Sexual Predator Effective Monitoring Act of 2005

Reserving the right to object--I will not object--I ask unanimous consent to follow the Senator from Texas as in morning business.

And that I then be recognized for the same amount of time.

I have no objection.

Mr. President, I understand the Senator from Oregon wishes to make a unanimous consent request.

Mr. President, could the Senate always be so agreeable in moving things along, we in the country would be better off.

I listened to this discussion of nuclear option and judges and all that. It may seem arcane. There is nothing in the Constitution that says 50 votes or 40 votes or 60 votes or 80 votes. It is up to the rules of the Senate. It is when the rules are either reviewed or ignored that you have a problem. As I mentioned earlier today, when President Clinton was in office, the Republicans used the rules to say if one Republican, one objected, then you would not have a vote on the nominee. 61 of President Clinton's nominees for judgeships were not allowed to move because one Republican objected. Actually a couple hundred of his executive nominations, by the same token, because one Republican objected. So there they are requiring 100 votes to confirm somebody.

So you wonder when you are talking about a tiny handful of judges-- and no President in history, from George Washington on, has ever gotten all judges through the Senate--why there is so much attention on this. I was thinking about it and I thought, you know, this all began about 4 years ago when we started talking about this. Four years ago things were a lot different in this country. Let's look at the differences.

In the last 4 years--and maybe this is why they would rather talk about judges instead of talking about what's going on--in the last 4 years under President Bush, unemployment has gone up 26 percent. During this same time, this last 4 years, the price of gas has gone up 57 percent. You can hold hands with all the Saudi princes you want, but it has still gone up. The number of uninsured in this country has gone up 10 percent. The budget deficit has gone up $50 billion. Actually, President Bush inherited the largest budget surplus of any President in the history of the United States. President Clinton had followed the Reagan and Bush administrations, which tripled the national debt and created huge deficits. President Clinton's administration not only balanced the budget, but created a surplus, and started paying down the debt. President Bush inherited the largest surplus of any President in our whole history and he has turned it into the largest deficit.

Then there is the trade deficit. That has gone up 69 percent. I mention these things that have gone up under the Bush Presidency. Obviously they don't want to talk about it. It means the Saudis and the Chinese, Japanese, Koreans, and others who are holding our debt thus influence our foreign policy.

We will not just be holding hands with Saudi princes, we will probably be holding hands with everybody from all these other countries, too, so they do not call our IOUs.

During those 4 years, unemployment has gone up by 26 percent, the price of gas has gone up by 57 percent, the number of uninsured Americans has gone up by 10 percent, the budget deficit has increased by $350 billion, and the trade deficit has gone up by 69 percent. But there is one indicator that has shown improvement: the number of judicial vacancies has dropped 48 percent.

So why are they complaining they are not getting enough judges? During those 4 years of President Bush's Presidency, the number of judicial vacancies has gone way down because we confirmed so many judges. In fact, 4 years ago, the vacancy rate in our Federal courts was nearly 10 percent, and now it is around 5 percent. Mr. President, 95 percent of the Federal judiciary is filled. Most people would consider 95 percent a pretty good record.

I remember talking with President Bush 4 years ago. I said: You might get 90, 95 percent of your judges through. He thought that was pretty good. He wished he had a record like that when he owned a baseball team.

Four years ago today, I went to the White House in a gesture of cooperation to hear the President announce his first judicial nominations. Some criticized me for going, but I said I wanted to help. The President, during his campaign, said he wanted to be a uniter, not a divider, and now was the time to do so, and I said I would help.

Unfortunately, that is not what President Bush had in mind. The nominations he announced that spring day 4 years ago were largely controversial, confrontational choices. Typically, when a President-- Republican or Democrat--selects nominations to the circuit courts, he consults at length with home State Senators and the Senate leadership to be sure those selected will be considered favorably by the Senate. This President has not done that. In fact, President Clinton, his predecessor, and his White House Counsel and staff were in regular contact with the Republican leadership. Senator Hatch talked in his book about how much President Clinton consulted with the Republicans.

Instead, here my Republican colleagues say: No, we do not want the checks and balances of the Senate; we do not want an independent, nonpartisan judiciary; we are going to put a Republican stamp on the judiciary.

Remember, the Federal judiciary should not be Democratic or Republican, it should be independent and free of political pressure.

They say: No, we cannot do that. We will break all the rules possible and make sure that we get rid of checks and balances.

This effort by the Republicans also, of course, belies what has happened. Back 4 years ago in June, with the change in the Senate, I became chairman of the Senate Judiciary Committee. Even though it was already June and the Republicans had been in charge since the beginning of the year, there had not been a single judicial nomination hearing held on President Bush's nominations. I inherited what seemed to be an impossibly large number of 110 vacancies. There were so many because, of course, there had been pocket filibusters of over 60 of President Clinton's nominations. But we worked hard, and in 17 months we were able to whittle that number down to 60 vacancies.

Incidentally, it is interesting that with the Republican majority, look how the vacancies skyrocketed in the judiciary. The Democrats came in and they shot down. Now, of course, they are heading back up under Republican leadership.

It takes a lot of work to lower the number of vacancies. I held hearings during recess periods and confirmed President Bush's nominees. Senator Daschle and I received a deadly anthrax attack, so deadly that people who touched the outside of the envelopes of letters addressed to us that we were supposed to open were killed. They were murdered, and we still held the hearings. We held hearings in the aftermath of the 9/ 11 attacks when the airlines were shut down. We had a nominee volunteer to drive from Mississippi to Washington to be included in a hearing I was holding. We had the anthrax attacks, the PATRIOT Act, and all the rest, and we kept on going, and in 17 months we confirmed 100 of President Bush's judges.

The Republicans took nearly twice as long when they were in control to confirm the same number of judges for President Bush. They say we are the ones holding things up? They ought to be ashamed of themselves. Maybe they ought to work as hard as we did to get them through. In fact, when Congress adjourned last December, there were only 27 vacancies out of 875 Federal judgeships, the lowest number in over a generation. In President Bush's first term, 204 judges were confirmed-- more than confirmed in either of President Clinton's two terms, more than during the term of the President's father, more than in Ronald Reagan's first term when he had a Republican Senate. We confirmed a couple more nominees before we broke a week ago, and the distinguished Democratic leader has suggested we bring up another one of President Bush's nominees for a vote.

We have seen the talking points that have come out from the Republicans. They say we are holding up Thomas Griffith. The record is clear that I have--we have objected to him. After all, he did practice law illegally for 4 years in one jurisdiction and practiced law illegally in another jurisdiction, and the President wants to put him on the second highest court in the land. We said that should be an impediment. In any other administration, it would be an impediment. They want to go forward with him. The record is equally clear that I do not intend to support a filibuster of this nomination.

The distinguished Democratic leader said: Fine, bring him up. We will give you a time agreement and vote on it. He will either be confirmed or will not

be confirmed. If he is confirmed, it shows what the standards are of this administration.

We can look at all the people turned down on the other side, but we never heard this complaint. We are prepared to move forward on Mr. Griffith's nomination despite the fact that the Republicans pocket filibustered 61 of President Clinton's nominees, even though those nominees included the current dean of Harvard Law School, a former attorney general from Iowa, a former clerk to Chief Justice Rehnquist, women, men, Hispanics, African Americans, and many others.

We heard talks about Judge Owen this afternoon. One of her opinions was criticized by Alberto Gonzales when he served on the Texas Supreme Court. However, we held a hearing for her, a very fair hearing. The Senator from California, Mrs. Feinstein, conducted it. It was acknowledged by both Republicans and Democrats as being totally fair. She was voted down in the committee, and for the first time in history, a nominee voted down in committee was resubmitted by the President.

This is not a time to be breaking the rules of the Senate. The rules are there because we want a check and balance. That is all we are saying. For example, a home State newspaper of one of the nominees referred to a speech she gave recently that sounded as if it came from an Islamic jihadist, a very activist judge, who believes that child labor laws, minimum wage laws, even Social Security represent something wrong in this country. I am not really sure that is the sort of person we want on the bench making decisions about child labor laws, Social Security, and minimum wage.

Let's forget this end justifies the means. Let the Senate be what it always has been: A check and balance, whether it is a Democratic President or Republican President, a real check and balance but an honest one.

Do away with anonymous holds. I said that before. Do away with the secret one-person filibuster. I know the distinguished Senator from Oregon has spoken consistently that way, I believe from the very first day he entered this great body. Do away with the anonymous holds. Do away with those things, but follow the Senate rules. Do not violate the rules. Do not let us, those who are supposed to judge the judges, break our own laws and our own rules.

As I have noted, 4 years ago today, on May 9, 2001, I went to the White House in a gesture of cooperation to hear the President announce his first judicial nominations. Some criticized me for going, but I wanted to indicate my willingness to work with the new President. After all, during the campaign he had told the American people he wanted to be a uniter, not a divider. He had lost the popular vote in a much- disputed 2000 election, and the country was deeply divided. I hoped that he would be a President who would understand the need to work across the aisle and to bring people together and to consult with both Democratic and Republican Senators. I thought that judicial nominations, particularly those to the important circuit courts where Republicans had prevented almost two dozen of President Clinton's qualified and moderate nominees from being considered, would be a good place to start.

Unfortunately, that was not what President Bush had in mind. The nominations that President Bush announced that spring day, years ago, were largely controversial, confrontational choices. Although I was then the Ranking Democratic Member of the Senate Judiciary Committee, and was soon to become the Committee's Chair, the White House had not reached out to discuss any of these controversial nominees beforehand. By and large, home-state Senators had not been consulted about the nominees, nor had any sort of bipartisan, independent group of attorneys or legal scholars. That was the President's choice and has, unfortunately, remained his way of identifying and selecting nominees to be lifetime judicial appointments to the federal bench. This White House appears to rely on a tight circle of Federalist Society members, Republican Party activists and law professors steeped in ideology. This President has nominated what may be the most ideological-driven group of nominees ever presented to the Senate at one time.

Typically, when a President selects nominations to the circuit courts, he consults at length with home-state Senators and the Senate leadership to ensure that those selected will be considered favorably by the Senate and confirmed. That has not been the true with this Administration. By way of example, I cannot recall a single occasion during which this President picked up the phone to discuss these judicial nominations during the entire four and a half years that he has been President--not at the beginning of his Administration, not during the 17 months that I chaired the Senate Judiciary Committee, and not since.

That stands in sharp contrast to traditional practice dating back to George Washington and, in particular, to the manner in which President Clinton had worked with Senator Hatch when he was the Ranking Minority Member of the Senate Judiciary Committee or its Chair. Not only were President Clinton, his White House Counsel and his staff in regular contact with Senator Hatch and his staff; with respect to the most important nominations, the President and he had direct, meaningful consultation. In his book, ``Square Peg,'' for example, Senator Hatch wrote that he ``had several opportunities to talk privately with President Clinton about a variety of issues, especially judicial nominations.''

He described how, when the first Supreme Court vacancy arose during the Clinton presidency in 1993, ``it was not a surprise when the President called to talk about the appointment and what he was thinking of doing.'' Senator Hatch went on to describe that the President was thinking of nominating someone who would require a ``tough, political battle'' but that he advised President Clinton to consider other candidates.

According to his book, Senator Hatch suggested then-D.C. Circuit Judge Ruth Bader Ginsburg, as well as then-First Circuit Judge Stephen Breyer. They were nominated to fill the vacancies that arose on the Supreme Court in 1993 and 1994. Both were approved by the Senate with strong, bipartisan support. Justice Ginsburg was confirmed by a vote on 96-3. Justice Breyer was confirmed by a vote of 87-9.

That sort of consultation did not occur before this President's initial nominations were made 4 years ago, and I am sorry it did not.

Sadly, this lack of consultation was not just the situation for these first nominations, it has continued to this day. Senate Democrats have not stopped trying to offer the advice called for by the Constitution and have never stopped being available to help in the selection process. Just a few weeks ago, on April 11, the Democratic Leader and I wrote to the President offering to help with the more than two dozen current judicial vacancies for which the President has not yet sent a nomination to the Senate. We urged him to disavow the ``nuclear option'' in favor of working with us to identify consensus judicial candidates who could be confirmed easily and who would be fair, impartial judges that would preserve the independence of the judiciary. The number of current judicial vacancies without a nominee has since risen to 29. It is now May, we are more than a third of the way through the year, and the President has still sent only one new judicial nomination to the Senate all year. Meanwhile almost a month has passed and Senator Reid and I have yet to receive the courtesy of a reply to our offer to help and to work together. Unilateralism has become their standard operating practice, and abuse of power has become increasingly common. Indeed, to this day I have yet to meet, talk to or even receive a telephone call from the President's new White House Counsel. The go- it-alone conduct of this Administration makes clear that this President has little use of the Senate's role in the constitutional process of selecting federal judges.

Under pressure from the White House, over the last 2 years, the former Republican chairman of the Judiciary Committee led Senate Republicans in breaking with longstanding precedent and Senate tradition. With the Senate and the White House under control of the same political party we have witnessed Committee rule after Committee rule broken or misinterpreted away. The Framers of the Constitution

warned against the dangers of such factionalism, undermining the structural separation of powers. Republicans in the Senate have utterly failed to defend this institution's role as a check on the President in the area of nominations. It surely weakens our constitutional design of checks and balances.

As I have detailed elsewhere, the list of broken rules and precedents is long--from the way that home-state Senators were treated, to the way hearings were scheduled, to the way the Committee questionnaire was unilaterally altered, to the way the Judiciary Committee's historic protection of the minority by Committee Rule IV was repeatedly violated. In the last Congress, the Republican majority of the Judiciary Committee destroyed virtually every custom and courtesy that had been used throughout Senate history to help create and enforce cooperation and civility in the confirmation process.

We suffered through 3 years during which Republican staff stole Democratic files off the Judiciary computers during what has been a ``by any means necessary'' approach. Their approach to our rules and precedents follows their own partisan version of the Golden Rule, which is that ``he with the gold, rules.'' That has not been helpful to the process, the Senate or the country. It is as if those currently in power believe that that they are above our constitutional checks and balances and that they can reinterpret any treaty, law, rule, custom or practice they do not like or they find inconvenient.

Some of these interpretations are so contrary to well-established understandings that it is like we have fallen down the rabbit hole in ``Alice in Wonderland.'' I am reminded that the imperious Queen of Hearts rebuked Alice for having insufficient imagination to believe contradictory things, saying that some days she had believed six impossible things before breakfast. I have seen things I thought impossible on the Judiciary Committee during the last few years, things impossible to square with the past practices of Committee and the history of the Senate. Our Committee is entrusted by the Senate to help determine whether judicial nominees will follow the law. It is unfortunate that the Committee that judges the judges has not followed its own rules but has bent or broken them to achieve a predetermined result.

Under our Constitution, the Senate has an important role in the selection of our judiciary. The brilliant design of our Founders established that the first two branches of government would work together to equip the third branch to serve as an independent arbiter of justice. As columnist George Will once wrote:

A proper constitution distributes power among legislative,

executive and judicial institutions so that the will of the

majority can be measured, expressed in policy and, for the

protection of minorities, somewhat limited.

The structure of our Constitution and our own Senate rules of self- governance are designed to protect minority rights and to encourage consensus. Despite the razor-thin margin of recent elections, the majority party is not acting in a measured way but in complete disregard for the traditions of bipartisanship that are the hallmark of the Senate. It has acted to ignore precedents and reinterpret longstanding rules to its advantage. This practice of might makes right is wrong.

Now the White House's hand-picked majority leader seems intent on removing the one Senate protection left for the minority, the protection of debate in accordance with the longstanding tradition of the Senate and its Standing Rules. In order to remove the last remaining vestige of protection for the minority, the Republican majority is poised to break the Senate Rules and end the filibuster with the votes of the barest of majorities. They seem intent on doing this to force through the Senate this President's most controversial and divisive judicial nominees.

As the Reverend Martin Luther King wrote in his famous Letter from a Birmingham Jail: ``Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal.'' Fair process is a fundamental component of the American system of law. If we cannot have a fair process in these halls or in our courts, how will the resulting decisions be viewed? If the rule of law is to mean anything it must mean that it applies to all equally.

In the last Congress, I am sorry to report that the rule of law was broken, spindled and mutilated to serve the interests of President George W. Bush and his party. No man and no party should be above the law. That has been one of the strengths of our democracy. Our country was born in reaction to the autocracy and corruption of King George, and we must not forget our roots as a nation of both law and liberty. The best guarantee of liberty is the rule of law, meaning that the decisions of government are not arbitrary and that rules are not discretionary or enforced to help one side and then ignored to aid another. James Madison, one of the Framers of our Constitution, warned in Federalist Number 47 of the very danger that is threatening our great nation, a threat to our freedoms from within:

[The] accumulation of all powers legislative, executive and

judiciary in the same hands . . . may justly be pronounced

the very definition of tyranny.

Our freedoms as Americans are the fruit of too much sacrifice to have the rules broken in the United States Senate by a party colluding with the White House to try to appoint loyalists to courts who have been chosen with the hope that they will re-interpret precedents and overturn the very laws that have protected our most fundamental rights as Americans. The American people deserve better than we have seen with the destruction of rule after rule by a majority willing to sacrifice the role of the Senate as a check and balance in order to aid a President determined to pack the federal courts.

How does the record of judicial confirmations for President George W. Bush compare to administrations before his? Very well. In President Bush's first term, the 204 judges confirmed were more than were confirmed in either of President Clinton two terms, more than during the term of this President's father, and more than in Ronald Reagan's first term when he was being assisted by a Republican majority in the Senate. With the four judges confirmed so far this year, the total number of confirmations of this President's judicial nominees has risen to 208. It would rise further and faster yet, if the White House would only work with us to identify qualified, consensus nominees for the 29 current vacancies without a nominee. The President has sent only one new nominee to the Senate so far this year, and it is already May. If the President wanted to pick judges instead of fights, he could work with us rather than divide us.

And what happened to those 11 nominees the President started us off with 4 years ago? Considering the strong ideological bent of this group, the President has been quite successful. One has been withdrawn from consideration and 8 of the remaining 10 have been confirmed, 80 percent. The confirmations of Clinton circuit court nominees during his second term, from 1997-2000, while a Republican Senate majority was in control, were nowhere near as successful. Over those 4 years 35 of 51 Circuit Court nominees were confirmed, 69 percent.

If we looked at 1999 and 2000, the 106th Congress, the numbers are even worse. Fewer than half of the President's circuit court nominees were confirmed, 15 of 34. Outstanding and qualified nominees were never allowed a hearing, a committee vote or Senate consideration of any kind. These nominees include the current dean of the Harvard Law School, a former attorney general from Iowa, a former clerk to Chief Justice Rehnquist and many others--women, men, Hispanics, African Americans, a wide variety of qualified nominees.

So on this anniversary, let us understand that 8 of the 10 nominees we will hear complaints about have been confirmed.

With respect to the remaining two, I should note that in the years that Republicans held the Senate majority and Senator Hatch was the committee chair, Judge Terry Boyle was one of

the very few nominees he chose not to consider. Thus, Judge Boyle is still before the Judiciary Committee. Senator Specter held a hearing on that controversial nomination and the committee is still receiving copies of Judge Boyle's unpublished opinions for its review.

The remaining nominee is one whose opinions were criticized by Alberto Gonzales when he served on the Texas Supreme Court with her. Indeed, many of her positions were too conservative and activist for her conservative Republican colleagues on the Texas Supreme Court. When I chaired the committee in 2002, in another gesture of good will, I proceeded on a number of controversial nominations in spite of the recent mistreatment of President Clinton's nominees. One of those hearings was for Priscilla Owen.

I was not required to schedule that hearing. I could have followed the example of my immediate predecessor and denied her consideration before the committee. It would have been a much easier path than the alternative I chose. Instead, I proceeded. Senator Feinstein conducted the hearing in a fair manner. After the hearing, I then did something else that my predecessor as Chair so often did not: I proceeded to have the committee consider the nomination on its merits even though I knew I would not support it. The committee debated the nomination fairly and openly. Objections to her confirmation, based on her record as a Justice on the Texas Supreme Court, were aired and honestly debated. A vote was taken and instead of hiding behind anonymous holds or hidden blue slips, Senators put themselves on the record. The result was that the Owen nomination was rejected by a majority of the committee and not recommended to the Senate.

Since that time much of what has happened has been unprecedented. Despite the rejection of the nomination by the committee, the President resubmitted the nomination the next year. I do not believe that had ever been done before in our history. Then, on a party-line vote, Republicans forced the nomination to the floor. It was debated extensively and the Senate withheld its consent. After a series of cloture votes, cloture was not agreed upon in accordance with the rules of the Senate. Nonetheless, the President took further unprecedented action in, again, resubmitting the nomination to the Senate. That nomination is now pending, again, on the Senate Executive Calendar.

By any measure the President's first nominees were treated fairly. Judge Parker, Judge Shedd, Judge Clement, Judge Cook, Judge Sutton, Judge McConnell, Judge Gregory and Judge Roberts are each serving lifetime appointments on important circuit courts. The first slate of nominees has now all been accorded hearings. All but Judge Boyle have been considered by the Judiciary Committee. All but one of those has been confirmed.

This is no basis on which to break the rules of the Senate. This is not justification to end the Senate's role as a check and balance on the Executive. This is not reason for the majority to take the drastic and irreversible step of ending protection of the minority through the tradition of extended debate in the Senate.

The White House and the Senate Republican leadership's campaign for ``nuclear option'' seeks to end the role of the Senate serving as a check on the Executive. But that is precisely what the Constitution intends the Senate to provide. Supporters of an all-powerful Executive have gone so far as to seek to inject an unconstitutional religious test into the debate and to characterize those who oppose the most extreme of the President's nominees as ``against people of faith'' and to call for mass impeachments of judges and other measures to intimidate the judiciary. Our independent judiciary is an essential check on the political branches.

Pat Robertson says that he believes that federal judges are ``a more serious threat to America than Al Qaeda and the September 11 terrorists'' and ``more serious than a few bearded terrorists who fly into buildings'' and ``the worst threat America has faced in 400 years--worse than Nazi Germany, Japan and the Civil War.'' This is the sort of incendiary rhetoric that is paving the way to the ``nuclear option.'' It is wrong, it is destructive and it is short-sighted.

Chief Justice Rehnquist is right to refer to the federal judiciary as the crown jewel of our system of government. It is an essential check and balance, a critical source of protection of the rights of all Americans, including our religious freedoms. In ``A Man For All Seasons'' Sir Thomas More speaks about the rule of law and the need for its protections. When his family confronts him and demands that he break the law to get at the Devil, he replies:

What would you do? Cut a great road through the law to get

after the Devil? . . . And when the last law was down, and

the Devil turned 'round on you, where would you hide, Roper,

the laws all being flat?

This country is planted thick with laws, from coast to

coast, Man's laws, not God's! And if you cut them down . . .

do you really think you could stand upright in the winds that

would blow then?

Yes, I'd give the Devil benefit of law, for my own safety's

sake!

Our Federal judges are not the Devil and are not in the service of the Devil. Democratic Senators are not the Devil and are seeking to uphold the Senate as a check on the most extreme actions of the Executive. I pray that Republican Senators will think about that and reflect on the protections that our constitutional checks and balances provide. I trust that they will honor the protections of the minority that make this institution what it is. I hope that they will show the courage to protect the Senate and the minority that the senior Senator from Pennsylvania spoke about in his important statement a few weeks ago.

Mr. President, I yield the floor.

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

Mr. President, I see the floor manager of the highway bill.

I will.

Yes.

Mr. President, I thank the floor manager. This is very important legislation, enormously important to my State as other States. We need the kinds of investments in our roads and bridges to ensure their safety and security and that they will continue to be the vital avenues for an expanding and growing economy. I look forward to working with the committee.

Iraq Supplemental

I appreciate having the opportunity to address the Senate on what I anticipate will be the matter that will be before the Senate later this evening and through tomorrow, and that is the Iraq supplemental conference report. As I mentioned, I expect that it will be laid down in the next few hours, and I expect there will be a final resolution of this sometime tomorrow.

I welcome the opportunity to address some of the important provisions that are included in the conference report and bring them to the attention of our colleagues and to the American people.

I intend to support the Iraq spending bill. Although I disagree strongly with some of the bill's provisions, these funds are clearly needed for our troops. All of us support our troops. We obviously want to do all we can to see that they have proper equipment, vehicles, and everything else they need to protect their lives as they carry out their missions. It is scandalous that the administration has kept sending them into battle in Iraq without proper equipment. No soldier should be sent into battle unprotected. No parent should have to go in desperation to the local Wal-Mart to buy armor plates and mail them to their sons and daughters serving in Iraq.

Our military is performing brilliantly under enormously difficult circumstances, and we need to give them our support--not just from our words but from our pockets, too. One aspect of this bill that I am particularly proud of is the increased funding for humvees for our troops on patrol in Iraq. The Bayh-Kennedy amendment adds additional funds to keep production at increased levels. Some opponents claim that the Army already had enough armed humvees and objected to any further increase. But a front-page article in the New York Times, on April 25, told us the troop side of the real need for more armor and the difference it can make.

Company E, a Marine Corps unit based at Camp Pendleton, returned from 6 months in Ramadi last year, and its members were so frustrated with this problem that they decided to tell their story. They did not have enough armored vehicles. Thirteen of the twenty-one marines from Company E who were killed in Iraq had been riding in humvees that failed to protect them from bullets or bombs. They saw problems up close.

A year ago, eight of them were killed when their humvees were ambushed on the way to aid another unit under fire. The cargo section of the humvee where the troops were riding did not even have hillbilly armor to protect them from the blast. They were totally unprotected. As one marine described the attack: All I saw was sandbags, blood, and dead bodies. There was no protection in the back.

Captain Kelly Royer, Company E's unit commander, asked his superiors when he would be getting more armored humvees. He was told that additional armor had not been requested and that there were production constraints.

Another marine says they complained about the shortages every day to anybody we could. They told us they were listening, but we did not see it.

These marines on the front line knew the armor meant the difference between life and death, the difference between an essential mission and a suicide mission. They were desperate to get more armor. Day after day they saw the brutal consequences of the Pentagon's incompetence and delay.

The lessons learned from the war in Iraq are said to help us in future conflicts, but for all forces facing death every day, the future was yesterday. In fact, the Marines are requesting funds for the coming fiscal year to develop and produce new armored vehicles to avoid these deadly threats.

The need is so clear that the request was submitted under the Marine Corps Urgent Universal Needs Statement which was created to streamline the acquisition process and get equipment to the field faster. They have a plan to meet the future need, but what about the urgent need today?

We do not have the luxury of time to wait for these new vehicles to roll off a future assembly line. The need for armored humvees is now. The hillbilly armor they scavenge for and add to their unprotected humvees does not provide adequate protection.

The Army says of the new requirement approved this month, none of it is designated for the Marine Corps. The Pentagon refuses to make this a top priority. They continue to drag their feet.

In a report to Congress this month, the Government Accounting Office describes month after month of mismanagement by the Pentagon in supplying the armored humvees our troops urgently need to carry out their missions and stay alive.

The GAO report found the Army still had no long-term plan to increase the number of armored humvees. The war in Iraq has been going on for 2 full years. Our troops are under fire every day, and the Pentagon still does not have a plan to protect them.

I have in my hand an April 2005 GAO report, ``Defense Logistics Agency, Actions Needed to Improve Availability of Critical Items during Current and Future Operations.'' On page 123, it states that there two primary causes for the shortages of uparmored vehicles and add-on armor kits. First, a decision was made to pace production rather than use the maximum available capacity.

This is the General Accounting Office in their report of April of this year.

Second, the funding allocations did not keep up with rapidly increasing requirements.

That is the General Accounting Office about whether we need to have more uparmored humvees and whether we have to give it a higher priority and whether there is a need in Iraq today. Our troops are under fire every day, and the Pentagon still does not have a plan to protect them.

In a briefing prepared by marines for Congress, they specifically state, in their vehicle hardening strategy, that ``funding assistance is required to achieve optimum levels of armor protection.''

The GAO report clearly points out that the Pentagon's bureaucratic mentality infected its decisions. They tried to solve the problem in a slow and gradual manner instead of solving it quickly. As the GAO report states, there were two primary causes for the shortages: ``First, a decision was made to pace production.'' Translated into layman's language, that means there

was not a sense of urgency by the Pentagon. That is what ``pace production'' means. And then ``rather than use the maximum available capacity'' means they didn't get off their tail and increase production. And ``Second, funding allocations did not keep up with rapidly increasing requirements.''

I am going to come to the statements by the responsible DOD officials before the Armed Services Committee on which I serve.

It is equally obvious that in addition to the bureaucratic mentality of the Pentagon, their cakewalk mentality is also a major part of the problem. Week after week, month after month they refuse to believe that the insurgency will continue. They want to believe it will soon be over. They do not feel they need to waste dollars on armored humvees that soon will not be needed in Iraq. So month after month, our troops keep paying with their lives. The light the Pentagon sees at the end of the tunnel turns out to be the blinding flash of another roadside bomb exploding under another unprotected humvee in Iraq.

They cannot even get their story right. Armor Holdings, the company that makes the armored humvee, told my office recently that its current contract with the Army will actually mean sharp cutbacks in production. Right now, they produce 550 armored humvees a month. Their contract reduces that number to 239 in June, zero in July and then back to 40 in August and 71 in September. The company is now negotiating for slightly higher levels of production in June, July, and August, but it still expects to decrease production to 71 by September.

What possible justification can there be for the Pentagon to slow down current production so drastically in the months ahead when armored humvees are so urgently needed? The Pentagon keeps saying: We will work it out. On nine different occasions, we have asked the Pentagon for their requirements for humvees, and nine times they have been wrong. Nine times they have made their presentation before the Armed Services Committee, and nine times they have been wrong in underestimating the importance of needs, and American service men and women have been paying with their lives.

This bill tells the Department of Defense that we will not let them get it wrong for a tenth time. For the sake of our troops, Congress acted and the Pentagon should not ignore it. The contract should be amended immediately to obtain the maximum possible production of armored humvees for the months ahead. Our troops are waiting for an answer, and their lives depend on it.

Another important part of this bill will be the periodic report it requires on the progress our forces are making in Iraq. Our military is performing brilliantly under enormously difficult circumstances, but they do not want, and the American people do not want, an open-ended commitment. After all the blunders that took us into war, we need to be certain that the President has a strategy for success.

The $5.7 billion in this bill for training Iraqi security forces is a key element of a successful strategy to stabilize Iraq and withdraw American forces. The report will provide the straight answer that we have not had before about how many Iraqi security forces are adequately trained and equipped.

We are obviously making progress, but it is far from clear how much. The American people deserve an honest assessment that provides the basic facts, but that is not what we have been given so far.

According to a GAO report in March, U.S. Government agencies do not report reliable data on the extent to which Iraqi security forces are trained and equipped. There it is, March: The General Accounting Office says U.S. Government agencies do not report reliable data on the extent to which the Iraqi security forces are trained and equipped.

The American people do not know the answer. When they do not know, it means pretty clearly that they are not getting the kind of training and priority they should, and the longer it takes to train them the longer American servicemen are going to be over there risking their lives.

The report goes on to say that the Departments of State and Defense no longer report on the extent to which Iraqi security forces are equipped with their required weapons, vehicles, communications, equipment, and body armor. Imagine that. According to the General Accounting Office, the Departments of State and Defense no longer report on the extent to which the Iraqi security forces are equipped with their required weapons, vehicles, communications, equipment, and body armor.

It is clear from the administration's own statements that they are using the notorious fuzzy math tactic to avoid an honest appraisal.

On February 4, 2004, Secretary Rumsfeld said:

We have accelerated the training of Iraqi security forces,

now more than 200,000 strong.

A year later, on January 19, 2005, Secretary of State Condoleezza Rice said:

We think the number right now is somewhere over 120,000.

On February 3, 2005, in response to questions from Senator Levin at a Senate Armed Services Committee hearing, GEN Richard Myers, Chairman of the Joint Chiefs of Staff, conceded that only 40,000 Iraqi security forces are actually capable. He said:

48 deployable (battalions) around the country, equals about

40,000, which is a number that can go anywhere and do

anything.

Obviously, we need a better accounting of how much progress is being made to train and equip effective Iraqi security forces.

The President's commitment to keep American troops in Iraq as long as it takes and not a day longer is not enough for our soldiers and their loved ones. They deserve a clearer indication of what lies ahead, and so do the American people. I am encouraged that the administration is finally being required by this bill to tell Congress how many U.S. troops will be necessary in Iraq through the end of 2006. The American people, and especially our men and women in uniform, and their families, deserve to know how much real progress is being made in training Iraqi troops and how long our forces will be in Iraq. Hopefully, the administration will submit these reports in good faith and not attempt to classify this vital information.

Those are two of the major provisions that I think require support for this legislation. There was an additional provision that I support that I will mention briefly, and then I will conclude in mentioning a provision which I find very unacceptable, troublesome, and unworkable.

The provision that was added by Senator Mikulski, the H-2B visas for seasonal workers, which I had the opportunity to join with her, remains in this legislation, and it will make a great deal of difference. It will be a lifeline for small family businesses in my State on Cape Cod and many other firms that rely overwhelmingly on seasonal workers to meet their heavy summer needs. Many use the programs year after year because it is the only way to legally fill temporary and seasonal positions when no American workers are available. Without this amendment, they would be out of luck this summer, and many will be out of business.

This is a short-term solution to the current visa crisis. The bill is a 2-year fix, and without it many businesses will be forced to shut their doors. I appreciate the support of our colleagues on this issue. It will help many hard-working small businesses and industries across the country.

Unfortunately, not all the immigration provisions included in the bill have this kind of broad support. Included in the conference agreement are the so-called REAL ID immigration provisions that are highly controversial, harmful, and unnecessary. The Intelligence Reform Act we approved overwhelmingly last year provides real border security solutions. The so-called REAL ID bill added by the House to this spending bill contains controversial provisions we rejected last year and likely would have rejected again if we had had a chance to debate them on the Senate floor. They are a false solution on border security, and they serve no purpose except to push an anti-immigrant agenda. More than ever we need to take the time to get border security reform right as opposed to pushing through legislation to meet the demands of anti- immigrant extremists. The stakes are simply too great.

In addition to the numerous substantive problems with the REAL ID, the process through which they have

been forced into this conference report is flawed and unacceptable. The Republican leadership in the House and Senate shut Democrats out of the conference negotiations. Why? Because the House bill has controversial provisions that have questionable support in the Senate and with the American people. Strongarm tactics are offensive and do a great deal of disservice to the important issues of our time. The White House too, once rejected these provisions, yet, they now support them. What important issues will the White House flip-flop on next?

Those who pushed through these REAL ID provisions continue to say that loopholes exist in our immigration and asylum laws that are being exploited by terrorists. They claim these provisions will close them. In fact, they do nothing to improve national security and leave other big issues unresolved.

They want us to believe that its changes will keep terrorists from being granted asylum. But current immigration laws already bar persons engaged in terrorist activity from asylum. Before they receive asylum, all applicants must also undergo extensive security checks, covering all terrorist and criminal databases at the Department of Homeland Security, the FBI, and the CIA.

Asylum seekers will find no refuge. Battered women and victims of stalking will be forced to divulge their addresses in order to get driver's licenses, potentially endangering their lives. Many Americans will have other problems with their driver's license. All legal requirements, including labor laws, can now be waived to build a wall. For the first time since the Civil War, habeas corpus will be prohibited. The REAL ID provisions contain other broad and sweeping changes to laws that go to the core of our national identity.

Each year, countless refugees are forced to leave their countries, fleeing persecution. America has always been a haven for those desperate for such protection. At the very beginning of our history, the refugee Pilgrims seeking religious freedom landed on Plymouth Rock. Ever since, we have welcomed refugees, and it has made us a better Nation. Refugees represent the best of American values. They have stood alone, at great personal cost, against hostile governments for fundamental principles like freedom of speech and religion. We have a responsibility to examine our asylum policies carefully, to see that they are fair and just.

But, the REAL ID bill tramples this noble tradition and will be devastating for legitimate asylum-seekers fleeing persecution. It will make it more difficult for victims fleeing serious human rights abuses to obtain asylum and safety, and could easily lead to their return to their persecutors.

Another section of conference report contains a provision that would complete the U.S.-Mexico border fence in San Diego. But it goes much farther than that. It gives the Department of Homeland security unprecedented and unchecked authority to waive all legal requirements necessary to build such fences, not only in San Diego, but anywhere else along our 2,000 mile border with Mexico and our 4,000 mile border with Canada. Building such fences will cost hundreds of millions of dollars, and they still will not stop illegal immigration. What we need are safe and legal avenues for immigrants to come here and work, not more walls.

A major additional problem in the REAL ID provisions is that it could result in the deportation even of long-time legal permanent residents, for lawful speech or associations that occurred 20 years ago or more. It raises the burden of proof to nearly impossible levels in numerous cases.

A person who made a donation to a humanitarian organization involved in tsunami relief could be deported if the organization or any of its affiliates was ever involved in violence. The burden would be on the donor to prove by clear and convincing evidence that he knew nothing about any of these activities. The spouse and children of a legal permanent resident could also be deported too based on such an accusation, because of their relationship to the donor.

The provision could be applied retroactively, so that a permanent resident who had once supported the lawful, nonviolent work of the African National Congress in South Africa, Sinn Fein in Northern Ireland, the Northern Alliance in Afghanistan, or the Contras in Nicaragua would be deportable. It would be no defense to show that the only support was for lawful nonviolent activity. It would be no defense to show that the United States itself supported some of these groups.

The driver's license provisions do not make us safer either. Let me explain what these provisions really do. They repeal a section of the Intelligence Reform Act which sets up a process for States and the Federal Government to work together to establish Federal standards for driver's licenses and identification cards. Progress is already being made to implement these important measures, but this bill replaces them with highly problematic and burdensome requirements. The National Conference of State Legislatures says that these provisions are ``unworkable, unproven, costly mandates that compel States to enforce Federal immigration policy rather than advance the paramount objective of making State-issued identity documents more secure and verifiable.''

Indeed, it is a costly unfunded mandate on the States. The CBO estimate on the implementation of the driver's license provisions is $20 million over a 5-year period to reimburse States for complying with the legislation. But, that is not all; the provisions require States to participate in an interstate database that would share information at a cost of $80 million over 3 years.

The driver's license provisions do nothing to address the threat of terrorists or to address legitimate security concerns. It would not have prevented a single 9/11 hijacker from obtaining a driver's license, or a single terrorist from boarding a plane. All 13 hijackers could have obtained licenses or IDs under this proposal, and foreign terrorists can always use their passports to travel.

The result of these restrictive driver's license provisions will be raised insurance rates, higher numbers of fatalities on America's roadways, and an increased black market for false and fraudulent documents. The REAL ID actually undercuts the original purpose of traffic safety. It is better to have licensed, insured, and trained drivers on our roads.

Preventing immigrants from obtaining driver's licenses undermines national security by pushing people into the shadows and fueling the black market for fraudulent identification documents.

The REAL ID provisions do nothing to combat the threat of terrorists or to deal with legitimate security concerns. They have taken away precious time that could have been used to address genuine pressing issues.

Hundreds of organizations across the political spectrum continue to oppose this legislation. A broad coalition of religious, immigrant, human rights, civil liberties and state groups have expressed their own strong opposition.

In these difficult times for our country, we know that the threat of terrorism has not ended, and we must do all we can to enact genuine measures to stop terrorists before they act, and to see that law enforcement officials have the full support they need. The provisions of the REAL ID bill in the conference report today will not improve these efforts. They will not make us safer or prevent terrorism. They are an invitation to gross abuses, and a false solution to national and border security.

The REAL ID bill with its controversial provisions should have been considered by the Senate through debate and discussion, not attached to a critical piece of legislation needed by our troops.

I urge the Senate to get serious about immigration reform that will make genuine improvements where they are needed, and not in the piecemeal fashion that is contained in this report.

This bill also provides nearly $12 million to remedy a crisis in off- site judicial security for our Federal judges. With this bill, we have taken a small, but necessary step toward increasing security for the distinguished men and women of our country who have been appointed to the courts. In the wake of the recent murders of the husband and mother of Federal Judge Joan Lefkow at her home in Chicago, and the courtroom killings in Atlanta, it is clear we

must do more to enhance judicial security. This is a matter of the highest urgency.

The tragic deaths of Judge Lefkow's family demonstrate that judges may be safe inside the walls of our wellguarded courthouses, but they are vulnerable to disgruntled litigants in other places, even in their own homes. In, fact, security in the homes of judges has long been a concern for the Judicial Conference, the principal decision-making group for the Federal courts. Sadly, three judges had previously been killed in their homes: Judge John Wood of Texas, in 1979; Judge Richard Daronco of New York, in 1988; and Judge Robert Vance, of Alabama, in 1989.

The vast majority of threats are received from people who are angry with the outcome of a case in court. In the 10 years since the first world trade center bombing, the Federal judiciary has handled an increasing number of ``high threat'' matters.

Judge Lefkow was the victim of an act of domestic terrorism stemming from what should have been a routine civil matter. Matthew Hale, the leader of a White Supremacist group known as the World Church of the Creator, was convicted in April 2004 of soliciting an undercover FBI informant to murder Judge Lefkow in retaliation for her ruling against him in a trademark dispute. This example highlights the environment in which our Federal judges toil every day.

The Marshals Service, underfunded and understaffed as it is, struggles to keep up with security needs in the new high-risk age, but there is no reason why our judges should continue to remain so vulnerable 16 years after Judge Vance was killed in his home. We need to stand up for an independent judiciary. We can do so by providing the funds to make their homes safe.

There were provisions in this legislation to do that. It says something about the nature of our dialog here when we have to provide the kind of extraordinary additional security to judges because of the nature of the political dialog. Words have consequences. Words have results. Words have meanings. The idea that individuals in responsible positions continue to threaten members of the judiciary too often can result in serious consequences to those judicial members. We have attempted to provide some additional security to protect those individuals. The best protection would be for more restraint on the part of those who talk about an independent judiciary.

Mr. President, I ask unanimous consent that an article dated April 25, 2005, from the New York Times be printed in the Record.

Mr. President, I yield the remainder of my time.

Mr. President, I ask unanimous consent to speak as in morning business.

Mr. President, I think maybe 15 minutes.

Mr. President, 4 years ago, the President nominated Texas Supreme Court Justice Priscilla Owen to serve on the United States Court of Appeals for the Fifth Circuit. Justice Owen is an exceptional jurist, a devoted public servant, and an extraordinary Texan. Yet after 4 years, she still awaits an up-or-down vote on the floor of the Senate. Four years today and we are still waiting for a vote.

Although a bipartisan majority of the Senate stands ready to confirm this outstanding nominee, a partisan minority obstructs the process and refuses to allow that vote on her nomination. What is more, the partisan minority now insists, for the first time in history, that she must be supported by a supermajority of 60 Senators rather than the constitutional standard and the Senate tradition of majority vote.

I know Justice Owen personally, having served with her on the Texas Supreme Court for 3 years. She is a distinguished jurist and public servant who has excelled at virtually everything she has set out to do. She was a top graduate of Baylor Law School at the remarkable age of 23 and scored the top score on the Texas bar exam. She entered the legal profession at a time when relatively few women did. After a distinguished record in private practice, she reached the pinnacle of the Texas bar, the Texas Supreme Court. In doing so, she was supported by a larger percentage of Texans than any of her colleagues during her last election, receiving around 84 percent of the vote, after enjoying the endorsement of virtually every newspaper in Texas. She has been honored as the Baylor Young Lawyer of the Year and the Baylor University Outstanding Alumna.

Priscilla Owen enjoys significant bipartisan support. Three Democratic judges on the Texas Supreme Court and a bipartisan group of 15 presidents of the State Bar of Texas support her nomination.

The Houston Chronicle, in September of 2000, called Owen ``[c]learly academically gifted,'' stating that she ``has the proper balance of judicial experience, solid legal scholarship and real-world know-how to continue to be an asset on the high court.''

The Dallas Morning News wrote in support of Owen on September 24, 2002:

She has the brainpower, the experience and temperament to

serve ably on an appellate court.

The Washington Post wrote on July 24, 2002:

She should be confirmed. Justice Owen is indisputably well

qualified.

Lori Ploeger, Justice Owen's former law clerk, wrote in a letter to Senator Leahy on June 27, 2002:

During my time with her, I developed a deep and abiding

respect for her abilities, her work ethic, and, most

importantly, her character. Justice Owen is a woman of

integrity who has profound respect for the rule of law and

our legal system. She takes her responsibilities seriously

and carries them out diligently and earnestly.

Ms. Ploeger continued:

Justice Owen is a role model for me and for other women

attorneys in Texas.

Mary O'Reilly, a lifetime member of the NAACP and a Democrat, in a letter to Senator Dianne Feinstein, dated August 14, 2002, wrote:

I met Justice Owen in January of 1995, while working with

her on the Texas Supreme Court Gender Neutral Task Force . .

. I worked with Justice Owen on Family Law 2000, an important

state-wide effort initiated in part by Justice Owen . . . In

the almost eight years I have known Justice Owen, she has

always been refined, approachable, even-tempered and

intellectually honest.

Priscilla Owen is not just intellectually capable and legally talented; she is also a fine human being with a big heart. The depth of her humanity and compassion is revealed through her significant free legal work and community activity.

Priscilla has spent much of her life devoting time and energy in service of her community. She has worked to ensure that all citizens are provided access to justice as the court's representative on the Texas Supreme Court Mediation Task Force and to statewide committees, as well as in her successful efforts to prompt the Texas legislature to provide millions of dollars per year in legal services for the poor. She was instrumental in organizing a group Ms. O'Reilly spoke of known as Family Law 2000 which seeks to find ways to educate parents about the effect divorce can have on children and seeks to lessen the negative impacts it has on them. She also teaches Sunday school at St. Barnabas Episcopal Mission in Austin, TX, where she is an active member.

It is plain from these and so many other examples that Justice Owen is a fine person and a distinguished leader in the legal community. One would think that after 4 long years, she would be afforded the simple justice of an up-or-down vote. I remain optimistic. While I know the Democratic leader has offered a UC to consider the nomination of one of the justices currently being filibustered, I don't see why that same principle would not apply to all of the justices, and we would just say that any nominee of any President, whether they be Republican or Democrat, where a bipartisan majority stands ready to confirm them, should receive that up-or-down vote on the Senate floor. I remain hopeful the current 4-year violation of long-term Senate tradition, the imposition of this new supermajority requirement, will be laid aside in the interest of proceeding with the people's business, a job my colleagues and I were elected to faithfully execute.

For more than 200 years, it was a job that we did indeed execute. Senators from both sides exercised mutual restraint and did not abuse the privilege of debate out of respect for two coequal branches of government--the executive that has the constitutional right to choose his or her nominees and an independent judiciary. Indeed, until 4 years ago, colleagues on both sides of the aisle have consistently opposed the use of the filibuster to prevent nominees from receiving an up-or- down vote where they clearly had bipartisan majority support.

Senator Kennedy, the distinguished senior Senator from Massachusetts, said in 1998:

Nominees deserve a vote. If our . . . colleagues don't like

them, vote against them. But don't just sit on them--that is

obstruction of justice.

And Senator Leahy, the distinguished ranking member of the Judiciary Committee, who was just on the floor, said in 1998:

I have stated over and over again on the floor that I would

refuse to put an anonymous hold on any judge; that I would

object and fight against any filibuster on a judge, whether

it is somebody I opposed or supported; that I felt the Senate

should just do its duty.

I could not agree more with these comments made by Senator Leahy and Senator Kennedy. But today we are doing a disservice to this fine nominee in our failure to afford her that up-or-down vote that they advocated a few short years ago. The new requirement this partisan minority is now imposing, that nominees won't be confirmed without support of 60 Senators, is, by their own admission, wholly unprecedented in Senate history.

The reason for this is simple: The case for opposing this fine nominee is so weak that using a double standard and changing the rules is the only way they can defeat her nomination. What is more, they know it, too.

Before her nomination got caught up in this partisan fight, the ranking Democrat on the Judiciary Committee

predicted that Justice Owen would be swiftly confirmed. On the day of the announcement of the first group of nominees, 4 years ago, including Owen, he said he was ``encouraged'' and that ``I know them well enough that I would assume they would all go right through.''

Notwithstanding the change of attitude by the partisan minority, this gridlock is not really about Priscilla Owen, certainly not about Priscilla Owen the person. Indeed, just a few weeks ago, the Democratic leader announced that Senate Democrats would give Justice Owen an up- or-down vote, albeit only if other nominees were defeated or withdrawn or simply thrown overboard.

Obviously, this debate is not about principle. It is all about politics. It is shameful. Any fair examination of Justice Owen's record demonstrates how unconvincing the critics' arguments are.

For example, Justice Owen is accused of ruling against injured workers, against those seeking relief from employment discrimination, and other sympathetic parties on some occasions. Never mind, however, that good judges such as Judge Owen do their best to follow the law regardless of which party will win and which party will lose. Never mind that many of her criticized rulings were unanimous or near unanimous decisions of a nine-member Texas Supreme Court. Never mind that many of these rulings simply followed Federal precedent authored and agreed to by appointees of Presidents Carter and Clinton or by other Federal judges unanimously confirmed by the Senate. Never mind that judges often disagree, especially when the law is ambiguous and requires careful and difficult interpretation.

The Democratic leader raised the frequent objection and that is criticized Justice Owen for attempting to interpret and enforce a popular Texas law requiring parental notification before a minor can obtain an abortion. Her opponents allege that in one parental notification case, then-Justice Alberto Gonzales accused her of judicial activism. That charge is untrue. I read myself the opinions again this weekend and the charge is simply untrue. Gonzales did not accuse Owen of judicial activism. Not once did he say Justice Owen was guilty of judicial activism. To the contrary, he never mentioned her name or her opinion in the opinion the critics cite.

Furthermore, our current Attorney General has since testified under oath that he never accused Owen of any such thing. What is more, the author of the parental notification law in question supports Justice Owen, as does the pro-choice Democratic law professor who was appointed to the Texas Supreme Court's advisory committee to implement that law. In other words, Owen simply did ``what good appellate judges do every day. If this is activism, then any judicial interpretation of a statute's terms is judicial activism.''

Mr. President, I ask unanimous consent this letter be printed in the Record at the close of my remarks.

The American people know a controversial ruling when they see one, be it the redefinition of a traditional institution such as marriage, the expulsion of the Pledge of Allegiance, and other expressions of faith from the public square, the elimination of the ``three strikes and you're out'' law, and other penalties for convicted criminals, or the forced removal of military recruiters from college campuses. Justice Owen's rulings fall nowhere near this standard or category. There is a whole world of difference between struggling to interpret the ambiguous expressions of a legislature and refusing to obey a legislature's directives altogether.

It is clear Justice Owen deserves the broad bipartisan and enthusiastic support she obviously enjoys across the political spectrum. It is equally clear her opposition comes only from a narrow band on the far left fringes of that political spectrum. If the Senate were merely to observe 200 years of consistent Senate and constitutional tradition dating back to our Founders, there would be no question about her ability to be confirmed. She would be sitting on the Fifth Circuit Court of Appeals.

Legal scholars across the political spectrum have long concluded what we in this body know instinctively, and that is to change the rules of confirmation as a partisan minority has done badly politicizes the judiciary and hands over control of the judiciary to special interest groups. One Professor Michael Gerhardt, who advises Senate Democrats on judicial confirmation, has written that a supermajority requirement for confirming judges would be ``problematic, because it creates a presumption against confirmation, shifts the balance of power to the Senate, and enhances the power of special interests.''

DC Circuit Judge Harry Edwards, a respected Carter appointee, has written that the Constitution forbids the Senate from imposing a supermajority rule for confirmation. After all, otherwise, ``the Senate, acting unilaterally, could thereby increase its own power at the expense of the President'' and ``essentially take over the appointment process from the President.'' Judge Edwards thus concluded that ``the framers never intended for the Congress to have such unchecked authority to impose supermajority voting requirements that fundamentally change the nature of our democratic process.''

Mr. President, I think I have about 5 more minutes of my remarks. I ask unanimous consent that I be given an additional 5 minutes and the Senator from Vermont be given the same.

I thank the Chair. I thank the Senator from Vermont.

Georgetown Law Professor Mark Tushnet has written that ``the Democrats' filibuster is a repudiation of a settled preconstitutional understanding.'' He has also written, ``There's a difference between the use of the filibuster to derail a nomination and the use of other Senate rules--on scheduling, on not having a floor vote without prior committee action, etc.--to do so. All those other rules can be overridden by a majority of the Senate whereas the filibuster cannot be overridden in that way. A majority of the Senate could ride herd on a rogue Judiciary Committee chair who refused to hold a hearing on some nominee; it can't do that with respect to a filibuster.''

Georgetown Law Professor Susan Bloch has condemned supermajority voting requirements for confirmation, arguing that they would allow the Senate to ``upset the carefully crafted rules concerning appointment of both executive officials and judges and to unilaterally limit the power the Constitution gives the President in the appointment process. This, I believe, would allow the Senate to aggrandize its own rules and would unconstitutionally distort the balance of powers established by the Constitution.''

In summary, the record is clear. The Senate tradition has always been majority vote, at least up until the last 4 years. The desire by some to alter that Senate tradition has been roundly condemned by legal experts across the political spectrum. And now the 100 Members of this body have a decision to make. Do we accept this dramatic and dangerous departure from 200 years of Senate precedent or do we work to restore the tried and true Senate tradition and practice?

I know the majority leader and, indeed, the Democratic leader have been working trying to find a way. I prefer, though, a way that would allow our nominees, all nominees, whether they be Republican or Democrat, to receive an up-or-down vote where a majority of the Senate stands ready to confirm them. I believe we should choose collaboration over contention any day of the week, if possible. But bipartisanship is a two-way street. Both sides must agree to certain fundamental principles and the most fundamental principle is fairness. Fairness means the same rules apply, the same standards, whether the President is a Republican or Democrat. But bipartisanship is difficult when long- held understandings and the willingness to abide by basic agreements and principles have unraveled so badly. When fairness falters, bipartisanship, too, will fail.

So I ask my colleagues what are we to do when these basic principles, commitments, and understandings have been so badly trampled upon? What are

we to do when nominees are attacked for doing their jobs, when they are attacked for following precedents adopted and agreed to by Presidents Carter and Clinton, and when they are singled out for rulings agreed to by a unanimous, or near unanimous court? What are we to do when these nominees are demonized and caricatured beyond recognition, when they are condemned as unqualified while at the same time they are deemed unanimously well qualified by organizations Democrats used to revere? What are we to do when Senate and constitutional traditions are abandoned for the first time in more than two centuries, when both sides once agreed nominees should never be blocked by filibuster and then one side denies the existence of that very agreement, when their interpretation of Senate tradition changes based on who is in the Oval Office?

It is time to fix the broken judicial confirmation process. It is time to end the blame game and fix the problem and move on. And it is time to end the wasteful and unnecessary delay in the process of selecting judges that hurts our justice system and harms all Americans.

Mr. President, I thank the Chair. I thank my colleague from Vermont and yield the floor.

Exhibit 1

Southern Methodist University,

Dallas, TX, May 3, 2005.

Re Priscilla Owen

Senator John Cornyn,

Hart Senate Office Building,

Washington, DC.

Dear Senator Cornyn: I write in support of the nomination

of Priscilla Owen to the United States Court of Appeals for

the Fifth Circuit. I write as a law professor who specializes

in constitutional law. I write as a pro-choice Texan, who is

a political independent and has supported many Democratic

candidates. And I write as a citizen who does not want the

abortion issue to so dominate the political debate that good

and worthy judicial candidates are caught in its cross hairs,

no matter where they stand on the issue.

Justice Owen deserves to be appointed to the Fifth Circuit.

She is a very able jurist in every way that should matter.

She is intelligent, measured, and approaches her work with

integrity and energy. She is not a judicial activist. She

does not legislate from the bench. She does not invent the

law. Nothing in her opinions while on the Texas Supreme Court

could possibly lead to a contrary conclusion, including her

parental notification opinions. I suspect that Priscilla

Owen's nomination is being blocked because she is perceived

as being anti-choice on the abortion issue.

This perception stems, I believe, from a series of opinions

issued by the Texas Supreme Court in the summer of 2000

interpreting the Texas statute that requires parental

notification prior to a minor having an abortion. The statute

also provides for what is called a ``judicial bypass'' to

parental notification. Justice Owen wrote several concurring

and dissenting opinions during this time. She has been

criticized for displaying judicial activism and pursuing an

anti-choice agenda in these opinions. This criticism is

unfair for two reasons.

First, the Texas statute at issue in these cases contains

many undefined terms. Further, the statutory text is not

artfully drafted. I was a member of the Texas Supreme Court's

Advisory Committee that drafted rules in order to help judges

when issuing decisions under this parental notification

statute. My involvement in this process made it clear to me

that in drafting the parental notification statute, the Texas

Legislature ducked the hard work of defining essential terms

and placed on the Texas courts a real burden to explicate

these terms through case law.

Moreover, the statute's legislative history is not useful

because it provides help to all sides of the debate on

parental notification. Several members of the Texas

Legislature wanted a very strict parental notification law

that would permit only infrequent judicial bypass of this

notification requirement. But several members of the Texas

Legislature were on the other side of the political debate.

These members wanted no parental notification requirement,

and if one were imposed, they wanted courts to have the power

to bypass the notification requirement easily. The resulting

legislation was a product of compromise with a confusing

legislative history.

In her decisions in these cases, Justice Owen asserts that

the Texas Legislature wanted to make a strong statement

supporting parental rights. She is not wrong in making these

assertions. There is legislative history to support her.

Personally, I agree with the majority in these cases. But I

understand Justice Owen's position and legal reasoning. It is

based on sound and clear principles of statutory

construction. Her decisions do not demonstrate judicial

activism. She did what good appellate judges do every day.

She looked at the language of the statute, the legislative

history, and then decided how to interpret the statute to

obtain what she believed to be the legislative intent.

If this is activism, then any judicial interpretation of a

statute's terms is judicial activism. Justice Owen did not

invent the legislative history she used to reach her

conclusion, just as the majority did not invent their

legislative history. We ask our judges to make hard decisions

when we give them statutes to interpret that are not well

drafted. We cannot fault any of these judges who take on this

task so long as they do this work with rigor and integrity.

Justice Owen did exactly this.

Second, we must be mindful that the decisions for which she

is being criticized had to do with abortion law. I do not

know if Justice Owen is pro-choice or not, but it does not

matter to me. I am pro-choice as I stated before, but I would

not want anyone placed on the bench who would look at

abortion law decisions only through the lens of being pro-

choice. Few categories of judicial decisions are more

difficult than those dealing with abortion. A judge has to

consider the fact that the fetus is a potential human, and

this potential will be ended by an abortion. All judges,

including those who are pro-choice, must honor the spiritual

beauty that is potential human life and should grieve its

loss. But a judge has other important human values to

consider in abortion cases. A judge also has to consider

whether a woman's independence and rights may well be

unconstitutionally compromised by the arbitrary application

of the law. All this is further compounded when a minor is

involved who is contemplating an abortion. I want judges who

will make decisions in the abortion area with a heavy heart

and who, therefore, will make sure of the legal reasoning

that supports such decisions.

I think the members--all the members--of the Texas Supreme

Court did exact1y this when they reached their decisions in

the parental notification cases. I was particularly struck by

the eloquence of Justice Owen when she discussed the harm

that may come to a minor from having an abortion. She

recognized that the abortion decision may haunt a minor for

all her life, and her parents should be her primary guides

in making this decision. Surely, those of us who are pro-

choice have not come to a point where we would punish a

judge who considers such harm as an important part of

making a decision on parental notification, especially

when legislative history supports the fact that members of

the Texas Legislature wanted to protect the minor from

this harm. As a pro-choice woman, I applaud the

seriousness with which Justice Owen looked at this issue.

If I thought Justice Owen was an agenda-driven jurist I

would not support her nomination. Our founders gave us a

great gift in our system of checks and balances. The judicial

branch is part of that system, and it is imperative that it

be respected and seen as acting without bias or predilection,

especially since it is not elected. Any agenda-driven

jurist--no matter the issue--threatens the honor accorded the

courts by the American people. This is not Priscilla Owen. So

even though I suspect Justice Owen is more conservative than

I am and even though I disagree with some of her rulings,

this does not change the reality that she is an extremely

well-qualified nominee who should be confirmed.

It would be unfair to place Priscilla Owen in the same

category with other nominees who, in my opinion, are judicial

activists and who I do not support. Some of these other

nominees appear to want to dismantle programs and policies

based on a political or economic agenda not supported by

legal analysis or constitutional history. They appear to want

to push their views on the country while sitting on the

bench. Priscilla Owen should not be grouped with them.

Justice Owen possesses exceptional qualities that have made

and will make her a great judge. I strongly urge her

confirmation.

Sincerely,

Linda S. Eads,

Associate Professor of Law.

Mr. WYDEN addressed the Chair.

Reserving the right to object, I would ask the Senator through the Chair whether he would agree Senator Lott be recognized to speak after the Senator from Oregon on the same basis. He also apparently wishes to come to the floor and speak.

Mr. President, we are overdue getting on the highway bill. We are preparing right now to offer a substitute amendment. We are prepared to do that, but Senator Specter had said he wanted to speak for a period of time as in morning business. He has been planning to do that, and I will yield 15 minutes to him for that purpose.

That is my understanding. You remained here with me all last week inviting Members to bring their amendments down. We said we would be getting close. Who knows, we may even get a cloture vote, and then at the last minute hysteria will set in. Now is the time to bring them down and consider them.

Let me comment on the great work the chairman of the transportation subcommittee, Senator Bond, has done. We need to get to it now. This is probably very likely the most important single bill of this session.

Mr. President, in a few minutes it is our intention to bring up the substitute amendment, to have the pending amendment withdrawn and bring up the substitute amendment. We are not quite ready for that. We are waiting for a few things to be done in a few minutes. I think it will be worked out, but the managers' amendment is going to do a lot of things to offset some of the problems people had with the bill. When that time comes, we want a chance to go over it in detail and make this a reality.

The amendment is going to bring the total size of the bill up to $251 billion. This includes $199 billion for highways, $5.8 billion for highway safety, and $46.6 billion for mass transit. This amendment would add $6.8 billion in additional receipts to the highway account of the highway trust fund, all of which are offset in the amendment--also, thanks to the good work of Senator Grassley and Senator Baucus of the Finance Committee. They have made a yeoman effort and have been able to have us increase this highway funding and have it paid for.

Highway funding would increase by $8.9 billion over the EPW-reported bill. That is the bill that came out of our committee. It includes a 5.1-percent increase in both apportioned and allocated programs. It also increases the minimum rate of return to donor States to 91 percent immediately. Right now, as you know, it is 90.5 percent. It would raise it to 91 percent in 2006 through 2008. This increases the growth ceilings so more States get to 92 percent more quickly.

In other words, we are to go to 91 percent immediately, and in 2006, and then eventually all States will be at 92 percent in this period of time.

The donee States, the ones that are actually getting back an amount that is in excess of the amount that is paid in, they would have a guaranteed minimum growth rate being increased from 10 percent to 15 percent every year. The average growth rate increases from just under 25 percent to almost 31 percent.

The amendment also includes firewalls to ensure the highway trust fund dollars are spent on this Nation's transportation needs. There has been a problem over a long period of time. People have been very offended by the fact that these trust funds have been raided and somehow these moneys are diverted to other causes. Senator Bond and I, and I think the vast majority, and certainly 76 percent of this Senate, agree that we should have firewalls; we should protect that money and make sure it goes to highway spending.

Finally, the mass transit funding increased by $2.3 billion to $46.6 billion. This represents a dramatic increase in the transit share of the bill from 18.18 percent under TEA-21--that is what it was when we passed it 7 years ago--to 18.48 percent. The safety programs have increased, which Senator Lott has talked about in the purview of his committee. They have increased their funding over levels in S. 1072, last year's bill, which was funded at $318 billion.

Last year, during consideration of the $318 billion Transportation bill, the Senate voted 76 to 21 in favor of funding the highway bill at $255 billion, in mass transit at $56 billion. This vote should be even more of a resounding victory for adequate funding levels for transportation, especially considering this bill is funded at a lower level.

I remind my colleagues of the vote on the Talent amendment to this budget resolution which received over 80 votes from Senators who voted to support it.

This amendment gave flexibility to increase the funding for the bill as long as it was offset, which is exactly what Senators Grassley and Baucus have done in their portion of this amendment.

This is the amendment we do want to bring up. We are not quite ready to seek unanimous consent to bring it up.

I ask Senator Bond, the subcommittee chairman, if he seeks recognition now. Let me have him recognized. If he wants to yield to Senator Inouye, he can do that.

Yes, I yield for a question.

I respond to the Senator from Illinois, I am not sure what was shared with all the Democrats. I do know that Senator Jeffords and Senator Baucus--we have been working together. They are the ranking members of the subcommittee and whole committee. We have done this jointly. This has been done all together. Whether that was shared with all the Members, I have no way of knowing.

I thank the Senator from Illinois.

I remind the Senator, as chairman of this committee I went first to Illinois before going anywhere else to have a field hearing, which we had in Chicago and went over some of the needs. They made it very clear to me that there are needs in Illinois, and the Senators from Illinois are very anxious to get this bill under consideration.

Again, the only frustration I have on amendments is that for 4 days last week we talked about this, begging people to bring down amendments.

The Senator from Illinois knows as well as I know what could very well happen: we could get into a cloture situation where then we would be out of time.

It seems as if it is the nature of the Senate that you just do not do anything until you have to do it. Now you have to do it. So we want them to come down. It is our hope now to get to the managers' substitute. We are not in a position to quite do that yet; however, we can certainly entertain amendments and have amendments discussed and lined up. Then we can talk about the necessity of having this bill. That is essentially what we are doing right now.

I can assure the Senator from Mississippi, his frustration is no greater than mine because I will have people stop and talk to me about amendments--fine, bring them down; let's discuss them--and they do not show up. That is what we want to make sure happens.

I think the Senator from Illinois is right. We are on our sixth extension now. We worked on this bill for 2 years prior to the time we brought it to the floor last year. So this has been a 3-year process. My concern is if we end up just getting another extension, we are not going to get anything done that really needs to be done. If we are concerned about doing something for donor States, we are not going to do it with an extension because it is going to be the same thing as we have been having under TEA-21 as of 7 years ago.

If our concern is about the Safety Corps, the Senator from Mississippi is right. It is his committee that deals with the Safety Corps programs. Certainly the State of Oklahoma is high on the list of deaths on the highways. We have to get this done.

I suggest it is a matter of life and death that we get a bill because if we operate off of extensions, we are not going to do anything to improve safety on the highways. The Senator from Mississippi made that very clear. We are not going to have any real streamlining of environmental reviews. We have some good elements in this bill that are going to be able to help us build roads faster with less money than we could on an extension. If we are operating on an extension and do not have a bill, we are not going to have any increase in our ability to have innovative financing thereby giving the States more tools.

What we have tried to do in this bill is to give a lot more of the power back to the States. It has been my belief, and I think shared by most members of my committee, that the closer you get to home, the more people are aware of their specific needs. There are a lot of people who have some excellent ideas on innovative financing that the States are going to be able to do. This is in the bill.

The Safe Routes to School Program--the Senator from Vermont is very much interested in that. It is one that is handled in this bill. However, if we go on an extension, extension No. 7, we are not going to have the Safe Routes to School Program.

The States are considered to have uncertainty. We have come back from

about a 7-day recess. I talked to our people, our highway people, our department of transportation in Oklahoma, and they cannot have any kind of planning for any kind of certainty as to knowing what is going to happen in the next year and the year after that and for the next five years unless we pass this bill. They are begging, pleading: Why can't you get this done because it has to be done in order for us to plan for the future.

I am particularly concerned about this because as to bridges, for example, in my State of Oklahoma, we are dead last in the Nation in terms of the condition of our bridges. And we cannot get anything done and plan for the future unless we get a bill.

There are a lot of people in a lot of States who are concerned about the borders program. It is critical to the border States that are dealing with the NAFTA traffic. This bill deals with that. With an extension, it is not going to happen. If we do not do this bill, we will have a delay in the establishment of this national commission to explain new ways to fund transportation.

I can tell you we have not done it any differently than when Dwight D. Eisenhower was President of the United States. He came along and recognized a problem in our transportation system as a result of the problem he had during World War II in moving troops and equipment around. Looking at our transportation system, the first thing he did when he became President of United States was to set up a National Highway Program and get it started. We have been funding our roads and our highways and our improvements and our bridges and infrastructure the same as we did during the Eisenhower administration. The bill sets up a national commission to go over some creative types of changes in funding where we can do a better job.

Right now, we are looking at the consideration, shortly, of the managers' amendment. If we do, it has been reported that even that amount, which is higher than the amount that was reported out of my committee, is going to do nothing more than just maintain what we have today. It is not really going to provide anything new. So we need to recognize that.

I have to say this, too. There are a lot of different philosophies that are represented in this Chamber. I am one of the most conservative Members. Yet there are some areas where conservatives do spend more money, and one is in infrastructure, which is what we are supposed to be doing here. We do not want to delay this national commission we set up in this legislation. I believe it is time to make a change for the better.

With the bill, we have increased the opportunity to address the chokepoints for intermodal transportation. This is kind of interesting. People do not realize this is not just a roads bill. This is an intermodal bill that considers chokepoints between channels and railroads and roads. We deal with that. It is an intermodal bill. A lot of people are not aware of the fact that in my State of Oklahoma, we are actually navigable. We have a navigation channel. This bill deals with the chokepoints between rail, road, water, and other air transportation.

And there is the firewall. If there is one thing that has bothered me over the years I have been on this committee--I have been on this committee for 11 years; and before that, in the other body, I was on the Transportation Committee for 8 years, so that is 19 years. During that time, when I have gone back to my State, the thing people are offended by is that there are always raids on the highway trust fund.

People have their own programs, they may be good programs, but they try to go in and get money out of the highway trust fund to support those programs. We have seen this happen over and over again in establishing policies in the Senate, that they highway fund it. How should we fund it? Let's fund it with transportation funds.

I believe that is a moral issue.

When the American people go to the pump, they do not mind paying a tax, but when they find out that tax is not going to highway construction and highway improvements and highway maintenance and intermodal transportation, they are understandably very nervous and very offended.

We have the firewall protection of the highway trust fund to make sure that these trust funds are not going to be vulnerable to raids in order to pay for other programs. I know there are a lot of people who feel they are not as excited about the way the formula was put together. I would like to say something about that. This is significant.

There are two ways to do a highway bill. I know one of the ways that was a little more prevalent in the other body was to come up with projects. You have 435 Members who have projects of significance. Instead, we believe that decisions on the priority of expenditure of transportation dollars should be made at the local level. In other words, it is easy to come up here and pass something and go home and say: Look what I got for you; I am bringing this home.

What we prefer is to have an equitable distribution of moneys that come into the highway trust fund to go back to the States and then let the States make these decisions. If there are States that don't want to do this, that is fine. But in the State of Oklahoma, I can assure you the closer to the people at home, the better the decisions. The people in the eight transportation districts in my State of Oklahoma are far better informed on the needs and priorities of where money should be spent on transportation than they are here in Washington. There are a lot of people who think that no decision is a good decision that is made in Washington. I don't agree with that.

We have a different way of doing it than the other body. We have a formula. Our formula takes everything into consideration. We are talking about interstate lane miles; vehicle miles traveled on the interstate; the contributions to the highway trust fund; the lane miles and principal arteries, excluding the interstate VMT on principal arteries; surface transportation programs; total lane miles--all these things are considered--the Bridge Replacement and Rehabilitation Program; we have rankings to see what is really nationwide that should be attributed to this. Certainly, I am a little bit prejudiced, being from Oklahoma where our bridges are in the worst shape of any of the 50 States. We are going to correct that, and we can correct that with this bill.

We have congestion mitigation, air quality improvement programs, and these are very significant. These are the things that come in under the formula that goes out to the States. We have the Recreational Trails Program. We know all about that. We take into consideration low-income States. There are some States that are lower income States, and the people are not really able to pay for quite as much as some other States. We have low-population States, but they still have to have roads. Consequently, that has to be a part of the formula. We have low population density States. Some States have much higher fatalities than other States. That tells you they need to do something. The SAFETEA core program is in this base bill and will be continued. If we get around to the managers' amendment, then we will have something in there. Guaranteed minimum growth, you have to have some consideration in there because there are States that are growing very rapidly. Some States are on the other side.

We have donor States, donee States. These are things that are considered. A lot of people realize we have many States, including my State of Oklahoma, that are donor States. In other words, we don't get back as much money as we send to Washington to go into the highway trust fund. In TEA-21, we put in a minimum figure of 90.5 percent. In the bill we had last year, it would bring all these donee States all the way up to 95. That was good, but it took $318 billion over 6 years to do that. We were not able to get it out of conference.

By the way, as the Senator from Missouri said, that bill passed the Senate by 76 to 21. That gives you an idea. If we get the bill up here, all we have to do is get by all these procedures, and we will pass a bill. It will take into consideration all the things I mentioned. This is not just a political table. In fact, politics didn't enter into it. We don't have projects in this Senate bill. The House bill does. When we go to conference, we are going to iron those things out, and we are going to come out with a good bill. But you can't do that until you get all the amendments in and get a vote.

I encourage Members to offer their amendments and to discuss the highway bill. I know there are some Members who were requesting time for that purpose.

I yield the floor and suggest the absence of a quorum.

Will the Senator yield for a question?

It is my understanding you want to speak as in morning business.

Can you hold it to, say, 25 minutes?

I further ask unanimous consent that the time you take be the time, following you, given to Senator Specter, who is wanting to have about that amount of time.

It is my understanding then that the Senator from Massachusetts will go for 25 minutes. Then the Senator from Pennsylvania will go for 25 minutes.

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

Reserving the right to object.

Mr. President, a few minutes ago we had an agreement that we would allow the Senator from Massachusetts to speak up to 25 minutes as in morning business and that the Senator would follow him with the same amount of time. That is what we would intend to do. We thought that would be satisfactory to the Senator from Pennsylvania.

I object, yes.

That is correct.

I ask unanimous consent that at 5:30 this evening the Senate proceed to a vote in relation to the Talent amendment, with the time equally divided until the vote and no second-degree amendments in order to the amendment prior to the vote.

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

Mr. President, parliamentary inquiry.

I have been in the cloakroom waiting for the opportunity to speak on the highway bill and to speak on behalf of the commerce safety portion of that highway bill. Are we now going to turn to the highway legislation?

Mr. President, I am pleased this afternoon to talk about title VII of this very important Surface Transportation Improvement Act of 2005. I remind my colleagues that the highway and transportation legislation, TEA-21, that we passed back in 1998, effectively expired September of 2003--not 2004 but 2003. We are now on the sixth extension of this very important legislation. This week we need to complete action on this very important bill.

It is about building decent highways and bridges and transit authorities, but it is about more than that. If we do not have decent infrastructure, if we do not have decent highways and bridges, if we do not have transit capability, if we do not have border roads, we are not going to have economic development. Most importantly, and that is why I am here as the chairman of the Surface Transportation and Merchant Maritime Subcommittee, safety provisions are not improved and extended. We should care an awful lot about this.

The safety portion of the legislation was reported out of the Commerce Committee, with the support of Chairman Ted Stevens and the ranking Democrat, who is referred to in our committee as cochairman, Senator Inouye. It is bipartisan, and I believe it is very strong legislation.

I care about the safety portion of it, and maybe I care about the safety provisions more than some people because I have had a family tragedy myself that has affected my thinking on this. My father was killed in an automobile accident, without a seatbelt, involving alcohol, on a narrow, two-lane, hilly road. This section of this legislation would affect all of that. It would give additional incentives for States to do more to stop driving while under the influence of alcohol. It would give incentives for people to use seatbelts. It would improve our roads and bridges and widen our roads. So this is personal with me, and I care an awful lot about it.

Before I get to that section of the legislation, I want to talk about the broader perspective. When we look at history and at infrastructure and the ancient Roman Empire, many would say it was their advanced infrastructure and efficient highways that allowed them to build the empire that they had. That highway system was critical to the expansion and protection of their empire. It allowed rapid troop movement. It facilitated trade. It enabled ease of movement for diplomats and couriers. It provided rapid expansion of the Roman sphere of influence. It afforded military protection from invaders and facilitated communication between distant parts of the empire.

We do not want to replicate everything we saw in the Roman Empire, but it also is interesting to note that that empire eventually went away, and some people say it was partially attributable to the fact that they quit building the infrastructure; they let the country start decaying and the infrastructure go into disrepair. I think that is what we are beginning to experience in America.

One of the reasons why we have been able to continue to grow, do well, and move around this country is because of our infrastructure: highways, bridges, railroads and ports and harbors. The whole package is critical. It is what enables America to have our great system. Whether people are from Maine, Mississippi, California, Virginia, Florida or Washington, we have access to virtually all the same products, and it is because of our infrastructure.

On September 11 and in the days immediately following, we saw that our highways were absolutely critical to movement of goods and our people and that we need to have a balanced and complete infrastructure package. So it is time that we act. Our interstate system in America is 50 years old. States have been doing their part, but a lot of the States are struggling with their budgets and a lot of the highway departments have been living on these extensions. So we have lost an opportunity. We have lost ground.

Thirty-two percent of our major roads are in poor or mediocre condition, almost a third. Almost 30 percent of our Nation's bridges are structurally deficient and obsolete. Quite frankly, I am afraid where we are headed. If we do not do something about this, there will be a loss of the jobs that would have been generated, and it would contribute to the slowing down of our economy.

TEA-21 did an awful lot for our country, but it is time that we move to the next step. The U.S. Department of Transportation has said that for every $1 billion in Federal transportation infrastructure investment, 47,500 jobs would be created. So just think about that when looking at what is involved in this bill. We are talking about many thousands of jobs being created. We need to have this 5-year extension. In the general sense, I urge my colleagues to work together in a bipartisan way and work with the administration to get this legislation completed before this next extension expires.

The portion of the bill that I am directly responsible for is from the Commerce Committee, and it is the safety provisions that would be in the reauthorization. I will describe what is in this Safety Improvement Act of 2005. It is a comprehensive reauthorization of many of the Department of Transportation safety programs that we passed in 1998. It includes trucking and bus safety, highway and vehicle safety and hazardous material safety. The bill also includes provisions to protect consumers from fraud in the moving industry and to reauthorize the boat safety and sport fishing programs. It is designed to improve the safety of all of our constituents and its enactment will save lives and reduce injuries.

Just last month, the Department of Transportation released preliminary traffic fatality data for 2004. The good news is the fatality rate on our highways is down slightly, but that data still shows there is much to be done. The programs authorized in this bill are authorized to do that.

Through the leadership of Chairman Stevens, we have met with all of the interested parties in business, labor, safety advocates, as well as State representatives. We made sure everybody had some input in the drafting of this legislation.

We still have to make note of the almost 18,000, or 56 percent, of the people who died last year in highway accidents were not wearing a seatbelt. The quickest and most effective way of increasing safety is to get people to wear their seatbelts. So we have included a program to give States incentive grants to pass primary seatbelt enforcement laws. Some people would like to turn this around and say if States do not pass the seatbelt acts, we are going to take money away from them. That sort of approach has been tried in the past. It did not work, and it will not work now.

I believe in States such as mine, with an incentive to pass these primary seatbelt laws, there is a good chance we would comply. But if we are told we are going to be punished if we do not, the odds are we will not. So we have drafted this in a way that I believe every State will strive to have significant increases in their safety numbers and a decline in the fatalities on their highways. So we will be supporting this provision in our part of the highway bill.

The data also shows that alcohol is a factor in almost 40 percent of all crashes. Funds are included for States to enforce drunk driving laws and include incentives to toughen their laws. These safety programs should have been authorized almost 2 years ago, but due to disputes we have not been able to improve our safety provisions, improve our safety incentives, and therefore some of the culpability for the amount and severity of accidents and the deaths should be placed at our doorsteps. We need to work with the States to ensure these programs make sense and they are carried out effectively. We should have funding levels that reflect the commitment that we are making to highways and to safety on our highways.

I hope the Senate will pass this legislation this week and that Congress will pass the final conference report this month so the States do not miss the summer's construction season.

I again thank my colleagues on both sides of the aisle for working with us to develop the safety provisions that will be included in the substitute package I believe the chairman will offer.

Will the Senator yield?

What is the present situation that would block the Senate from moving forward with this legislation and amendments being offered? Can't you just ask consent to go to the legislation?

Mr. President, if the Senator will further yield, who is the cloakroom--is he a Senator? This is highway legislation that has been held up for 2\1/2\ years that is causing people to get killed, that is keeping us from creating jobs.

The Senator from Missouri and the Senator from Oklahoma and all other

Senators trying to manage this legislation have been very effective, very helpful of everyone, very considerate, but it is time we get this legislation going. The very idea that a Senator on Monday afternoon is calling in here or hiding out in his office or calling from some airport saying they object to us going to this legislation--I would like for them to explain that to their constituents. The Senate has been playing around long enough this year delaying everything, slow- walking everything.

By the way, this is not partisan; it is on both sides. This legislation is critical. It is time the Senate starts acting as a Senate instead of a kindergarten. I hope the Senators will give the consent this Senator from Missouri needs to get on this legislation and get it out of here. If we do not, our constituents are going to know who is the problem and why we are not getting this job done. It is time we get some Senators by the nape of the neck and tell them to put up or shut up because this legislation is critical. It is time to get it done. We ought to be having votes on amendments this afternoon. The very idea of Senators hiding in their offices saying, I am not ready, or I don't want to come, or I object--get over here and legislate and start acting like adults.

I thank the Senator from Missouri for yielding to me for that calm expression of concern.