Electric Transmission and Reliability Enhancement Act of 2003

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I rise once again to speak in support of the confirmation of Miguel Estrada, an exceptionally well qualified nominee who does not deserve to have his nomination obstructed by this filibuster. I have been a strong supporter of Mr. Estrada's since he came before the Judiciary Committee last year. At that time, I argued that his nomination should come up for a floor vote, but we were not allowed to vote on his nomination then. Here we are a year later, and I am still strongly supporting Mr. Estrada, and I am still arguing for a floor vote, and that vote is still being refused. I think it is shameful to continue holding up the vote on this very qualified judicial nominee, who, by the way, will make an excellent member of the US Court of Appeals for the DC Circuit.

I know my colleagues heard Mr. Estrada's credentials many times last week. In fact, I am pretty sure that some of my colleagues could quote his credentials in their sleep. However, I think it is important that the Senate is reminded of how qualified this nominee is who is being filibustered. Not only is he regarded as one of the Nation's top appellate lawyers, having argued 15 cases before the Supreme Court of the United States, but the American Bar Association, which I think Democrats consider the gold standard of determination of the person's qualifications to be a judicial nominee, has given him a unanimous rating of, in their words, ``well qualified.'' This happens to be the highest American Bar Association rating. It is a rating they would not give to just any lawyer who comes up the pike. According to the American Bar Association, quoting from their standard:

To merit a rating of well qualified, the nominee must be at

the top of the legal profession in his or her legal

community, having outstanding legal ability, breadth of

experience, the highest reputation for integrity and either

have demonstrated or exhibited the capacity for judicial

temperament.

We ought to demand that more qualified people like Miguel Estrada be appointed to the bench rather than fighting his nomination.

As my colleagues know, I am not a lawyer. There is nothing wrong with going to law school, but I did not. I have been on the Judiciary Committee my entire time in the Senate. I know some of the qualifications that are needed to be a Federal judge, particularly a Federal judge on this DC Circuit that handles so many appeals from administrative agencies and is often considered, by legal experts, to be the second highest court of our land.

Mr. Estrada's academic credentials are stellar. He graduated from Columbia University with his bachelor's degree magna cum laude and was also a member of Phi Beta Kappa. Then he earned his juris doctorate from Harvard University, also magna cum laude, where he was editor of the Harvard Law Review. Mr. Estrada did not just attend Harvard Law School; he graduated with honors. He also served as the editor of the Harvard Law Review. To be selected as the editor of a law review is a feat that only the most exceptional of law students attain.

While Mr. Estrada certainly has the intellect required to be a Federal judge, his professional background also gives testament to his being qualified for a Federal Court of Appeals judgeship as opposed to just any judgeship.

After law school, Mr. Estrada served as a law clerk to the Second Circuit Court of Appeals and as a law clerk to Justice Kennedy, on the United States Supreme Court. Subsequently, he served as an Assistant US Attorney and deputy chief of the appellate section of the US Attorney's Office of the Southern District of New York, and then as assistant to the Solicitor General of the United States of America.

Mr. Estrada has been in the private sector as well. He is a partner with the Washington, DC, office of the law firm of Gibson, Dunn & Crutcher. In this exceptional career, Mr. Estrada has argued 15 cases before the United States Supreme Court. He won nine of those cases. Mr. Estrada is not just an appellate lawyer; he is one of the top appellate lawyers in the country. So for a young lawyer, I think I can give my colleagues a person who can truly be labeled an American success story. In fact, instead of degrading his ability to serve as a circuit court judge, we should all be proud of Mr. Estrada's many accomplishments.

This is the nominee that the Democrats are filibustering. I fail to understand why a nominee of these outstanding qualifications, and who has been honored by the ABA with its highest rating, would be the object of such obstruction. In all my years on the Judiciary Committee--and that has been my entire tenure in the Senate-- Republicans never once filibustered a Democratic President's nominee to the Federal bench. There are many I may have wanted to filibuster, but I did not do it--we did not do it--because it is not right.

In fact, as I understand it, in the entire history of the Senate neither party has ever filibustered a judicial nominee. Going back over 200 years, Republicans and Democrats have resisted the urge to obstruct a nominee by filibustering. Good men of sound judgment have come to the conclusion that to use this tool of last resorts to obstruct a nomination is, at best, inappropriate, and, at worst, just down right wrong.

This nominee, like all nominees, deserves an up-or-down vote. Anything less is absolutely unfair. I hope my colleagues on the other side of the aisle will reconsider this filibuster. The Senate should not cross this Rubicon and establish new precedent for the confirmation process.

Over 40 newspapers from across the country have published editorials advocating that the Senate give Mr. Estrada a vote. Even the Washington Post, which is not exactly a bastion of conservatism, published an editorial last week entitled, ``Just Vote.'' In that editorial, the Post correctly characterized the Democrats obstructionist efforts. With regard to the Democrat request for the internal memos Mr. Estrada drafted while he was in the Solicitor General's Office, the Post said

that this filibuster of Mr. Estrada goes beyond the normal political confirmation games, because,

Democrats demand, as a condition of a vote, answers to

questions that no nominee should be forced to address--and

that nominees have not previously been forced to address.

I agree with the Post:

It's long past time to stop these games and vote.

I make a unanimous consent request that this Washington Post editorial, ``Just Vote'' be printed in the Record after my statement.

Those denying the Senate an up-or-down vote on Mr. Estrada's nomination claim that he has not answered questions or produced documentation, and so he should not be confirmed to the Federal bench. I can think of a number of Democratic nominees who did not sufficiently answer question that I submitted to them, but that did not lead me to filibuster. As far as I know, Mr. Estrada has answered all questions posed to him by the Judiciary Committee members.

His opponents claim that he has refused to hand over certain in-house Justice Department memoranda. What actually is happening is that the Democrats on the Judiciary Committee have requested that the Department of Justice submit to the Committee, internal memoranda written by Miguel Estrada when he was an attorney in the Solicitor General's Office. These internal memos are attorney work product, specifically appeal, certiorari, and amicus memoranda, and the Justice Department has rightly refused to produce them.

The Department of Justice has never disclosed such sensitive information in the context of a Court of Appeals nomination. These memoranda should not be released, because they detail the appeal, certiorari and amicus recommendations and legal opinions of an assistant to the Solicitor General. This is not just the policy of this administration, the Bush administration, a Republican administration. This has also been the policy under Democratic Presidents.

The inappropriateness of this request prompted all seven living former Solicitors General to write a bipartisan letter to the Committee to express their concern regarding the Committee's request and to defend the need to keep such documents confidential. The letter was signed by Democrats Seth Waxman, Walter Dellinger, Drew Days III and Republicans Ken Starr, Charles Fried, Robert Bork and Archibald Cox. The letter notes that when each of the Solicitors General made important decisions regarding whether to seek Supreme Court review of adverse appellate decisions and whether to participate as amicus curiae in other high profile cases, they:

relied on frank, honest and thorough advice from [their]

staff attorneys like Mr. Estrada . . .

and that the open exchange of ideas which must occur in such a context

Simply cannot take place if attorneys have reason to fear

that their private recommendations are not private at all,

but vulnerable to public disclosure.

The letter concludes that

Any attempt to intrude into the Office's highly privileged

deliberations would come at a cost of the Solicitor General's

ability to defend vigorously the United States litigation

interests, a cost that also would be borne by Congress

itself.

The Democratic committee member's request has even drawn criticism from the editorial boards of the Washington Post and Wall Street Journal. On May 28, 2002, in an editorial entitled ``Not Fair Game'' the Washington Post editorialized that the request

For an attorney's work product would be unthinkable if the

work had been done for a private client. . . . [and] legal

advice by a line attorney for the federal government is not

fair game either.

According to the Post editorial

. . . In elite government offices such as that of the

solicitor general, lawyers need to speak freely without

worrying that the positions they are advocating today will be

used against them if they ever get nominated to some other

position.

On May 24, 2002, the Wall Street Journal in an editorial entitled ``The Estrada Gambit'' also criticized the request, calling it ``one more attempt to delay giving Mr. Estrada a hearing and a vote.'' The Journal further criticized the Committee's request in a later editorial, entitled ``No Judicial Fishing'', calling the request ``outrageous'' and noting that the goal of the request ``is to delay, trying to put off the day when Mr. Estrada takes a seat on the D.C. Circuit Court of Appeals.''

Mr. President, I ask unanimous consent that these two editorials also be printed in the Record after my statement.

Mr. Estrada is not the only former deputy or assistant to the Solicitor General nominated to the Federal bench. In fact, there are seven others now serving on the Federal Courts of Appeals. None had any prior judicial experience, and the committee did not ask the Justice Department to turn over any confidential internal memoranda those nominees prepared while serving in the Solicitor General's Office. The seven nominees were: Samuel Alito on the 3rd Circuit, Danny Boggs on the 6th Circuit, William Bryson and Daniel Friedman on the Federal Circuit, Frank Easterbrook and Richard Posner on the 7th Circuit, and A. Raymond Randolph on the D.C. Circuit. Why should Mr. Estrada be treated any differently?

During Mr. Estrada's hearing, Judiciary Committee Democrats alleged that the committee has reviewed the work product of other nominees, including memos written by Frank Easterbrook, by Chief Justice Rehnquist when he served as a clerk to Justice Jackson, and by Robert Bork when he was an official at the Justice Department.

For the record, there is no evidence that the Department of Justice ever turned over confidential memoranda prepared by Frank Easterbrook when he served in the Solicitor General's Office. There also is no evidence that the committee even requested such information.

During Robert Bork's hearings, the Department did turn over memos Judge Bork wrote while serving as Solicitor General, but none of these memos contained the sort of deliberative materials requested of Mr. Estrada and the Justice Department. The Bork materials include memos containing Bork's opinions on such subjects as the constitutionality of the pocket veto, and on President Nixon's assertions of executive privilege and his views of the Office of Special Prosecutor. None of the memos contain information regarding internal deliberations of career attorneys on appeal decisions or legal opinions in connection with appeal decisions. Moreover, the Bork documents reflected information transmitted between a political appointee, namely the Solicitor General, and political advisors to the President, rather than the advice of a career Department of Justice attorney to his superiors, as is the case with Mr. Estrada.

You see, the Judiciary Committee has never requested and the Department of Justice has never agreed to release the internal memos of a career line attorney. To ask that Mr. Estrada turn over his memos is unprecedented, and frankly unfair. No Member of this body would ever condone a request to turn over staff memos. What my staff communicates to me in writing is internal and private. I am sure every other Senator feels the same way as I do. This Democrat fishing expedition needs to stop. Miguel Estrada is a more than well qualified nominee and he deserves a vote on his nomination, today.

In conclusion, we are again seeing an attack on another very talented, very principled, highly qualified legal mind. It all boils down to this, Mr. Estrada's opponents refuse to give him a vote because they say they do not know enough about him. They further contend that the Justice Department memos, which they know will never be released, are the only way they can find out what they need to know about Mr. Estrada. It is a terrible Catch-22.

These obstructionist efforts are a disgrace and an outrage. We must put a stop to these inappropriate political attacks and get on with the business of confirming to the Federal bench good men and women who are committed to doing what judges should do, interpret law as opposed to making law from the bench, because it is our responsibility to make law as members of the legislative branch.

I yield the floor.

Exhibit 1

[From the Washington Post, Feb. 18, 2003]

Just Vote

The Senate has recessed without voting on the nomination of

Miguel Estrada to the U.S. Court of Appeals for the D.C.

Circuit. Because of a Democratic filibuster, it spent much of

the week debating Mr. Estrada, and, at least for now, enough

Democrats are holding together to prevent the full Senate

from acting. The arguments against Mr. Estrada's confirmation

range from the unpersuasive to the offensive. He lacks

judicial experience, his critics say--though only three

current members of the court had been judges before their

nominations. He is too young--though he is about the same age

as Judge Harry T. Edwards was when he was appointed and

several years older than Kenneth W. Starr was when he was

nominated. Mr. Estrada stonewalled the Judiciary Committee by

refusing to answer questions--though his answers were similar

in nature to those of previous nominees, including many

nominated by Democratic presidents. The administration

refused to turn over his Justice Department memos--though no

reasonable Congress ought to be seeking such material, as a

letter from all living former solicitors general attests. He

is not a real Hispanic and, by the way, he was nominated only

because he is Hispanic--two arguments as repugnant as they

are incoherent. Underlying it all is the fact that Democrats

don't want to put a conservative on the court.

Laurence H. Silberman, a senior judge on the court to which

Mr. Estrada aspires to serve, recently observed that under

the current standards being applied by the Senate, not one of

his colleagues could predictably secure confirmation. He's

right. To be sure, Republicans missed few opportunities to

play politics with President Clinton's nominees. But the

Estrada filibuster is a step beyond even those deplorable

games. For Democrats demand, as a condition of a vote,

answers to questions that no nominee should be forced to

address--and that nominees have not previously been forced to

address. If Mr. Estrada cannot get a vote, there will be no

reason for Republicans to allow the next David S. Tatel--a

distinguished liberal member of the court--to get one when a

Democrat someday again picks judges. Yet the D.C. Circuit--

and all courts, for that matter--would be all the poorer were

it composed entirely of people whose views challenged nobody.

Nor is the problem just Mr. Estrada. John G. Roberts Jr.,

Mr. Bush's other nominee to the D.C. Circuit, has been

waiting nearly two years for a Judiciary Committee vote.

Nobody has raised a substantial argument against him. Indeed,

Mr. Roberts is among the most highly regarded appellate

lawyers in the city. Yet on Thursday, Democrats invoked a

procedural rule to block a committee vote anyway--just for

good measure. It's long past time to stop these games and

vote.

Mr. President, I come to the floor to talk about one of the things that is so important. Obviously, items connected with terrorism, the war in Iraq have to be dealt with. We have to deal with heightened homeland security and related issues. Health care is an area we need to talk about. Prescription drugs is in the process of this.

One issue that is particularly important is an energy policy. I don't think there has ever been a time when it has been more apparent and more important to deal with energy policy. We have an economy, prices with gas and energy that are high. We have uncertainty, certainly, in the Middle East. We have had a Venezuelan problem. We had a very cold winter. We cannot seem to come together to put together a policy that will allow us to move forward, an aggressive energy policy. I would like to talk briefly about a component of that which I think is very important, and that is an electric component.

I rise today to introduce the Electric Transmission Reliability and Enhancement Act of 2003. It is my intention to build on a changing wholesale, competitive, open access market and to suggest that we build that into a policy. Things have changed in the way energy is generated, the way energy is transmitted, the way energy is sold. We need to change our policy, as well.

Very simply, what we have is: In years past, there was a generator that generated for their own distribution area. That was pretty simple. Prices were controlled. It was a simple technique. Now we have more and more merchant generators, people who do not have a constituency or distribution system of their own but they sell into the marketplace. This is good. There is competition. And we will see more and more of that. But to do that, we have to update our laws and we have to update the regulations that go with that. My legislation would extend and improve open nondiscriminatory access policies. Access to transmission would remove antiquated Federal barriers that stand in the way of competitive wholesale markets. Wholesale markets that are competitive are new. We have to change to meet those needs. We have to encourage increased investments in our transmission system and establish reliability standards.

We saw what happened in California 2 years ago. If there is no reliability, we cannot depend upon getting that energy to people's homes, to businesses, and then we have a very difficult situation.

Particularly what has changed now is it is interstate. For years we grew up with the fact that in your State the State controlled both the generation and the distribution, and that worked well. Now we go across interstate lines and there needs to be something different.

Legislatively we have to pare down our wish list so we get to the bare essentials and keep those things that are necessary.

It seems clear, if we are going to have a truly wholesale market, we need to ensure that all the industry participants play by the same rules. Only Congress can give FERC, the Federal Energy Regulatory Commission, the tools it needs to ensure that all participants get treated fairly in a competitive marketplace. Under the Federal law, currently FERC has no jurisdiction or authority over transmission owned by public power agencies, municipals, cooperatives, yet they want to participate and need to participate and should participate. Many of them--most--are willing to participate.

These nonregulated utilities represent 52 percent of the total, so we do not want to move forward with FERC's so-called market plan. I think it goes too far getting into the authority of the States. But there are some changes that need to be made, and we would like to do that.

We also need to protect those cooperatives. I grew up in a area of cooperatives and spent much of my life working with cooperatives. So we have given that break. Those that sell less than 4 million megawatt hours per year are entirely exempt. We think that is as it should be.

We would repeal the Public Utility Holding Company Act, PUHCA, because it needs to be restructured and the deployment of capital in this industry needs to go where it is desperately needed. We need to do that. There is ample regulation over those investments now in the existing business. We want to make it easier for people to be able to invest, produce competitively, and go into the marketplace.

The Department of Justice, Federal Trade Commission, and the State commissions would still be able to monitor rates and prevent cross- subsidies. So my legislation would prospectively eliminate mandatory purchase and sales obligations of PURPA, one that was put in a very long time ago. Despite the State administering it, it causes favoritism to many utilities and changes things.

Over the years the grid has been protected through voluntary standards and that is exactly right. But what we are now faced with is to have RTOs, regional transportation organizations, where they can make those decisions within the RTO. There would be a Western one, a Midwestern one, a New England one, and so on. But then connecting with those will be an interstate, like an interstate highway. That has to, of course, be organized and controlled by a national group because it serves all these different ones.

So what we need is to modernize our system so we can accommodate things that have changed. Reliability organizations must be run by market participants and be overseen by FERC. Reliability organizations must be made up of representatives of everyone who is affected: residential, commercial, industrial. That can be done, and this provides an opportunity to do that.

During our discussions last year, we were made to address some of the more egregious behavior and found a great deal of issues that needed to be dealt with--market manipulation, those kinds of things. This is very complex. I believe we can address these issues with regulatory agencies, things that truly can exist.

So my legislation would provide a greater price in the transmission of availability of information and outlaw the practice of roundtrip trading. In the past we found some trading where they went around, got it back, made a profit on the sale, and served no one.

We prohibit the reporting of false information for the purpose of manipulating price indices. Again, we go back a little bit to the California situation, where there obviously is a great need to do some opening up so there is visibility of what is happening. That is what we are seeking to do. It would increase civil and criminal penalties for the violation of the Federal Power Act and would accelerate the effective dates of refunds and so on.

In the end, it is about consumers, it is about serving consumers, it is about competition, it is about reliability, it is about keeping the lights on--the part of energy that probably affects more people and more businesses than any other. It is my hope that the Electric Transmission Reliability Enhancement Act of 2003 will produce a more reliable, efficient transmission system, a more dependable and more affordable product for the end user, and perhaps more than anything else, bring our system and our oversight into the modern time of electric generation and transmission.

Things change. We need to change. Now is the time. We will have an energy bill. It needs to have an energy component.

Mr. President, any comprehensive energy bill must contain an electric component. That is why, today, I rise to introduce the ``Electric Transmission and Reliability Enhancement Act of 2003.'' It is my intention to build on the competitive wholesale open access policies adopted by the Congress in the 1992 Energy Policy Act. My legislation would extend and improve these open, non-discriminatory access policies; remove antiquated federal statutory barriers that stand in the way of competitive wholesale markets; encourage increased investment in our transmission system and establish enforceable reliability standards to help ensure the continued reliability of the interstate transmission system.

The state of the industry is far weaker financially than it has been in years. Billions of dollars of shareholder value has evaporated. Access to capital is becoming an important issue for large segments of the industry that are fighting for survival. In addition, the Federal Energy Regulatory Commission, FERC, policy regarding wholesale markets seems to be in a state of constant change. The Standard Market Design, SMD, Notice of Proposed Rulemaking, NOPR, has divided regulators and industry participants in a way that may be unprecedented, threatening more years of rulemakings, litigation and regulatory uncertainty.

If we are to legislate successfully, we will have to par down our wish list to the bare essentials, plus those issues necessary for the electric industry to attract the capital it needs to keep our lights on. Last year, the Enron fallout dominated the debate. By being on the defensive most of last year, it was not possible to successfully advance those issues most important to consumers and the industry that serves them.

It seems clear that if truly competitive wholesale markets are to exist, there is a need to ensure that all industry participants play by the same rules. While FERC has tried to ensure this, the Commission's tools are limited. Only Congress can give FERC the tools it needs to ensure that all industry participants in competitive wholesale markets play by the same rules.

The Wyoming State commissioners wrote that ``under present Federal law the FERC has no jurisdiction or authority over transmission facilities owned by public power agencies, municipalities and cooperatives. In the West these types of entities own a substantial portion, perhaps as much as half of the interstate electric transmission system.'' As a matter of fact, in the Western Electric Coordinating Council, an area that encompasses all or part of 11 Western States and parts of Canada, non-FERC jurisdictional facilities account for 52 percent of transmission miles.

The Wyoming commissioners claim that, ``without the full participation of all of those who own transmission in the West, the FERC's wholesale market initiative will fail to provide the full spectrum of benefits Congress expected when it created wholesale electricity markets. System optimization requires that bulk power be able to move freely throughout the interconnected system without regard to who owns the facilities over which the power travels. Removing the institutional impediments to the free movement of bulk power is also requisite to identifying the physical constraints that exist in the western system. Proper planning for the relief of such constraints depends on properly identifying and quantifying them, absent other economic and institutional constraints.''

They go on to say that such a vision for the future of wholesale power markets makes a compelling case for the inclusion of all facilities which can be used to move bulk power across the West, regardless of ownership. Anything less than 100 percent participation by transmission owning entities will simply perpetuate some level of inefficiency in the system and will continue to afford those who do not participate the ability to favor their own generation resources.

My legislation would permit FERC to require certain nonregulated utilities to offer transmission serviced at comparable rates to those they charge themselves, and on terms and conditions comparable to those applicable to jurisdictional public utilities. Currently nonregulated transmitting utilities would not be subject to the full panoply of FERC regulation under this provision. Instead, a ``light handed'' form of regulation would apply and small nonregulated entities, such as those that sell less than 4,000,000 MW/h per year, would be entirely exempt from these nondiscrimination requirements.

It also seems clear that the Public Utility Holding Company Act PUHCA, is hindering necessary restructuring of the industry and the deployment of capital into an industry that desperately needs it. Investors are deterred simply because they do not want to deal with the PUHCA rules and restrictions. If repealed, utility securities will continue to be regulated by the Securities and Exchange Commission, SEC, FERC and most state commissions. Mergers and acquisitions of jurisdictional assets would still require FERC and state commission approval and review by Department of Justice, DOJ, and the Federal Trade Commission, FTC. FERC and State commissions would still be able to monitor rates and prevent cross-subsidies.

Despite State progress in administering the Public Utility Regulatory Policies Act of 1978, PURPA, more in-tune with markets, it is clear that PURPA continues to provide special privileges to certain favored generators at the expense of utilities and their customers. Like PUHCA, PURPA is no longer needed in today's competitive wholesale markets. My legislation prospectively eliminates the mandatory purchase and sell obligations of PURPA.

Over the years the grid has been well protected through voluntary standards established by the North American Electric Reliability Council, NERC, NERC's voluntary reliability standards--which are not enforceable--have generally been complied with by the electric power industry. But with the opening of the wholesale power market to competition, our transmission grid is being used in ways for which it was not designed. New system strains are also being created by the breakup of vertically integrated utilities and by the emergence of new market structures and participants. The results of these changes have been an increase in the number and severity of violations of NERC's voluntary rules.

My legislation converts the existing NERC voluntary reliability system into a mandatory reliability system. A nation-wide organization would have the authority to establish and enforce reliability standards, and take into account regional differences. The new reliability organization will be run by market participants, and will be overseen by the FERC in the U.S. The reliability organization will be made up of representatives of everyone who is affected--residential, commercial and industrial consumers; state public utility commissions; independent power producers; electric utilities and others. There is no question that we need a new system to safeguard the integrity of our electric grid. My legislation would do this, using language that was effectively agreed upon last fall by House and Senate conferees for the energy bill.

During discussions last year, efforts were made to address some of the more egregious behavior and attempted market manipulation through legislation. While this area is obviously very complex, I believe that we need to address this issue if regulatory gaps truly do exist. I realize my attempt might not be perfect, but I wanted to intimate discussion on this very important topic if, in fact, regulatory agencies do need additional authority to police and monitor the industry.

My legislation will provide greater price and transmission availability information, outlaw the practice of round trip trading and prohibit reporting of false information for the purpose of manipulating price indices. In addition, I've included authority the FERC has requested and that would increase civil and criminal penalties for violation of the Federal Power Act and accelerate the refund effective date to the date of filing of a complaint.

In the end it's about the consumer. It is my hope and vision that the ``Electric Transmission and Reliability and Enhancement Act of 2003'' I am introducing today will produce a more reliable and efficient transmission system and that these improvements will result in a more dependable and affordable product for the end user. This legislation is the best solution to move forward with a better product for all classes of consumers and the industry as a whole.

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

Mr. President, I come to the floor to talk about one of the things that is so important. Obviously, items connected with terrorism, the war in Iraq have to be dealt with. We have to deal with heightened homeland security and related issues. Health care is an area we need to talk about. Prescription drugs is in the process of this.

One issue that is particularly important is an energy policy. I don't think there has ever been a time when it has been more apparent and more important to deal with energy policy. We have an economy, prices with gas and energy that are high. We have uncertainty, certainly, in the Middle East. We have had a Venezuelan problem. We had a very cold winter. We cannot seem to come together to put together a policy that will allow us to move forward, an aggressive energy policy. I would like to talk briefly about a component of that which I think is very important, and that is an electric component.

I rise today to introduce the Electric Transmission Reliability and Enhancement Act of 2003. It is my intention to build on a changing wholesale, competitive, open access market and to suggest that we build that into a policy. Things have changed in the way energy is generated, the way energy is transmitted, the way energy is sold. We need to change our policy, as well.

Very simply, what we have is: In years past, there was a generator that generated for their own distribution area. That was pretty simple. Prices were controlled. It was a simple technique. Now we have more and more merchant generators, people who do not have a constituency or distribution system of their own but they sell into the marketplace. This is good. There is competition. And we will see more and more of that. But to do that, we have to update our laws and we have to update the regulations that go with that. My legislation would extend and improve open nondiscriminatory access policies. Access to transmission would remove antiquated Federal barriers that stand in the way of competitive wholesale markets. Wholesale markets that are competitive are new. We have to change to meet those needs. We have to encourage increased investments in our transmission system and establish reliability standards.

We saw what happened in California 2 years ago. If there is no reliability, we cannot depend upon getting that energy to people's homes, to businesses, and then we have a very difficult situation.

Particularly what has changed now is it is interstate. For years we grew up with the fact that in your State the State controlled both the generation and the distribution, and that worked well. Now we go across interstate lines and there needs to be something different.

Legislatively we have to pare down our wish list so we get to the bare essentials and keep those things that are necessary.

It seems clear, if we are going to have a truly wholesale market, we need to ensure that all the industry participants play by the same rules. Only Congress can give FERC, the Federal Energy Regulatory Commission, the tools it needs to ensure that all participants get treated fairly in a competitive marketplace. Under the Federal law, currently FERC has no jurisdiction or authority over transmission owned by public power agencies, municipals, cooperatives, yet they want to participate and need to participate and should participate. Many of them--most--are willing to participate.

These nonregulated utilities represent 52 percent of the total, so we do not want to move forward with FERC's so-called market plan. I think it goes too far getting into the authority of the States. But there are some changes that need to be made, and we would like to do that.

We also need to protect those cooperatives. I grew up in a area of cooperatives and spent much of my life working with cooperatives. So we have given that break. Those that sell less than 4 million megawatt hours per year are entirely exempt. We think that is as it should be.

We would repeal the Public Utility Holding Company Act, PUHCA, because it needs to be restructured and the deployment of capital in this industry needs to go where it is desperately needed. We need to do that. There is ample regulation over those investments now in the existing business. We want to make it easier for people to be able to invest, produce competitively, and go into the marketplace.

The Department of Justice, Federal Trade Commission, and the State commissions would still be able to monitor rates and prevent cross- subsidies. So my legislation would prospectively eliminate mandatory purchase and sales obligations of PURPA, one that was put in a very long time ago. Despite the State administering it, it causes favoritism to many utilities and changes things.

Over the years the grid has been protected through voluntary standards and that is exactly right. But what we are now faced with is to have RTOs, regional transportation organizations, where they can make those decisions within the RTO. There would be a Western one, a Midwestern one, a New England one, and so on. But then connecting with those will be an interstate, like an interstate highway. That has to, of course, be organized and controlled by a national group because it serves all these different ones.

So what we need is to modernize our system so we can accommodate things that have changed. Reliability organizations must be run by market participants and be overseen by FERC. Reliability organizations must be made up of representatives of everyone who is affected: residential, commercial, industrial. That can be done, and this provides an opportunity to do that.

During our discussions last year, we were made to address some of the more egregious behavior and found a great deal of issues that needed to be dealt with--market manipulation, those kinds of things. This is very complex. I believe we can address these issues with regulatory agencies, things that truly can exist.

So my legislation would provide a greater price in the transmission of availability of information and outlaw the practice of roundtrip trading. In the past we found some trading where they went around, got it back, made a profit on the sale, and served no one.

We prohibit the reporting of false information for the purpose of manipulating price indices. Again, we go back a little bit to the California situation, where there obviously is a great need to do some opening up so there is visibility of what is happening. That is what we are seeking to do. It would increase civil and criminal penalties for the violation of the Federal Power Act and would accelerate the effective dates of refunds and so on.

In the end, it is about consumers, it is about serving consumers, it is about competition, it is about reliability, it is about keeping the lights on--the part of energy that probably affects more people and more businesses than any other. It is my hope that the Electric Transmission Reliability Enhancement Act of 2003 will produce a more reliable, efficient transmission system, a more dependable and more affordable product for the end user, and perhaps more than anything else, bring our system and our oversight into the modern time of electric generation and transmission.

Things change. We need to change. Now is the time. We will have an energy bill. It needs to have an energy component.

Mr. President, any comprehensive energy bill must contain an electric component. That is why, today, I rise to introduce the ``Electric Transmission and Reliability Enhancement Act of 2003.'' It is my intention to build on the competitive wholesale open access policies adopted by the Congress in the 1992 Energy Policy Act. My legislation would extend and improve these open, non-discriminatory access policies; remove antiquated federal statutory barriers that stand in the way of competitive wholesale markets; encourage increased investment in our transmission system and establish enforceable reliability standards to help ensure the continued reliability of the interstate transmission system.

The state of the industry is far weaker financially than it has been in years. Billions of dollars of shareholder value has evaporated. Access to capital is becoming an important issue for large segments of the industry that are fighting for survival. In addition, the Federal Energy Regulatory Commission, FERC, policy regarding wholesale markets seems to be in a state of constant change. The Standard Market Design, SMD, Notice of Proposed Rulemaking, NOPR, has divided regulators and industry participants in a way that may be unprecedented, threatening more years of rulemakings, litigation and regulatory uncertainty.

If we are to legislate successfully, we will have to par down our wish list to the bare essentials, plus those issues necessary for the electric industry to attract the capital it needs to keep our lights on. Last year, the Enron fallout dominated the debate. By being on the defensive most of last year, it was not possible to successfully advance those issues most important to consumers and the industry that serves them.

It seems clear that if truly competitive wholesale markets are to exist, there is a need to ensure that all industry participants play by the same rules. While FERC has tried to ensure this, the Commission's tools are limited. Only Congress can give FERC the tools it needs to ensure that all industry participants in competitive wholesale markets play by the same rules.

The Wyoming State commissioners wrote that ``under present Federal law the FERC has no jurisdiction or authority over transmission facilities owned by public power agencies, municipalities and cooperatives. In the West these types of entities own a substantial portion, perhaps as much as half of the interstate electric transmission system.'' As a matter of fact, in the Western Electric Coordinating Council, an area that encompasses all or part of 11 Western States and parts of Canada, non-FERC jurisdictional facilities account for 52 percent of transmission miles.

The Wyoming commissioners claim that, ``without the full participation of all of those who own transmission in the West, the FERC's wholesale market initiative will fail to provide the full spectrum of benefits Congress expected when it created wholesale electricity markets. System optimization requires that bulk power be able to move freely throughout the interconnected system without regard to who owns the facilities over which the power travels. Removing the institutional impediments to the free movement of bulk power is also requisite to identifying the physical constraints that exist in the western system. Proper planning for the relief of such constraints depends on properly identifying and quantifying them, absent other economic and institutional constraints.''

They go on to say that such a vision for the future of wholesale power markets makes a compelling case for the inclusion of all facilities which can be used to move bulk power across the West, regardless of ownership. Anything less than 100 percent participation by transmission owning entities will simply perpetuate some level of inefficiency in the system and will continue to afford those who do not participate the ability to favor their own generation resources.

My legislation would permit FERC to require certain nonregulated utilities to offer transmission serviced at comparable rates to those they charge themselves, and on terms and conditions comparable to those applicable to jurisdictional public utilities. Currently nonregulated transmitting utilities would not be subject to the full panoply of FERC regulation under this provision. Instead, a ``light handed'' form of regulation would apply and small nonregulated entities, such as those that sell less than 4,000,000 MW/h per year, would be entirely exempt from these nondiscrimination requirements.

It also seems clear that the Public Utility Holding Company Act PUHCA, is hindering necessary restructuring of the industry and the deployment of capital into an industry that desperately needs it. Investors are deterred simply because they do not want to deal with the PUHCA rules and restrictions. If repealed, utility securities will continue to be regulated by the Securities and Exchange Commission, SEC, FERC and most state commissions. Mergers and acquisitions of jurisdictional assets would still require FERC and state commission approval and review by Department of Justice, DOJ, and the Federal Trade Commission, FTC. FERC and State commissions would still be able to monitor rates and prevent cross-subsidies.

Despite State progress in administering the Public Utility Regulatory Policies Act of 1978, PURPA, more in-tune with markets, it is clear that PURPA continues to provide special privileges to certain favored generators at the expense of utilities and their customers. Like PUHCA, PURPA is no longer needed in today's competitive wholesale markets. My legislation prospectively eliminates the mandatory purchase and sell obligations of PURPA.

Over the years the grid has been well protected through voluntary standards established by the North American Electric Reliability Council, NERC, NERC's voluntary reliability standards--which are not enforceable--have generally been complied with by the electric power industry. But with the opening of the wholesale power market to competition, our transmission grid is being used in ways for which it was not designed. New system strains are also being created by the breakup of vertically integrated utilities and by the emergence of new market structures and participants. The results of these changes have been an increase in the number and severity of violations of NERC's voluntary rules.

My legislation converts the existing NERC voluntary reliability system into a mandatory reliability system. A nation-wide organization would have the authority to establish and enforce reliability standards, and take into account regional differences. The new reliability organization will be run by market participants, and will be overseen by the FERC in the U.S. The reliability organization will be made up of representatives of everyone who is affected--residential, commercial and industrial consumers; state public utility commissions; independent power producers; electric utilities and others. There is no question that we need a new system to safeguard the integrity of our electric grid. My legislation would do this, using language that was effectively agreed upon last fall by House and Senate conferees for the energy bill.

During discussions last year, efforts were made to address some of the more egregious behavior and attempted market manipulation through legislation. While this area is obviously very complex, I believe that we need to address this issue if regulatory gaps truly do exist. I realize my attempt might not be perfect, but I wanted to intimate discussion on this very important topic if, in fact, regulatory agencies do need additional authority to police and monitor the industry.

My legislation will provide greater price and transmission availability information, outlaw the practice of round trip trading and prohibit reporting of false information for the purpose of manipulating price indices. In addition, I've included authority the FERC has requested and that would increase civil and criminal penalties for violation of the Federal Power Act and accelerate the refund effective date to the date of filing of a complaint.

In the end it's about the consumer. It is my hope and vision that the ``Electric Transmission and Reliability and Enhancement Act of 2003'' I am introducing today will produce a more reliable and efficient transmission system and that these improvements will result in a more dependable and affordable product for the end user. This legislation is the best solution to move forward with a better product for all classes of consumers and the industry as a whole.

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

Now, Mr. President, on another issue that is of deep concern to me, I come also to raise questions about our commitment to homeland security. This is something I have come to this Chamber to address on numerous occasions, starting in those terrible days after September 11, 2001. And it is an issue I will continue to address in every forum and venue that I possibly can find because, unfortunately, I do not believe we have done enough to protect ourselves here at home.

On February 3, Mitch Daniels, the Director of the Office of Management and Budget, said:

There is not enough money in the galaxy to protect every

square inch of America and every American against every

conceived threat.

This statement bothered me at the time. It has continued to bother me. I suppose, on the face of it, it is an accurate statement. Not only isn't there enough money in the United States, the world, or the galaxy to protect every square inch, but what kind of country would we have if we were trying to protect every square inch? That would raise all sorts of issues that might possibly change the character and quality of life here in America.

But I do not think that is what really motivated the statement. The statement was a kind of excuse, if you will, as to why this administration has consistently failed to provide even the rudimentary funding that we have needed for our first responders and to deal with national security vulnerabilities.

We have learned, in the last few months, that threats do exist all over our country. It is not just New York City or Washington, DC, that suffered on September 11. We know that in the months since then, we have seen many other parts of our country respond to alerts--our latest orange alert--which have required huge expenditures of resources in order to protect local water supplies, bridges, chemical plants, nuclear powerplants, to do all that is necessary to know that we have done the best we can.

Life is not certain. There is no way any of us knows where we will be in an hour or in a day or in a year. But what we try to do is to plan for the worst, against contingencies that might undermine our safety. And then we have to just hope and trust and have faith that we have done enough. But if we do not try, if we do not make the commitment, if we do not provide the resources, then we have essentially just put up our hands and surrendered to what did not have to be the inevitable.

When I heard Mr. Daniels make that comment, I thought to myself, if you had made a list of every community in America that might possibly be a site for an al-Qaida terrorist cell, I am not sure that Lackawanna, NY, would have made that list. It is a small community outside of Buffalo where the FBI, in cooperation with local law enforcement, uncovered such a cell of people who had gone to Bin Laden's training camps in Afghanistan and then come back home, most likely what is called a sleeper cell. Their leader was in Yemen where one of our predator aircraft found him and took action against him and his compatriots who are part of the al-Qaida terrorist campaign against us. If we were just thinking, where should we put money to protect ourselves, I am not sure Lackawanna, NY, would have been on that list. Yet we have reason to believe it should be on any list anywhere. Just yesterday four men in Syracuse, NY, were accused of sending millions of dollars to Saddam Hussein.

I don't know that we can sit here in Washington and say: Well, we can't possibly protect everybody so we shouldn't protect anybody. But that seems to be the attitude of this administration. That is what concerns me most. We should be doing everything we possibly can to make our country safer. We should be thinking 24 hours a day, 7 days a week about new steps, smart steps that we should be taking. Why? Because that is what our enemies do when they think about how to attack us. If somebody is on CNN or the Internet, it doesn't stop at our borders. That is viewed and analyzed in places all over the world. We know that they are working as hard as they possibly can to do as much harm to us and our way of life as they possibly can.

Since September 11, our first responders, our mayors, police and fire chiefs have said over and over again they need Federal support so they can do their jobs to protect the American people. During this recent code orange alert, they have done a remarkable job. They have responded to their new responsibility as this country's frontline soldiers in the war against terrorism with grace, honor, and a dedication that Washington should emulate.

We have had the opportunity to do so. We could have already had in the pipeline and delivered more dollars to pay for needed training, personnel, overtime costs, equipment, whatever it took as determined by local communities that they require to do the job we expect them to do. But every time the Senate has tried to do more for our first responders, the administration and some in Congress have said we should do less.

Senator Byrd stood right over there last summer and offered an amendment, which the Senate supported, that would have provided more than $5.1 billion in homeland security funding. It included $585 million for port security; $150 million to purchase interoperable radio so that police, firefighters and emergency service workers can communicate effectively, a problem we found out tragically interfered with communication on September 11 in New York City; another $83 million to protect our borders. But in each case, despite having passed it in the Senate, the administration and Republican leaders settled for far less. They called such spending ``unnecessary.'' In some cases, such as the funding for interoperable radios, not only did we not get the increase to buy this critical equipment, the funding was cut by $66 million.

It was during that debate that we needed the administration's support. But instead, they opposed such efforts,

and the President himself refused to designate $5.1 billion last August as an emergency to do the kinds of things that mayors and police chiefs and fire chiefs and others have been telling me and my colleagues they desperately need help doing.

The paper today says the President acknowledges we need to do more. I welcome that acknowledgment. But I have learned that we have to wait to see whether the actions match the words. We have to make sure this new awareness about having shortchanged homeland security doesn't translate into taking money away from the functions that firefighters and police officers are called upon to do every day, transferring it across the government ledger, relabeling it counterterrorism, and wiping our hands of it and saying: We did it.

That just doesn't add up. That is what they tried to do for the last year, take money away from the so-called COPS program, which put police on the beat onto our streets, which helped to lower the crime rate during the 1990s, taking money away from the grants that go to fire departments to be well prepared to get those hazardous materials, equipment, and suits that will protect them and claiming that we take that money away, we put it over here, and we say we have done our job. That is just not an appropriate, fairminded response.

We cannot undo the past, but every day we don't plan for the future is a lost day. I don't ever want to have a debate in the Senate about what we should have done or we could have done or we would have done to protect ourselves, if only we had taken as seriously our commitment to homeland security as the administration takes our commitment to national security.

Last month I issued a report about how 70 percent of the cities and counties in New York are not receiving any Federal homeland security funding. I commissioned this study because I wanted to know for myself whether maybe some money had trickled down into their coffers that I was not aware of. Well, 70 percent say they had gotten nothing; 30 percent say they had gotten a little bit of the bioterrorism money that we had appropriated. But then I also asked them, how much did they need and what did they need it for and how did they justify their needs. And I must say, most of the requests were very well thought out, prudent requests for help that in this time of falling revenues and budget crunches, city and county governments just cannot do themselves.

When that orange alert went out a week or so ago, what happened? I know in New York City, if you were there, you would have seen an intense police presence because our commissioner of police, our mayor, knew they had to respond. They had to get out there and keep a watchful eye. But there was no help coming from Washington for them to do that. It may be a national alert, but it is a local response. And we are not taking care of the people we expect to make that response for us.

Then I was concerned to see that in so many of the discussions of potential weapons of mass destruction, doctors and nurses and hospital administrators are saying: We are not ready. We do not have the funding. We don't even have the funding to do the preventive work, the smallpox vaccination. We don't have the means to be ready for some kind of chemical or biological or radiological attack.

When we had the incident a few months ago of the shoulder-fired missile that was aimed at the Israeli airline in Kenya--thankfully it missed--I called the people in the new Department of Homeland Security. I said: What are our plans? How do we respond to the threat posed by shoulder-fired missiles?

The response I got back was: Well, that is a local law enforcement responsibility.

Are we going to provide more funding so we can have more police patrols on the outskirts of large airports similar to the ones we have in New York and other States have?

Well, no, that is not in the cards. You just go out there and keep an eye out for those shoulder-fired missiles.

Time and time again we hear about a threat. We hear the conversations from our government officials. We listen to the experts tell us what we have to be afraid of. And if you are a police chief or a fire chief sitting in any city in our country, you are sitting there in front of the television set saying to yourself: My goodness, how am I going to protect my people? How am I possibly going to do the work I need to do when my State budget is being cut, when my local budget is being cut, when the Federal budget is not providing me any resources? How am I going to do that?

It is a fair question. Yet when we dial 911, we expect that phone to be answered, not in this Chamber, not down at the other end of Pennsylvania Avenue in the White House, but right in our local precinct and our local firehouse. Yet in place after place around America, we read stories about police being laid off or being enticed into early retirement to save money, firehouses being closed or firefighters being encouraged to take early retirement, not filling classes in the police and fire academy.

There is something wrong with this picture. Now, we have done all we know to do to give our men and women who wear military uniforms every bit of support we believe they need. If we are going to put them in harm's way, then we owe it to them, to their families, to equip them and train them, and give them the best possible protection so they can fulfill their mission without harm to themselves.

But this is a two-front war. We hear that all the time. My gosh, there is nothing else coming across the airwaves except about what is happening in the Persian Gulf and on the Korean peninsula and what is happening with al-Qaida. We know we are in a global war against terror and against weapons of mass destruction. That is good offense. We need to be out there trying to rid the world of weapons of mass destruction, rid the world of tyrants and dictators who would use such weapons.

But what about defense? What about what happens here at home? We have not done what we need to do to protect our homeland or our hometowns. That is absolutely unacceptable. The one thing we have learned from the horrors of September 11 is that in this new globalization of transportation and information we now live in, boundaries mean very little. Part of the reason we were immune from attack through many decades--with the exception of Pearl Harbor and the attack on this city and on Baltimore in the War of 1812--is we were protected by those big oceans, and with friendly neighbors to the north and south. But those days are gone. You can get on a jet plane from anywhere. You can be in a cave in Afghanistan and use your computer. You can transfer information about attacks and about weapons of mass destruction with the flick of a mouse.

So we have to upgrade and transform our homeland defense, just as we have to think differently about our military readiness and capacity. This does not come cheaply. This is not easy to do. I spend a lot of time talking with police, firefighters, hospital administrators, and front line doctors and nurses; they are ready to make the sacrifice to perform in whatever way they are expected to do so to protect us. But we are not giving them the help they need.

Now, we can remedy this. It was a good sign when the President admitted today that he and his administration have not funded homeland security, and I am glad to hear they have finally admitted that. But now we have to do something about that admission. It cannot be just a one-day headline. We have to figure out, OK, now that you are seeing what we see, what we have been worried about, let's do something. Let's make sure that whatever budget is sent up here has money in it for these important functions, so we can look in the eyes of our police officers, firefighters, and emergency providers, and say we have done the best we know how to do.

That doesn't mean we are 100 percent safe. There is no such thing. That is impossible. That is not something we can possibly achieve. But we have to do the best we can. I believe it is probably a good old adage to ``hope for the best, but prepare for the worst.'' When you have done all you knew how to do, when something does happen, hopefully, you are prepared to deal with it.

From my perspective, Mr. President, this is a national priority that cannot wait. Many of the commentators and pundits of the current theme talk about the likely military action necessitated by Saddam Hussein's refusal to

disarm, and point to the possibility that such action will trigger an upsurge in potential attack not only here at home but on American assets and individuals around the world. It would be impossible to write any scenario about the next 10 years without taking into account the potential of future terrorism.

But what is not impossible--in fact, what is absolutely necessary--is for us to be able to say to our children and the children of firefighters and police officers and emergency responders that we did all we knew to do; we were as prepared as we possibly could be. That is what I want to be able to say, and I know we cannot do that without the resources that will make it a real promise of security, instead of an empty promise.

So, Mr. President, it is my very strong hope that in the wake of the administration's recognition of the failure thus far to fund homeland security, now we can get down to business; that we not only can fund it, but do it quickly, get the money flowing, and get local communities ready to implement it, and we can get about the business of making America safer here at home. I will do everything I can to realize that goal. I look forward to working with my colleagues on both sides of the aisle as we provide the kind of homeland security Americans deserve.

Mr. President, I suggest the absence of a quorum.

Madam President, one of our most important responsibilities as Senators is the confirmation of Federal judges. Federal judges are appointed for life, and they will be interpreting laws affecting the lives of all our citizens for many years to come. Yet my colleagues across the aisle suggest that something far less than a full review of a nominee's record is warranted. Republican Senators pretend that by seeking additional information to help us understand Mr. Estrada's views and judicial philosophy, we are upsetting the proper constitutional balance between the Senate and the executive branch. They claim the Senate has to consent to the President's judicial nominees, as long as they have appropriate professional qualifications.

In fact, the Constitution gives a strong role to the Senate in evaluating nominees. The role of the Senate is fundamental to the basic constitutional concept of checks and balances at the heart of the Federal Government. And when we say ``check'' we don't mean blank check.

The debates over the drafting of the Constitution tell a great deal about the proper role of the Senate in the judicial selection process. Both the text of the Appointments Clause of the Constitution and the debates over its adoption make clear that the Senate should play an active and independent role in selecting judges.

Given recent statements by Republican Senators, it is important to lay out the historical record in detail. The Constitutional Convention met in Philadelphia from late May until mid-September of 1787. On May 29, 1787, the Convention began its work on the Constitution with the Virginia Plan introduced by Governor Randolph, which provided ``that a National Judiciary be established, to be chosen by the National Legislature.'' Under this plan, the President had no role at all in the selection of judges.

When this provision came before the Convention on June 5, several members were concerned that having the whole legislature select judges was too unwieldy. James Wilson suggested an alternative proposal that the President be given sole power to appoint judges.

That idea had almost no support. Rutledge of South Carolina said that he ``was by no means disposed to grant so great a power to any single person.'' James Madison agreed that the legislature was too large a body, and stated that he was ``rather inclined to give [the appointment power] to the Senatorial branch'' of the legislature, a group ``sufficiently stable and independent'' to provide ``deliberate judgements.''

A week later, Madison offered a formal motion to give the Senate the sole power to appoint judges and this motion was adopted without any objection. On June 19, the Convention formally adopted a working draft of the Constitution, and it gave the Senate the exclusive power to appoint judges.

July of 1787 was spent reviewing the draft Constitution. On July 18, the Convention reaffirmed its decision to grant the Senate the exclusive power. James Wilson again proposed ``that the Judges be appointed by the Executive'' and again his motion was defeated.

The issue was considered again on July 21, and the Convention again agreed to the exclusive Senate appointment of judges.

In a debate concerning the provision, George Mason called the idea of executive appointment of Federal judges a ``dangerous precedent.'' The Constitution was drafted to read: ``The Senate of the United States shall have power to appoint Judges of the Supreme Court.''

Not until the final days of the Convention was the President given power to nominate Judges. On September 4, 2 weeks before the Convention's work was completed, the Committee proposed that the President should have a role in selecting judges. It stated: ``The President shall nominate and by and with the advice and consent of the Senate shall appoint judges of the Supreme Court.'' The debates, make clear, however, that while the President had the power to nominate judges, the Senate still had a central role.

Governor Morris of Pennsylvania described the provision as giving the Senate the power ``to appoint Judges nominated to them by the President.'' The Constitutional Convention adopted this reworded provision giving the President the power, with the advice and consent of the Senate, to nominate and appoint judges.

The debates and the series of events proceeding adoption of the ``advise and consent'' language make clear, that the Senate should play an active role. The Convention having repeatedly rejected proposals that would lodge exclusive power to select judges with the executive branch, could not possibly have intended to reduce the Senate to a rubber stamp role.

The reasons given by delegates to the Convention for making the selection of judges a joint decision by the President and the Senate are as relevant today as they were in 1787. The framers refused to give the power of appointment to a ``single individual.'' They understood that a more representative judiciary would be attained by giving members of the Senate a major role.

From the start, the Senate has not hesitated to fully exercise this power. During the first 100 years after ratification of the Constitution, 21 or 81 Supreme Court nominations--one out of four--were rejected, withdrawn, or not acted on. During these confirmation debates, ideology often mattered. John Rutledge, nominated by George Washington, failed to win confirmation as Chief Justice in 1795.

Alexander Hamilton and other Federalists opposed him, because of his position on the controversial Jay Treaty. A nominee of President James Polk was rejected because of his anti-immigration position. A nominee of President Hoover was rejected because of his anti labor view. Our Republican colleagues are obviously aware of this. Their recent statements attempting to downplay the Senate's role stand in stark contrast to the statements when they controlled the Senate during the Clinton administration. At that time, they vigorously asserted their right of ``advice and consent.''

Indeed, while public debate and a demand to fully review a nominee's record is consistent with our duty of ``advice and consent,'' many of the actions by Republicans were damaging to the nominations process. Democrats have made clear our concerns about whether Mr. Estrada has met the burden of showing that he should be appointed to the DC Circuit, but Republicans resorted to tactics such as secret holds to block President Clinton's nominees. For instance, it took four years to act on the nomination of Richard Paez, a Mexican-American, to the Ninth Circuit. Senate Republicans repeatedly delayed floor action on Judge Paez through use of anonymous holds.

Republicans voted to indefinitely postpone action on Judge Paez's nomination. Finally, in March 2000, 4 years after his nomination and with the Presidential election on the horizon, Judge Paez was confirmed, after cloture was invoked.

Reviewing Mr. Estrada's nomination is our constitutional duty. We take his nomination particularly seriously because of the importance of the DC Circuit, the Court to which he has been nominated. The important work we do in Congress to improve health care, protect workers rights, and protect civil rights mean far less if we fail to fulfill our responsibility to provide the

best possible advice and consent on judicial nominations. Tough environmental laws mean little to a community that can't enforce them in our federal courts. Civil rights laws are undercut if there are no remedies for disabled men and women. Fair labor laws are only words on paper if we confirm judges who ignore them.

What we know about Mr. Estrada leads us to question whether he will deal fairly with the range of important issues affecting everyday Americans that came before him.

Mr. Estrada has been actively involved in supporting broad anti- loitering ordinances that restrict the rights of minority residents to conduct lawful activities in their neighborhoods. Mr. Estrada has sought to undermine the ability of civil rights groups like the NAACP to challenge these broad ordinances which affect the ability of minority citizens to conduct activities such as drug counseling and voter outreach in their communities.

Information we need to know about Mr. Estrada's record has been hidden from us by the Department of Justice. Democratic Senators have asked for Mr. Estrada's Solicitor General Memoranda. We have moved for unanimous consent to proceed to a vote on his nomination, after those memoranda are provided. Yet, the White House refuses to provide any of Mr. Estrada's memos, even though there is ample precedent for allowing the Senate to review these documents.

Even as Republicans refuse to allow us to see Mr. Estrada's memos from his time in public office--and even as Mr. Estrada declined to answer many basic questions about his judicial philosophy and approach--Republicans repeatedly make clear that they are familiar with Mr. Estrada's views and judicial philosophy.

Since his nomination, Republican Senators have repeatedly praised Mr. Estrada as a ``conservative.'' A recent article from Roll Call states that the Republican Party is confident that Mr. Estrada will rule in support of big business. The article also states that the Republican Party has asked lobbyists to get involved in the battle over Mr. Estrada's nomination.

I have spoken in recent days about the importance of the DC Circuit and it's shift to the right in the 1980s and 1990s. In the 1960s and 1970s, the DC Circuit had a significant role in protecting public access to agency and judicial proceedings, protecting civil rights guarantees, overseeing administrative agencies, protecting the public interest in communications regulation, and enforcing environmental protections. In the 1980s, however, the DC Circuit changed dramatically because of the appointment of conservative judges. As its composition changed, it became a conservative and activist court--striking down civil rights and constitutional protections, encouraging deregulation, closing the doors of the courts to many citizens, favoring employers over workers, and undermining federal protection of the environment.

It seems clear that Mr. Estrada has been nominated to the DC Circuit in the hope that this court will continue to be more interested in favoring big business than in protecting the rights of workers, consumers, women, minorities, and other Americans.

Mr. Estrada's nomination is strongly opposed by those concerned about these rights. Republicans repeatedly praise Mr. Estrada as a Hispanic-- but many Hispanic groups oppose his nomination. The Congressional Hispanic Caucus, the Mexican American Legal Defense Fund, the Southwest Voter Registration Project, 52 Latino Labor Leaders representing working families across the country, the California League of United Lationo Citizens, the California La Raza, the Puerto Rican Legal Defense Fund and fifteen past presidents of the Hispanic National Bar Association, whose terms span from 1972 until 1998 have stated their opposition to Mr. Estrada. As these Presidents write:

Based upon our review and understanding of the totality of

Mr. Estrada's record and life's experiences, we believe that

there are more than enought reasons to conclude that Mr.

Estrada's candidacy falls short. [These] reasons include: his

virtually non-existent written record, his verbally expressed

and un-rebutted extreme views, his lack of judicial or

academic teaching experience (against which his fairness,

reasoning skills and judicial philosophy could be properly

tested), his poor judicial temperament, his total lack of

connection whatsoever to, or lack of demonstrated interest in

the Hispanic community, his refusals to answer even the most

basic questions about civil rights and constitutional law,

his less than candid responses to other straightforward

questions of Senate Judiciary Committee Members.

I would like to include in the Record statements at the end of my remarks of two of the past National Presidents of the League of United Latin American Citizens opposing Mr. Estrada's nomination. The first statement is from Belen Robles, a native Texas who has a long and active involvement in the Latino civil rights community. He writes that he is ``deeply troubled with the nomination of Miguel Estrada.'' He is troubled by the positions that Mr. Estrada has taken on racial profiling, and on whether the NAACP had standing to put forward the claims of African-Americans arrested under an anti-loitering ordinance.

Mr. Robles writes:

As a former National President of LULAC, I know very well

that on many occasions LULAC has been a champion of the

rights of its membership in civil rights cases. We asserted

those rights on behalf of voters in voting cases in Texas,

and in many other civil rights cases. Under his view, Mr.

Estrada could decide that a civil rights organization such as

LULAC would not be able to sue on behalf of its members. NO

supporter of civil rights could agree with Mr. Estrada's

confirmation.

Ruben Bonilla, an attorney in Texas who is also a past National president of LULAC, opposes the confirmation of Mr. Estrada.

Mr. Bonilla writes:

I am deeply troubled with the double standard that

surrounds the nomination of Mr. Estrada. It is particularly

troubling that some of the Senators have accused Democrats or

other Latinos of being anti-Hispanic, or holding the American

dream hostage. Yet, these same Senators in fact prevented

Latinos appointed by the Clinton Administration from ever

being given a hearing. Notably, Corpus Christi lawyer Jorge

Rangel, and El Paso attorney Enrique Moreno, and Denver

attorney Christine Arguello never received hearings before

the judiciary committee. Yet, these individuals who came from

the top of their profession were schooled in the Ivy League,

were raised from modest means in the Southwest, and in fact

truly embodied the American Dream. These highly qualified

Mexican-Americans never had the opportunity to introduce

themselves and their views to the Senate, as Mr. Estrada did.

Mr. President, the Senate is entitled to see Mr. Estrada's full record. Both the Constitution and historical practices require us to ignore the Administration's obvious ideological nominations. Judicial nominees who come before the Senate should have professional qualifications and the right temperament to be a judge. They should be committed to basic constitutional principles. Many of us have no confidence that Mr. Estrada has met this burden. I urge the Senate to reject this nomination.

I ask unanimous consent that supporting material be printed in the Record.

Mr. President, I suggest the absence of a quorum.