Summer Operations and Services (SOS) Relief and Reform Act

Mr. President, I want to commend our two leaders. I have been working with Senator Daschle for months, as well as with the White House, to find a way out of the impasse in judicial confirmations. Senator Frist and I have spoken at length about this, and he has been working on it, as well.

I was delighted to see the meeting that Senator Daschle, Senator Frist, and Mr. Card had today in which the White House agreed to no more recess appointments of judges. I think we have demonstrated our good faith. In the 17 months that the Democrats were in charge of the Senate, we confirmed 100 of President Bush's nominees to lifetime positions on the Federal bench. And the Republicans, during the 23 months that they have been in charge of the Senate, they have confirmed another 73 plus one today. With this agreement, I think we should be in

a position to confirm another two dozen judicial nominees and achieve a total this is outstanding for a Presidential term. So I commend my friend from Tennessee. I commend my friend from South Dakota. And I appreciate their work in helping achieve this arrangement.

I am pleased that the Senate has now received assurances from the White House that the President will not further abuse the recess appointment power by making judicial recess appointments this presidential term. It was the White House's refusal to reach a reasonable accommodation of the concerns of many Senators about the unilateral approach of the President regarding his recess appointments to the federal courts that complicated our efforts to reach agreement regarding votes on less controversial judicial nominees. Thanks to the work of the Democratic leader and the Republican leader, we have now received a firm commitment from the White House in that regard.

I supported the nomination of Marcia Cooke. The Florida Senators supported the nomination of Marcia Cooke. All Democratic members of the Senate Judiciary Committee supported the nomination of Marcia Cooke. I am pleased to vote today to confirm the nomination of Marcia Cooke.

The selection of Ms. Cooke to be a judicial nominee for the Southern District of Florida serves as an example of how the judicial nominations process should work. She was interviewed and recommended by Florida's bipartisan judicial selection commission. This selection commission was created by Senators Graham and Nelson in a negotiated agreement with the White House and it has produced talented and well- respected attorneys for the lifetime appointments on the district courts in Florida.

Ms. Cooke currently serves as an assistant county attorney in Miami- Dade County. She previously worked for 3 years as Governor Jeb Bush's Inspector General in Florida with oversight responsibilities regarding Florida administrative agencies. Ms. Cooke also was selected as a Federal Magistrate Judge in Detroit, after serving as a Federal prosecutor and also as a public defender.

I acted to report her nomination unanimously from the Judiciary Committee and welcome her confirmation today. Marcia Cooke is highly regarded. I congratulate Ms. Cooke and her family on her unanimous confirmation vote today.

I note that President Bush has nominated only 16 African Americans to the Federal courts, only about a quarter of the number of African Americans nominated by President Clinton to the federal bench. In fact, this President has put more people actively involved in the Federalist Society on the bench than African Americans, Hispanics and members of other minority groups combined.

With today's confirmation vote on Marcia Cooke to the U.S. District Court in Florida, the Senate has already confirmed 174 judicial nominees of President George W. Bush in 3\1/2\ years and blocked only a handful of the most extreme. Due to Democratic cooperation and bipartisanship, the Senate has confirmed more judges for this President than in President Ronald Reagan's entire first 4 years in office--and it was President Reagan who ultimately appointed more judges than any other President in U.S. history. In fact, we have cooperated in reducing the 110 vacancies we inherited from Republican obstruction of President Clinton's judicial nomination to near 40 and attained the lowest vacancy level in 14 years.

Today, the Senate and the White House reached an agreement regarding 25 of this President's judicial nominations pending on the floor, including Judge Cooke. Not all of these nominees are uncontroversial and some may require significant debate before their confirmation vote. With this agreement, the Senate is poised to confirm 198 judicial nominees of President Bush for lifetime positions on the Federal courts, including 35 circuit court nominees.

We have already confirmed 30 circuit court nominees of President Bush. More of his circuit nominees have been confirmed than President Reagan had confirmed by this point in his first term. Recall that from the time Republicans assumed majority control of the Senate in 1995 until Democratic control in the summer of 2001, circuit court vacancies more than doubled from 16 to 33. We have worked to cut those vacancies in half by confirming 30 of President Bush's circuit court nominees. With five additional circuit court nominees part of the agreement, President Bush will exceed the number of circuit court appointments during President Reagan's first term, as well.

Republicans rarely acknowledge that 100 of President Bush's judicial nominees to the bench were confirmed under Democratic Senate leadership during 17 months. During the 23 months I have not served as Chairman of the Judiciary Committee and Republicans have been in control, the Senate has confirmed 74 additional judges. So in 30 percent more time, Senate Republicans have confirmed 26 percent fewer judges.

With the agreement reached today, the Senate will confirm a total of 29 judicial nominees of President Bush this year, including five circuit court nominees. With the progress we have already made this year and under the action agreed to today, the Senate will reach this mark before the July 4th recess. This is 29 times more judicial nominees than were allowed to be confirmed by Republicans before July during 1996, the last time an incumbent President was seeking reelection. During that session, Senate Republicans did not allow a single judicial nominee of President Clinton's to be confirmed before July. During that entire session Republicans allowed only 17 judicial nominees to be confirmed, none of them for the circuit courts. During that session when Republicans were in control of the Senate, they made sure that none of President Clinton's circuit court nominees were confirmed all session, not a single one. With our fifth judicial confirmation this year, we are well ahead of 1996.

Republicans have made no apology for the way in which they acted in 1996 but seek to employ a double standard now that a Republican occupies the White House.

All told, Republicans blocked more than 60 of President Clinton's judicial nominees. Yet Republicans Senators now routinely claim that every judicial nominee of President Bush is entitled to a confirmation vote. Suddenly, without regard to history, including their own very recent history, they claim that the Constitution requires a confirmation vote, at least for Republican nominees. The Constitution certainly does not say that. Republicans seem to have ``confirmation amnesia'' when they complain that Senate Democrats have filibustered six judicial nominees of President Bush after Republicans defeated by delay 10 times more judicial nominees of President Clinton through anonymous holds and without accountability.

Republicans know that they filibustered Justice Abe Fortas' Supreme Court nomination and several Clinton nominees. Republicans cannot erase their history, try as they might. Republicans defeated more than 60 Clinton judicial nominees and more than 200 of his executive branch nominees through delay. One judicial nomination was defeated when the Republican caucus took the unprecedented action of voting lockstep along party lines against confirmation of Judge Ronnie White.

With the agreement reached today, we are likely to adjourn with fewer vacancies than at any time in nearly a quarter of a century, since President Reagan's first term and well below the level of vacancies tolerated by Republicans during President Clinton's two terms. Having defeated more than 60 of President Clinton's nominees, including almost two dozen circuit court nominees, through concerted inaction, Senate Republicans have no standing to complain about the way in which the Senate is acting on President Bush's nominees. We have acted more fairly, more quickly and on more nominees than Republicans would allow when President Clinton was making much more moderate nominations.

I am pleased that the White House has promised to refrain from any more abuses of the recess appointment power. With that commitment, we have agreed to vote on two dozen judicial nominees this year. Even with the historically low vacancy levels we will reach as a result, I have no doubt that some partisan Republicans will still

complain that they did not get 100 percent of their judicial nominees confirmed. Something no President in memory has achieved. This Congress we reached the lowest level of vacancies since 1990. There are more federal judges on the bench now than at any time in U.S. history.

Unfortunately, we are faced with continued White House defiance of the Senate's role as part of the checks and balances established by our Constitution. President Bush defied the Senate by recess appointing William Pryor and Charles Pickering, who were widely opposed due to their records of activism and poor ethics. No American President has ever abused the recess appointment power to put judges on the bench whose nominations were debated at length by the Senate and on which it had withheld its consent. The President's appointment of Charles Pickering was unprecedented, yet we noted our objection, turned the other cheek and continued to cooperate in the confirmation of judicial nominees. When the President abused his power a second time and appointed William Pryor, we had no alternative but to make our objection meaningful by seeking assurances from the White House that such abuse would not happen again.

Over the past several weeks, I have shared with the Senate information about a number of divisive developments regarding judicial nominations including the Pickering recess appointment during the weekend for commemorating Dr. Martin Luther King Jr. In spite of all the affronts, Senate Democrats cooperated in confirming four additional judicial nominees this year and continued to participate in hearings for judicial nominees.

The President's recess appointment of William Pryor was the last straw. It was properly termed an abuse of power by the Senate Democratic Leader. It was an abuse of the constitutional authority of the Executive to make necessary recess appointments during the unavailability of the Senate. The judicial recess appointments of nominees debated at length by the Senate was unprecedented.

Actions like this showed the American people that this White House was determined to try to turn the independent federal judiciary into an arm of the Republican Party. Doing this further erodes the White House's credibility as well as the respect and confidence that the American people have for the courts.

This is an administration that promised to unite the American people but that has chosen time and again to act in ways that divide us, to disrespect the Senate and our representative democracy. This is an administration that squandered the good will and good faith that Democrats showed in the aftermath of September 11, 2001. This is an administration that refused to acknowledge the strides we made in filling 100 judicial vacancies under Democratic Senate leadership during 17 difficult months in 2001 and 2002, while overcoming the September 11 attacks, the subsequent anthrax attacks and in spite of Republican mistreatment of scores of qualified, moderate judicial nominees of President Clinton.

This is an administration that has time and time again demonstrated its unilateralism, arrogance and intention to divide the American people and the Senate with its controversial judicial nominations. With its recess appointments, the President acted--as he has in so many areas over the past 3\1/2\ years--unilaterally, overextending and expanding his power, with disregard for past practice and tradition, and the rule of law.

The recess appointment of Mr. Pryor threatens both the independence of the judiciary and the constitutional balance of power between the legislative and executive branches. We entrust to the stewardship of lifetime judges in our independent Federal judiciary the rights that all of us are guaranteed by our Constitution and laws. That is an awesome responsibility. Accordingly, the Constitution was designed so that it would only be extended after the President and the Senate agreed on the suitability of the nomination. The President chose for the second time in as many months to circumvent this constitutional design and impose his will unilaterally.

I have sought in good faith to work with this administration for the last 3\1/2\ years in filling judicial vacancies, including so many left open by Republican obstruction of President Clinton's qualified nominees. When Chairman, I made sure that President Bush's nominees were not treated the way his predecessor's had been. They were treated far more fairly, as I had promised. Republicans had averaged only 37 confirmations a year while vacancies rose from 65 to 110 and circuit vacancies more than doubled from 16 to 33. Under Democratic leadership, we reversed those trends and opened the system to public accountability and debate by making home-State Senators' objections public for the first time. We openly debated and voted on nominations. We were able to confirm 100 judges in just 17 months and virtually doubled the Republican annual average of 37 with 72 confirmations in 2002, alone.

I have urged that we work together, that we cooperate, and that the President live up to the promise he made to the American people during the last campaign when he said he would act as a uniter and not a divider. I have offered to consult and made sure we explained privately and in the public record why this President's most extreme and controversial nominations were unacceptable.

Both his recess appointments are troubling. The President says that he wants judges who will ``follow the law'' and complains about what he calls ``judicial activism.'' Yet, he has acted--with disregard for the constitutional balance of powers and the Senate's advice and consent authority--unilaterally to install on the Federal bench two nominees from whom the Senate withheld its consent precisely because they are seen by so many as likely to be judicial activists, who will insert their personal views in decisions and will not follow the law.

In the case of Mr. Pryor, he is among the most extreme and ideologically committed and opinionated nominees ever sent to the Senate. Mr. Pryor's nomination to a lifetime appointment on the Federal bench was opposed by every Democratic member on the Senate Judiciary Committee after hearings and debate. It was opposed on the Senate floor because he appears to have extreme--some might say ``radical''--ideas about what the Constitution should provide with regard to federalism, criminal justice and the death penalty, violence against women, the Americans with Disabilities Act, and the Government's ability to protect the environment on behalf of the American people. He has been a crusader for the ``federalist'' revolution. He has urged that Federal laws on behalf of the disabled, the aged, women, minorities, and the environment all be limited. His comments have revealed insensitivity to the barriers that disadvantaged persons and members of minority groups and women continue to face in the criminal justice system. He has testified before Congress in support of dropping a crucial part of the Voting Rights Act and has repeatedly described the Supreme Court and certain justices in overtly political terms. He received the lowest possible qualified rating from the American Bar Association--a partial rating of ``Not Qualified''--underscoring his unfitness for the bench. In sum, Mr. Pryor demonstrated that he is committed to an ideological agenda that puts corporate interests over the public's interests and that he would roll back the hard-won rights of consumers, minorities, women, and others.

Mr. Pryor's nomination was considered in committee and on the Senate floor. The Senate debated his nomination, and had enough concerns about his fitness for a lifetime appointment that two motions to end debate on his nomination failed. That is the constitutional right of the Senate.

But President Bush decided to use the recess appointment clause of the Constitution to end-run the Senate. As far as I know, this power has never been used this way before this President. Of course this is the first President in our Nation's history to renominate someone rejected after hearings, debate and a fair vote by the Senate Judiciary Committee. He did that twice. He has now twice overridden the Senate's withholding of its consent after hearings and debate on judicial nominees. This demonstrates contempt for the Constitution and the Senate. The New York Times editorialized about ``President Bush . . . stacking the courts with right-wing judges of dubious judicial qualifications'' and even

the Washington Post observed that recess appointments of judges ``should never be used to mint judges who cannot be confirmed on their merits.''

The recess appointments clause of the Constitution was not intended to change the balance of power between the Senate and the President that is established as part of the fundamental set of checks and balances in our Government. Indeed, the appointments clause in the Constitution requires the consent of the Senate as just such a fundamental check on the Executive. This was meant to protect against the ``aggrandizement of one branch at the expense of the other.'' The clause was debated at the Constitutional Convention, and the final language--with shared power--is intended to be a check upon favoritism of the President and prevent the appointment of unfit characters.

The President's claimed power to make a unilateral appointment of a nominee the Senate considered and effectively rejected, slights the Framers' deliberate and considered decision to share the appointing power equally between the President and the Senate. This President's appointment of Mr. Pryor to the Eleventh Circuit--after he was considered by the full Senate seems irreconcilable with the original purpose of the appointments and recess appointment clauses in the Constitution. Perhaps that explains why the Pryor and Pickering recess appointments by this President are the first times in our centuries- long history that the recess appointment power has been so abused. No other President has engaged in this manner. No other President sought such unilateral authority without balance from the Senate.

The President chose to sully the Martin Luther King Jr. weekend with his unilateral appointment of Judge Pickering. Sadly, he chose the Presidents' Day congressional break unilaterally to appoint Mr. Pryor. After the Presidents' Day weekend, we resumed our proceedings in the Senate with the traditional reading of President's George Washington's Farewell Address. The Senate proceeds in this way every year. I urge this President and those in his administration to recall the wisdom of our first President. George Washington instructs us on the importance of not abusing the power each branch is given by the Constitution. He urges the three branches of our Government to ``confine themselves within their respective constitutional spheres.'' He said more than 200 years ago words that ring true to this day:

The spirit of encroachment tends to consolidate the powers

of all the departments in one, and thus to create, whatever

the form of government, a real despotism . . . The necessity

of reciprocal checks in the exercise of political power, by

dividing and distributing it into different depositaries, and

constituting each the guardian of the public weal against

invasions by the others, has been evinced by experiments

ancient and modern. . . To preserve them must be as necessary

as to institute them.

The current occupant of the White House might do well to take this wisdom to heart and respect the constitutional allocations of shared authority that have protected our nation and our rights for more than 200 years so brilliantly and effectively.

The recess appointments power was intended as a means to fill vacancies when the Senate was not available to give its consent; it was intended to ensure effective functioning of the government when the Senate adjourned for months at a time. It was never intended as an alternative means of appointment by the Executive when the President chose to serve some partisan short-term goal by simply overriding the will of the Senate to employ his own--especially with respect to our third branch of Government, the Federal judiciary.

This administration and its partisan enablers have demonstrated their disdain for the constitutional system of checks and balances and for shared power among the three branches of our Federal Government. By such actions, this Administration shows that it seeks all power consolidated in the Executive and that it wants a Judiciary that will serve its narrow ideological purposes.

Such overreaching by this administration hurts the courts and the country. President Bush and his partisans have disrespected the Senate, its constitutional role of advice and consent on lifetime appointments to the Federal courts, the Federal courts, and the representative democracy that is so important to the American people. It is indicative of the confrontational and ``by any means necessary'' attitude that underlies so many actions by this administration and that created a climate on the Judiciary Committee in which Republican staff felt justified in spying upon their counterparts and stealing computer files.

After 8 years in office in which more than 60 judicial nominees had been stalled from consideration by Republican partisans, President Clinton made his one and only recess appointment of a judge. Contrast that appointment with the actions of the current President:

President Clinton acted to bring diversity to the Fourth Circuit, the last federal circuit court not to have had an African-American member. Judge Roger Gregory was subsequently approved by the Senate for a lifetime appointment under Democratic Senate leadership in the summer of 2001. This was made possible by the steadfast support of Senator John Warner, the senior Senator from Virginia, and I have commended my friend for his actions in this regard. When Judge Gregory's nomination was finally considered by the Senate, it passed by consensus and with only one negative vote. Senator Lott explained his vote as a protest vote against President Clinton's use of the recess appointment power. How ironic then that Judge Pickering now serves based on President Bush's abuse of that power.

Judge Gregory was one of scores of highly qualified judicial nominations stalled under Republican Senate leadership. Indeed, Judge Gregory and so many others were prevented from having a hearing, from ever being considered by the Judiciary Committee and from ever being considered by the Senate. Sadly, others, such as the nominations of Bonnie Campbell, Christine Arguello, Allen Snyder, Kent Markus, Kathleen McCree Lewis, Jorge Rangel, Carlos Moreno, and so many more, have not been reinstated and considered. But President Clinton did not abuse his recess appointment power. Instead, his appointment of Judge Gregory was in keeping with traditional practices and his use of that power with respect to judicial appointments was limited to that one occasion.

By contrast, the current President made two circuit recess appointments in 2 months and his White House had threatened that more were on the way. These appointments are from among the most controversial and contentious nominations this administration has sent the Senate. After reviewing their records and debating at length, the Senate withheld its consent. The reasons for opposing these nominations were discussed in hearings and open debate during which the case was made that these nominees were among the handful that a significant number of Senators determined had not demonstrated their fairness and impartiality to serve of judges.

Contrast Roger Gregory's recess appointment, which fit squarely in the tradition of President's exercising such authority in order to expand civil rights and to bring diversity to the courts, with that of Mr. Pryor. Four of the five first African American appellate judges were recess-appointed to their first Article III position, including Judge William Hastie in 1949, Judge Thurgood Marshall in 1961, Judge Spottswood Robinson in 1961, and Judge Leon Higginbotham in 1964. The recent appoints of Judge Pickering and Mr. Pryor stand in sharp contrast to these outstanding nominees and the public purposes served by their appointments.

The nominations of Judge Pickering and Mr. Pryor were opposed by individuals, organizations and editorial pages across the Nation. Organizations and individuals concerned about justice before the Federal courts, such as Log Cabin Republicans, the Leadership Conference on Civil Rights, and many others opposed the Pryor nomination. The opposition extended to include organizations that rarely take positions on nominations but felt so strongly about Mr. Pryor that they were compelled to lodge their opposition in the record, such as the National Senior Citizens Law Center, Anti-Defamation League, and Sierra Club. Rather than bring people together and move the

country forward, this President's recess appointments are more examples of unnecessarily divisive action.

Further, the legality of this President's use of the recess appointments power, without precedent and during such a short Senate break, is itself now a source of division and dispute. Recent Attorneys General have all opined that a recess of 10 days or less does not justify the President's use of the recess appointments power and would be considered unconstitutional. Starting in 1921, Attorney General Daugherty advised the President that he could make recess appointments during a mid-session adjournment of approximately four weeks but two days was not sufficient ``nor do I think an adjournment for five or even 10 days can be said to constitute the recess intended by the Constitution.'' More recently, a memo from the Reagan administration Justice Department concluded: ``Under no circumstances should the President attempt to make recess appointment during intrasession recess of less than 10 days.'' This year, a Federalist Society paper noted the dubious constitutionality of appointments during short intrasession breaks.

We will not resolve the question of legality of these recess appointments here today, but we can all anticipate challenges to rulings in which Mr. Pryor participates. Thus, we can expect this audacious action by the administration will serve to spawn litigation and uncertainty for months and years to come.

I thank the Democratic leader for the statements he made and the actions that he took in connection with the abuse of the recess appointment power by this President. I remind the Senate that a few years ago when President Clinton used his recess appointment power with regard to a short-term Executive appointment of James Hormel to serve as Ambassador to Luxembourg, Senator Inhofe responded by saying that President Clinton had ``shown contempt for Congress and the Constitution'' and declared that he would place ``holds on every single Presidential nomination.'' Republicans continued to block nominations until President Clinton agreed to make recess appointments only after Congress was notified in advance. On November 10, 1999, 17 Republican Senators sent a letter to President Clinton telling him that if he violated the agreement, they would ``put holds for the remaining of the term of your Presidency on all of the judicial nominees.''

In November 1999, President Clinton sent a list of 13 positions to the Senate that he planned to fill through recess appointments. In response, Senator Inhofe denounced 5 of the 13 civilian nominees with a threat that if they went forward, he would personally place a hold on every one of President Clinton's judicial nominees for the remainder of his term. That led to more delays and to the need for a floor vote on a motion to proceed to consider the next judicial nomination, in order to override Republican objections.

When President Clinton appointed Judge Gregory at the end of 2000, Senator Inhofe called it ``outrageously inappropriate for any president to fill a federal judgeship through a recess appointment in a deliberate way to bypass the Senate.'' When the Gregory nomination was confirmed with near unanimity under Senate Democratic leadership in 2001, Senator Lott's spokesperson indicated that Senator Lott's solitary opposition was to underscore his position that ``any appointment of federal judges during a recess should be opposed.''

Democrats have been measured in our response. Indeed, we continued our work after the unprecedented recess appointment of Judge Pickering. It was only with the repeated abuse of the recess appointment power to place Mr. Pryor on the Federal bench and the threat of additional recess appointments that we acted. I urged the White House to renounce this abuse of the recess appointment power so that we could resume Senate consideration of judicial nominations and increase our record number of confirmations before the end of the year. I am glad that the White House has finally decided to make a firm commitment against any additional judicial recess appointments.

We are defending fair courts. We have acted to protect the Senate's role as a check on excessive White House power grabs and to block the lifetime appointments of a handful of nominees for lifetime seats, nominees who have records of extremism. The American people deserve a Federal judiciary with fair judges who will enforce their rights and uphold the law. Rather than work with all Senators, the White House has fixated on forcing through the most divisive people for these lifetime jobs. This White House has the wrong priorities and is taking the country in the wrong direction.

President Bush ran as a ``uniter'' but has consciously chosen to send divisive nominees to the Senate. As a Presidential candidate, Bush promised the American people he would have ``no litmus test'' for Federal judges on reproductive rights ``or any other issue'' and that he would choose ``competent judges'' who would ``not use the bench for writing social policy.'' As President, he has broken these and other promises repeatedly.

President Bush's choices for the only lifetime jobs in our system of Government show that he views the Federal courts as a spoils system for partisan activists, including some whose records prove that they will not be fair and impartial judges, but would use the Federal bench to write social policies they prefer into the law. Under our Constitution, the power to make lifetime appointments to the courts is shared: the President has the power to nominate or propose judges, but only the Senate has the power to confirm or reject those nominations. Throughout American history, the Senate has rejected judicial nominees. Not even President Washington saw all of his nominees confirmed. Senate Democrats have opposed only the most troubling judicial nominees of President Bush.

In his judicial appointments, President Bush has sought out judicial activists, often quite young, with the hope that these judges will rule for decades to come in ways that advance the Republican Party's narrow and partisan political and social agenda. President Bush has proposed many nominees to the federal courts, especially the appellate courts, who have records of extreme partisanship, activism or just plain poor ethics.

For example, President Bush nominated 41-year-old William Pryor for the appeals court after Mr. Pryor led the effort to undermine protections against age, sex and disability discrimination, to limit the reach of the Clean Water Act, to repeal the Voting Rights Act, to overturn Roe v. Wade, and to oppose lawsuits for tobacco-related deaths and illnesses. Mr. Pryor himself believes that President Bush should not appoint moderate judges to the federal courts, stating: ``I'm probably the only one who wanted [Bush v. Gore] 5-4.'' He said, ``I wanted Governor Bush to have a full appreciation of the judiciary and judicial selection so we can have no more appointments like Justice Souter.''

Justice Souter's apparent ``offense'' was to be more faithful to the Constitution than to the partisan politics of the party of the President who nominated him to the highest court. Mr. Pryor was rejected under the Senate's longstanding Rules after extensive debate. But President Bush put him on the bench anyway. He is now sitting on the Court of Appeals for the Eleventh Circuit temporarily.

President Bush also appointed Judge Charles Pickering to the appeals court even though the Senate refused consent to his nomination. Judge Pickering was opposed due to the low quality of his judging, his habit of inserting his personal views into his decisions, and his questionable ethics. Judge Pickering willfully violated judicial ethics by his extraordinary campaign to get around a mandatory prison sentence for a man convicted by a jury of his peers of burning a cross on an interracial couple's lawn. His record was criticized by civil rights leaders and organizations. Numerous African Americans in Mississippi and from across the country wrote in opposition to his nomination. President Bush recess appointed him to the Fifth Circuit on the weekend designated to honor the memory of Dr. Martin Luther King Jr.

President Bush also nominated to the D.C. Circuit Justice Janice Rogers Brown of California who has a reputation for injecting her political views into her judicial opinions. In speeches and decisions, she literally advocated turning back the clock 100 years to the

era when worker protections were declared unconstitutional by activist judges. Justice Brown has even described the year 1937--when her brand of judicial activism was repudiated--as ``the triumph of our own socialist revolution.'' Her views are so extreme and rigid she has suggested: ``There are so few true conservatives left in America that we probably should be included on the endangered species list.'' The Senate refused to grant consent to her nomination at the end of the 40- hour talkathon Republicans engineered to shut down the Senate last year.

President Bush also selected State Judge Carolyn Kuhl for an appellate judgeship after she spearheaded a failed effort to give tax- exempt status to racially discriminatory schools like Bob Jones University, led the effort to get the Reagan Justice Department to seek the reversal of Roe v. Wade, sought to curtail discrimination laws, and tried to limit protections for whistleblowers. Before she was nominated to the Federal bench, Judge Kuhl also ruled in a case that a breast cancer patient had no privacy claims against a doctor who allowed a drug salesman to watch her breast examination without her permission. Both California Senators opposed Judge Kuhl's nomination and the Senate withheld its consent.

Additionally, President Bush chose Texas Supreme Court Justice Priscilla Owen for the federal bench after statements by her fellow judges in a wide range of cases--from environmental regulation to personal injury law to privacy to discrimination--that she was injecting her personal views into her opinions. Her opinions were called, among other things, ``nothing more than inflammatory rhetoric'' and an approach that ``defies the Legislature's clear and express limits on our jurisdiction.'' One opinion in which she tried to write her preferred social policies into law was called ``an unconscionable act of judicial activism'' by then Justice Alberto Gonzales, who is now President Bush's White House Counsel. The Senate withheld its consent from her nomination after extensive debate.

The nomination of Miguel Estrada, who was 39 when nominated to the nation's second highest court, is another example of President Bush's practice of dividing instead of uniting Americans. Despite concerns that were raised whether Mr. Estrada could keep his personal views out of his legal work at the Justice Department and the ample precedent for the Senate's request for legal memos in nominations. President Bush decided to stonewall the Senate. This stonewalling, combined with Mr. Estrada's refusal to answer numerous questions about his views prompted the extended debate that led to his withdrawal.

Currently pending are William James Haynes, II and Brett Kavanaugh. Mr. Haynes has been less than forthcoming about his actions as the general counsel at the Department of Defense and his role in subverting legal protections in ways that may have contributed to the breakdown of compliance with the Geneva Conventions, our treaties against torture and the Constitution. Mr. Kavanaugh is another youthful nominee whose background as an aide to Kenneth Starr and in the White House is among the more partisan we have seen, even among this President's very partisan nominees.

For doing their job and upholding their constitutional responsibilities, Democratic Senators have been wrongly attacked as anti-woman, anti-Hispanic, anti-Christian and anti-Catholic. Those charges are reprehensible, ad hominem attacks without basis. This is partisan sniping at its worst. Republican Senators have been all too willing to fuel such baseless claims and the President has shown his willingness to play partisan politics with judicial nominations.

Some of this President's appointments have already started using their seat on the Federal bench to write their political, social or cultural views into law, despite promises that they would not do so. We are now seeing the impact of the Bush judges the Senate has confirmed in courts all over the country where a radically narrow view of the power of Congress, informed by a Federalist Society philosophy, is beginning to take hold. Let me give you a few examples of the ways in which these judges are attempting to remake the legal landscape in their own reactionary ideological image.

Judge Jeffrey Sutton has written a dissent in a federal arson case putting forward a distressingly narrow interpretation of Congress' power under the Commerce Clause. Judge Sutton was an extremely controversial Bush nominee who promised the Senate that he would not have an agenda on the bench to narrow congressional power and he was confirmed by one of the smallest number and proportion of positive votes in history, 52-41.

Judge John Roberts, another controversial nominee of President Bush, has questioned the constitutionality of the Endangered Species Act under a similar theory, showing his willingness to curtail Congress's ability to protect the environment. He has also ruled for the administration in the ongoing case seeking more transparency and accountability from Vice President Cheney and his Energy Task Force.

Judge Edith Clement of the Fifth Circuit, another Bush circuit court nominee, has also showed her Federalist bent by voting to limit the Hobbs Act, also under the reasoning that Congress' ability to legislate under the Commerce Clause is more narrow than legal precedent actually shows. Other Bush judges have taken extreme positions and been criticized by their peers, often other conservatives, for overstepping bounds or substituting their views for the trial court's. Their tenure on the federal bench has so far been short, but even these few examples show that as it lengthens, the number of ideological opinions will grow.

While Democrats have not imposed ideological litmus tests on the Bush nominees, it is clear that President Bush has. President Bush has named to the bench many who have been leaders in the right-to-life movement and none who have been leaders on the other side of that social issue. The President has sought out people he hopes share his social agenda for our Federal courts.

President Bush has also used federal judgeships to reward lawyers who worked closely with Ken Starr or on the Florida recount, including some for lifetime seats who were as young as 34 years old. Many of his nominees have been drawn from a select group of neoconservatives whose views are surprisingly rigid given their youth. Indeed, more than half of President Bush's circuit court nominees have been involved with the Federalist Society and overall almost a quarter of all of his judicial nominees have been associated with this organization whose mission is to ``reorder the legal priorities'' along ideological lines. In fact, President Bush has chosen more judicial nominees involved in the Federalist Society than nominees who are Hispanic, African American or Asian Pacific combined.

No one is entitled to a lifetime job as a judge, entrusted with making decisions that affect the lives, liberties and property of millions of Americans. I will continue to oppose judicial nominees who I do not think will be fair, independent Federal judges. We are committed to defending the rights guaranteed by the Constitution and to ensuring that our Federal courts have fair judges who will be faithful to the Constitution and its precedents, not loyal to the partisan political agenda of President Bush. The fairness of the Federal judiciary is indivisible from our American ideal of justice for all.

Whether Congress may regulate lead in our water, whether we can provide leave for families during medical crises, and whether fundamental protections for our liberty, equality and privacy will be preserved, all these matters will be reviewed and decided by Federal judges. Our freedoms are the fruit of too much sacrifice to confirm those who will not fully enforce Federal protections.

It is imperative that there be fair judges for all people--poor or rich, Republican or Democrat, of any race or religion. A number of President Bush's nominees have records that do not demonstrate that they will be impartial. Democrats have refused to rubber-stamp judicial activists. We know that the Federal courts should not be an arm of the Republican Party.

There are any number of issues and bills that the Senate could and should be addressing instead of arguing over cloture petitions for judicial nominees. Judicial vacancies is about the only number going in the right direction.

With the deficit up, the debt up, the numbers of uninsured, unemployed and impoverished Americans up, but the number of Federal court vacancies going down, the Senate has much more to do.

Of course, April 15 was the legal deadline for adoption of a Federal budget. Even though Republicans have excluded congressional Democrats from the discussion, they have not been able to agree even among themselves on the Federal budget resolution. That statutory requirement is being violated daily.

The transportation bill is long overdue. Again, it is Republicans who cannot agree on a transportation bill that will fix our roads, bridges and provide for public transportation. That bill would mean hundreds of billions of dollars to our local communities and States all across the country.

A supposed priority this year was going to be welfare legislation. Republicans have not agreed on a welfare reform extension.

We have no legislation to confront the soaring gas prices that affect all Americans, nor will the Republican leadership schedule action on the bipartisan NOPEC bill that was unanimously reported by the Judiciary Committee to clarify that OPEC cannot act collusively with impunity from the law.

This week we mark the 50th anniversary of the Supreme Court's decision in Brown v. Board of Education, a landmark decision of the United States Supreme Court. It offered African-Americans throughout our Nation hope that the Government of the United States was prepared to make real Jefferson's declaration that ``all men are created equal.'' It made good on Justice Harlan's famous words of dissent in Plessy v. Ferguson: ``In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here.''

Of course, the decision in Brown was not universally celebrated at the time. It was condemned from some quarters and sparked defiance in many parts of this nation. It was the beginning, not the end, of a long process of desegregation that was fought vigorously in many communities. Even today, 50 years later, there is still significant work to be done to ensure equal educational opportunity for all of our children. Schools in our cities are all too often in disrepair, both physically and in the quality of education they can offer to the most vulnerable children among us.

As we commemorate Brown, we must also note that the Republican Congress has funded Title I--the Federal program most directly targeted toward those schools and toward reducing educational inequality--at $6.3 billion below its authorized level for the current year.

We should celebrate the brave families who desegregated our schools, and the accomplished lawyers, including Thurgood Marshall, who led the fight. We should commemorate the nine Justices who were unanimous in their dedication to the constitutional principle of equality. And we should remember the many leaders who have continued the battle for justice in the decades since.

This anniversary should not be the cause of complacency or self- congratulation--our work is not done. There is much else we could be doing--but are not--in the area of civil rights. The Voting Rights Act is slated to expire in 2007, and the Majority Leader and the Chairman of the Judiciary Committee have said they want to make its key provisions permanent. I have said that I support this goal and want to make sure we achieve it in the way most likely to survive an inevitable constitutional challenge before a Supreme Court that shows little deference to Acts of Congress. Senator Kennedy and I have both said we want to work with Senators Frist and Hatch to begin committee consideration of the Voting Rights Act and build the legislative history that would justify making it permanent to the judicial branch. Up until now, we have received no response.

We have been fighting now for many years to pass hate crimes legislation that would both improve our existing hate crimes laws and apply them against criminals who target gay and lesbian Americans. I am one of 49 cosponsors of S. 966, the Local Law Enforcement Enhancement Act. This bill has passed the Senate before, only to be blocked by the Republican leadership in the House. In recent years, however, we have been unable to get the Senate to adopt it. In the last Congress, almost every Republican Senator voted against cloture on the hate crimes bill, dooming it to failure. In the current Congress, we have not considered the bill.

Meanwhile, the bipartisan Employment Non-Discrimination Act (``ENDA'') of 2003 (S. 1705) is bottled up in the HELP Committee. This bill has 43 cosponsors. It would prohibit workplace discrimination based on sexual orientation. One might think that opposing firing people simply because they are gay is a rather commonplace position in 2004. In the Senate, however, we cannot get a vote on ENDA.

The Development, Relief, and Education for Alien Minors Act (``DREAM Act'') S. 1545, continues to languish on the Senate calendar. This is a bill that the Judiciary Committee approved last November. It has 46 cosponsors, including a dozen Republicans. Its lead sponsors are Senator Hatch and Senator Durbin. It would restore to States the right to provide in-state tuition to undocumented aliens who graduate from U.S. high schools.

The beneficiaries would be young people who came here as children, not of their own volition. They would be people like Jazmin Segura, a Los Angeles high school senior from a high-crime neighborhood with a 3.88 GPA. Ms. Segura, who came to the United States from Mexico when she was nine years old, was featured in a Wall Street Journal article last month. She had been accepted at the University of California at Berkeley and at UCLA, but did not know whether she would be able to afford to go.

We have legislation at the ready that could help Ms. Segura and many others like her. If we held a vote on this bill right now, it would undoubtedly pass by a wide margin. But the Republican leadership--eager to reach out only rhetorically to the Hispanic community--has refused to bring it up for a vote.

I came to the floor nearly two weeks ago to decry the Senate's failure to consider legislation to respond to a crisis affecting industries throughout the economy that depend on temporary labor. More than 2 months ago the Department of Homeland Security announced that for the first time ever the annual cap for H-2B visas had been met. These visas are used by a wide range of industries throughout the nation to fill temporary labor needs. In my home State of Vermont, they are used primarily by the tourist industry.

In response to this announcement, I joined with a substantial bipartisan coalition in introducing S. 2252, the Save Summer Act of 2004. Senator Kennedy is the lead sponsor of this bipartisan bill, which has 18 cosponsors, including 8 Republicans. Our bill would add 40,000 visas for the current fiscal year, providing relief to those summer-oriented businesses that had never even had the opportunity to apply for visas. Senator Hatch introduced a competing bill sponsored only by Republicans, S. 2258. I do not think that bill is as good as our bipartisan bill, but it is certainly better than nothing. Unfortunately, a small minority of the Republican caucus has demanded we do nothing, and the Republican leadership has acceded to that demand. Either the Save Summer Act of Senator Hatch's bill would command the support of an overwhelming majority of Senators, but the majority leader has brought neither forward for a vote.

When it comes to immigration, the Republican leadership has ignored not only the concerns of the tourism industry and other businesses that depend on temporary summer workers, but even to the needs of farmers. Senators Craig and Kennedy joined together in introducing S. 1645, the Agricultural Job, Opportunity, Benefits, and Security Act. This bill has 62 cosponsors, including 25 Republicans. It would solve problems in the H-2A program that have plagued American farmers for years, while also providing a path to legalization for farm workers who have been working here illegally for years. It has the vociferous support of both farmers and farm workers; it is indeed an example of the sort of compromise legislation that used to be a

hallmark of this body. But we cannot get a vote on this bill.

So while the Republican leadership has devoted time last week and this to an impasse over judicial nominees caused by the President's abuse of the recess appointment power, we have seen little effort to work on matters of significance that can and should be considered and acted upon by the Senate to make bipartisan progress for all Americans.

While we celebrate progress today on judicial nomination, I hope that we will also soon see progress on these legislative matters. Through bipartisan action we can do much to serve the American people.

Mr. President, I'm pleased to join my colleagues to introduce the No Child Left Behind Improvement Act. Our goal is to chart a better course for bringing the reforms under the law to all students across the country.

I was proud to stand with President Bush in January 2002 as he signed the No Child Left Behind Act into law. At that time, Republicans and Democrats came together to recognize the need to create a strong education system where every child attends a good school with a good teacher. Together, we recognized the importance of achieving that goal for the future of our democracy, economy, and national defense.

In drafting the No Child Left Behind Act in a bipartisan manner, we made great progress from the days when Democrats and Republicans were light years apart on school reform, with some trying to abolish the U.S. Department of Education and privatize our public schools.

No Child Left Behind made improving our public schools a national priority. It laid the cornerstone for a solid accountability system in every State. It called for high academic standards in reading, math, and science, and high-quality tests to measure progress toward those standards. For the first time, it placed our low-income children, children with disabilities, minority children, and English language learners at the top of the school reform agenda. No longer would their needs be hidden, overlooked, or ignored.

It also provided the building blocks for quality in all schools. A fully-qualified teacher in every classroom and better teacher training to make it happen. More after-school tutoring and supplemental services to help students with the greatest needs. Special programs for English language learners. Expanded support for reading in early grades. School report cards to provide information to parents and motivate them to be part of their children's education.

No Child Left Behind promised a great deal to our students and to their families. It's still the right promise. But it hasn't been kept.

Since the law passed, the country has seen the promise of funding No Child Left Behind flagrantly broken by the Bush administration, time and time again. President Bush proposed to cut funding for the law by $90 million just 1 month after signing the bill. His next education budget cut funding by far more--$1.2 billion.

Today, he's leaving 4.6 million children behind, and he's underfunding the law by $9.4 billion. At the same time, President Bush proposes to give tax breaks for the top 1 percent of Americans that total five times the funds promised but never delivered under the No Child Left Behind Act.

Despite these broken promises, our schools are trying to do their part. They've been asked to help all students reach proficiency, and they are responding. Teachers and other school professionals are beginning the hard work of tackling disparities in student achievement, and putting into place the curriculum needed to turn-around thousands of schools that have been identified as needing improvement.

School leaders are struggling to respond to the challenges of providing more highly qualified teachers, supplemental services, and after-school programs in school districts. They're laboring hard in their work to implement the No Child Left Behind Act and bring the promise of true reform to more children and their parents.

The work of school reform is not easy, and schools are struggling to succeed under No Child Left Behind. But on top of the broken promise to provide schools the resources they need to get the job done right, the administration has undermined the efforts of schools to comply with the law, and crippled reforms through its ineffective implementation effort.

Since No Child Left Behind passed, the Department of Education's track record in issuing basic guidance under the law been mired in delay. Final accountability guidelines for children with special needs and limited English

proficient children were announced 2 years after the law was enacted, and long after the law's accountability requirements were already in place for schools.

The administration has abandoned requirements to measure adequately the progress of English language learners in a valid and reliable way. They've suggested to States that they don't have to bother to develop native language assessments, and they've done nothing to help improve assessments for children with disabilities.

They've ignored standards for supplemental service providers, and failed to enforce the civil rights protections that are so essential to providing all children fair access to such services. Families are relying on tutoring and extra support to help their children. But the administration's guidance actually prohibits States from requiring high standards for that supplemental support. A highly qualified teacher in every classroom is good policy. Why shouldn't the same apply for supplemental services?

The administration's ham-handed implementation of public school choice has ignored questions of capacity in school districts with overcrowded classrooms.

And their weakened regulations undermine protections against high dropout rates--especially for low-income and minority students. Without information and reporting of those rates for each subgroup of children, the public won't have a complete picture of how children are succeeding.

It's time for the administration to correct these problems and do their part to improve implementation of the No Child Left Behind Act.

The bill that I'm introducing today gets these reforms on track. It will help keep the promise of public school choice, promote quality and access in supplemental services, provide for better assessments for children, and ensure better reporting by schools and states of graduation and dropout rates so that children don't fall through the cracks.

It's important to acknowledge what this bill does not do. It does not make fundamental changes to the requirements under No Child Left Behind. Those reforms are essential to improving our public schools. Every child deserves a chance to learn in a good school, and that chance depends on whether we succeed in implementing the law.

The No Child Left Behind Improvement Act will ensure that school districts consider health and safety codes as they draw up their plans for providing public school choice to students, consistent with the law. In order to ensure that public school choice actually helps children succeed educationally, we must provide an environment that is safe and conducive to their learning--not overcrowded.

It will provide better access to quality supplemental services for eligible students, and ensure full enforcement of civil rights protections under those provisions. The administration's policy of relaxed enforcement in this area allows some private providers off-the- hook from serving children that need the most help. That's wrong.

All students should have a fair chance to choose a supplemental service provider that meets their needs. Limited English proficient children and children with disabilities are often those students that need the most extra help and assistance in our public schools, and this bill would ensure that each State select some providers with the skills to serve those populations.

This bill will also better enable teachers and para-professionals to meet the required standards for teacher quality under the law. A highly qualified teacher is the single most important factor in improving student achievement, and the No Child Left Behind Act requires that every classroom have a qualified teacher by 2006.

We must provide for a system that ensures all teachers have the opportunity to meet that goal. The No Child Left Behind Act includes an alternate standard for veteran teachers to demonstrate their competence and be counted as highly qualified in the subject matter that they teach. This bill ensures that every State develop and implement that standard under the law, and that every state provide para-professionals with the opportunities provided under No Child Left Behind to demonstrate their competence.

Fifteen States have not yet developed or applied standards for veteran teachers. We must do better especially for the 67 percent of all public school teachers that have been teaching for more than 5 years.

And finally, for No Child Left Behind's accountability provisions to be useful, they must be accurate. We need accurate determinations of whether schools are making progress.

The Department's delay in issuing adequate accountability rules for counting children with disabilities and limited English proficient children has created unnecessary confusion, caused a potential mislabeling of schools, and misdirected resources from the schools and students who actually need them. The Department should apply those regulations retroactively, so that schools may be judged on the same standards for the past year as they will be in the future, not by different criteria for different years. In June, I introduced a bill-- The No Child Left Behind Fairness Act--to accomplish that goal. The bill that I'm introducing today also includes those requirements.

We're at an important crossroads in reforming our public schools. Schools are hurting, crippled by shrinking budgets and a broken promise of funding under the law. The ineffective track record of this administration in implementing No Child Left Behind largely has contributed to their problems and frustrations.

We must do better. Turning our back on the reforms in the No Child Left Behind Act is no solution. Neither is turning our back on public education. I urge my colleagues to act to ensure that the promise of the essential reforms under No Child Left Behind are realized. Our students and families deserve no less.

I ask unanimous consent that the text of this bill be printed in the Record.

Mr. President, I rise today to introduce legislation to address the inability of promising, talented young athletes from other countries to play for sports teams in the United States, such as the MAINEiacs, a junior league hockey team in Lewiston, ME. This year's shortage of H-2B nonimmigrant visas for temporary or seasonal nonagricultural foreign workers is a matter of great concern to me and to many in my home State of Maine. In early March, the U.S. Citizenship and Immigration Services announced that the congressionally mandated cap of 66,000 H-2B visas would soon be met. It immediately stopped accepting applications for these visas. This meant that thousands of employers in Maine and across the United States who rely on the H-2B program have been in a very difficult position this summer.

For example, Maine's tourism and hospitality industry, as well as its forest products industry, have been particularly hard-pressed to find enough American workers to keep their businesses running at normal levels during what is their busiest time of year. What many people do not know, however, is that the H-2B visa shortage has also meant that hundreds of promising athletes have been unable to come to the United States to play for minor league and amateur sports teams across the Nation.

Those affected by the H-2B problem are not confined to just one industry or one State. That is why I cosponsored two pieces of legislation that would immediately address this problem: S. 2252, the Save the Summer Act, introduced by Senator Kennedy, and S. 2258, the Summer Operations and Services (SOS) Relief and Reform Act, introduced by Senators Hatch and Chambliss. The former would increase the H-2B visa cap by 40,000 this fiscal year, while the

latter would exclude from the cap returning foreign workers who were counted against the cap within the past 2 years. It has become clear, however, that until this legislation comes before the full Senate for a vote, we must continue to actively seek alternative solutions to this problem.

One issue we must address is the problem facing the many minor league professional teams, as well as junior league hockey teams, that rely on H-2B visas. Without these visas, sports teams in Maine and across the Nation have been unable to bring some of their most talented prospects to the United States. Major League sports have also lost a traditional source of talent for their teams.

In my home State of Maine, for example, the Lewiston MAINEiacs, a Canadian junior hockey league team, has been unable to obtain the H-2b visas necessary for the majority of its players to remain in the United States to play in the team's first home games this September. Although these players range in age from 16 to 20, the majority of them are between 16 and 18 years old and are required during the hockey season to balance the demands of athletics and academics. These scholar- athletes are among Canada's most talented junior players, but due to the shortage of H-2B visas, they are in danger of missing out on a tremendous opportunity to improve their skills and, possibly, graduate to a career in professional hockey. In addition, for each home game that the team must cancel or reschedule, the economic impact on the city of Lewiston, and nearby Auburn, in terms of lost hotel and restaurant revenue will be considerable.

The Portland Sea Dogs, a Double-A level baseball team affiliated with the Boston Red Sox, also relies on H-2B visas to bring several of its most skilled players to the United States. Thousands of fans come out each year to see this team, and others like it across the country, play what is arguably one of America's favorite sports. This year, however, approximately 300 talented young, foreign baseball players have been prevented from coming to the U.S. to play for minor league teams, a proving ground for athletes hoping to make it to the Major Leagues.

The P-1 nonimmigrant visa is used by athletes who are deemed by the U.S. Citizenship and Immigration Services as performing at an ``internationally recognized level of performance.'' Unfortunately, USCIS has interpreted this visa category to exclude these talented minor and amateur league athletes. This visa is typically reserved for only those athletes who have already been promoted to Major League sports. However, none of these promising athletes is likely to earn a Major League contract if the players are not first permitted to hone their skills, and to prove themselves, in the minor leagues. This problem can easily be solved by expanding the P-1 visa category to include minor league athletes, as well as those amateur-level athletes, like the Lewiston MAINEiacs, who have demonstrated a significant likelihood of graduating to the major leagues.

I have received a letter from officials from Major League Baseball, which strongly supports the expansion of the P-1 visa category to include professional minor league baseball players. I ask unanimous consent to print this letter in the Record. As the League points out, by making P-1 visas available to this group of athletes, teams would be able to make player development decisions based on the talent of its players, without being constrained by visa quotas. The P-1 category, the League argues, is appropriate for minor league players because these are the players that the Major League Clubs have selected as some of the best baseball prospects in the world.

There is no question that Americans are passionate about sports. We have high expectations for our teams, and demand only the best from our athletes. By expanding the P-1 visa category, we will make it possible for athletes to be selected based on talent and skill, rather than nationality. I ask that we act quickly to amend the law to make this possible.

Mr. President, 15 years ago the U.S. Supreme Court, in a 5 to 4 decision, struck down a Texas flag protection statute. The Supreme Court ruled that burning an American flag was a form of ``speech,'' and therefore protected under the first amendment of the Constitution.

I disagreed with the Court's decisions then and I still do. I don't believe that the act of desecrating a flag is an act of speech. And I believe that our flag, as our national symbol, can and should be protected by law.

In the intervening years since the Supreme Court decision, I have supported Federal legislation that would make flag desecration illegal. Yet on several occasions, I have also voted against amendments to the Constitution to do the same.

I voted that way because, while I believe that flag desecration is despicable conduct that should be prohibited by law, I also believe that amending our Constitution is a step that should be taken only rarely, and then only as a last resort.

In the past year I have once again reviewed in detail nearly all of the legal opinions and written materials published by constitutional scholars and courts on all sides of this issue. After that review, I have concluded that there remains a way to protect our flag without having to alter the Constitution of the United States. So I am joining Senator Bennett today to introduce bipartisan legislation that accomplishes that goal.

The bill we introduce today protects the flag but does so without altering the Constitution. A number of respected constitutional scholars tell us they believe this type of statute will be upheld by the U.S. Supreme Court.

This statute protects the flag by criminalizing flag desecration when its intended purpose is to incite violence.

I know that supporters of a constitutional amendment will be disappointed by my decision to support this statutory remedy to protect the flag, rather than support an amendment to the U.S. Constitution. I know they are impatient to correct a decision by the Supreme Court that they and I believe was wrong.

I have wrestled with this issue for a long time, and I wish I were not, with my decision, disappointing those, including many of my friends, who passionately believe that we must amend the Constitution to protect the flag. But, in the end, I know that our country will be better served reserving our attempts to alter the Constitution only for those things that are, in the words of James Madison, ``extraordinary occasion.''

More than 11,000 constitutional amendments have been proposed since our Constitution was ratified. However, since the ratification of the Bill of Rights in 1791 only 17 amendments have been enacted. These 17 include 3 reconstruction era amendments that abolished slavery and gave African Americans the right to vote.

The amendments included giving women the right to vote, limiting Presidents to two terms, and establishing an order of succession in case of a President's death or departure from office. The last time Congress considered and passed a new constitutional amendment was when it changed the voting age to 18, more than a quarter of a century ago. All of these matters were of such scope they required a constitutional amendment to be accomplished. They could not have been accomplished otherwise.

But protecting the American flag can be accomplished without amending the Constitution, and that is a critically important point.

The bill we are introducing today, on a bipartisan basis, outlaws three types of illegal flag desecration.

First, anyone who destroys or damages a U.S. flag with a clear intent to incite imminent violence or a breach of the peace may be punished by a fine of up to $100,000, or up to 1 year in jail, or both. Second, anyone who steals a flag that belongs to the United States and destroys or damages that flag may be fined up to $250,000 or imprisoned up to 2 years, or both. And third, anyone who steals a flag may also be fined up to $250,000 or imprisoned up to 2 years, or both.

Constitutional scholars, including those at the Congressional Research Service, the research arm of Congress, and Duke University's Professor William Alstyne, have concluded that this statute passes constitutional muster, because it recognizes that the same standard that already applies to other forms of speech applies to burning the flag as well.

This is the same standard which makes it illegal to falsely cry ``fire'' in a crowded theater. Reckless speech that is likely to cause violence is not protected under the ``fighting words'' standard, long recognized by the Supreme Court of the United States.

So we are offering this bipartisan legislation with the confidence that its passage would meaningfully and effectively protect our cherished flag.

I believe that future generations, and our Founding Fathers, would agree that it is worthwhile for us to find a way to protect our flag without altering the Constitution. And so I ask those colleagues who, like me, care deeply about both our flag and our Constitution, to support this legislation.

I ask unanimous consent that the full text of the bill be printed in the Record following my remarks.

Mr. President, I rise today to introduce the ``Good Samaritan Volunteer Firefighter Assistance Act of 2004.'' On September 11, 2001, the Nation witnessed the tragic loss of hundreds of heroic firefighters. Amazingly, every year quality firefighting equipment worth millions of dollars is wasted. In order to avoid civil liability lawsuits, heavy industry and wealthier fire departments destroy surplus equipment, including hoses, fire trucks, protective gear and breathing apparatus, instead of donating it to volunteer fire departments.

The basic purpose of this legislation is to induce donations of surplus firefighting equipment by reducing the threat of civil liability for organizations, most commonly heavy industry, and individuals who wish to make these donations. The bill eliminates civil liability barriers to donations of surplus firefighting equipment by raising the liability standard for donors from ``negligence'' to ``gross negligence.''

The ``Good Samaritan Volunteer Firefighter Assistance Act of 2004'' is modeled after a bill passed by the Texas State legislature in 1997 and signed into law by then-Governor George W. Bush which has resulted in more than $6 million in additional equipment donations from companies and other fire departments for volunteer departments which may not be as well equipped. Now companies in Texas can donate surplus equipment to the Texas Forest Service, which then certifies the equipment and passes it on to volunteer fire departments that are in need. The donated equipment must meet all original specifications before it can be sent to volunteer departments. Arizona, Missouri, Indiana, and South Carolina have passed similar legislation at the state level.

The legislation saves taxpayer dollars by encouraging donations, thereby reducing the taxpayers' burden of purchasing expensive equipment for volunteer fire departments. in the 107th Congress, Representative Castle introduced the Good Samaritan Volunteer Firefighter Assistance Act which had 104 bipartisan cosponsors in the House of Representatives. It is also supported by the National Volunteer Fire Council, the Firemen's Association of the State of New York, and a former director of the Federal Emergency Management Agency (FEMA), James Lee Witt. The bill has been reintroduced as H.R. 1787 in the 108th Congress.

This bill does not cost taxpayer dollars nor does it create additional bureaucracies to inspect equipment. The bill eliminates unnecessary inspection bureaucracies. This is for three reasons. First, bureaucracies are not necessary for inspections because the fire chiefs make the inspections themselves. Second, some of the State bureaucracies control who gets the equipment. These donations are private property transactions, not a good that is donated to the State, allowing the State to pick who will get the equipment. Third, there is no desire to create the temptation for waste, fraud, and abuse in a State bureaucracy in charge of picking winners and losers.

The bill reflects the purpose of the Texas State law. Federally, precedent for similar measures includes the Bill Emerson Good Samaritan Food Act (Public Law 104-210), named for the late Representative Bill Emerson, which encourages restaurants, hotels and businesses to donate millions of dollars worth of food. The Volunteer Protection Act of 1997 (Public Law 105-101) also immunizes individuals who do volunteer work for non-profit organizations or governmental entities from liability for ordinary negligence in the course of their volunteer work. I have also previously introduced three Good Samaritan measures in the 106th Congress, S. 843, S. 844 and S. 845. These provisions were also included in a broader charitable package in S. 997, the Charity Empowerment Act, to provide additional incentives for corporate in-kind charitable contributions for motor vehicle, aircraft, and facility use. The same provision passed the House of Representatives in the 107th Congress as part of H.R. 7, the Community Solutions Act, in July of 2001, but was not signed into law.

Volunteers comprise approximately 73 percent of firefighters in the United States. Of the total estimated 1,078,300 firefighters across the country, 784,700 are volunteer. Of the more than 30,000 fire departments in the country, approximately 22,600 are all volunteer; 4,800 are mostly volunteer; 1,600 are mostly career; and 2,000 are all career. In 2000, 58 of the 103 firefighters who died in the line of duty were volunteers.

This legislation provides a commonsense incentive for additional contributions to volunteer fire departments around the country and would make it more attractive for corporations to give equipment to fire departments in other states. All of America has witnessed the heroic acts of selflessness and sacrifice of firefighters in New York City and in the Washington, D.C. area. I urge my colleagues to join me in supporting this incentive for the provision of additional safety equipment for volunteer firefighters who put their lives on the line every day throughout this great nation.