[Congressional Record (Bound Edition), Volume 151 (2005), Part 8]
[Senate]
[Pages 10929-10941]
[From the U.S. Government Publishing Office, www.gpo.gov]




NOMINATION OF PRISCILLA RICHMAN OWEN TO BE UNITED STATES CIRCUIT JUDGE 
                    FOR THE FIFTH CIRCUIT--Continued

  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Mr. President, I read from the King James version of the 
Holy Bible, from the 22nd chapter of Proverbs, the 28th verse:

       Remove not the ancient landmark, which thy fathers have 
     set.

  Mr. President, in his second inaugural address, Abraham Lincoln 
observed that:

       With malice toward none; with charity for all; with 
     firmness in the right, as God give us to see the right, let 
     us strive on to finish the work we are in; to bind up the 
     nation's wounds. . . .

  Mr. President, I have always believed that the Senate, by its nature, 
attracts and probably also creates men and women of the quality and 
character who are able to step up when faced with crises that threaten 
the ship of state, to calm the dangerous seas which, from time to time, 
threaten to dash our Republic against rocky shoals and jagged shores.
  The Senate proved it to be true again yesterday, when 14 Members--
from both sides of the aisle, Republicans and Democrats; 14 Members--of 
this revered institution came together to avert the disaster referred 
to as the ``nuclear option'' or the ``constitutional option''--these 
men and women of great courage.
  As William Gladstone said, in referring to the Senate of the United 
States, the Senate is

     that remarkable body, the most remarkable of all the 
     inventions of modern politics.

  I thank all of those Republicans and Democrats who worked together to 
keep faith with the Framers and the Founding Fathers. We have kept the 
faith with those whose collective vision gave us this marvelous piece 
of work, the Constitution of the United States. Thank God--thank God--
that this work has been done and that it has been preserved, that a 
catastrophe has been averted.
  Article II, section 2, of the Constitution gives to the President the 
power to nominate, and ``by and with the Advice and Consent of the 
Senate,'' to ``appoint . . . Judges of the supreme Court, and all other 
Officers of the United States. . . .''
  There are two parts to that phrase: the ``advice'' on the one hand, 
and the ``consent'' on the other, and both must be present before any 
President can appoint any nominee to the Supreme Court or any other 
Federal court. It is, therefore, a shared responsibility between the 
U.S. Senate and the President of the United States.
  By its agreement yesterday, the Senate is keeping that construct 
alive, this shared responsibility between the President of the United 
States, on the one hand, and the Senate of the United States, on the 
other.
  The agreement that was obtained yesterday by the cooperation between 
and among the 14 Members of the Senate--representing Republicans and 
Democrats--it was that agreement that reminds us of the words of our 
Constitution, by encouraging the President of the United States, on the 
one hand, to consult with the Senate of the United States, on the 
other. In other words, the Senate will be in on the takeoff, meaning 
prior to sending up his nominees for our consideration. In recent 
times--and by that I mean under Presidents of both parties--there has 
not been all that much consultation by the President with the Senate.
  So here we are, in the Senate, offering the hand of partnership to 
the Chief Executive and saying: Consult with us. That is what the 
Framers intended, that the President of the United States should 
consult with the Senate. You don't have to take our advice, but here it 
is. And by considering that advice, it only stands to reason that any 
President will be more assured that his nominees will enjoy a kinder 
reception in the Senate.
  The agreement, which references the need for ``advice and consent,'' 
as contained in the Constitution, proves once again, as has been true 
for over 200 years, that our revered Constitution is not simply a dry 
piece of parchment. It is a living document.
  Yesterday's agreement was a real-life illustration of how this 
historical document continues to be vital in our daily lives. It 
inspires, it teaches, and yesterday it helped the country and the 
Senate avoid a serious catastrophe.
  Mr. President, for this reason and others, I ask that at the end of 
my remarks the agreement reached by the 14 Senators be printed in the 
Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. BYRD. Mr. President, I do this so that we in the Senate and the 
President may all have a way of easily revisiting the text of that 
agreement for future reference.
  On the heels of this agreement, I believe that we should now move 
forward, propelled by its positive energy, in a new direction. We 
should make every effort to restore reason to the politically partisan 
fervor that has overtaken our Senate, this city, and our country. We 
must stop arguing and start legislating.
  Divisive political agendas are not America's goals. The right course 
lies someplace in the middle. It is our job to work as elected 
representatives of a reasonable people to do what is right, regardless 
of threats from any of the angry groups that seem dedicated to 
intimidation. The skeptics, the cynics, the doubters, the Pharisees, 
those who are intoxicated by the juice of sour grapes did not prevail 
and must not prevail. The 14 Republican and Democratic Senators rose 
above those who do not wish to see accord but prefer discord.
  Chaucer's ``Canterbury Tales''--we have all read Chaucer's 
``Canterbury Tales'' in high school--contains ``The Pardoner's Tale.''
  The story tells about the journey by the pilgrims to Canterbury, to 
the shrine of Canterbury. The scene took place in Flanders, where once 
there sat drinking in a tavern three young men who were much given to 
folly. As they sat, they heard a small bell clink before a corpse that 
was being carried to the grave. Whereupon, one of the three called to 
his knave and ordered him to go and find out the name of the corpse 
that was passing by.
  The boy answered that he already knew and that it was an old comrade 
of the roisterers who had been slain, while drunk, by an unseen thief 
called ``Death,'' who had slain others in recent days.

[[Page 10930]]

  And so out into the road the three young ruffians went in search of 
this monster called Death. They came upon an old man and seized him, 
and with rough language they demanded that he tell them where they 
could find this cowardly adversary who was taking the lives of their 
good friends around the countryside.
  The old man pointed to a great oak tree on a nearby knoll, saying, 
``There, under that tree you will find Death,'' that monster. In a 
drunken rage, the three roisterers set off in a run until they came to 
the tree, and there they found a pile of gold--eight basketfuls of 
florins, newly minted, round, gold coins. Forgotten was the monster 
called Death, as the three pondered their good fortune. And they 
decided that they should remain with the gold until nightfall, when 
they would divide it among themselves and take it to their respective 
homes. It would be unsafe, they reasoned, to attempt to do so in broad 
daylight, as they might be fallen upon by thieves who would take their 
treasure from them.
  It was proposed that the three draw straws, and the person who drew 
the shortest straw would go into the nearby village and purchase some 
bread and wine and cheese, which they could then enjoy as they whiled 
away the daylight hours. So off toward the village the young man who 
drew the shortest straw went. When he was out of sight, the remaining 
two decided that there was no good reason why this fortune, this pile 
of gold, should be divided among three individuals. So one of them said 
to the other, ``When he returns, you throw your arm around him as if in 
good sport, as in jest, and I will rive him with my dagger, and with 
your dagger, you can do the same. Then all of this gold will be divided 
not among three of us but just between two of us--you and me.''
  Meanwhile, while the two were planning the demise of the third, the 
youngest rogue, as he made his way into the town, thought to himself 
what a shame it would be that the gold would be divided among three, 
when it just as well could be so easily belong only to the ownership of 
one, himself. Therefore, in town the young man went directly to an 
apothecary and asked to be sold some poison for the large rats and a 
polecat that had been killing his chickens. The apothecary--the 
pharmacist--quickly provided some poison, saying that as much as 
equaled only a tiny grain of wheat would result immediately in sudden 
death for the creature that drank the mixture.
  Having purchased the poison, the young villain crossed the street to 
a winery, where he purchased three bottles--two for his friends, one 
for himself. After he left the village, he sat down, opened two bottles 
of wine and deposited an equal portion in each, and then returned to 
the oak tree, where the two older villains did as they had planned. One 
threw his arm, as if in jest, around the shoulders of the third, and 
both buried their daggers in him. He fell dead on the pile of gold. The 
other two villains then sat down, broke the bread, cut the cheese, and 
opened the two bottles of wine. Each took a good, deep swallow, and 
then, suffering a most excruciating pain, both fell dead upon the pile 
of gold and upon the body of the third. So there they were across the 
pile of gold, all three of them dead.
  Their avarice, their greed for gain, their love of material things 
had destroyed them. There is a lesson here in Chaucer's Tales, as given 
to us by ``The Pardoner.'' The strong temptation for political 
partisanship that has prevailed in the Senate can tear this Senate 
apart and can tear the Nation apart and confront all of us with 
destruction, so that in the end we three--the President, the Senate, 
and the people--will all be destroyed, as it were.
  So we almost saw that happen here on the Senate floor--until 
yesterday, when that catastrophe, looming as it was before the Senate, 
was averted. I applaud the fact that the center, the anchor, held, and 
we stood together for the good of the country against mean-spirited, 
shallow, political ends.
  Mr. President, I implore all of us to endeavor to lift our eyes to 
the higher things. We can perform some much needed healing on the body 
politic. If we can come together in a dignified way to orderly and 
expeditiously move forward on these nominations, perhaps we can yet 
salvage a bit of respect and trust from the American people for all of 
us, for the Senate, and for our institutions of free government.
  We have a duty, at this critical time, to rise above politics as 
usual, in which we savage one another, and in so doing, destroy 
ourselves, like the three villains in ``The Pardoner's Tale.''
  Let us put the Nation first. The American people want us to do that. 
In the long run, that is how we will be judged and, more importantly, 
it is how the Senate will be judged.
  It is easy to tear down; it is difficult to build.

     I saw them tearing a building down,
     A group of men in a busy town.
     With a ``Ho, Heave, Ho and a lusty yell,
     They swung a beam and the sidewall fell.

     I said to the foreman, ``Are these men skilled?
     The type you would hire if you had to build.''
     He laughed, and then he said, ``No indeed,
     Just common labor is all I need;
     I can easily erect in a day or two,
     That which takes builders years to do.''

     I said to myself as I walked away,
     ``Which of these roles am I trying to play?
     Am I a builder who works with care,
     Building my life by the rule and square?
     Am I shaping my deeds by well-laid plan,
     Patiently building the best I can?
     Or am I a wrecker who walks the town
     Content with the labor of tearing down.''

  Mr. President, it is easy to tear down, but it takes a long time to 
build. We have been 217 years in building this Senate, making it what 
it was intended to be by the Framers who wrote it 219 years ago, who 
established three equal coordinate branches of Government, who 
established a separation of powers, who established checks and balances 
in this Constitution of the United States.
  The work of those Framers and the work of the larger group of 
Founders took 219 years. It was about to be destroyed in a single day, 
this day. But thank God 14 Senators from both sides of the aisle met 
and rose above partisan politics and kept the faith with the Framers 
and with the Founders so that our posterity might enjoy the blessings 
of liberty, the blessings of freedom of speech, the roots of which go 
all the way back to the reign of Henry IV, who reigned from 1399 to 
1413 and who in 1407 proclaimed that the members of Parliament--the 
House of Lords and the House of Commons--could speak freely and without 
fear.
  And those words were written into the Declaration of Rights, which 
declaration was submitted to William III of Orange and Mary, a 
Declaration of Rights which included freedom of speech in Parliament. 
That declaration was presented on February 13, 1689, to William III and 
Mary. They both accepted it and were then proclaimed by the House of 
Commons joint sovereigns of the nation.
  Then, on December 18, 1689, those words were included in a statute, 
the English Bill of Rights--freedom of speech, the roots going back a 
long way. That freedom of speech then was provided to those of us in 
the Senate, provided by the Constitution, and since 1806, when the 
provision for the previous question was discarded upon the 
recommendation of Vice President Aaron Burr, since 1806 that provision 
for the previous question or the sudden cutting off debate was 
discarded. Since 1806, until the year 1917, the year in which I was 
born during the administration of Woodrow Wilson, that freedom of 
speech has prevailed in the Senate, and it has lived since then except 
for unanimous consent agreements and the cloture provision which was 
first agreed to in 1917, the cloture provision shutting off debate 
under the rules of the Senate.
  Freedom of speech has reigned in this body, and it still lives, 
thanks again to the 14 Republicans and Democrats who rose above 
politics yesterday and came forward with this accord.
  So, Mr. President, let us be true to the faith of our fathers and to 
the expectation of those who founded this Republic. The coming days 
will test us again and again, but let us go forward together hoping 
that in the end, the Senate will be perceived as having stood the test, 
and may we, both Republicans and Democrats and Independents, when our 
work is done, be judged

[[Page 10931]]

by the American people and by the pages of history as having done our 
duty and as having done it well.
  Our supreme duty is not to any particular person, not to any 
particular President, not to any political party, but to the 
Constitution, to the people of the Nation, and to the future of this 
Republic. It is in that spirit that we may do well to remember the 
words of Benjamin Hill, a great Senator, a great orator from the State 
of Georgia, his words being inscribed on a statue in Atlanta, GA, as 
they are and as they appear today upon that monument:

       Who saves his country saves himself, saves all things, and 
     all things saved do bless him. Who let's his country die dies 
     himself ignobly, and all things dying curse him.

  Remember that ancient proverb: Remove not the ancient landmark, which 
thy fathers have set.
  I yield the floor. I suggest the absence of a quorum.

                               Exhibit 1

          Memorandum of Understanding on Judicial Nominations

       We respect the diligent, conscientious efforts, to date, 
     rendered to the Senate by Majority Leader Frist and 
     Democratic Leader Reid. This memorandum confirms an 
     understanding among the signatories, based upon mutual trust 
     and confidence, related to pending and future judicial 
     nominations in the 109th Congress.
       This memorandum is in two parts. Part I relates to the 
     currently pending judicial nominations; Part II relates to 
     subsequent individual nominations to be made by the President 
     and to be acted upon by the Senate's Judiciary Committee.
       We have agreed to the following:


          Part I: Commitments on Pending Judicial Nominations

       A. Votes for Certain Nominees. We will vote to invoke 
     cloture on the following judicial nominees: Janice Rogers 
     Brown (D.C. Circuit), William Pryor (11th Circuit), and 
     Priscilla Owen (5th Circuit).
       B. Status of Other Nominees. Signatories make no commitment 
     to vote for or against cloture on the following judicial 
     nominees: William Myers (9th Circuit) and Henry Saad (6th 
     Circuit).


              Part II: Commitments for Future Nominations

       A. Future Nominations. Signatories will exercise their 
     responsibilities under the Advice and Consent Clause of the 
     United States Constitution in good faith. Nominees should 
     only be filibustered under extraordinary circumstances, and 
     each signatory must use his or her own discretion and 
     judgment in determining whether such circumstances exist.
       B. Rules Changes. In light of the spirit and continuing 
     commitments made in this agreement, we commit to oppose the 
     rules changes in the 109th Congress, which we understand to 
     be any amendment to or interpretation of the Rules of the 
     Senate that would force a vote on a judicial nomination by 
     means other than unanimous consent or Rule XXII.
       We believe that, under Article II, Section 2, of the United 
     States Constitution, the word ``Advice'' speaks to 
     consultation between the Senate and the President with regard 
     to the use of the President's power to make nominations. We 
     encourage the Executive branch of government to consult with 
     members of the Senate, both Democratic and Republican, prior 
     to submitting a judicial nomination to the Senate for 
     consideration.
       Such a return to the early practices of our government may 
     well serve to reduce the rancor that unfortunately 
     accompanies the advice and consent process in the Senate.
       We firmly believe this agreement is consistent with the 
     traditions of the United States Senate that we as Senators 
     seek to uphold.
         E. Benjamin Nelson, Mike DeWine, Joe Lieberman, Susan 
           Collins, Mark Pryor, Lindsey Graham, Lincoln Chafee, 
           John McCain, John Warner, Robert C. Byrd, Mary 
           Landrieu, Olympia Snowe, Ken Salazar, and Daniel 
           Inouye.

  The PRESIDING OFFICER (Mr. Cornyn). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. REED. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Martinez). Without objection, it is so 
ordered.
  Mr. REED. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REED. Mr. President, I also ask unanimous consent that the time I 
consume come out of my time postcloture.
  The PRESIDING OFFICER. Without objection, it is so ordered.


         Retirement of Colonel Russ Howard, United States Army

  Mr. REED. Mr. President, I rise today to recognize the 
accomplishments of Colonel Russ Howard, head of the department of 
social sciences and director of the Combating Terrorism Center at West 
Point. Colonel Howard is retiring June 3, 2005, after 37 years of 
Active and Reserve military service.
  In his previous position, he was the deputy department head of the 
department of social sciences. Prior to that, Colonel Howard was an 
Army chief of staff fellow at the Center for International Affairs at 
Harvard University. Formerly, Colonel Howard was the commander of the 
1st Special Forces Group (Airborne) at Fort Lewis, WA. Other recent 
assignments include assistant to the Special Representative to the 
Secretary General during UNOSOM II in Somalia, deputy chief of staff 
for I Corps, and chief of staff and deputy commander for the Combined 
Joint Task force, Haiti/Haitian Advisory Group. He also served as the 
administrative assistant to ADM Stansfield Turner and as a special 
assistant to the commander of SOUTHCOM.
  When Colonel Howard was commander of 3rd Battalion, 1st Special 
Warfare Training Group (Airborne) at Fort Bragg, NC, he developed the 
curriculum for the first ever graduate degree program for the Civil 
Affairs and Psychological Operations officers.
  Prior to Operation Desert Shield/Desert Storm, Colonel Howard took a 
mobile training team to Kuwait and Saudi Arabia to train the ``lost 
boys,'' newly appointed Civil Affairs and Psychological Operations 
officers already deployed to the Persian Gulf.
  The newly trained officers performed superbly during operations and 
3rd Battalion won the Army Superior Unit Award, largely due to the 
efforts and foresight of Colonel Howard.
  As a newly commissioned officer, a much younger officer, Colonel 
Howard served as ``A'' team commander in the 7th Special Forces Group 
from 1970 to 1972.
  He left the Active component and served in the U.S. Army Reserve from 
1972 to 1980. During this period, he served as an overseas manager, 
American International Underwriters Melbourne, Australia, and China 
tour manager and Canadian Pacific Airlines.
  He was recalled to active duty in 1980 and served initially in Korea 
as an infantry company commander. Subsequent assignments included 
classified project officer, U.S. Army 1st Special Operations Command at 
Fort Bragg, and operations officer and company commander 1st Battalion, 
1st Special Forces Group in Okinawa, Japan.
  Colonel Howard earned a bachelor of science degree in industrial 
management from San Jose State University, bachelor of arts degree in 
Asian studies from the University of Maryland, a master of arts degree 
in international management from the Monterey Institute of 
International Studies, and a masters of public administration degree 
from Harvard University.
  Colonel Howard was an assistant professor of social sciences at the 
U.S. Military Academy and a senior service college fellow at the 
Fletcher School of Law and Diplomacy, Tufts University.
  During his extraordinary career of public service, Colonel Russ 
Howard was a dedicated leader, enlightened visionary, effective 
operator, and exemplary role model for cadets, soldiers, and civilians.
  For the past 7 years, he made enormous contributions to the U.S. 
Military Academy, its graduates, and to the Nation through his 
relentless pursuits of excellence in the department of social sciences 
and his advancement of education, research, and policy development in 
the global war on terror.
  He was the right person at the right time in exactly the right job as 
the Academy and the Nation responded to the events of 9/11 and the 
global war on terror. Building on his extraordinary skills as a 
researcher and educator, he knew the intellectual response to the war 
on terror would have to be as significant as the operational response 
and set a course for the department and the Academy to lead this 
response.
  Building on an exceptional experience as a Special Forces officer who 
commanded at every level from team leader to Special Forces Group, he 
was

[[Page 10932]]

able to integrate the intellectual issues of understanding terrorism 
with the practical issues of countering terrorism and include them in 
the curriculum, and eventually led to the establishment of the 
Combating Terrorism Center at West Point.
  He inspired support from the academy leadership, from General-retired 
Wayne Downing, Mr. Vinnie Viola, Mr. Ross Perot, and many others, so 
that the U.S. Military Academy has become the international leader in 
undergraduate terrorism education and research.
  Simultaneously, Colonel Howard enhanced all aspects of the academy 
and the Department of Social Sciences by supporting a robust teaching 
program. He taught more than 15 different courses, created 4 new ones, 
published 3 books and 15 articles, and encouraged and cultivated 
resources for other faculty to follow his example.
  His support for faculty and cadet development through the 
scholarship, debate, model U.N., domestic affairs forum, finance forum, 
sports, and a myriad of other activities was exceptional. Most 
importantly, he is a trusted, caring, concerned, and dedicated leader 
who evokes the best from everybody with whom he comes in contact.
  It has been my privilege to know Colonel Howard for many years, to 
respect him as a soldier and a scholar, and to at this moment 
congratulate him on a career of exceptional service to the Army and to 
the Nation. As he parts for other venues and other responsibilities, I 
wish him well.
  I yield back my time, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BROWNBACK. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                      Embryonic Stem Cell Research

  Mr. BROWNBACK. Mr. President, I rise to speak about an issue that has 
been worked on in the country for some period of time. Soon, a House 
vote will take place on embryonic stem cell research. The issue that 
will soon be voted on in the House--and may come before this body--is 
whether to allow the taxpayer funding of destruction of young human 
life.
  This legislation being considered in the House of Representatives 
would take young human embryos, would provide taxpayer dollars to 
destroy these embryos and conduct research on the stem cells derived 
from them. I believe we all have a duty to protect innocent life. We 
have a duty and a responsibility to look out for the downtrodden, those 
who do not have a voice. These are the youngest of human lives; they 
should be protected, and they should not be researched on.
  We have at times in the past in the United States researched on other 
human beings. Whenever we have done so, at the moment in time when it 
was done, people did it on the basis that we need to know, or we need 
to be able to conduct this research, or this research will provide a 
cure for something. Yet in every instance--either in this country or 
others--when it has been done and the society at large has allowed it, 
we have always, always regretted it later. It has always been wrong for 
one group of humans who are in a more powerful position to research on 
somebody in a lesser position. That has always been true, and it 
remains true today. We should not use taxpayer dollars to fund research 
on the youngest of human lives. It is wrong, it is not necessary, and 
it should be stopped.
  I am pleased that the President has promised to veto this 
legislation. However, I also intend to not let this piece of 
legislation make it forward, to move to the President's desk. If others 
choose to bring this destruction of human life--taxpayer-funded 
destruction of human life--in front of this body, I intend that we are 
going to talk about it for a long time and address a whole series of 
issues, whether it be human cloning, which is associated with this 
human destructive legislation, or the creation of human-animal crosses 
for research purposes. We are going to spend a lot of time discussing 
this because young human lives are at stake. I will not sit idly by and 
acquiesce in their tragic destruction.
  If this human destructive legislation, or a Senate counterpart, comes 
before this body, I will use all means available to impede its 
progress. At the very least, we should have a lengthy debate on this 
issue before taking any action. The reason is that young human lives 
are at stake. I believe the very nature of our culture--whether we will 
have a culture of life or not is at stake. Will we honor human life 
because it is sacred per se, or are we going to use it for a research 
apparatus for the benefit of others? We have always regretted that when 
we have done it before. Today is a similar type of discussion.
  Some are saying this doesn't really look like a human life; it is so 
small, so microscopic in some cases, that some say it really cannot be 
human life. Yet, according to the biological and scientific definition, 
this is young human life. If allowed to be nurtured, it becomes you, 
me, or anybody watching. Life has to be nurtured at all stages. It is 
no different biologically at that stage versus at a later stage. It has 
the same biological components, or ``software,'' if you will, or DNA 
structure. It needs to be nurtured, and it matures into an adult human. 
If we are going to proceed on this, I think we are really hurting 
ourselves as a society.
  I also point out that some people are saying we need to do this to 
find cures. I want to find cures, also--cures for people with cancer, 
Alzheimer's disease, Parkinson's disease, spinal cord injuries, or 
juvenile diabetes--and I have been working on that. The thing is, we 
have a route to find these cures that is ethical and moral.
  The House is also considering a cord blood bill from Congressman 
Smith today, and there are also adult stem cells. We have had this 
discussion before, but I think people hear ``stem cells,'' and they 
say: I am for it. We need to be clear that there are different types of 
stem cells: There are cord blood stem cells in the umbilical cord, 
there are embryonic stem cells, where you have to destroy the embryo 
itself to get the stem cells, and there are adult stem cells in my body 
and yours and anybody watching. These adult stem cells are a kind of 
repair cell that goes around the body fixing different parts of the 
body. We have been able to take adult stem cells out and grow them 
outside the body to the point that, today, over 58 different human 
diseases are being treated in human patients. There are published 
clinical studies using adult stem cells--the stem cells from one's own 
body.
  A Parkinson's disease patient, treated with his own adult stem cells, 
continues to exhibit relief of 80 percent of his symptoms more than 6 
years after the surgery. I had the man come in himself, who was treated 
with his own adult stem cells taken from the base of his nose, grown 
outside the body, put in the left-hand side of his brain, with a 
substantial improvement on the right-hand side of his body. That is 
purely ethical research. It is working and getting the job done.
  Spinal cord injuries. Dr. Carlos Limas treated 34 patients in 
Portugal with their own adult stem cells. I had two of them in to 
testify at a hearing last year--one is a paraplegic and one is a 
quadriplegic--and they are walking with the assistance of braces and 
their own adult stem cells.
  Also, umbilical cord blood cells were used to treat a South Korean 
woman who had been paralyzed for 19 years. She had not walked for 19 
years, and she can now walk with braces.
  What about juvenile diabetes? This disease affects a lot of people. 
This is one that has vexed a lot of people. We all want to find a cure 
for juvenile diabetes.
  Dr. Denise Faustman at Harvard is a leading diabetes researcher. She 
has completely reversed end-stage juvenile diabetes in mice and has FDA 
approval to begin human clinical trials using adult stem cell therapy.
  My point in mentioning these 3 of the 58 different areas is that we 
have an ethical answer. We have an answer that does not involve the 
destruction of human life, and it is right before us. We can do it. We 
can fund it, and we can move forward with it. We do not

[[Page 10933]]

have to destroy young human life to do this, and it is wrong if we do.
  There is going to be a big discussion. We are going to have a lot of 
debate about this issue on the floor or in committee or other places if 
people decide to move this legislation forward. This is not about 
banning human embryonic stem cell research. This is about taxpayer 
funding of human embryonic stem cell research. Embryonic stem cell 
research is legal. It is being conducted in this country. It is being 
funded by the Government of the United States on a limited set of 
lines. The President had the discussion and put forward the 
guidelines--a limited set of lines that were identified, on which a 
life-and-death decision had already been made prior to funding. That 
research continues and goes on today.
  The House bill would expand that and say we can kill young human life 
today for research on embryonic stem cells, and we want to do it with 
taxpayer funding. That is what I am saying I am opposed to is the 
taxpayer funding where a life-and-death decision has not been made, and 
we involve the destruction of young human lives. The House bill should 
not move forward.
  Mr. President, there are two statements that the President has put 
forward saying that he would veto such legislation if it comes forward. 
I ask unanimous consent to print these statements in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

            Statement of Administration Policy--May 24, 2005


       H.R. 2520--Stem Cell Therapeutic and Research Act of 2005

                 (Rep. Smith (R) NJ and 78 cosponsors)

       The Administration strongly supports House passage of H.R. 
     2520, which would facilitate the use of umbilical-cord-blood 
     stem cells in biomedical research and in the treatment of 
     disease. Cord-blood stem cells, collected from the placenta 
     and umbilical cord after birth without doing harm to mother 
     or child, have been used in the treatment of thousands of 
     patients suffering from more than 60 different diseases, 
     including leukemia, Fanconi anemia, sickle cell disease, and 
     thalassemia. Researchers also believe cord-blood stem cells 
     may have the capacity to be differentiated into other cell 
     types, making them useful in the exploration of ethical stem 
     cell therapies for regenerative medicine.
       H.R. 2520 would increase the publicly available inventory 
     of cord-blood stem cells by enabling the Department of Health 
     and Human Services (HHS) to contract with cord-blood banks to 
     assist them in the collection and maintenance of 150,000 
     cord-blood stem cell units. This would make matched cells 
     available to treat more than 90 percent of patients in need. 
     The bill would also link all participating cord-blood banks 
     to a search network operated under contract with HHS, 
     allowing physicians to search for matches for their patients 
     quickly and effectively in one place. The bill also would 
     reauthorize a similar program already in place for aiding the 
     use of adult bone marrow in medical care. There is now $19 
     million available to implement the Cord Blood Cell Bank 
     program; the Administration will work with the Congress to 
     evaluate future spending requirements for these activities. 
     The bill is also consistent with the recommendation from the 
     National Academy of Science to create a National Cord Blood 
     Stem Cell Bank program.
       The Administration also applauds the bill's effort to 
     facilitate research into the potential of cord-blood stem 
     cells to advance regenerative medicine in an ethical way. 
     Some research indicates that cord blood cells may have the 
     ability to be differentiated into other cell types, in ways 
     similar to embryonic stem cells, and so present similar 
     potential uses but without raising the ethical problems 
     involved in the intentional destruction of human embryos. The 
     Administration encourages efforts to seek ethical ways to 
     pursue stem cell research, and believes that--with the 
     appropriate combination of responsible policies and 
     innovative scientific techniques--this field of research can 
     advance without violating important ethical boundaries. HR 
     2520 is an important step in that direction.
                                  ____


            Statement of Administration Policy--May 24, 2005


          H.R. 810--Stem Cell Research Enhancement Act of 2005

                (Rep. Castle (R) DE and 200 cosponsors)

       The Administration strongly opposes House passage of H.R 
     810, which would require Federal taxpayer dollars to be used 
     to encourage the ongoing destruction of nascent human life. 
     The bill would compel all American taxpayers to pay for 
     research that relies on the intentional destruction of human 
     embryos for the derivation of stem cells, overturning the 
     President's policy that supports research without promoting 
     such ongoing destruction. If H.R 810 were presented to the 
     President, he would veto the bill.
       The President strongly supports medical research, and 
     worked with Congress to dramatically increase resources for 
     the National Institutes of Health. However, this bill would 
     support and encourage a line of research that requires the 
     intentional destruction of living human embryos for the 
     derivation of their cells. Destroying nascent human life for 
     research raises serious ethical problems, and many millions 
     of Americans consider the practice immoral.
       The Administration believes that government has a duty to 
     use the people's money responsibly, both supporting important 
     public purposes and respecting moral boundaries. Every year 
     since 1995, Congress has on a bipartisan basis upheld this 
     balance by prohibiting Federal funds for research in which an 
     embryo is destroyed. Consistent with this provision, the 
     President's policy permits the funding of research using 
     embryonic cell lines created prior to August 9, 2001, along 
     with stem cell research using other kinds of cell lines. 
     Scientists can therefore explore the potential application of 
     such cells, but the Federal government does not offer 
     incentives or encouragement for the destruction of nascent 
     human life.
       H.R 810 seeks to replace that policy with one that offers 
     very little additional practical support to the research, 
     while using Federal dollars to offer a prospective incentive 
     for the destruction of human embryos. Moreover, H.R 810 
     relies on unsupported scientific assertions to promote 
     morally troubling and socially controversial research. 
     Embryonic stem cell research is at an early stage of basic 
     science, and has never yielded a therapeutic application in 
     humans. It is too early to say if a treatment or a cure will 
     develop from embryonic stem cell research.
       The Administration believes that the availability of 
     alternative sources of stem cells further counters the case 
     for compelling the American taxpayer to encourage the ongoing 
     destruction of human embryos for research. Researchers are 
     continually exploring alternative ways to derive pluripotent 
     stem cells. And alternative types of human stem cells--drawn 
     from adults, children, and umbilical-cord blood without doing 
     harm to the donors--have already achieved therapeutic results 
     in thousands of patients with dozens of different diseases. 
       Moreover, private sector support and public funding by 
     several States for this line of research, which will add up 
     to several billion dollars in the coming few years, argues 
     against any urgent need for an additional infusion of Federal 
     funds which, even if completely unrestricted, would not 
     approach such figures. Whatever one's view of the ethical 
     issues or the state of the research, the future of this field 
     does not require a policy of Federal subsidies offensive to 
     the moral principles of millions of Americans.
       H.R. 810 advances the proposition that the Nation must 
     choose between science and ethics. The Administration, 
     however, believes it is possible to advance scientific 
     research without violating ethical principles: both by 
     enacting the appropriate policy safeguards and by pursuing 
     the appropriate scientific techniques. HR 810 is seriously 
     flawed legislation that would undo those safeguards and 
     provide a disincentive to pursuing those techniques. 

  Mr. BROWNBACK. Mr. President, we will have much discussion of this 
issue if it comes before this body. I am going to be working 
aggressively with a number of individuals to see that we continue this 
stem cell work in an ethical manner, but not where it involves the 
destruction of human life.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. FEINGOLD. 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. FEINGOLD. Mr. President, I voted no on cloture, and I will vote 
no on the nomination of Priscilla Owen to be a judge on the U.S. 
Circuit Court of Appeals for the Fifth Circuit Court. I would like to 
take a few minutes today to explain my votes. I also would like to make 
a few comments on the events that led up to these votes.
  I strongly oppose the threat of the nuclear option. I believe this 
was an illegitimate tactic, a partisan abuse of power that was a threat 
to the Senate as an institution and to the country. Attempting to 
blackmail the minority into giving up their rights that have been part 
of the Senate's traditions and practices for centuries was a new low 
for a majority that has repeatedly been willing to put party over 
principle. Unfortunately, the blackmail

[[Page 10934]]

was partially successful. While I do applaud the efforts of the 
Senators who worked hard to broker an agreement, the end result is that 
three nominees who do not deserve lifetime appointments to the 
judiciary will now be confirmed.
  The agreement reached by our colleagues states that filibusters 
should be reserved for extraordinary circumstances. For me, that has 
always been the test. I think Democrats have stuck to that standard in 
blocking just 10--just 10--out of the 218 nominations of President Bush 
that have been brought to the floor. A number of very conservative and 
very controversial nominees have been confirmed by the Senate. Jeffrey 
Sutton, now a judge on the Sixth Circuit, was confirmed by a vote of 52 
to 41. No filibuster was used there. Jay Bybee, the author of the 
infamous torture memo, now sits on the Ninth Circuit. He was not 
filibustered. Michael McConnell, a very conservative and anti-choice 
law professor, often mentioned as a possible Supreme Court nominee, was 
confirmed for the Tenth Circuit. He was not filibustered. Dennis Shedd 
was confirmed to the Fourth Circuit by a vote of 55 to 44. He could 
have been filibustered, but he was not filibustered.
  The idea that the filibuster has been used over the past several 
years as a tool to block all the nominees that the minority opposed is 
ludicrous. There were, and there continue to be, very good reasons to 
block a certain small number of nominees. Nothing that occurred last 
night changed that one iota. I will continue to vote against cloture 
only in extraordinary circumstances. I did that when we voted on 
cloture on the Owen nomination in 2003 and each subsequent time, and I 
have done that again today. For the majority to have created this 
constitutional crisis over what came down to five nominees was wrong, 
was an abuse of power. The American people did not support it, and I do 
not think they will support it in the future.
  With respect to the Owen nomination, there are a number of factors 
that I believe require us to give this nomination very careful 
consideration. First, we should consider that judges on our courts of 
appeal have an enormous influence on the law. Whereas, decisions of the 
district courts are always subject to appellate review, the decisions 
of the courts of appeals are only subject to discretionary review by 
the Supreme Court. The decisions of the courts of appeal are, in almost 
all cases, final, as the Supreme Court agrees to hear only a very small 
percentage of the cases on which its views are sought. That means that 
the scrutiny we give to circuit court nominees must be greater than 
that we give to district court nominees. And then, of course, the 
scrutiny we give to Supreme Court nominees will even be greater.
  Another important consideration is the ideological balance of the 
Fifth Circuit. The Fifth Circuit is comprised of Texas, Louisiana, and 
Mississippi. The Fifth Circuit contains the highest percentage of 
minority residents, over 40 percent of any circuit other than the DC 
Circuit. It is a court that, during the civil rights era, issued some 
of the most significant decisions supporting the rights of African-
American citizens to participate as full members of our society.
  As someone who believes strongly in freedom, liberty, and equal 
justice under law and the important role of the Federal courts to 
defend these fundamental American principles, I am especially concerned 
about the makeup of our circuit courts and their approaches to civil 
rights issues.
  Even after 8 years of a Democratic President, the Fifth Circuit had 
twice as many Republican appointees as Democratic appointees. That is 
because during the last 6 years of the Clinton administration, the 
Judiciary Committee did not report out a single judge to the Fifth 
Circuit Court of Appeals. As we all know, that was not for a lack of 
nominees to consider. President Clinton nominated three well-qualified 
lawyers to the Fifth Circuit--Jorge Rangel, Enrique Moreno, and Alston 
Johnson. None of these nominees even received a hearing before the 
committee.
  Then-Chairman Leahy held a hearing in July 2001 on the nomination of 
Judge Edith Brown Clement for a seat on the Fifth Circuit only a few 
months after she was nominated and less than 2 months after Democrats 
took control of the Senate. It was the first hearing in the Judiciary 
Committee for a Fifth Circuit nominee since September 1994. And Judge 
Clement, of course, was confirmed later in the year.
  The fact is, there is a history here and a special burden on 
President Bush to consult with our side on nominees for this circuit; 
otherwise, we will be simply rewarding the obstructionism that the 
President's party engaged in over the last 6 years of the Clinton 
administration by allowing him to fill, with his choices, seats that 
his party held open for years, even when qualified nominees were 
advanced by President Clinton.
  I say, once again, my colleagues on the Republican side bear some 
responsibility for this situation. There was a time when I thought they 
might help resolve it by urging the administration to address the 
Senate's failure to take up Clinton nominees. This entire controversy 
over judges that has come to a head over the last several weeks could 
have been avoided if our Republican colleagues had convinced the 
President to renominate even a few of those Clinton nominees who never 
received a hearing or vote in the committee, including nominees to the 
Fifth Circuit. But, of course, that did not happen. There was no effort 
to reach a real compromise to take into account the concerns of all 
parties.
  A compromise at the point of a gun is not a compromise. That, I'm 
afraid, is what we had last night.
  With that background, let me outline the concerns that have caused me 
to reach the conclusion that Justice Owen should not be confirmed.
  Justice Owen has had a successful legal career. She graduated at the 
top of her class from Baylor University Law School, worked as an 
associate and partner at the law firm of Andrews and Kurth in Houston, 
and has served on the Texas Supreme Court since January 1995. These are 
great accomplishments.
  But Justice Owen's record as a member of the Texas Supreme Court 
leads me to conclude that she is not the right person for a position on 
the Fifth Circuit. I am not convinced that Justice Owen will put aside 
her personal views and ensure that all litigants before her on the 
Fifth Circuit received a fair hearing. Her decisions in cases involving 
consumers' rights, worker's rights, and reproductive rights suggest 
that she would be unable to maintain an open mind and provide all 
litigants a fair and impartial hearing.
  Justice Owen has a disturbing record of consistently siding against 
consumers or victims of personal injury and in favor of business and 
insurance companies. When the Texas Supreme Court, which is a very 
conservative and pro- business court, rules in favor of consumers or 
victims of personal injury, Justice Owen frequently dissents. According 
to Texas Watch, during the period 1999 to 2002, Justice Owen dissented 
almost 40 percent of the time in cases in which a consumer prevailed. 
But in cases where the consumer position did not succeed, Justice Owen 
never dissented.
  At her first hearing, Senator Kennedy and then-Senator Edwards asked 
Justice Owen to cite cases in which she dissented from the majority and 
sided in favor of consumers. Justice Owen could cite only one case, 
Saenz v. Fidelity Guaranty Insurance Underwriters. But Justice Owen's 
opinion in this case hardly took a pro-consumer position since it still 
would have deprived the plaintiff of the entire jury verdict. She did 
not join Justice Spector's dissent, which would have upheld the jury 
verdict in favor of Ms. Saenz.
  Also during that first hearing, Senators Feinstein and Durbin 
questioned Justice Owen about Provident American Ins. Co. v. Castaneda. 
In that case, the plaintiff sought damages against a health insurer for 
denying health care benefits, after the insurer had already provided 
pre-operative approval for the surgery. Justice Owen, writing for the 
majority, reversed the jury's verdict in

[[Page 10935]]

favor of the plaintiff and rejected the plaintiff's claim that the 
health insurer violated the Texas Insurance Code and the Deceptive 
Trade Practices Act. At the hearing, Justice Owen defended her opinion 
by saying that she believed that the plaintiff was seeking extra-
contractual damages and that the plaintiff had already received full 
coverage under the policy and statutory penalties. But, in the words of 
her colleague, Justice Raul Gonzalez, who wrote a dissent, Justice 
Owen's opinion ``may very well eviscerate the bad-faith tort as a 
viable case of action in Texas.'' The cause of action for bad faith is 
designed to deter insurers from engaging in bad faith practices like 
denying coverage in the first place.
  In addition, with respect to several decisions involving 
interpretation and application of the Texas parental notification law, 
I am deeply troubled by Justice Owen's apparently ignoring the plain 
meaning of the statute and injecting her personal beliefs concerning 
abortion that have no basis in Texas or U.S. Supreme Court law. In 
2000, the Texas legislature enacted a parental notification law that 
allows a minor to obtain an abortion without notification of her 
parents if she demonstrates to a court that she has complied with one 
of three ``judicial bypass'' provisions: (1) that she is ``mature and 
sufficiently well informed'' to make the decision without notification 
to either of her parents; (2) that notification would not be in her 
best interest; or (3) that notification may lead to her physical, 
sexual, or emotional abuse.
  During Justice Owen's first confirmation hearing, Senator Cantwell 
questioned Justice Owen about her positions in cases interpreting this 
law, focusing on Justice Owen's insistence in In re Jane Doe. In that 
case, a teenager is required to consider ``philosophic, social, moral, 
and religious'' arguments before seeking an abortion. In her opinion, 
Justice Owen cited the Supreme Court's decision in Planned Parenthood 
of Southeastern Pennsylvania v. Casey to support her contention that 
States can require minors to consider religious views in their decision 
to have an abortion. But, as Senator Cantwell noted, Casey in no way 
authorizes States to require minors to consider religious arguments in 
their decision on whether to have an abortion. Upon this further 
questioning, Justice Owen then said that she was referring to another 
Supreme Court case, H.L. v. Matheson, even though her opinion only 
cited Casey for this proposition. And even Matheson does not say that 
minors can be required by State law to consider religious arguments. It 
is my view that Justice Owen was going beyond not only a plain reading 
of the Texas statute, but Supreme Court case law, and inappropriately 
injecting her own personal views to make it more difficult for a minor 
to comply with the statute and obtain an abortion.
  I was also not satisfied with Justice Owen's responses to my 
questions about bonuses to Texas Supreme Court law clerks. I asked her 
at the hearing whether she saw any ethical concerns with allowing law 
clerks to receive bonuses from their prospective employers during their 
clerkships. I also explored the topic further with her in followup 
written questions. Justice Owen stated repeatedly in her written 
responses to my questions that she is not aware of law clerks actually 
receiving bonuses while they were employed by the court. She reaffirmed 
that testimony in her second hearing. This seems implausble given the 
great amount of publicity given to Ian investigation pursued by the 
Travis County attorney of exactly that practice and the well publicized 
modifications to the Texas Supreme Court's rules that resulted from 
that investigation and the accompanying controversy.
  Even more disturbing, Justice Owen took the position, both at the 
first hearing and in her responses to written questions, that because 
the Texas Supreme Court Code of Conduct requires law clerks to recuse 
themselves from matters involving their prospective employers, there 
really is no ethical concern raised by law clerks accepting bonuses 
while employed with the court. I disagree. It is not sufficient for law 
clerks to recuse themselves from matters involving their prospective 
employers if they have received thousands of dollars in bonuses while 
they are working for the court. The appearance of impropriety and 
unfairness that such a situation creates is untenable. As I understand 
it, the Federal courts have long prohibited Federal law clerks both 
from receiving bonuses during their clerkships and from working on 
cases involving their prospective employers. I am pleased that the 
Texas Supreme Court finally recognized this ethical problem and changed 
its code of conduct for clerks. Justice Owen, in contrast, seems intent 
on defending the prior, indefensible, practice.
  Finally, I want to note the unusual nature of this particular 
nomination. Unlike so many nominees during the Clinton years, Justice 
Owen was considered in the Judiciary Committee under Senator Leahy's 
leadership in 2002. She had a hearing, and she had a vote. Her 
nomination was rejected. This has been the first time in history that a 
circuit nominee who was formally rejected by the committee, or the full 
Senate for that matter, has been renominated by the same President to 
the same position. I do not believe that defeated judicial nominations 
should be reconsidered like legislation that is not enacted. After all, 
legislation can be revisited after it is enacted. If Congress makes a 
mistake when it passes a law, it can fix that mistake in subsequent 
legislation. Let us all remember that judicial appointments are for 
life. Confirmations cannot be taken back or fixed. A vote to confirm a 
nominee is final. A vote to reject that nominee should be final as 
well. For the President to renominate a defeated nominee and the Senate 
to reconsider her simply because of the change of a few seats in an 
election cheapens the nomination process and the Senate's 
constitutional role in that process.
  I believe Justice Owen is bright and accomplished, but I sincerely 
believe that based on her judicial record, Justice Owen is not the 
right choice for this position.
  Ms. CANTWELL. Mr. President, I discuss the nomination of Priscilla 
Owen to the Fifth Circuit Court of Appeals, and to briefly discuss the 
compromise before us on the so-called nuclear option.
  I continue to oppose all three of the nominees that will proceed to 
up-or-down votes as the result of this compromise, and I will be voting 
against cloture on Priscilla Owen as a result. But I do acknowledge the 
importance of preserving the process of debating judicial nominees. I 
do not feel that the filibuster has been misused with regard to 
President Bush's nominees, as I'll explain shortly, but I am impressed 
at the efforts of my colleagues on both sides of the aisle to avoid the 
all-or-nothing nuclear option vote that threatened to cause us to break 
down as an institution.
  I also express my hope that the term ``extraordinary circumstances'' 
that is in this compromise is interpreted sensibly. When extreme 
nominees threaten the balance of our federal courts, I view those as 
extraordinary circumstances. I will continue to vote to block any 
nominee who is not suitable for the bench, and it will continue to be 
an unusual exception for me not to support a nominee. My standard has 
been extraordinary circumstances all along.
  As a former member of the Judiciary Committee, I attended a hearing 
on Priscilla Owen that lasted a full day. During that hearing, Owen's 
record showed a particular disregard for precedent and the plain rule 
of law.
  Anyone who walks into a courtroom as a plaintiff or a defendant in 
this country should do so having the full confidence that there is 
impartiality on the part of the judge on the bench. They should have 
total confidence that the rule of law will be followed, and believe the 
issues will be judged on their merits rather than viewed through the 
prism of an individual judge's personal values or beliefs.
  There is reason to be concerned about the record of Priscilla Owen. 
Time after time, even her own Republican colleagues, on a predominantly 
Republican Texas Supreme Court

[[Page 10936]]

bench, criticized her for failing to follow precedent or interpreting 
statutes in ways that ignore the clear intent of the law.
  What some of Owen's colleagues on the bench have said about her 
opinions I think is important. In a case dealing with a developer 
seeking to evade Austin's clean water laws, her dissent was called 
``nothing more than inflammatory rhetoric.''
  In another case, her statutory interpretation was called 
``unworkable.'' In yet another case, the dissent she joined was called 
``an unconscionable act of judicial activism.''
  There is another reason this nomination is so important. This is 
critical to all the nominees we are considering for appointment to the 
Federal bench, and especially important for you here this morning. That 
is, what is the judicial philosophy and commitment to upholding current 
law as it relates to a citizen's right to privacy. I asked Justice Owen 
at her hearing about her beliefs on the right to privacy. I asked her 
if she believed there was constitutional right to privacy and where she 
found that right in the Constitution.
  She declined at the time to answer that question without the relevant 
case information and precedents before her. When Senator Feinstein 
followed up with a similar question, Owen against would not answer 
whether she believes a right to privacy does exist within the 
Constitution.
  The question of whether a nominee believes that the right to privacy 
exists with regard to the ability to make decisions about one's own 
body is only the tip of the privacy iceberg. I believe that we are in 
an information age that poses new challenges in protecting the right to 
privacy. We are facing difficult issues including whether U.S. citizens 
have been treated as enemy combatants in a prison without access to 
counselor trial by jury, whether businesses have access to some of your 
most personal information, whether the Government has established a 
process for eavesdropping or tracking U.S. citizens without probable 
cause, and whether the Government has the ability to develop new 
software that might track the use of your own computer and places where 
you might go on the Internet without your consent or knowledge. There 
are a variety of issues that are before us on an individual's right to 
privacy and how that right to privacy is going to be interpreted. A 
clear understanding of a nominee's willingness to follow precedent on 
protecting privacy is a very important criterion for me, and it should 
be a concern for all Members.
  Of course, some of my concern and skepticism about Justice Owen's 
views on privacy results from the opinions she wrote in a series of 
cases interpreting the Texas law on parental notification. In 2000 the 
State of Texas passed a law requiring parental notification. But they 
also included a bypass system for extreme cases.
  Eleven out of 12 times Owen analyzed whether a minor should be 
entitled to bypass the notice requirement, she voted either to deny the 
bypass or to create greater obstacles to the bypass.
  Owen wrote in dissent that she would require a minor to demonstrate 
that she had considered religious issues surrounding the decision and 
that she had received specific counseling from someone other than a 
physician, her friend, or her family. Requirements, I believe, that go 
far beyond what the statute requires.
  In interpreting the ``best interest'' arm of the statute, Owen held 
that a minor should be required to demonstrate that the abortion 
itself--not avoiding notification--was in the individual's best 
interests. In this particular case, I think she went far beyond what 
the statue required.
  Where does that put us? Women in this country rely on the right to 
choose. It is an issue on which we have had 30 years of settled law and 
case precedent. In the Fifth Circuit, there are three States that 
continue to have unconstitutional laws on the books, and legislatures 
that are hostile to that right to choose. The Federal courts are the 
sole protector of women's right to privacy in these states. I do not 
believe that the rights of the women of the Fifth Circuit can be 
trusted to Justice Priscilla Owen.
  The Senate provides each of us with the procedural privilege to 
thoroughly discuss my concerns about this nominee--the filibuster. The 
filibuster has been used against me on issues I care deeply about, just 
as I have used this procedure when it was necessary to protect the 
people of my state. This body, in which I am so privileged to serve, is 
more important than any one of us, precisely because even one Senator 
can stand up for her state in the face of a powerful majority.
  This agreement, whatever else I might think of it, preserves the 
rights in this body that make it unique and that give it the most 
credibility. Each of us has to respect the views of the rest. When 40 
of us stand together, the other 60 must negotiate. That is healthy and 
that is what happened here. The rules of the Senate, and the existence 
of the Federal judiciary itself, pose proper checks on majority and 
Presidential power. That is the way it should stay.
  Mr. KYL. Mr. President, I want to respond to a statement that the 
Senior Senator from West Virginia made yesterday. In his remarks, the 
Senator conceded the legitimacy of the constitutional option, what he 
called the ``nuclear option,'' as a way for the Senate to determine its 
practices and procedures. The option is, of course, the leader's right 
to obtain a ruling from the presiding officer that certain actions of 
Senators are dilatory and cannot preclude the Senate from voting on a 
judicial nomination.
  Here is what he said: ``The so-called nuclear option has been around 
for a long time. It doesn't take a genius to figure that out.'' He went 
on to explain that this constitutional option had been available since 
at least 1917, and he repeatedly emphasized that this tool has been 
around ``for a long time.''
  I appreciate this acknowledgment from the Senator from West Virginia, 
because I know he has studied the history of the Senate, and I know he 
has intimate familiarity with the workings of the Constitutional 
Option. There is nothing new about the constitutional option, as I 
discussed in my May 19 floor speech outlining the legal and 
constitutional rationale for its exercise. The constitutional option is 
simply the Senate's exercise of its power to define its own 
procedures--a power that comes directly from the Constitution and has 
been affirmed by the Supreme Court. (U.S. v. Ballin, 144 U.S. 1 (1892)) 
I appreciate that the Senator has acknowledged its legitimacy.
  The Senator from West Virginia also argued, however, that past 
majority leaders have never used the constitutional option to 
``tamper'' with extended debate. As my May 19 statement established, as 
did yesterday's statements by Senators McConnell, Hatch, and Bennett, 
that is not actually the case.
  The fact is that the Senator himself used the constitutional option 
four times when serving as majority leader--in one case to outright 
eliminate the filibuster for motions to proceed to Executive Calendar 
nominations. Moreover, in February 1979, he forced the minority to 
agree to a formal rules change after credibly threatening that he would 
exercise the constitutional option. At that time, the Senator said on 
this floor, ``if I have to be forced into a corner to try for a 
majority vote, I will do it because I am going to do my duty as I see 
my duty, whether I win or lose.''
  The Senate was nearly forced into a similar ``corner'' this week. Had 
Democrats not supported cloture on Priscilla Owen today, then all 
Senators would have had to make a conclusive decision as to whether it 
should take 60 or 51 votes to confirm a judge. Instead, we are putting 
off that decision until another day.
  That may still come. And if it does come, I hope that we hear no more 
talk of the ``illegitimacy'' of the constitutional option. There is 
plenty to discuss as to whether exercising the option is prudential in 
a particular case. Some of the debate these past few days has addressed 
that prudential question, including some of the discussion from the 
Senator from West Virginia. But

[[Page 10937]]

there has also been talk about the constitutional option being a case 
of ``lawlessness'' or ``breaking the rules to change the rules.'' The 
constitutional option is a part of Senate history. In Senator Byrd's 
words, it ``has been around for a long time.''
  And it will always be with us. The constitutional option is not, as 
the minority leader has repeatedly insisted, ``off the table.'' It is 
simply unnecessary at present. If it becomes necessary again, we may be 
called on to live up to our responsibilities to the Constitution and to 
the Senate to ensure that we restore our traditions and guarantee up-
or-down votes to all judicial nominees who reach the Senate floor.
  Mr. CORNYN. Mr. President, at various times during the course of 
debate in recent days over the nomination of Justice Priscilla Owen, a 
number of her previous rulings have been badly mischaracterized. Last 
Thursday, May 19, I rose to speak about a number of those cases and to 
correct the record. And just this morning, I published an op-ed in 
National Review Online to further rebut these baseless criticisms. I 
ask unanimous consent that an excerpt of that op-ed be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       It is now conceded that Justice Owen, Justice Brown, and 
     Judge Pryor all deserve up-or-down votes. I happen to know 
     personally that the case against Justice Owen was especially 
     weak, because I know Priscilla personally from our service 
     together on the Texas supreme court. Just consider the 
     following litany of supposedly ``out of the mainstream'' 
     rulings for which she was criticized:
       A number of senators criticized Justice Owen's opinion in 
     Montgomery Independent School District v. Davis. One senator 
     specifically attacked her for failing to protect a teacher 
     who was ``wrongly dismissed.'' The case involved the 
     authority of a local school board to dismiss a poorly 
     performing and abusive teacher. The teacher had admitted that 
     she had referred to her students as ``little s***s.'' When 
     confronted, the teacher justified the use of the expletive on 
     the bizarre ground that she used exactly the same language 
     when talking to her own children. The teacher regularly 
     insulted parents as well. The opinion joined by Justice Owen 
     concluded that the school board was authorized to dismiss 
     this teacher. It noted that the majority's ruling ``allows a 
     state hearing examiner to make policy decisions that the 
     Legislature intended local school boards to make,'' and that 
     the majority had ``misinterpreted the Education Code.''
       One senator attacked Justice Owen for her opinion in Texas 
     Farmers Insurance Co. v. Murphy. In this case, Justice Owen 
     simply joined an opinion holding that neither an arsonist nor 
     his spouse should benefit from his crime by recovering 
     insurance proceeds. The opinion followed two unanimous 
     decisions of the Fifth Circuit, the very court to which 
     Justice Owen has been nominated.
       Justice Owen was also criticized for a ruling she and I 
     both joined in Peeler v. Hughes & Luce and Darrell C. 
     Jordan--in which we simply held that an admitted criminal 
     could not benefit from criminal activity by suing the 
     criminal-defense attorney for malpractice.
       A number of senators focused on Justice Owen's opinion in 
     FM Properties Operating Co. v. City of Austin. One senator 
     specifically criticized her for refusing to rule that a Texas 
     water law ``was an unconstitutional delegation of legislative 
     authority.'' Yet liberal attorneys regularly criticize the 
     nondelegation doctrine and claim that conservatives wrongly 
     use it to invalidate laws duly enacted by the legislature. In 
     fact, just last month one senator criticized another nominee, 
     Bill Pryor, for championing the nondelegation doctrine. So 
     Justice Owen's critics seem to argue that if you support the 
     nondelegation doctrine, you are out of the mainstream, and 
     that if you oppose the nondelegation doctrine, you are out of 
     the mainstream. It reminds me of a country-western song: 
     ``Darned If I Don't, Danged If I Do.''
       One senator claimed that, in Read v. Scott Fetzer Co., 
     Justice Owen ruled that a woman raped by a vacuum-cleaner 
     salesman could not sue the company that had employed him 
     after failing to undertake a standard background check--an 
     allegation recently articulated in an op-ed in Roll Call. Yet 
     as my letter to the editor noted, that allegation is plainly 
     false. As the opinion joined by Justice Owen noted, ``[n]o 
     one questions that [the company that had hired the rapist] is 
     liable.'' The justices simply disagreed on whether another 
     company--one that had not hired the rapist and had no 
     relationship with the rapist--should also have been held 
     liable.
       Justice Owen was also criticized for her ruling in Hyundai 
     Motor Co. v. Alvarado. In that case, an automobile alleged to 
     be defective had in fact fully satisfied the federal standard 
     then in effect. The plaintiff chose to sue anyway, despite 
     federal law. Justice Owen simply held that Congress had 
     forbidden such lawsuits once the federal standard had been 
     met--a technical legal doctrine known as federal preemption. 
     For this, she was sharply criticized. Yet her opinion simply 
     followed the ``solid majority of the courts to consider this 
     issue''--including precedents authored by judges appointed by 
     President Jimmy Carter. Moreover, the U.S. Supreme Court 
     later adopted Justice Owen's approach (Geier v. American 
     Honda Motor Co., Inc.), in an opinion authored by Clinton 
     appointee, and former Democrat chief counsel of the Senate 
     Judiciary Committee, Justice Stephen Breyer.
       Justice Owen was likewise criticized for her rulings in 
     Quantum Chemical Corp. v. Toennies, a case involving a Texas 
     civil-rights law expressly modeled after Title VII of the 
     federal Civil Rights Act of 1964, and City of Garland v. 
     Dallas Morning News, a Texas open-government law modeled 
     after the federal Freedom of Information Act. Once again, all 
     she did was follow precedents adopted by appointees of 
     Presidents Carter and Clinton.
       Justice Owen and I happened to disagree in Weiner v. 
     Wasson, a case involving a technical matter of applying a 
     statute of limitations to a medical malpractice suit. One 
     senator argued that my opinion was ``a lecture to the 
     dissent'' about the importance of stare decisis and following 
     precedent. The argument is baseless. In fact, Justice Owen 
     didn't try to overturn precedent in that case; only the 
     defendant did. Moreover, Justice Owen's ruling contained an 
     equally emphatic ``lecture'' to the defendant about the 
     importance of following precedent.
       And of course, there were the now-famous cases involving 
     the popular Texas parental-notification law--a parental-
     rights law that generally requires minors to notify one 
     parent before obtaining an abortion. Readers should ask 
     themselves one simple question: Who would you trust to 
     analyze and determine the quality of Justice Owen's legal 
     analysis in those cases? The author of the Texas law--who 
     supports Owen? Her former colleagues on the court, including 
     former Justices Alberto Gonzales and Greg Abbott, who support 
     her? Now-Attorney General Alberto Gonzales, who has 
     testified--under oath--that he supports Justice Owen and 
     that, contrary to false reports, he never accused her of 
     ``judicial activism''? The pro-choice Democrat law professor 
     appointed by the Texas supreme court to set up procedures 
     under the statute--who supports Owen, and who has written: 
     ``If this is activism, then any judicial interpretation of a 
     statute's terms is judicial activism''? Or do you trust the 
     liberal special-interest groups who sharply opposed the Texas 
     law, and never wanted that law to be enacted in the first 
     place? Or the groups who literally make a living destroying 
     the reputation of this president's nominees?
       The attacks on these rulings by Justice Owen reminded me of 
     what Mark Twain once said: ``A lie can travel halfway around 
     the world while the truth is still putting on its shoes.'' 
     But let's keep our eye on the ball. The American people know 
     a controversial ruling when they see one--whether it's the 
     redefinition of marriage, or the expulsion of the Pledge of 
     Allegiance and other expressions of faith from the public 
     square--whether it's the elimination of the three-strikes-
     and-you're out law and other penalties against convicted 
     criminals, or the forced removal of military recruiters from 
     college campuses. Justice Owen's rulings fall nowhere near 
     this category of cases. There is a world of difference 
     between struggling to interpret the ambiguous expressions of 
     a legislature, and refusing to obey a legislature's 
     directives altogether.
       Thankfully, the Senate has now effectively acknowledged 
     this important distinction, by guaranteeing Justice Owen an 
     up-or-down vote after four long years.

  I yield the floor and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. INHOFE. 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. INHOFE. What is the regular order?
  The PRESIDING OFFICER. The Senate business is the nomination of 
Priscilla Owen to be United States Circuit Court Judge.
  Mr. INHOFE. I ask unanimous consent I be allowed to speak as in 
morning business for such time as I consume.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             GLOBAL WARMING

  Mr. INHOFE. Mr. President, over the past few weeks, I have debunked 
the notion of scientific consensus about global warming. The claim 
there is consensus rests on four fundamental pillars. My previous talks 
made clear that the first three pillars are made of sand.

[[Page 10938]]

  It is not true, for example, that the National Academy of Sciences 
believes the science of climate change is settled. In fact, the report 
is replete with caveats, warning the reader of the many uncertainties 
associated with claims of global warming. Yet advocates continue to 
recite small excerpts while ignoring the caution about uncertainties 
contained within the same paragraph or even the same science.
  It is also not true that the second pillar, the U.N. science report 
known as the IPCC, proves a consensus. The flagship study on which the 
IPCC report relies, known as the hockey stick, which shows an 
unprecedented rise in 20th century temperatures, has been thoroughly 
discredited by scientists on both sides of the debate. In fact, 
recently, and since 1999, there hasn't been anyone who has agreed there 
is authenticity to the issue. In addition, the U.N. report relies on an 
explosive increase in emissions from poor countries over the next 
century based on the political decision by the report's author that 
countries such as Algeria will be as wealthy or wealthier than the 
United States.
  The third pillar, supposedly proving that the science is settled that 
the Arctic is melting, is based on political science. Arctic 
temperatures are no warmer than they were in the 1930s. Similarly, the 
thickness of the Arctic glaciers and the sea ice appears to vary 
naturally by as much as 16 percent annually.
  These and other factors which the alarmists find inconvenient would 
seem to indicate that projections of an Arctic climate catastrophe are 
speculative, at best.
  Today I conclude the series on the four pillars of climate alarmists 
by discussing the problems associated with global climate models.
  Let me begin by briefly explaining the climate models and how they 
function. Climate models help scientists describe changes in the 
climate system. They are not models in the conventional sense; that is, 
they are not physical replicas. Rather, they are mathematical 
representations of the physical laws and processes that govern the 
Earth's climate. According to Dr. David Legates of the University of 
Delaware, climate models ``are designed to be descriptions of the full 
three-dimensional destruction of the earth's climate.'' Dr. Legates 
claims models are used ``in a variety of applications, including the 
investigation of the possible role of various climate forcing 
mechanisms and the simulation of past and future climates.''
  Thousands of climate changes studied rely on computer models. The 
Arctic Council, whose work I addressed last week, stated that arctic 
warming and the impact stemming from that warming are firmly 
established by computer models.
  Quoting from him:

       While the models differ in their projections of some of the 
     features of climate change, they are all in agreement that 
     the world will warm significantly as a result of human 
     activities, and that the Arctic is likely to experience 
     noticeable warming, particularly early and intensely.

  Similarly, the IPCC, which I also discussed in the earlier talks, 
relied on such earlier models to project a long-term temperature 
increase ranging from 2.5 to 10.4 degrees Celsius and assorted and 
potentially dangerous climate changes over the next century.
  According to Dr. Kenneth Green, Dr. Tim Ball, and Dr. Steven 
Schroeder, the politicians clearly do not realize that the major 
conclusions of the IPCC's reports are not based on hard evidence and 
observation but, rather, largely upon the output of assumption-driven 
climate models.
  The alarmists cite the results of climate models as proof of the 
catastrophic warming hypotheses. Consider one alarmist's description, 
who wrote recently:

       Drawing on highly sophisticated computer models, climate 
     scientists can project, not predict, how much temperatures 
     may rise by say 2100 if we carry on with business as usual.

  He continues:

       Although scenarios vary, some get pretty severe, and so do 
     the projected impacts of climate change, rising sea levels, 
     species extensions, glacier melting and so forth.

  It sounds pretty scary, but the statement is completely false. It 
sheds no light on the likelihood or reliability of such projections. 
If, for example, a model shows a significant temperature increase over 
the next 50 years, how much confidence do we have in that projection? 
Attaching probabilities to model results is extremely difficult and 
rife with uncertainties.
  In the 2000 edition of ``Nature,'' four climate modelers noted that:

       A basic problem with all such predictions to date has been 
     the difficulty of providing any systematic estimate of 
     uncertainty.

  This problem stems from the fact that:

       These [climate] models do not necessarily span the full 
     range of known climate system behavior.

  According to the National Academy of Sciences:

     . . . without an understanding of the sources and degree of 
     uncertainty, decision-makers could fail to define the best 
     ways to deal with the serious issue of global warming.

  This fact should temper the enthusiasm of those who support Kyoto-
style regulations that will harm the American economy.
  Previously, we have talked about the harm to the economy and have 
referred to the Wharton Econometric Survey which was conducted by the 
Wharton School of Economics. It gets into a lot of detail as to what is 
going to happen. For example, to comply with Kyoto, it would cost the 
average family of four some $2,700 a year. So it is a very significant 
thing.
  Now note, too, the distinction between ``project'' and ``predict.'' 
The alarmist writer noted earlier creates the misimpression that a 
projection is more solid than a prediction. But a projection is the 
output of a model calculation. Put another way, it is only as good as 
the model's equations and inputs. As we will see later in this 
presentation, such inputs or assumptions about the future can be 
extremely flawed, if not totally divorced from reality. And this, to be 
sure, is only one of the many technical shortcomings that limit the 
scientific validity of climate modeling.
  Unfortunately, rarely does any scrutiny accompany model simulations. 
But based on what we know about the physics of climate models, as well 
as the questionable assumptions built into the models themselves, we 
should be very skeptical of their results. This is exactly the view of 
the National Academy of Sciences. According to the NAS:

       Climate models are imperfect. Their simulation skill is 
     limited by uncertainties in their formulation, the limited 
     size of their calculations, and the difficulty of 
     interpreting their answers that exhibit as much complexity as 
     in nature.

  At this point, climate modeling is still a very rudimentary science. 
As Richard Kerr wrote in Science magazine:

       Climate forecasting, after all, is still in its infancy.

  Models, while helpful for scientists in understanding the climate 
system, are far from perfect. According to climatologist Gerald North 
of Texas A&M University:

       It's extremely hard to tell whether the models have 
     improved; the uncertainties are large.

  Or as climate modeler Peter Stone of the Massachusetts Institute of 
Technology put it:

       The major [climate prediction] uncertainties have not been 
     reduced at all.

  Based on these uncertainties, cloud physicist Robert Charlson, 
professor emeritus at the University of Washington-Seattle, has 
concluded:

       To make it sound like we understand climate is not right.

  This is not to deny that climate modeling has improved over the last 
three decades. Indeed, scientists have constructed models that more 
accurately reflect the real world. In the 1970s, models were capable 
only of describing the atmosphere, while over the last few years models 
can describe, albeit inadequately, the atmosphere, land surface, 
oceans, sea ice, and other variables.
  But greater complexity does not mean more accurate results. In fact, 
the more variables scientists incorporate, the more uncertainties 
arise.

[[Page 10939]]

Dr. Syukuro Manabe, who helped create the first climate model that 
coupled the atmosphere and oceans, has observed:

       Models that incorporate everything from dust to vegetation 
     may look like the real world, but the error range associated 
     with the addition of each new variable could result in near 
     total uncertainty. This would represent a paradox: The more 
     complex the models, the less we know.

  We are often reminded that the IPCC used sophisticated modeling 
techniques in projecting temperature increases for the coming century. 
But as William O'Keefe and Jeff Kueter of the George C. Marshall 
Institute pointed out in a recent paper:

       The complex models envisioned by the IPCC have many more 
     than twenty inputs, and many of those inputs will be known 
     with much less than 90 percent confidence.

  Also, tinkering with climate variables is a delicate business--
getting one variable wrong can greatly skew model results. Dr. David 
Legates has noted that:

       Anything you do wrong in a climate model will adversely 
     affect the simulation of every other variable.

  Take precipitation, for example. As Dr. Legates noted:

       Precipitation requires moisture in the atmosphere and a 
     mechanism to cause it to condense (causing the air to rise 
     over mountains, by surface heating, as a result of weather 
     fronts, or by cyclonic rotation). Any errors in representing 
     the atmospheric moisture content or precipitation-causing 
     mechanisms will result in errors in the simulation of 
     precipitation.

  Dr. Legates concluded:

       Clearly, the interrelationships among the various 
     components that comprise the climate system make climate 
     modeling difficult.

  The IPCC, in its Third Assessment Report, noted this problem, and 
many others, with climate modeling, including--this is a quote from 
their report; the very basis that many of the alarmists are basing 
their decisions on:

       Discrepancies between the vertical profile of temperature 
     change in the troposphere seen in observations and models.
       Large uncertainties in estimates of internal climate 
     variability (also referred to as natural climate variability) 
     from models and observations.
       Considerable uncertainty in the reconstructions of solar 
     and volcanic forcing which are based on limited observational 
     data for all but the last two decades.
       Large uncertainties in anthropogenic forcings associated 
     with the effects of aerosols.
       Large differences in the response of different models to 
     the same forcing.

  I want to delve a little deeper into the first point concerning the 
discrepancies between temperature observations in the troposphere and 
the surface. This discrepancy is very important because it tends to 
undermine a key assumption supporting the warming hypothesis--that more 
rapid warming should occur in the troposphere than at the surface, 
creating the so-called greenhouse ``fingerprint.'' But the National 
Research Council believes real-world temperature observations tell a 
different story.
  In January of 2000, the NRC panel examined the output from several 
climate models to assess how well they mimicked the observed surface 
and lower atmospheric temperature trends. They found that:

       Although climate models indicate that changes in greenhouse 
     gases and aerosols play a significant role in defining the 
     vertical structure of the observed atmosphere, model-
     observation discrepancies indicate that the definitive model 
     experiments have not been done.

  John Wallace, the panel chairman and professor of atmospheric 
sciences at the University of Washington, put it more bluntly. He said:

       There really is a difference between temperatures at the 
     two levels that we don't fully understand.

  More recently, researchers at the University of Colorado, Colorado 
State University, and the University of Arizona, examined the 
differences between real-world temperature observations with the 
results of four widely used climate models. They probed the following 
question: Do the differences stem from uncertainties in how greenhouse 
gases and other variables affect the climate system or by chance model 
fluctuations; that is, the variability caused by the model's flawed 
representation of the climate system?
  As it turned out, neither of these factors was to blame. According to 
the researchers:

       Significant errors in the simulation of globally averaged 
     tropospheric temperature structure indicate likely errors in 
     tropospheric water-vapor content and therefore total 
     greenhouse-gas forcing, precipitable water, and convectively 
     forced large-scale circulation.

  Moreover, based on the ``significant errors of simulation,'' the 
researchers called for ``extreme caution in applying simulation results 
to future climate-change assessment activities and to attributions 
studies.
  They also questioned ``the predictive ability of recent generation 
model simulations, the most rigorous test of any hypothesis.''
  There does not seem to be much wiggle room here: Climate models are 
useful tools, but unable, in important respects, to simulate the 
climate system, undermining their ``predictive ability.''
  Based on this hard fact, let me bring you back to the alarmist writer 
I referenced earlier. As he wrote recently:

       Drawing on highly sophisticated computer models, climate 
     scientists can project--not predict--how much temperature may 
     rise by, say, 2100, if we carry on with business as usual.

  Again, based on what I have just recounted, this is disingenuous at 
best. I think a fairminded person would find it horribly misleading and 
inaccurate.
  Another serious model limitation concerns the interaction of clouds 
and water vapor with the climate system.
  Dr. Richard S. Lindzen, professor of meteorology at MIT, reports of 
``terrible errors about clouds in all the models.'' He noted that these 
errors ``make it impossible to predict the climate sensitivity because 
the sensitivity of the models depends primarily on water vapor and 
clouds. Moreover, if clouds are wrong,'' Dr. Lindzen said, ``there's no 
way you can get water vapor right. They're both intimately tied to each 
other.''
  In fact, water vapor and clouds are the main absorbers of infrared 
radiation in the atmosphere. Even if all other greenhouse gases, 
including carbon dioxide, were to disappear, we would still be left 
with over 98 percent of the current greenhouse effect. But according to 
Dr. Lindzen, ``the way current models handle factors such as clouds and 
water vapor is disturbingly arbitrary. In many instances the underlying 
physics is simply not known.''
  Dr. Lindzen notes that this is a significant flaw, because ``a small 
change in cloud cover can strongly affect the response to carbon 
dioxide.'' He further notes, ``Current models all predict that warmer 
climates will be accompanied by increasing humidity at all levels.'' 
Such behavior ``is an artifact of the models since they have neither 
the physics nor the numerical accuracy to deal with water vapor.''
  I think sometimes you have to look at the science and the 
contradictions, and even if we don't thoroughly understand what these 
people are saying, the fact is, they contradict each other. Sometimes 
you have to go back and look at reality. If they say the increase in 
the use of carbon dioxide and the presence of it is the major thing 
causing anthropogenic gases and global warming temperatures, look at 
what happened right after the war. After the war, they increased the 
use of CO2 by 85 percent. You would think that would 
precipitate a warmer period, but it didn't. It precipitated a cooling 
period. When you get back to the arguments and discrepancies, they 
agree there are problems.
  Along with water vapor and clouds, aerosols, or particles from 
processes such as dust storms, forest fires, the use of fossil fuels, 
and volcanic eruptions, represent another major uncertainty in climate 
modeling. To be sure, there is limited knowledge of how aerosols 
influence the climate system. This, said the National Academy of 
Sciences, represents ``a large source of uncertainty about future 
climate change.''
  Further, the Strategic Plan of the U.S. Climate Change Science 
Program, CCSP, which was reviewed and endorsed by the National Research 
Council, concluded that the ``poorly understood impact of aerosols on 
the formation of both water droplets and ice

[[Page 10940]]

crystals in clouds also results in large uncertainties in the ability 
to project climate changes.''
  Climate researcher and IPCC reviewer Dr. Vincent Gray reached an even 
stronger conclusion, stating that ``the effects of aerosols, and their 
uncertainties, are such as to nullify completely the reliability of any 
climate models.''
  Another issue affecting model reliability is the relative lack of 
available climate data, something the National Research Council 
addressed in 2001. According to the NRC, ``[a] major limitation of 
these model forecasts for use around the world is the paucity of data 
available to evaluate the ability of coupled models to simulate 
important aspects of past climate.''
  There is plenty of evidence to support this conclusion. Consider, for 
example, that most of the surface temperature record covers less than 
50 years and only a few stations are as much as 100 years old. The only 
reliable data come from earth-orbiting satellites that survey the 
entire atmosphere. Notably, while these temperature measurements agree 
with those taken by weather balloons, they disagree considerably with 
the surface record.
  There is also concern of an upward bias in the surface temperature 
record, caused by the ``urban heat island effect.'' Most meteorological 
stations in Western Europe and eastern North America are located at 
airports on the edge of cities, which have been enveloped by urban 
expansion. In the May 30, 2003, issue of Remote Sensing of Environment, 
David Streutker, a Rice University researcher, found an increase in the 
Houston urban heat island effect of nearly a full degree Celsius 
between 1987 and 1999. This study confirmed research published in the 
March 2001 issue of Australian Meteorological Magazine, which 
documented a significant heat island effect even in small towns.
  Although climate modelers have made adjustments to compensate for the 
urban heat island effect, other researchers have shown such adjustments 
are inadequate. University of Maryland researchers Eugenia Kalnay and 
Ming Cai, in Nature magazine, concluded that the effect of urbanization 
and land-use changes on U.S. average temperatures is at least twice as 
large as previously estimated.
  Finally, to expand on a point I raised earlier, climate models are 
helpful in creating so-called ``climate scenarios.'' These scenarios 
help scientists describe how the climate system might evolve. To arrive 
at a particular scenario, scientists rely on model-driven assumptions 
about future levels of economic growth, population growth, greenhouse 
gas emissions, and other factors. However, as with the IPCC, these 
assumptions can create wildly exaggerated scenarios that, to put it 
mildly, have little scientific merit. In 2003, scientists with the 
Federal Climate Change Science Program agreed that potential 
environmental, economic, and technological developments ``are 
unpredictable over the long time-scales relevant for climate 
research.''
  William O'Keefe and Jeff Keuter of the George C. Marshall Institute 
reiterated this point recently. As they wrote, ``The inputs needed to 
project climate for the next 100 years, as is typically attempted, are 
unknowable. Human emissions of greenhouse gases and aerosols will be 
determined by the rates of population and economic growth and 
technological change. Neither of these is predictable for more than a 
short period into the future.''
  Put simply, computer model simulations cannot prove that greenhouse 
gas emissions will cause catastrophic global warming. Again, here's the 
National Academy of Sciences: ``The fact that the magnitude of the 
observed warming is large in comparison to natural variability as 
simulated in climate models is suggestive of such a linkage, but it 
does not constitute proof of one because--and this is a point I want to 
emphasize--the model simulations could be deficient in natural 
variability on the decadal to century time scale.''
  It's clear that climate models, even with increasing levels of 
sophistication, still contain a number of critical shortcomings. With 
that in mind, policymakers should reject ridiculous statements that 
essentially equate climate model runs with scientific truth.
  As I discussed today, climate modeling is in its infancy. It cannot 
predict future temperatures with reasonable certainty that these 
predictions are accurate. The physical world is exceedingly complex, 
and the more complex the models, the more potential errors are 
introduced into the models. We understand little about how to 
accurately model the troposphere and about the role of aerosols, clouds 
and water vapor. Moreover, there are enormous data gaps in the very 
short temperature records that we have. And surface data often conflict 
with more accurate balloon and satellite data.
  Models can enhance scientists' understanding of the climate system, 
but, at least at this point, cannot possibly serve as a rational basis 
for policymaking. It seems foolish in the extreme to undermine 
America's economic competitiveness with policies based on computer 
projections about what the world will look like in 100 years. In short, 
we have no idea what the world will look like in 20 years, or even 10 
years.
  So this concludes the fourth of the pillars of climate alarmists, 
hopefully just to show the science is flawed.
  I think it is clear, as I mentioned a minute ago, that the science is 
not there. Since 1999, the old argument of Michael Mann, the guy who 
invented the hockey-stick theory, where he was measuring the Earth's 
temperatures, we come into the 20th century--and that is the blade on 
the hockey stick--he intentionally left out the fact that between the 
years 700 A.D. and 1100 A.D., there is another blade on the hockey 
stick that went up the other way and temperatures were warmer than they 
are today.
  If you read the Wharton Econometrics Survey, you will realize what 
will happen to America if we were to sign on to this, the economic 
damage we would have to sustain, the fact it would double the cost of 
energy, double the cost of gasoline to run our cars, and it would cost 
the average American family $2,700, and you have to ask the question: 
If the science is not real and it would inflict that much danger, what 
is the reason we are doing it?
  I think we can find the answer in quoting from Margot Wallstrom. 
Margot Wallstrom is the European Union's Environment Commissioner. She 
states that Kyoto is not about climate change, it is ``about leveling 
the playing field for big businesses worldwide.''
  One of your favorite people, I am sure, French President Jacques 
Chirac, in a speech during The Hague in 2000, said that Kyoto 
represents ``the first component of an authentic global governance.''
  I think we have had an opportunity to discuss this over and over, and 
it is somewhat warming to me to realize that things are not getting 
that much warmer, and if that is happening, the science is not showing 
it is due to anthropogenic gases.
  Consequently, we as policymakers, have to look at this and be sure 
before we make any rash decisions that the science is there. Clearly, 
the science is not there.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HARKIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Stem Cell Research

  Mr. HARKIN. Mr. President, the House of Representatives just minutes 
ago took a historic stand on behalf of the millions of Americans who 
can benefit from the enormous promise of stem cell research. By a vote 
of 238 yeas to 194 nays, the House passed H.R. 810. I congratulate both 
Congressman Castle, a Republican from Delaware, and Congresswoman 
DeGette, a Democrat from Colorado, who led a bipartisan effort in this 
regard to have this very historic vote in the House of Representatives.
  Indeed, a bipartisan majority rejected the restrictive policies of 
this

[[Page 10941]]

administration and voted to expand the number of stem cell lines that 
are eligible for federally funded research. In doing so, they have 
brought new hope to Americans who suffer from diseases such as 
Parkinson's and juvenile diabetes, ALS, as well as spinal cord 
injuries.
  Now it is up to us in the Senate to pass the same bill without 
amendments so we can send it to the President's desk as soon as 
possible. The American people cannot afford to wait any longer for our 
top scientists to realize the full potential of stem cell research.
  Regrettably, research has been stymied and slowed under the 
President's stem cell policy. When President Bush announced his policy, 
the administration said that 78 stem cells lines were eligible for 
federally funded research, meaning they had to be derived before the 
totally arbitrary date and time of August 9, 2001, at 9 p.m. Why it was 
permissible to use stem cell lines derived before 9 p.m. but not at 
9:01 or 9:05 p.m. has always eluded me. Again, it is just an arbitrary 
time and date.
  The administration said there were 78 stem cell lines, but now we 
know today that only 22 of those are available for research, not nearly 
enough to reflect the genetic diversity that scientists need. But more 
importantly, all 22 stem cell lines--all 22--that are available under 
the President's policy are contaminated with mouse feeder cells, making 
them useless for humans.
  So the President's policy is not a way forward; it is, indeed, a 
dead-end street. It offers only false hope to the millions of people 
across this country who are suffering from diseases that could be 
potentially cured or treated through stem cell research.
  We need a policy that offers true, meaningful hope to these patients 
and their loved ones. That is why Senator Specter and I, along with 
Senators Hatch, Feinstein, Smith, and Kennedy, introduced a companion 
bill to the Castle-DeGette legislation that just passed the House. Our 
bill expands the number of stem cell lines that federally funded 
scientists can study by lifting the arbitrary eligibility date of 
August 9, 2001.
  Under our legislation, all stem cell lines would be eligible for 
Federal research regardless of the date they were derived, as long as 
they met strict ethical requirements.
  Since August of 2001, scientists have made great strides and great 
advances in deriving stem cell lines. Many of the new lines were grown 
without mouse feeder cells. So I ask, should not our top scientists be 
studying those lines that have great potential and which could be used 
to alleviate human suffering, instead of being limited to the 22 cell 
lines contaminated with mouse cells that will never be used in humans?
  We do not require our astronomers to explore the heavens with 19th 
century telescopes. We do not require our geologists to study the Earth 
with a tape measure. If we are serious about realizing the promise of 
stem cell research, our biomedical researchers need access to the best 
stem cell lines available.
  I also emphasize that none of the additional lines would require the 
creation of any new embryos. Instead, these lines could be derived from 
any of the more than 400,000 embryos that remain from fertility 
treatments and will otherwise be discarded. We are talking about 
embryos that are going to be thrown away, legally. Should we not use 
them instead to ease human suffering?
  Think about this: We have 400,000 frozen embryos left over from in 
vitro fertilization. When a woman who has been a donor of these eggs 
notifies that they are no longer wanted, that she is not going to use 
them--maybe she has already had a child or two and does not need these 
embryos--that person can give permission to discard them. Why should 
that person not be able to give permission to allow them to be used by 
our top scientists for stem cell research that could then save other 
lives? That is what some people are asking us to do--just throw them 
away, do not let them be used for research that could save human 
suffering and save human lives. To this Senator, that simply does not 
make any sense.
  So as I said, we have strict ethical guidelines that are set up so 
that they cannot be used for cloning, they cannot be used for other 
things; only to derive the stem cells. That is all. If there is a 
person who can give the authority right now to the in vitro 
fertilization clinic to discard them, why should that person not have 
the right to say, No, use those frozen embryos to derive stem cells so 
that someone with a spinal cord injury might walk again, so that 
someone with ALS can escape the death sentence, so that someone with 
Parkinson's can be returned to normal functioning?
  The House performed a great public service today. I thank both sides 
of the aisle, Republicans and Democrats, who stepped up and voted for 
this bill. By passing the Castle-DeGette bill, they have given hope to 
millions of suffering humans that we will indeed proceed with stem cell 
research that will alleviate their suffering. It is now time for the 
Senate to act.
  So together with Senator Specter, we are going to urge the majority 
leader to bring up the bill as soon as possible and let us have a vote 
in the Senate and get this bill to the President so we can move ahead 
with embryonic stem cell research in this country.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FRIST. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FRIST. I ask unanimous consent that when the Senate resumes 
consideration of the Owen nomination tomorrow morning, the time until 
12 noon be equally divided between the two leaders or their designees; 
provided further that at noon, all time be expired under rule XXII and 
the Senate proceed to the vote on the confirmation of the nomination 
with no intervening action or debate; and provided further, following 
that vote, the President be immediately notified of the Senate's 
action.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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