W. Bush's judicial nominees received some 
     very specific confirmation advice last week: Keep your mouth 
     shut. Scalia called DC Circuit Judge Silberman at one point, 
     the latter recalled, and told him he was about to be 
     questioned about his views on Marbury v. Madison, the nearly 
     200-year-old case that established the principle of judicial 
     review. ``I told him that as a matter of principle, he 
     shouldn't answer that question either.''

  When you start law school, if not the first day, the second day, we 
study Marbury v. Madison because unless you understand Marbury v. 
Madison, you don't understand why there is a Federal court system and 
why it has the power to review legislation passed by Congress. It is so 
basic. It is like saying, read the Constitution before you come to 
constitutional law class.
  Here we have a man aspiring to sit on the Supreme Court who is being 
instructed, don't say a word about Marbury v. Madison, a 200-year-old 
court case. So it is a tactical strategy, used by nominees as often as 
they can get away with it, to say as little as possible.
  Let me also go to the question of Hispanic nominees. Here we have a 
statement made on the floor that Mr. Estrada should be approved because 
he is of Hispanic origin. I am proud of the fact that, as a Senator 
from Illinois, I was able to appoint the second Hispanic district court 
judge in our district's history to the court in Chicago. He is from 
Puerto Rico. He has done a great job, and I am sure he will continue 
to. We have a growing Hispanic population in our Nation, and certainly 
in my home State. They bring great value to our country and to my 
State. I think it is reasonable--in fact, advisable--for us to bring to 
the bench men and women of diverse backgrounds so that when defendants 
and plaintiffs and their lawyers come before that bench, they see 
represented in the court the diversity of our Nation. I think that is a 
good thing to do.
  When the White House has decided to act affirmatively to bring 
Hispanics to the Federal bench, I think they are doing the right thing. 
I applaud that. I think we should bring as much diversity as we can 
with qualified individuals to the bench. But the arguments being made 
that because we have questioned Miguel Estrada in whether or not he has 
been forthright in his answers has something to do with the Democrats' 
view of Hispanics' contribution to America doesn't hold up.
  One of the Republican Senators said in the Dallas Morning News 
earlier this year:

       If we deny Estrada a position on the DC Circuit, it would 
     be to shut the door on the American dream of Hispanic 
     Americans everywhere.

  But the reality is this. Until last week, Mr. Estrada was the only 
Latino nominated by President Bush to any of the 42 vacancies that have 
existed on the 13 courts of appeal. In contrast, President Clinton 
nominated 11 Latinos to our appellate courts. He nominated 21 Latinos 
to the district courts. Sadly, when the Republicans controlled the 
Judiciary Committee, and President Clinton was in the White House, they 
blocked several well-qualified Latinos from getting hearings, including 
Enrique Moreno, Jorge Rangel, and Christina Arguello.
  I recall the Moreno nomination. Enrique Moreno was born in Juarez, 
Mexico, under the poorest of circumstances. His family emigrated to El 
Paso, TX, where they worked as blue-collar workers. He grew up under 
the toughest of circumstances, but he went on to great distinction in 
law school. And he was sent before the Judiciary Committee and wasn't 
even given the dignity of a hearing--without being given a hearing and, 
certainly, no vote. When asked on the floor, Senator Hatch said that is 
because the two Republican Senators from Texas didn't approve him. 
Well, that is their right. Under the blue slip process--an arcane, but 
important process we have followed in the past--they could stop him, 
and they did.
  I don't recall the hue and cry then from any Republican leaders that 
somehow it was discriminatory against Hispanics that two Anglo 
Republican Senators from Texas would stop a well-qualified Hispanic 
nominee. But they did.
  The same thing was true for Jorge Rangel, nominated to the circuit 
court of appeals, who finally, after waiting and not receiving the 
approval of the two Senators from Texas, said: I give up, I am throwing 
in the towel. This is all about politics, and no matter what I say or 
do, they are not going to approve me.
  He walked away from that process. That is an unfortunate example of 
what can happen.
  Mr. Estrada was given a hearing and an opportunity to answer 
questions, and he has been given repeated opportunities to provide 
legal writings so we can make a decision on him. I stand before the 
Senate today, as I have in the past, to say if he is open and honest 
and cooperative with the committee, he deserves a vote. If we receive 
the legal memoranda and writings and have a chance to ask questions 
related to those in some areas he has not answered in the past, and he 
gives open and honest answers, then his nomination should move forward.
  I see my friend and colleague from Ohio, Senator DeWine, in the 
Chamber. Not 2 or 3 weeks ago, several nominees from his State came 
before the Senate Judiciary Committee with Senator Hatch as chairman. 
Two of them were fairly controversial. The hearing, I am sure Senator 
DeWine recalls, went on for 12 hours. It was one of the longest I have 
ever seen. One nominee, Mr. Sutton, was given a lot of questions by a 
lot of different members and he answered them. Though I didn't agree 
with his answers, I have to say in all candor that he didn't avoid the 
questions, as we have seen with Miguel Estrada under the circumstances. 
So I think that is an important difference to be made.


                         The Danger of Ephedra

  Mr. DURBIN. Mr. President, I want to touch on one other issue not 
related to the Estrada nomination before I yield the floor. It will 
take me about 15 minutes to complete the presentation I am about to 
make. Then I will be happy to yield the floor. It relates to a decision 
that was made this week by a county in New York, Suffolk County. They 
took a historic step to protect the residents of their county from 
harm, even the dangerous and deadly harm of dietary supplements. You 
know about these dietary supplements. You cannot walk into any 
drugstore or turn on the TV or go to a convenience store or a gas 
station that you don't see someone trying to sell us a pill to make us 
thin. These dietary supplements, I guess, help some people to lose 
weight. Doctors argue back and forth about that.
  It turns out that some of these dietary supplements contain a 
chemical--a naturally occurring chemical--called ephedra, which is 
dangerous. Suffolk County in Long Island banned the sale of ephedra 
products because the Suffolk County Department of Health Services 
determined that ``dietary supplements containing ephedra alkaloid are 
too dangerous to be sold within the county of Suffolk.''
  Last year, the U.S. Army moved to protect service men and women and 
the employees who use the base by also banning the sale of ephedra 
products in commissaries across the United States.
  Sadly, it would seem that despite these decisions by local and State 
governments and by some agencies of the Federal Government, our Federal 
Government, in general, and particularly

[[Page 4159]]

our Department of Health and Human Services, has consistently refused 
to take the necessary action to protect America's families and children 
from products containing ephedra.
  Since last August, I have repeatedly called on Secretary Tommy 
Thompson, and I renew the call today, to ban ephedra products in the 
United States. The Secretary has the authority to do so. There is no 
excuse for the delay. I have asked him to use his authority under DSHEA 
to declare ephedra an imminent hazard and take it off the market, in 
the same way as it was done in Suffolk County and other cities and 
counties, and in certain States it was done in our military posts. The 
Secretary has refused to respond. His responses have not been helpful.
  As chairman of the Government Oversight Committee, last year, I held 
two hearings on this topic, challenging this administration to act. I 
am not the only one who has done so. Last year, the Canadian Government 
banned products containing ephedra. They said you cannot sell them 
there because they are too dangerous. They kill people.
  What kind of products am I talking about? Are these weird, remote 
things you never run across? No. Metabolife--have you ever heard of it? 
They do a lot of advertising. Metabolife diet pills--an energy 
supplement, they call it, to help you lose weight. They do sell a 
product that contains ephedra. This is what I am talking about. These 
are the drugs that can be a danger to certain people. There are others. 
One is called Yellow Jackets. I will get to that in a moment because 
there is a sad and tragic story about these. It says ``built as an 
extreme energizer.''
  I recently went to a junior high school in Springfield, IL, and I 
asked the boys and girls: How many have heard of Yellow Jackets? Half 
of the kids raised their hands. Do you know why. You don't need a 
prescription. You can walk into any convenience store or gas station 
and you can buy them two or three at a time.
  Sadly, these pills taken by kids can kill them--kill them. I will 
tell you of a sad story where it occurred near my home. I have given 
this information to Secretary Thompson. He has ignored it. Nothing has 
happened. There are no excuses now for what we presently face. The best 
he can give us is, he says these products ought to have stronger 
warning labels.
  What would a warning label say if it was honest about the product 
ephedra? It would have to say if you are going to take Metabolife, for 
example, which is known as a dietary supplement and classified as a 
food under our strange Federal laws, if you were going to take this 
product, here is the warning label you would have to put on it: Taking 
this food product will increase your risk of heart attack, stroke, 
seizure, and death.
  Can one think of another food product sold in America where we 
identify on the label that it can be lethal if you take it? In most 
cases, in most civilized nations, we would not allow a product that 
could kill you to be sold as a food product in any circumstance.
  Some people argue, you can take enough aspirin to kill you. This is 
all true, but when it comes to this product, they are selling it to 
children--this Yellow Jacket product and this product, Metabolife--to 
virtually anybody who can put money on the counter, with no warning as 
to the potential of harm.
  In reality, how can the Secretary rely on warning labels for a 
product that is found to be so dangerous? Let me make it clear, the 
only reasonable step to take is to take these products off the market. 
If this administration, and particularly Secretary Thompson, continues 
to delay this decision, sadly he will have to answer the question of 
how he can account for the numerous people who continue to lose their 
lives because of these dangerous products.
  The Secretary has the power under existing law to take these products 
off the market. He has failed and refused to do so. As the Department 
delays, terrible things occur.
  I told you I would recount an incident involving this particular 
product, Yellow Jacket. Last September, in Lincoln, IL, a few miles 
from where I live, a young man 16 years old, a healthy, athletic, high 
school student named Sean Riggins was getting ready for a football 
game. He went to a local convenience store and bought Yellow Jackets, 
an extreme energizer. You will find them for sale. You are going to 
find them in North Dakota. You are going to find them as well in Rhode 
Island. You are going to find them in Ohio. They are everywhere.
  This boy bought this product, grabbed a Mountain Dew, which contains 
caffeine, washed it down, and died. He bought them at a convenience 
store, washed them down, and died. It is incredible to think this could 
happen, and the autopsy confirmed this was the reason for his death.
  When we say to Secretary Thompson, for God's sake, protect the 
children from this happening again, he waits, he fails to respond. He 
says he is thinking about it.
  On September 6 last year, because of these Yellow Jackets, Sean 
Riggins, a healthy, athletic high school student had a massive heart 
attack and died. When you look around the Senate, you will see pages 
working on the floor in the Senate. It is a time-honored tradition. 
These are young men and women of high school age. When you look at 
them, you are looking at a person of the age of Sean Riggins who 
thought he was doing the right thing to get ready for a football game. 
Sadly, he was preparing for a funeral--his own.
  He was the only child of Deb and Kevin Riggins from Lincoln, IL. His 
parents, thank God, have decided to go on a crusade to try to protect 
other kids. They turned their grief to positive action. They set up the 
Sean Riggins Foundation for Substance-Free Schools. I commend them for 
their courage. They are going to coaches, teachers, and parents saying: 
For goodness sake, talk to your kids about this. We know about 
marijuana; we know about cocaine; we know about heroin; we have to do 
our part in telling them how dangerous it can be. We know how dangerous 
tobacco and alcohol are. We are ignoring the obvious. These are for 
sale everywhere. They are cheap and kids are buying them. Let me be 
honest with you; some kids buy these pills and drink beer with them and 
think this is a brand new high and die as a result--Metabolife, Yellow 
Jackets, and a variety of other names.
  The question before us now is, Should we act? And the answer is 
obviously yes. Mr. President, did you know the NCAA, the National 
Football League, and the International Olympic Committee have all moved 
to protect their athletes by banning ephedra? And yet, Secretary 
Thompson refuses to protect innocent children who buy this product.
  The Rigginses are not alone in their grief. The Suffolk County, NY, 
ban I mentioned was imposed this week was also as a result of a young 
person's death. In 1996, Peter Schlendorf of Northport, Long Island, 20 
years old, died from taking ephedra. His parents have joined the 
Rigginses in this sad alliance in the memory of their sons to try to 
warn parents.
  The 7-Eleven stores--we see them all around--used to be one of the 
stores that sold ephedra products. They decided it is not safe. They 
will not carry ephedra products anymore.
  Think about it; all this action is taking place without the Federal 
Government stepping in to protect us. That is hard to believe.
  There are also lawsuits underway. The trial lawyers of America are 
convenient whipping boys. People blame them for a lot of things--too 
many frivolous lawsuits, high insurance rates, and the like. The fact 
is, if the trial lawyers of America were not suing this industry, 
changes would not take place because this Government is not doing its 
job. This administration is not doing its job.
  If we look at the situation, Metabolife is now peddling a product 
they say is free of ephedra. They want to make it clear you have a 
choice. They are trying to figure a way to back off the thousands and 
thousands of bottles of this product they have already sold.
  In October, a Federal jury found Metabolife 356, this dietary 
supplement, containing ephedra that was

[[Page 4160]]

``unreasonably dangerous,'' although you can buy it over the counter 
without a prescription, and awarded four injured Americans $4.1 million 
to compensate them for their injuries and the wanton bad behavior of 
the Metabolife Company. Many other cases have been settled with large 
awards.
  The action is in the courts because there is no action in Washington. 
Secretary Thompson and the Department of Health and Human Services 
refuses to respond, refuses to act. People die, and their survivors go 
to court holding these companies responsible. Why isn't this Government 
holding these companies responsible? Why aren't we banning the sale of 
these products now?
  The medical evidence is overwhelming. In January of this year, 
researchers from Yale, the University of Texas at Houston, the 
University of Michigan, the University of Cincinnati, and Brown 
University reported in the journal Neurology that those taking one-
third of the manufacturer's recommended daily dose of these ephedra 
products increase their risk of hemorrhagic stroke three times. In 
February, an article in the Annals of Internal Medicine showed that 
ephedra use associated with a greatly increased risk for adverse 
reactions compared with other herbs, and the authors suggested its use 
should be restricted.
  This study found ephedra use resulted in a 720-times increase in 
adverse reactions compared to ginkgo biloba use and in hundredfold more 
adverse reactions compared to other herbs that were used which they 
think are safe. Secretary Thompson knows this. The medical evidence is 
there.
  Metabolife, when they were asked to produce information for 
Congressman Waxman and myself, said in 1999, for example, they did not 
have any instance of anybody taking their pills and having a bad 
result. But when Congressman Waxman and I, as well as the trial 
lawyers, put them on the spot and made them produce all the information 
sent to them, we found 100 people before 1999 with serious adverse 
reactions, including heart attack and stroke.
  These companies selling these products have been irresponsible in the 
marketing of this product. They sell them to children. They know they 
cause adverse health consequences, and they continue to do so because 
this Government will not step in and stop them. The burden is on 
Secretary Thompson and the Bush administration. Do not look the other 
way. Do not ignore the deaths that are occurring. Do not ignore the 
fact that 23 States have now moved to restrict the sale of these 
products because the Federal Government refuses to accept its 
responsibility.
  It is time for us to act and to act now before there are more 
innocent victims.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Chafee). The Senator from Ohio.


                          Tribute to Jim McKee

  Mr. DeWINE. Mr. President, I rise today to pay tribute to a dear and 
cherished friend, a mentor and a role model, former Yellow Springs, OH, 
chief of police of 34 years, Jim McKee, who passed away on January 18 
of this year at the age of 73.
  Raised in Springfield, OH, Jim McKee moved to Yellow Springs when he 
was 18 years old, fresh out of high school, in search of a job. During 
his first year in Yellow Springs, Jim held a number of different 
positions, working in a shoe repair shop and later at Mills Lawn 
Elementary School.
  It was at Mills Lawn Elementary School that I first met my future 
wife Frances, in first grade, but it was also at Mills Lawn I first met 
Jim McKee. Jim was the person who kept things going at Mills Lawn. I 
remember how much respect, love, and admiration the students had for 
Jim.
  I first saw in Jim the ability he had to connect with people. I saw 
it as a child. I remember he would gather the students together and 
talk to them about how we needed to keep the place looking good and how 
important that was. I remember how we looked up to him and how much we 
respected him.
  Eventually, Jim McKee took a job at Wright Patterson Air Force Base 
near my hometown of Yellow Springs. But by 1957, Jim decided he needed 
to move on. True to form, Jim saw this change not as a bad thing but 
really as a new opportunity to do something he had always dreamed of 
doing, and that was to get involved in law enforcement. This was his 
chance, his opportunity. Before long, he was realizing that dream. The 
village of Yellow Springs then hired him as a police officer. He joined 
a department of two officers and a chief, a small department at the 
time. Within 2 short years and the recognition of his talent and his 
hard work, Jim McKee was appointed chief of police.
  In this new leadership position, Jim McKee soon found himself dealing 
with issues he probably did not think he was going to be dealing with, 
issues of historic importance, because at that time the civil rights 
movement was beginning to sweep our country. The civil rights movement 
had reached Yellow Springs, a small community in southwest Ohio, my 
hometown. It reached Yellow Springs sooner than most other parts of the 
country.
  Jim McKee was one of the few African-American chiefs of police in the 
State of Ohio. Jim McKee guided my hometown with great skill through a 
very difficult period of time. As one of the few African-American 
chiefs of police in the State, really one of the few in the country at 
the time, Jim McKee faced his own civil rights issues early on in the 
movement. Everybody in Yellow Springs, a community then and now of 
great diversity and a community that then and now embodies a person's 
right to free speech, everybody in Yellow Springs respected and liked 
Jim McKee. That made all the difference in the world.
  Whether Jim realized it or not during this tumultuous era, Jim was in 
fact playing a part in our American history. Jim McKee kept the peace, 
maintained order, and all the while respected people's freedom of 
speech, their right to demonstrate, and their civil rights. He did it 
in a professional way.
  I remember when Dr. Martin Luther King came to Yellow Springs to 
deliver the commencement address at Antioch College. Chief McKee, of 
course, provided his security detail. Years later, recalling this 
experience with Dr. King, Chief McKee had this to say:

       At the time there were rumors they were out to get him. I 
     saw him do his nonviolent teachings. I drove around in the 
     car with him for 2 days. He was a perfect Christian gentleman 
     and I was frightened to death because I was providing his 
     security. We told people he was staying at the Antioch Inn, 
     but in fact he was right across the street from where I 
     live--in the home his wife, Coretta, lived in as a student at 
     Antioch years before. You would think they would have figured 
     it out, with all the police cruisers parked out front. I was 
     never so glad to see a plane take off.

  Despite whatever concerns Jim McKee may have had, the chief performed 
his duties with a great sense of professionalism, with honor and 
courage. Though he dealt with significant issues on the national stage, 
Chief McKee dedicated his career to Yellow Springs and to keeping the 
community he loved so much safe and free from crime.
  As Members of the Senate know--or may not know--Yellow Springs is not 
a large city. It is a village. It is a small village where people know 
their neighbors and watch out for one another. Even today, I believe 
there are probably only about eight or so police officers on the force. 
Chief McKee, as the local police chief, was really an icon in his own 
community. He was greatly admired and respected as an officer, as a 
protector, but most of all as a friend.
  Though I first met him as an elementary school student, actually in 
the first grade, I had the opportunity later on to reconnect with him. 
Our lives came together again when I became assistant county 
prosecuting attorney and he was by that time the dean of the chiefs of 
police in Greene County. I knew him then and later when I became the 
prosecutor of our home county. We worked on a number of cases that 
arose out of Yellow Springs, several very difficult rape cases. We 
worked on several of those cases together. During this time, I learned 
a great deal about how Chief McKee treated people and how he dealt with 
some of the most tense situations. Perhaps most importantly, though, I 
saw

[[Page 4161]]

his great sense of humanity toward both victims and suspects.
  Chief Jim McKee taught me there is much more to police work than 
arrests and convictions. He taught me about the human component in 
police work. He taught me about people and about compassion.
  I remember one instance in particular when I saw and learned about 
how Jim McKee dealt with a man who had been in an auto accident. This 
man was involved in a horrible thing, as many accidents are, but he 
came out of it. He walked out of the accident, but the other person in 
the other vehicle did not and the other person died. This particular 
person was actually a suspect, and he could have been charged. The 
police were looking at and trying to decide whether to charge him. 
Actually, later on there was a grand jury that was convened. The grand 
jury had to make a decision whether this person was going to be charged 
and have to stand trial. Eventually they decided not to charge him, but 
Jim did not know that at the time. I saw how Jim dealt with this man 
and showed this man, who was going through great anguish at the time, a 
man who was really a suspect, and I saw how Jim worked him through 
this, talked to him and showed great kindness to him. That is how Jim 
McKee treated everyone, with great kindness and with great compassion, 
all the time being a professional, all the time doing his job.
  It was this compassion that set Jim McKee apart. He cared deeply 
about people and just knew how to deal with them.
  At the end of Chief McKee's distinguished 36-year career in law 
enforcement, I had the honor of attending his farewell banquet. I was 
lieutenant governor at the time and was there to pay tribute to the 
chief on behalf of the entire State of Ohio, and on behalf of Governor, 
then-Governor George Voinovich. At this reception and this dinner, I 
was struck by the sheer outpouring of respect and admiration and 
appreciation for Chief McKee's work and for his selfless contributions 
to our community. It was clear at this reception how important Chief 
McKee was to the people, to the village of Yellow Springs, and to the 
entire law enforcement community across the State of Ohio. I was proud 
to be part of this memorable event.
  Following his retirement from the force in 1993, Chief McKee remained 
active in the community until the day he died. He was a key member of 
the Yellow Springs Men's Group, an organization dedicated to studying 
issues important to the day-to-day lives of Yellow Springs residents. 
Through this organization, the James A. McKee scholarship fund was 
established in 2002 as a tribute both to Jim and to his legacy of 
community involvement.
  In the recent days following Jim's death, a number of newspapers ran 
articles about his life and his legacy. As I read through these 
tributes, I was especially taken with a statement from my friend, Paul 
Ford, who had known Chief McKee since 1949. This is what Mr. Ford said:

       We've lost a good citizen, a good friend, and a 
     humanitarian. Once you met Jim, you were a friend.

  Indeed, Jim McKee was my friend and someone for whom I had great 
affection and admiration. This quote really gets to why Chief McKee was 
so special to the community of Yellow Springs and to all of us who knew 
him. He dedicated his life to serving the people of Yellow Springs. He 
worked to keep his community safe and free from crime.
  When I think about Jim McKee and his life's work as a police officer, 
protector of the community, I am reminded of a Bible passage from 
Matthew: Blessed are the peacemakers for they shall be called the 
children of God.
  Indeed, Chief Jim McKee was a peacemaker and a protector and just a 
good and decent hard-working man. He was a kind person, a kind human 
being who always tried to do the right thing for his family, for his 
community, and for his Nation.
  My wife Fran and I extend our heartfelt sympathy and our prayers for 
the entire McKee family, for his wife of 54 years, Naomi; his four 
daughters, Bari McKee-Teamor, Karen McKee, Jean McKee, Sandra McKee-
Smith; his son, Jimmy, his five grandchildren, and one great grandson. 
Jim McKee loved his family. He cared deeply for them. I know they, like 
all of us, will miss him tremendously.
  Thank you, Jim, for all you did for Yellow Springs and for our 
Nation. You will be remembered always in our minds and in our hearts.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota.


                             Foreign Policy

  Mr. DORGAN. Mr. President, I was reading a piece in a newspaper this 
morning that misquoted remarks I made on the floor of the Senate 
recently. The journalist got it plain wrong in this case. He indicated 
that Senator Dorgan feels that Saddam Hussein is not dangerous.
  Of course, I have never said that, would not say that, and whoever 
listened to my remarks previously either chose to reinterpret them in a 
way that is not accurate or chose to ignore what I said. Let me 
describe what I said.
  I talked about the dangers presented by North Korea. I talked about 
the importance of prosecuting the war on terrorism, and protecting this 
country against terrorist attacks. And I said that while Iraq and 
Saddam Hussein are a problem, we have to face these other issues as 
well.
  If today trucks are backing up to a plant in North Korea and moving 
fuel rods that will become processed and become part of a nuclear 
bombmaking process, and a bomb could be sold by North Korea to other 
countries, and to terrorists, that is a serious problem. That could 
come back in a year and a half or 2 years into this country in the form 
of a nuclear bomb possessed by a terrorist. That is serious business.
  We are told that the trucks are moving. We are told that is what is 
happening in North Korea. And yet there does not seem to be the same 
kind of attention paid to it as is now paid to the country of Iraq.
  We are told there is an orange level of alert in our country today, 
which suggests once again the threat posed by Osama bin Laden and his 
fellow terrorist, who have not yet been apprehended.
  So we are facing terrorist groups, Osama bin Laden, Korea, Saddam 
Hussein, and Iraq.
  My point is not that Saddam Hussein is not dangerous; he indeed is 
dangerous. We ought to deal with him. Frankly, the credit of having 
inspectors in Iraq at this point belongs to the President; otherwise 
they would not have been able to enter Iraq and begin the inspections. 
If Saddam Hussein does not disarm, he will be disarmed either by this 
country or this country and other countries acting in concert. That is 
just a fact.
  My point is that is not the only challenge we face and not 
necessarily the greatest challenge we face. If trucks are moving spent 
fuel rods in North Korea today, then we better make a judgment to deal 
with that.
  If we have an orange alert in this country today because terrorist 
groups have mobilized and intelligence suggests that an orange alert is 
warranted, then we had better be concerned about that. And we had 
better prosecute that war against terrorism as aggressively as we 
pursue Saddam Hussein. That is my point.
  Now I have come to the floor today to speak about a related subject, 
and that is the subject of energy. We import oil in order to run our 
country's automobile fleets, stationary engines, and so on. We import 
20 million barrels a day. Saudi Arabia is our No. 1 importer--Mexico, 
Canada, Venezuela, Nigeria--Iraq is No. 6 at 289,000 barrels. Our 
country is very dependent on energy from a Middle East that is rocked 
by turmoil. If tonight, God forbid, terrorists were able to interrupt 
the flow of energy, the flow of oil to our country from Saudi Arabia 
and Iraq, for example, our economy would be in trouble. That is just a 
plain fact.
  Does it make sense for us to continue to be so dependent on oil 
coming from that part of the world? I don't think so. So what will we 
do about that? Let me describe a couple of things.

[[Page 4162]]

  Yesterday my colleagues from South Dakota, Senator Daschle and 
others, Senator Johnson, myself, and Senator Conrad, introduced a piece 
of legislation dealing with ethanol, renewable fuels. Ethanol is a fuel 
in which you grow a crop in the field, you harvest it, you take a 
kernel of corn, you extract from the kernel of corn the drop of alcohol 
and you have the protein feedstock left. You extend America's energy 
supply, you still have something for cattle to eat, and you grow it 
year after year after year and you are not dependent on Saudi Arabia or 
Iraq. It is a renewable fuel that you produce year after year. Here is 
the way you produce ethanol. You grow a crop such as corn, finely grind 
it, separate it into component sugars, distill the sugars to make 
ethanol, and you put it in a vehicle. It is very simple. You are 
growing crops to produce America's energy. That is what ethanol is 
about. You can do it with barley. You can do it with sugar beets, start 
with sugar beets. You can do it with potatoes. You grow your energy.
  We import 55 percent of the oil we consume in this country. That is 
expected to grow to 68 percent by 2025. Nearly all of our cars and 
trucks run on gasoline. They are the main reasons our country imports 
so much oil.
  I think this chart shows what is happening with respect to energy in 
our country. We have a demand line that is going up. You will see that 
the reason for that, by and large, is transportation. Mostly that is 
vehicles--cars, trucks, other vehicles. This is where the demand is, 
transportation.
  Domestic production of oil, as you can see, is fairly flat. If we 
were to go up to ANWR in Alaska, as some would like us to do--I don't 
happen to support it--you would see what would happen as a result of 
ANWR--almost nothing. Or if we go on into the Gulf of Mexico, which I 
do support--that will not solve all of our energy needs. We are just 
not going to solve our problems with those approaches. We have to 
produce more, and we will produce more--produce more coal, produce more 
oil, and natural gas. We will do it in ways that protect our 
environment as much as possible. But that is not enough. We need to do 
much more than that.
  One of the answers, in my judgment, is to have much greater 
production of ethanol. And so we are introducing legislation, as my 
colleague from South Dakota, Senator Daschle, said yesterday, with a 
renewable fuels provision. It has been carefully negotiated over many 
months. Twenty groups--National Corn Growers, the Renewable Fuels 
Association, the American Farm Bureau, National Farmers Union--have all 
sent letters supporting this legislation that we have introduced.
  We now produce 1.8 billion gallons of pure ethanol. This provision 
will add 3.2 billion new gallons. So by 2012, we will be producing 5 
billion gallons of ethanol.
  I think with this provision, the ethanol industry will continue to 
grow. That translates to a new market, for example, for corn as the 
feedstock for an ethanol plant--1.2 billion bushels. That is new 
opportunities to farmers to invest in value-added agriculture, new 
opportunities to extend America's energy supply, new opportunities to 
make our country less dependent on Saudi Arabian oil, on oil from Iraq. 
All of that makes good sense. There are substantial economic benefits 
available with respect to this, and substantial security benefits for 
our country that will accrue from our passing this legislation.
  So I rise today to say the introduction yesterday by myself, by 
Senator Daschle, and many others with respect to this major piece of 
legislation dealing with ethanol is a significant step forward. My hope 
is, on a bipartisan basis, we will be able to move this legislation in 
this Congress, recognizing that having less dependence on oil from the 
most troubled region in the world is advisable for this country.
  How do you do that? By extending America's energy supply through the 
production of ethanol, the production of something that is renewable, 
year after year after year. It is not something that is depleting, it 
is renewable. That is why this legislation makes such good sense.
  There is something else we can and should do. I am going to introduce 
legislation the day we get back from next week's break. I intended to 
introduce it yesterday, but for a couple of reasons I have held it, and 
will continue to refine it just a bit.
  I will propose a project that deals with the hydrogen economy and 
fuel cells. The President mentioned this in his State of the Union 
Address to the Congress. I commend the President for it. It is exactly 
the right idea. I have been working on this for some long while.
  In fact, the bill that passed the Senate last year, the energy bill, 
contained a provision I added that said by the year 2020 America should 
aspire to have 2.5 million fuel cell cars that are using hydrogen--2.5 
million fuel cell cars on the road.
  Give or take, there are 700 million vehicles in the world. Give or 
take, there are about 70 million vehicles produced each and every year. 
Almost all of them are vehicles with carburetors through which you put 
gasoline and you create power for the engine and you drive off in the 
automobile. Nothing has changed in a century--nothing at all.
  My first car was an antique 1924 Model T Ford. I restored it, then 
sold it. I put gasoline in that little old antique Model T Ford the 
same way you put gasoline in a 2003 Ford: You pull up to a pump, put 
the hose in the tank, and start pumping gas. Nothing has changed in 100 
years--nothing.
  The question is, are we going to pole-vault over all these 
discussions and move to a new day and a new technology? Sure, we are 
going to discuss ANWR and CAFE standards and all the other issues that 
dominated debate last year. But if that is all we discuss, then every 
25 years we will come back and discuss the same thing, and our policies 
will be known as ``yesterday forever.''
  Why don't we begin discussing new technology and a new day, a new 
type of energy for this country's future, a hydrogen future with fuel 
cells for vehicles?
  I mentioned our energy security is threatened. We import 55 percent 
of the oil. That is going to go to 68 percent by 2025. Most of our cars 
and trucks run on gasoline. That is why we import so much oil. Two-
thirds of the 20 million barrels of oil we use each day is used for 
transportation.
  Now let me describe a car that uses fuel cells. This chart shows a 
vehicle, a Ford Focus. It is a fuel cell vehicle, production-ready 
prototype, unveiled in autumn 2002. I drove one a couple days ago, 
drove one last summer. In fact, we have had fuel cell vehicles that 
drove all the way from Los Angeles to New York.
  This is a picture of a hydrogen fueling station at Powertech Labs. 
Fueling infrastructure is critically important to make hydrogen fuel 
cars a reality.
  Hydrogen cars do not have to be compact. This is a picture of a fuel 
cell vehicle, a Nissan Xterra, fueled by compressed hydrogen, tested on 
public roads in California in the year 2001.
  Finally, a picture of a more futuristic looking vehicle, the General 
Motors Hy-Wire Fuel Cell Concept Car, unveiled in August of 2002.
  Let me describe what Europe is doing in fuel cells. The European 
Commission has invested significantly in fuel cell cars, and industry 
is commending them for it. Herbert Kohler, director of Environmental 
Affairs at DaimlerChrysler, said political support was vital for the 
car industry to move to fuel cells. They can do a lot for themselves, 
but at a certain point they need fuel, and that means involving others.
  It means the development of a supply of hydrogen, which is 
ubiquitous, by the way. Through electrolysis, you can separate the 
hydrogen and oxygen in water, develop the hydrogen supply, and put 
water vapor out the tailpipe of the car. You have the tailpipe of a 
vehicle that emits water vapor. What a great thing for the environment!
  The European Commission, the executive body of the Europe Union, has 
earmarked more than 2.1 billion Euros, $2 billion, for research over 5 
years. A central focus will be hydrogen fuel cells.

[[Page 4163]]

  Let me tell you what Japan is doing. Japanese carmakers are flooring 
it on fuel cells. Tokyo's fuel cell initiative has all the hallmarks of 
a far-sighted strategy, Business Week says, and calls to mind Tokyo's 
blossoming success in hybrids. Americans are snapping up these fuel-
efficient, environmentally friendly cars, and fuel cells could turn out 
to be a bigger, more important chapter in exactly the same book.
  I don't think we ought to stand around here and continue to debate 
small issues so that every 25 years we can have a repeat of the same 
debate. I think we ought to debate big issues. I think we ought to have 
a world view change here, with respect to how we want to power our 
vehicle fleet. I think we want to convert to hydrogen fuel.
  That ought not scare those who produce oil, natural gas, and use 
coal. In fact, those same companies are some of the companies in the 
lead, in the forefront of moving to a hydrogen economy.
  You can produce hydrogen from fossil fuels. We are always going to 
need and use fossil fuels. But wouldn't it be great to power our 
vehicle fleet with hydrogen and fuel cells so that we don't need Middle 
East oil?
  Wouldn't that be a wonderful future for this country and at the same 
time improve our environment, because we are going to use hydrogen and 
fuel cells and put only water vapor out of the back of the car through 
the tailpipe?
  That is exactly what we ought to do. How you do you get that done? I 
have met with representatives of the hydrogen and fuel cell industries. 
They are anxious. They are engaged in substantial research. But the 
fact is they cannot do this alone.
  The conversion of the vehicle fleet in our country to the big idea of 
the hydrogen economy and fuel cells will not and cannot happen without 
the support of the Government. I propose an Apollo-like program. When I 
say Apollo program, I am talking about the program by which John F. 
Kennedy said, ``We are going to go to the Moon by the end of the 
decade.'' I think our country should decide to move to the hydrogen 
economy and fuel cell vehicles with a big idea and in a big way to help 
make it happen as public policy. The Europeans and the Japanese are 
moving in that direction, and we should, too.
  As I indicated, last year I put a piece in the energy bill that says 
we aspire to have a goal of 2.5 million vehicles on the road in 2020 in 
this country using fuel cells.
  Now, the President proposed a $1.2 billion hydrogen fuel cell 
program. Only half of that is new money. That is not a big idea. It is 
the right idea. But it is not big and bold.
  I propose a $6.5 billion 10-year program that is really going to move 
this country to say we want to enact change. We want to move to a 
hydrogen economy and develop fuel cell vehicles to help create the 
infrastructure for the production of hydrogen and the storage and 
transportation of hydrogen. We want to provide incentives for people to 
buy the fuel cell vehicle.
  This will be one of the best things this country has done. It will be 
one of the big ideas of the century. That is why I think it is so 
important.
  We talk about this with the backdrop of a troubled world--substantial 
problems in the Middle East, Central and Southern Asia, terrorism, 
North Korea, and Iraq. When you think of the difficulties that exist 
and the small thread our economy hangs on, making sure that tonight, 
tomorrow, the next day, and every day of the week and every month we 
get enough oil into this country from places like Iraq, like Venezuela, 
like Saudi Arabia, and Algeria in order to power our vehicle fleet, 
then we ought to understand this economy is held hostage by forces we 
don't control.
  It is dangerous for this economy to be dependent on things we cannot 
and will not be able to control in the long term. But we can--as we 
have in many other areas--create incentives and new technology and new 
opportunities to solve old problems.
  That is exactly what I propose with this initiative. I intend to 
introduce this the day we get back. I expect and hope it will be 
bipartisan. I have been talking to some Democrats and some Republicans.
  The President has said this is a good idea. Good for him. I commend 
him for it. I think he proposed a step in the right direction. And, 
frankly, having the Bush administration be supportive of this kind of 
technology change is excellent. It is good for this country. But the 
administration's approach is more timid and less bold than it should 
be.
  I am going to propose an Apollo-type program that says let us really 
move and get this accomplished. I hope to have substantial bipartisan 
support as we begin to write an energy bill this year in the Senate.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Bennett). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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