Fair Pay Restoration Act

Madam President, reserving the right to object, I wanted to have a minute before to explain the lay of the land.

Madam President, for the interest of all Members, we have been working now since Monday to pass a technical corrections bill, which, it seems to me, should have been passed very quickly. It basically makes some corrections to the last big highway and transit bill so certain projects that have been held up for technical reasons can go forward, and others that weren't ready, pushed aside, and another can go forward. This will unleash about a billion dollars' worth of important programs for our Nation.

These projects have been vetted, and they have been posted on the Web page of the committee, as we must do according to our new ethics rules. We are very pleased it looks like we might be able to wrap this up in the next few hours.

As far as I am concerned, we are ready to vote. We have the Coburn amendment and the Boxer amendment, which deal with a real problem that occurred at some point during the SAFETEA-LU consideration years ago. We have corrected the problem in the bill. We want to now have some type of investigation to find out exactly what went wrong and if there were any crimes committed. There were two options. Senator Coburn is setting up a complicated select committee of the House and Senate. We believe strongly that it creates constitutional problems, and we think it might interfere with a Justice Department investigation.

And then Senator Reid had recommended, I think a far better way to get at the problem, which is a Justice Department investigation. I have written an amendment to go along with that. We are hoping to vote on that and then, hopefully, get to a cloture vote and final passage.

So that is the lay of the land, as best I see it. I wish I had more control over this at the moment. If I did, we would be voting in 5 minutes on the whole package. Until then, I will see you as soon as we have an agreement and, hopefully, we will get this matter done today.

I yield the floor.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I ask unanimous consent that no further amendments be in order to H.R. 1195, and that at 3:30 p.m. today, the Senate proceed to vote in relation to Boxer amendment No. 4539, and that the amendment be modified to be to amendment No. 4146; to be followed by a vote in relation to Coburn amendment No. 4538, and that Coburn amendment No. 4540 be withdrawn once this agreement is entered; that each of those two amendments be subject to a 60 affirmative vote threshold, and that if neither achieves that threshold, then it be withdrawn; that if either or both achieve the 60-vote threshold, that it be agreed to and the motion to reconsider be laid upon the table; that prior to each vote there be 2 minutes of debate equally divided and controlled in the usual form, and upon disposition of these listed amendments, the Senate proceed to vote on the motion to invoke cloture on the Boxer substitute, amendment No. 4146; that if cloture is invoked on amendment No. 4146, then the substitute, as amended, if amended, be agreed to, the committee-reported substitute, as amended, be agreed to, and the bill then read a third time; and without further intervening action or debate the Senate proceed to vote on passage of H.R. 1195, as amended; that the cloture motion on the bill be withdrawn; provided further that after the first vote, all subsequent votes in the sequence be limited to 10 minutes each.

Mr. President, I thank my colleague, because we need to move this bill along. There are 500 important projects in it. I have colleagues who want to add more projects. I want to say, for the benefit of everyone, there are some very legitimate technical corrections that still need to be done. I have committed to my colleagues, both Democratic and Republican--I have spoken to Senator Lincoln, Senator Landrieu, Senator Ben Nelson, Senator Hutchison, only a few moments ago--that our committee, myself working with Senator Inhofe and our colleagues, is going to come up with a follow-on technical corrections bill with the time to ensure it is put together right. We do have some different ethics rules these days. We want to make sure we vet everything and everything is put up on the Web site. We have a number of very important technical corrections still to be done, but we are going to do it in the next 3 weeks in committee. We look forward to it.

I read a very complex unanimous consent request, and I don't think anyone within the sound of my voice could possibly follow all of it. So I thought in plain English, for the good of myself as well as my colleagues, I would say where we are. We are going to have a couple of votes on the issue of Coconut Road, which is a real problem for us, and it has been straightened out in this bill. We fix the problem. But there are colleagues who want to have an investigation, and we have two alternatives. One is the Coburn amendment which sets up what I consider a very complicated special select committee with Members from both bodies. It will have public hearings. It will review things in public. It will do all of that. At the end of that time, what the committee will do is refer something to Justice, if they have found a problem. That is the whole point of the select committee.

The problem is, if you read the Constitution, you see the debate clause. We believe, from our constitutional scholars on this side, that that whole committee will fall. It will not be able to do its job. The House has told us they don't see how Senators can investigate House Members and House Members can investigate Senate Members. We think the best way to go, Senator Reid and I and others, is to have the Justice Department get right in there. Ours is not a sense-of-the-Senate approach. We require the Justice Department to move forward. Instead of having a big Senate-House committee, with the press flashing pictures and all the rest, just get to it and ask Justice to investigate. We also worry, if there is a big committee--and there won't be, because the House won't accept it anyway--irony of all ironies, the Coconut Road fix will fall, because we fix it in this bill. If this bill falls because of this committee--because it is unconstitutional--there won't be a fix to Coconut Road. It is going to go back to the terrible change that somebody made in the dead of night. We don't want that to happen.

I hope my colleagues will reject that approach and support the Boxer- Reid approach which I believe is straightforward. It makes sense. It gets right to the heart. If there is a crime, let's find out about it.

On the McCain amendment, I actually was looking forward to debating it. I hope we will be able to, because there is a lot of dispute about how it would actually work in the real world. There is nothing in the McCain amendment that tells the oil companies they can't pocket the 18 cents that is going to come off. We have seen the oil companies. In California, in some places, we are over $4. This hurts our hearts. We see oil company profits soaring. If it were only the cost, they would be having the same profit and passing on the cost. But, no, their profits have gone up. We know about the CEO salaries and all the rest.

There is nothing in the McCain amendment--I would love to talk to John about that--that would say to the oil companies: Don't use this as a moment to raise 18 cents. So where might we be?

We might do this, and we would have to now go to the general fund. All taxpayers would have to pay for this. Let's be clear. There is no pay-for in the McCain amendment--none at all. It goes to the Treasury. Who puts money in the Treasury? My taxpayers, your taxpayers, all taxpayers. So taxpayers are now going to pay for this one way or the other. We take it away from the users and the taxpayers pay, and there is nothing in it that will ensure that the cost won't be nabbed and grabbed by the oil companies. Then they get the extra 18 cents, and we have blown a $9 billion hole in the Federal budget. It is amazing how my colleagues could say, it is a time of stress. We have to do this. We need to be a little bit more responsible.

I am looking forward to this debate. I like to pay for things. Maybe I am old-fashioned. I am an old economics major. I think it is good to pay for things. I think we could figure out a way to pay for things. But to say nobody gets hurt when the tab in the McCain amendment is picked up by all taxpayers is faulty. We will have to make up that $9 billion. We Democrats think there is a way to do it. We see the profits of the oil companies. We say to the oil companies: Good for you, but there is a point at which, when Americans are suffering, you have to do a little bit more.

I, for one, look forward to debating the McCain amendment soon. We will have that debate. But it isn't going to be on this bill. For that, I am grateful for this reason: We are bringing this to a close, and this package is in many ways a ministimulus. It will unleash $1

billion into the economy. It will unleash some of these projects that are so important for our people who got stuck for technical reasons or had to have minor changes for other reasons. This $1 billion, when it is unleashed, will create tens of thousands of good jobs, jobs building highways, bridges, transit systems. We are very happy, and we expect to have this vote at 3:30. We will have first the Boxer amendment, then the Coburn amendment, then a cloture vote, and then a vote on final passage. We should be doing very well.

I ask unanimous consent that Senators Graham, Martinez, and Wicker be recognized for a total of up to 10 minutes and that following their remarks, Senator Kennedy be recognized for up to 20 minutes.

Madam President, before the majority leader leaves the floor, I thank him very much because he helped me enormously in this whole matter of an investigation. What we all want to do is get to the bottom of what happened with this Coconut Road situation, where it appears as if there may have been some activity that merits punishment.

When we heard that Senator Coburn wanted to take on this issue, we welcomed that because we do believe we have a responsibility to regain the trust of our people. That is why under Senator Reid's leadership we passed the most far-reaching ethics reforms ever.

I see my friend is in the chair. She is part of the new class of Senators who pushed very hard for that legislation. Therefore, when Senator Coburn came forward, we believed we certainly wanted to do something. But what Senator Reid, because he is a distinguished attorney, taught me is, there is a speech and debate clause in the Constitution, and this investigation with a select committee, House Members and Senate Members investigating each other and staff, could fall.

Here is the point, before my friend leaves the floor. The irony of all ironies is, if, in fact, the Coburn solution were to be adopted today and it did go forward, although we think it will bring the whole bill down, it wouldn't.

But let's say it is adopted. Nothing they do would really lead to anything until the end of their hearings. I call it kind of a circus atmosphere where colleagues would come, flashbulbs in everybody's face, and they take testimony. Nothing of consequence would occur, I say to my friend, until the end when they decide if there was something the Justice Department needed to look into.

Why have all that hoopla when you can get to the heart of the matter, which is saying to the Department of Justice: We want you--and this will require them. It doesn't say you ``may,'' it says you ``shall'' look into this. If the bill did fall, here is the totally irony: The fix to Coconut Road would fall. In other words, in the technical corrections bill, we fix the problem. If this whole thing falls because of the Coburn amendment, then we go back to the real problem of somebody changing the route of this particular road or building, freeway, whatever it was that was going to increase somebody's property. That would be the worst of all worlds.

I thank my leader for his help on this matter. He knows when I heard about this amendment, I said to him: Yes, we need to look into this, and he wanted to do it in the right way. He and his staff have been so helpful in getting us to this point where we have a very good alternative. I hope everybody votes for it.

Madam President, I thank my colleague for bringing this issue to our attention. I think he knows that in the beginning there were some voices that said: Let's not deal with this. But we worked together, and we did come up eventually with a way to deal with it.

I think some of our colleagues believe that where there is a constitutional issue and a precedent-setting issue here involving such a delicate matter, such a matter that could lead to a criminal investigation and punishment, we ought to have some type of consensus on it. But I share his concern.

Madam President, I ask unanimous consent for an additional minute before we go to the regular order.

I think if neither amendment gets 60 votes--and I certainly hope the Boxer amendment does, and I expect it would, but I don't know, it might not--I am already working on an alternative I would talk to my friend about right now, which is for us to communicate in writing very strongly to the Justice Department and tell them how strongly we feel.

I also wish to make the point that my friend is right. Someday, somebody will write about this. People are already writing about it because of the work we are doing on this matter. The Senator and I have been quite forceful in the way we feel about this. People are writing about it. My hope is that what we do is not create a new kind of select committee. My friend said it has been done before, and he may be right. But why a committee when we can get right to the heart of the matter, which is: Was there a crime? If so, let's get to the bottom of it.

I do want to say, and I say this as chair of the Ethics Committee of the Senate, nothing is more important to me than having a fair Ethics Committee that works hard and is objective. Any Member of the Senate can make a complaint any day of the week and it automatically is looked at. I want to reiterate that. If people have an issue, please, let us know. That is why we are there.

For those of us who care a lot about this matter, we do need, if nobody gets 60--I hope we will, but if nobody does, this issue does not go away as far as I am concerned. It cannot go away.

I think it is very important, the way we deal with this, to understand that if we do something that the House has constitutional objections to and it brings down the technical corrections bill, the irony of ironies is the Coconut Road project doesn't get fixed, it goes back to the crooked way it was handled. We don't want that. We want to fix the Coconut Road problem and we want to have an investigation.

I yield the floor to get to the regular order at this time.

Amendment No. 4539, As Modified

Madam President, we have a very simple amendment. Sometimes in simplicity is strength. Sometimes in simplicity is power. Sometimes in simplicity you get to the place you want to get.

I do not like a lot of words. I believe a few words will say it. Look at what we say here:

Consistent with applicable standards and procedures--

which means everybody's rights are protected--

the Department of Justice shall review allegations of

impropriety regarding item 462 in section 1934(c) of Public

Law 109-59--

That is the Coconut Road project--

to ascertain if a violation of Federal criminal law has

occurred.

I think we know enough to warrant this kind of amendment. I think we know enough to be concerned. I think we know enough to say to the Justice Department: Please pay attention to this. Do your work. Make a determination and get on with it because this is very serious.

I yield the floor.

I ask for 10 more seconds.

I want to make the point, if we pass the Boxer amendment today and this bill gets signed into law by the President and we are requiring the Justice Department to do this, then they will be breaking the law.

I yield the floor.

I ask for the yeas and nays.

Madam President, I move to reconsider the vote.

Colleagues, this is very important. I wish to commend my colleague for bringing this whole issue to the floor of the Senate. But I think we have done something important. We have taken his concerns to heart, and with a very big vote, we have stated that the Justice Department is now required to open an investigation.

What the Senator does is set up an elaborate commission of Senators, of House Members; it is political on its face. It will only put off the day until an investigation is done by Justice. Because after having this elaborate commission, Senators investigating House Members, House Members investigating Senators, it is unconstitutional on its face on the speech and debate clause.

That will bring down this entire bill. Here is the irony of ironies. If we bring this bill down, the fix of Coconut Road will fall. We fix the Coconut Road problem in this bill.

I urge you, please say no to this idea because I feel we have done the right thing on this matter.

Madam President, we are ready.

All we want is an ``aye'' vote. Let's get this good bill passed. Let's unleash $1 billion worth of good, important projects into our communities and create tens of thousands of jobs.

We appreciate we have come this far. We thank you.

I yield to my colleague.

Madam President, I move to reconsider the vote and to lay that motion on the table.

The motion to lay on the table was agreed to.

Madam President, this is a good day for the Senate. It took us a while to get here. I will thank staff in a moment--floor staff as well, and Senator Reid's staff, Senator Inhofe's staff, and my own staff.

Before that, I have two unanimous consent requests to make.

Madam President, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 403, H.R. 2828, the Foreign Service Victims of Terrorism Act, which will provide compensation to relatives of U.S. citizens killed as a result of the bombing of United States Embassies in East Africa on August 7, 1998; that the bill be read the third time, and passed; and that the motion to reconsider be laid upon the table, with no intervening action or debate.

Madam President, I ask unanimous consent that the Judiciary Committee be discharged from further consideration of H.R. 1595, the Guam World War II Loyalty Recognition Act; that the bill be read the third time, and passed; and that the motion to reconsider be laid upon the table, with no intervening action or debate.

Madam President, we just heard objection, but we didn't get objection, finally, to the technical corrections bill. We are happy about that. You and I serve together on the Environment and Public Works Committee. We know our work is important because we know that no country can be great if it doesn't have an infrastructure that is up to par. The occupant of the chair knows more than most what it means when a bridge collapses. We know what that means. So what we are doing here is a matter of life and death, quite often.

This technical corrections bill will make it possible to continue work on over 500 projects that were stymied for various reasons. It is going to put a billion dollars into our economy, and it will provide tens of thousands of jobs. Senator Inhofe and I are very grateful that--even though this was not an easy week and this bill took so many twists and turns and we had to work our way through many issues--we have arrived at the point where it passed.

Let me say how much I enjoyed working with my staff and the staff of Senator Inhofe. I am going to read the names of those who deserve to be recognized and thanked. From my staff are Bettina Porier, Kathy Dedrick, Tyler Rushforth, Jeff Rosato, Erik Olsen, Paul Ordal, and the rest of my staff. We do work as a team.

I thank Senator Inhofe's staff, and I am sure there are more to be thanked, but the ones I worked with closely are, of course, Andy Wheeler, chief over there, Ruth Van Mark, James O'Keeffe, and Alex Herrgott. We are so grateful to you for being close to us, staying close to us, letting us know when there were problems. We appreciate that.

I say to the majority leader, Senator Reid, how much I appreciated his interest in this bill. He really helped us. Bob Herbert, of his staff, Ron Wynch, and Mike Castellano--we had technical issues and legal issues and they were there.

If I am leaving anyone out, please know it is not my intention. So many others helped us.

Yes.

I thank the Senator. Senator Carper, from Delaware, is one of the senior members on the committee, whom we love working with. He is part of our team. We have a great committee. It is why I like to be a legislator.

I want to say, in closing, to floor staff, all of you here, thank you for your patience. You have to answer questions. The pages have to be available to us. You all let us know what is going on and whether we are doing it right or wrong. Of course, in particular, I thank Lula, Tim, and Dave. Without the three of you, we could not have gotten this done.

Yes, sometimes when you get to this point, it is a little like making sausage--that is what they say about how a bill becomes a law; it is not a pretty thing. But we got it done. The most important thing is all of the people who helped us from the outside groups--I thank them--such as the construction industry, the construction workers, the transit district operators, the sand and gravel people. You know who you are. You made the point that we should not bog this bill down, that we should get it going.

I am delighted we had a victory here with the Water Resources Development Act. We are pleased. Up and coming, we are going to have a markup in a couple of weeks, and then we will get to global warming. I don't know how that will end, but I know it is going to be very exciting. We hope everybody will participate in that debate.

Is the Senator from Virginia going to speak?

I will yield the floor.

Mr. President, will the Senator yield on the leader's time?

I wanted to have a rollcall on this one, and do the other two at whatever time the leader prefers by voice vote.

Mr. President, I ask for the yeas and nays on the nomination.

Mr. President, today the Senate will confirm three more nominations for lifetime appointments to the Federal bench.

The first nomination we consider is that of Mark Davis of Virginia to fill a vacancy in the Eastern District of Virginia, and I commend the Virginia Senators on this nomination. After years of controversial nominations, Senators Warner and Webb have worked successfully with the White House on a series of recent nominations for district and circuit court seats, including that of Judge G. Steven Agee of Virginia, who was confirmed to a seat on the Fourth Circuit last month.

I was pleased to accommodate Senator Bond's request that we proceed promptly in committee to consider the nominations of David Kays and Stephen Limbaugh to vacancies in the Western and Eastern Districts of Missouri. Both nominees have the support of Senator McCaskill. I wish Justice Ronnie White, who went on to become Missouri's first African- American chief justice, had received similar consideration when President Clinton nominated him to the Eastern District of Missouri. Instead, more than 2 years after he was nominated, and 2\1/2\ months after he was reported out of the Judiciary Committee for a second time, his nomination was voted down on a party line vote, not a single Republican Senator voting to confirm him. I also recall many of President Clinton's judicial nominees who were stalled because of anonymous Republican objections to their politics or their practice area. One of the two nominees from Missouri that we consider today is Rush Limbaugh's cousin. A similar lineage would have resulted in a pocket filibuster when the Senate was controlled by a Republican majority during the Clinton administration. So today, in contrast to the treatment of President Clinton's nominees, we proceed to consider these two nominations.

I noted last week the sudden concern of the minority leader for district court nominations. Perhaps he did not have a chance to see my statement from earlier in the week in which I noted that with Republican cooperation, we have the opportunity this work period confirm five nominees already reported favorably by the Judiciary Committee? Of course, today we would have more than those five nominations on the Senate's Executive Calendar had Republicans not stalled this President's nominations of Judge Helene White and Ray Kethledge to the Sixth Circuit, and the nomination of Stephen Murphy to the Eastern District of Michigan. As I said last week, with cooperation from across the aisle, the Senate is poised to have confirmed four circuit court judges and 11 district court judges before the Fourth of July recess, confirming a total of 15 lifetime appointments.

I recall Senator Specter's frustration when he was chairman with a Republican majority at the end of the last Congress, and Republican holds prevented the confirmation of 14 district court nominations. Democrats on the Judiciary Committee had worked hard to expedite the nominations at the end of the last Congress. Many of them were for vacancies deemed judicial emergencies, including three in one Federal district in Michigan where several judges of senior status--one over 90 years old--continued to carry heavy caseloads to ensure that justice was administered in that district. Now, after the successful efforts of the Senators from Michigan in conjunction with the White House, I hope Republicans will not object to filling three more judicial emergency vacancies in Michigan.

The complaints by the minority leader and his party about district court nominations ring as hollow as their complaints that Senate Democrats did not make best efforts to meet the goal he and the majority leader set of moving three circuit court nominations by Memorial Day. As at the end of the last Congress with those 14 district court nominations, Republicans resisted expediting the committee's consideration of the Michigan nominations before Memorial Day. They badgered the nominees, and sent scores of written follow up questions. At the May 7 hearing, the Republicans chose to complain that the committee was moving too fast, before the committee had received updated ABA ratings on the nominations. They pressed Judge White with scores of questions, failing to pose those same questions to Mr. Kethledge, a candidate for the same circuit. They demanded an extremely rare closed hearing to further question Judge White. Given their actions and their resistance to the White House's package of nominations--nominations made by this President--they made it impossible for the Committee to consider and report the Michigan nominations before the Memorial Day recess.

We have now received the updated ABA rating for Judge White's nomination. She received a well qualified rating. That did not come as any surprise. She has served ably on the Michigan state appellate courts and acquired additional experience in the decade since she was nominated by President Clinton and the Republican Senate majority refused to consider her nomination.

Ultimately, the Republican-led Senate left open five vacancies on the Fourth Circuit and four on the Sixth Circuit. With the Agee confirmation last month, we have already reduced vacancies on the Fourth Circuit to less than there were at the end of the Clinton administration, when a Republican-controlled Senate had refused to consider any nominees to that circuit during the last 2 years of the Clinton Presidency. If Republicans cooperate in considering the Michigan nominees, we will have filled every vacancy in the Sixth Circuit. Overall, when Republicans ran the Senate and were stalling consideration of President Clinton's nominees, circuit vacancies rose from 11 to 26, and it reached 32 during the transition to President Bush. We are in position to reduce circuit vacancies by three-quarters, to an historic low.

In contrast to the Republican Senate majority that used the Clinton years to more than double circuit court vacancies around the country, the Senate has already reduced circuit court vacancies by almost two- thirds, We are poised to complete Senate consideration of the two Sixth Circuit nominations. If the Republican minority allows that progress, yet another circuit will be without any vacancies. In fact, we would reduce the total number of circuit court vacancies across the Nation to single digits for the first time in decades.

If instead we focus on the controversial nominations as the Republicans want, we run the risk of embroiling the committee and the Senate in months of debate, foreclosing the opportunity to make progress where we can. We saw what happened with our last contentious nomination--that of Leslie Southwick. It took 5\1/2\ months from the time of the hearing to his confirmation.

The minority leader and the Wall Street Journal continue to point to the confirmation of 15 circuit judges in 1999 and 2000. Sometimes, the number is 17. Of course, their mythical ``statistical average'' of selected years ignores the crises the Republicans had created by not considering circuit nominees in 1996, 1997 and 1998, the fact that they refused to confirm a single circuit nominee during the entire 1996 session, the fact that they returned 17 circuit court nominees without action to the White House in 2000, the public criticism of Chief Justice Rehnquist that helped moderate their stalling and the fact that they more than doubled circuit court vacancies while pocket filibustering Clinton nominees.

The minority leader only reaches this mythical statistical by taking advantage of the high confirmation numbers of Democratic-led Senates confirming the nominees of President Reagan and the first President Bush. They ignore their own record of doubling vacancies during the Clinton administration. They do not like to recall that during the 1996 session, when a Republican majority controlled the Senate during a Presidential election year, they refused to confirm any circuit court judges at all--not one. Their practice of pocket filibustering President Clinton's judicial nominees led Chief Justice Rehnquist, hardly a Democratic partisan, to criticize them publicly. Even he was appalled by the actions of the Republican Senate majority. In his 1996 Year-End Report on the Federal Judiciary, he wrote:

Because the number of judges confirmed in 1996 was low in

comparison to the number confirmed in preceding years, the

vacancy rate is beginning to climb. When the 104th Congress

adjourned in 1996, 17 new judges had been appointed and 28

nominations had not been acted upon. Fortunately, a

dependable corps of senior judges contributes significantly

to easing the impact of unfilled judgeships. It is hoped that

the Administration and Congress will continue to recognize

that filling judicial vacancies is crucial to the fair and

effective administration of justice.

When that shot across the bow did not lead the Republican Senate majority to reverse course, Chief Justice Rehnquist spoke up, again, in his 1997 Year-End Report on the Federal Judiciary. It was a salvo from a Republican Chief Justice critical of the Republican Senate leadership:

Currently, 82 of the 846 Article III judicial offices in

the Federal Judiciary--almost one out of every ten--are

vacant. Twenty-six of the vacancies have been in existence

for 18 months or longer and on that basis constitute what are

called ``judicial emergencies.'' In the Court of Appeals for

the Ninth Circuit, the percentage of vacancies is

particularly troubling, with over one-third of its seats

empty.

Judicial vacancies can contribute to a backlog of cases,

undue delays in civil cases, and stopgap measures to shift

judicial personnel where they are most needed. Vacancies

cannot remain at such high levels indefinitely without

eroding the quality of justice that traditionally has been

associated with the Federal Judiciary. Fortunately for the

Judiciary, a dependable corps of senior judges has

contributed significantly to easing the impact of unfilled

judgeships.

It was only after the scorching criticism by a Republican Chief Justice that the Republican Senate majority modified its approach in order to allow some of the nominations that had been held back for years to finally proceed. Having built up scores of vacancies, some were allowed to be filled while the Republican Senate majority carefully kept vacant circuit court positions to be filled by President Clinton's successor. It is in that context that Republican claims of magnanimity must be seen for what it was. It is in that context that the eight circuit confirmations in 2000 must be evaluated while the Republican Senate majority returned 17 circuit nominations to President Clinton at the end of that session without action.

In stark contrast, the Democratic Senate majority has worked steadily and steadfastly to lower vacancies and make progress, and we have.

I have placed the two Michigan Sixth Circuit nominations on the agenda for the committee's business meeting this week. With cooperation from the Republicans, we can consider and vote on these nominations at that time. That should provide the Senate with the opportunity to consider them before the Fourth of July recess, bringing to four the number of circuit court nominees confirmed this year. Four would meet the Republican average for 1996 and 2000, and beat their total in the 1996 session by four.

The history is clear. On June 1, 2000, when a Republican Senate majority was considering the judicial nominees of a Democratic President in a Presidential election year, there were 66 judicial vacancies. Twenty were circuit court vacancies, and 46 were district court vacancies. Those vacancies were the result of years of Republican pocket filibusters of judicial nominations. This year, by comparison there are just 47 total vacancies with only 11 circuit vacancies and 36 district court vacancies. After today, there will be just 44 total vacancies. If we can continue to make progress this month, the current vacancies could be reduced to fewer than 40, with only 9 circuit court vacancies and 30 district court vacancies.

When Republicans were busy pocket filibustering Clinton nominees, Federal judicial vacancies grew to more than 100, with more than 30 circuit vacancies.

When I became Chairman in the summer of 2001, we quickly--and dramatically--lowered vacancies. The 100 nominations we confirmed in only 17 months, while working with a most uncooperative White House, reduced vacancies by 45 percent.

After the four intervening years of a Republican Senate majority, vacancies remained about level.

It is the Democratic Senate majority that has again worked hard to lower them in this Congress. We have gone from more than 110 vacancies to less than 50 and are heading to less than 40. With respect to Federal circuit court vacancies, we have reversed course from the days during which the Republican Senate majority more than doubled circuit vacancies. It bears repeating--circuit vacancies have been reduced by almost two-thirds and have not been this low since 1996, when the Republican tactics to slow judicial confirmations began in earnest.

Consider for a moment the numbers: After another productive month, just 9 of the 178 authorized circuit court judgeships will remain vacant--just 9--a vacancy rate down from 18 percent to just 5 percent. With 168 active appellate judges and 104 senior status judges serving on the Federal Courts of Appeals, there are 272 circuit court judges. I expect that is the most in our history.

The President has not nominated anyone to 16 of the current judicial vacancies. He has refused since 2004 to work with the California Senators on a successor to Judge Trott on the Ninth Circuit. The district court vacancies without nominees span from those that arose in Mississippi and Michigan in 2006, to several from 2007 in Pennsylvania, Michigan, Indiana and the District of Columbia, to others that arose earlier this year in Kansas, Virginia, Washington, and several in Colorado and Pennsylvania.

Disputes over a handful of controversial judicial nominations have wasted valuable time that could be spent on the real priorities of every American. I have sought, instead, to make progress where we can. The result is the significant reduction in judicial vacancies.

In fact, our work has led to a reduction in vacancies in nearly ever circuit. Both the Second and Fifth Circuits had circuit-wide emergencies due to the multiple simultaneous vacancies during the Clinton years with Republicans in control of the Senate. Both the Second Circuit and the Fifth Circuit now are without a single vacancy. We have already succeeded in lowering vacancies in the Second Circuit, the Fourth Circuit, the Fifth Circuit, the Sixth Circuit, the Eighth Circuit, the Ninth Circuit, the Tenth Circuit, the Eleventh Circuit, the DC Circuit, and the Federal Circuit. Circuits with no current vacancies include the Seventh Circuit, the Eighth Circuit, the Tenth Circuit, the Eleventh Circuit and the Federal Circuit. When we are allowed to proceed with President Bush's nominations of Judge White and Ray Kethledge to the Sixth Circuit, it will join that list of Federal circuits without a single vacancy.

My approach has been consistent throughout my chairmanships during the Bush Presidency. The results have been positive. Last year, the Judiciary Committee favorably reported 40 judicial nominations to the Senate and all 40 were confirmed. That was more than had been confirmed in any of the three preceding years when a Republican chairman and Republican Senate majority managed the process.

Despite this progress, of course, some partisans seem determined to provoke an election year fight over nominations. The press accounts are filled with threats of Republican reprisals. The May 14 issue of Roll Call boasted the following headline: ``GOP Itching for Fight Over Judges; Reid's Pledge to Move Three Before Recess Fails to Appease Minority.'' Then in a recent article in The Washington Times, we read that the Republican fixation on judges is part of an effort to bolster Senator McCain's standing among conservatives. There seem to be no steps we could take to satisfy Senate Republicans on nominations, because they are using it as a partisan issue to rev up their partisan political base.

The Republican effort to create an issue over judicial confirmations is sorely misplaced. Last month we experienced the greatest rise in unemployment in a single month in over two decades, bringing the total job losses for the first 5 consecutive months of this year to over 325,000. Americans are now facing increasing burdens from the soaring price of gas, high food prices, rising unemployment and a home mortgage foreclosure and credit crisis.

This year we have seen the worst plunge in new homes sales in two decades. The press reported that new home sales fell 8.5 percent in March, the slowest sales pace since October 1991, and the median price of a home sold dropped 13.3 percent compared to the previous year. That was the biggest year-over-year price decline in four decades. You would have to go back to July 1970 to find a larger decline.

Unfortunately, this bad economic news for hard-working Americans is nothing new under the Bush administration. During the Bush administration, unemployment is up more than 20 percent and trillions of dollars in budget surplus have been turned into trillions of dollars of debt, with an annual budget deficit of hundreds of millions of dollars. Last week, the price of oil soared to nearly $139 a barrel, nearly twice what it was at this time last year. When President Bush took office, the price of gas was $1.42 a gallon. Today, it is at an all-time high of over $4.00 a gallon.

According to a recent poll, 81 percent of Americans today believe that our country is headed in the wrong direction. It costs more than $1 billion a day--$1 billion a day--just to pay down the interest on the national debt and the massive costs generated by the disastrous war in Iraq. That's $365 billion this year that would be better spent on priorities like health care for all Americans, better schools, fighting crime, and treating diseases at home and abroad.

In contrast, one of the few numbers actually going down as the President winds down his tenure is that of judicial vacancies. Senate Democrats have worked hard to make progress on judicial nominations, lowering circuit court vacancies by almost two-thirds from the level to which the Republican Senate majority had built them. Any effort to turn attention from the real issues facing Americans to win political points with judicial nominations is neither prudent, nor productive.

Today we confirm three nominations for lifetime appointments. The first, Mark S. Davis, currently serves as Chief Judge of the Portsmouth Circuit Court, Third Judicial Circuit of Virginia. Prior to his appointment to the bench in 2003, Judge Davis worked in private practice at several Virginia law firms.

David Gregory Kays currently serves as the presiding circuit court judge for the Twenty-Sixth Judicial Circuit for the State of Missouri, where he has served since his first election in 2005. Previously, Judge Kays served as an associate circuit judge for Laclede County Circuit Court in Missouri and as chief assistant prosecuting attorney in Laclede County.

Stephen N. Limbaugh is a supreme court judge and former chief justice on the Supreme Court of Missouri. Previously, Judge Limbaugh was appointed and then elected Circuit Judge for the 32nd Judicial Circuit of Missouri. Before his career on the State bench, Judge Limbaugh was an elected prosecuting attorney and also worked in private practice.

So today we make progress, and the Senate is likely to confirm three additional lifetime appointments to the Federal bench. I congratulate the nominees and their families on their confirmation today.

Mr. President, how much time remains on either side?

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

I yield to Senator Webb on my time, Mr. President.

Mr. President, I would commend one more time the two Senators from Virginia, both dear friends of mine, for the fact we worked as one

Democrat, one Republican with the White House to get us past this impasse. And I commend President Bush for withdrawing controversial nominees and working toward consensus nominees. That is why this nominee will go through, I suspect unanimously, in this body.

I also commend the two Senators from Missouri, Senators Bond and McCaskill, for working together.

Has all time been yielded back?

Mr. President, I have sought recognition to comment about a practice that is being employed on a widespread basis, which I believe undercuts the fundamental institutional integrity of the Senate. I am referring now to a procedure known as filling the tree. That is an expression used inside the beltway--inside the Senate Chamber--for action taken by the majority leader to establish a procedural situation where no Senator can offer any other amendment.

The long tradition of the Senate has been it is an institution that encourages, harbors, fosters open debate, the presentation of issues, the discussion of matters, to bring not only in this limited Chamber, or beyond on C-SPAN2, if anybody is watching, but to the entire country.

That is what distinguished the Senate from the House of Representatives, for example. In the House, they have what is called a rule, and Members may offer amendments only in a very limited, circumscribed way and then in a limited period of time. But under Senate rules, any Senator may offer virtually any amendment virtually at almost any time on any subject and speak in an unlimited way, as long as he retains the floor.

Last week, the Senate took up legislation of great importance on global

warming. There are many complex issues involved in that subject. We started off with legislation which had been offered by Senator Lieberman and Senator Warner that had been modified by Senator Boxer, the chairperson of the Environment and Public Works Committee, and there were many other proposals in the wings waiting to be considered. One of those proposals was legislation prepared by Senator Bingaman and myself, the Bingaman-Specter bill.

In the consideration of global warming, there were many complex matters. I don't intend to go through all of them now, but illustrative of that is the issue of technology. Is the technology adequate to accommodate the goals and standards of Lieberman-Warner? What would be the economic impact on the provisions of global warming in terms of encouraging foreign countries to ship to the United States on exclusions where they might not have the same limitations?

For example, in the steel industry. On that particular subject, I testified before the Finance Committee last February 14 about the need for the United States to be a leader on global warming, but at the same time not to sacrifice our industry to foreign goods, and noted that the Chinese wanted a 30-year exemption. If they had gotten that, there would not be any steel industry. But there were many issues.

I came to the Senate floor a week ago today to speak on the subject on June 2. And then I returned to speak again on June 3. Then, by Wednesday, June 4, I found out that we were on our way to having the tree filled. Actually, I spoke on June 2, 3, and June 5 and found when there was no opportunity to offer amendments, I filed four amendments.

I bring up that matter because then there was a cloture motion on Friday. A cloture motion requires 60 votes. If we are going to do it on a Friday, it is extremely difficult to find enough Senators to have an adequate showing as to what it means.

In any event, the cloture motion vote was held, and the cloture motion fell far short. The majority leader took the bill down, and now we are no longer considering the question of global warming. That is a matter which, in my judgment, warrants very considerable time by the Senate. I don't know whether it is 2 weeks or 3 weeks or how many weeks it is, but I know it is a lot more than 4 days. And now it is gone.

Regrettably, it is not just global warming which is involved. Not long ago, we have had the issue of the so-called Ledbetter Fair Pay Act, S. 1843, legislation which would change the statute of limitations on enforcing employment rights for equal pay. This bill was introduced because the Supreme Court of the United States, in a 5-to-4 decision, enforced a 6-month statute of limitations on a woman who wanted to claim her Federal rights to equal pay.

It seemed to me the decision of the Supreme Court of the United States was wrong. The plaintiff was being foreclosed an opportunity to go to court to get equal pay when she didn't even know she had the cause of action or the right to do that.

This issue then was the subject of a cloture motion. The motion to proceed failed on cloture 56 to 42. The bill was given no process. There was no committee referral, no debate, no opportunity for amendments, just talking points for Democrats, an illustration where cloture was filed.

The tradition of the Senate has always been to have legislation offered, to have it debated. If there is objection, people oppose it. If people are very determined not to allow it to come to a vote without a supermajority--that is, getting 60 votes for cloture--then they filibuster. But in the course of that process, there is an awakening of the American people about what is going on.

A good illustration would be the historic civil rights debates which went on in this Chamber for very protracted periods of time. But the American people hardly have any idea about what is involved in equal pay for women when the matter is called to the Senate floor and in a virtual nanosecond is dispensed with.

Had the Ledbetter Fair Pay Act received extensive debate, had there been opposition, had there been discussion, had there been some idea by the American people about what was going on, there could have been some public opinion registered on that as a very important matter.

The great difficulty is this is not a machination of the current majority leader. This is a practice which has been building up for a considerable period of time and, as with the case of so many matters, it is a matter of equal blame on both sides of the aisle, both Republicans and Democrats.

In a survey by CRS, going back to 1985, it was used infrequently. Senator Dole used it five times in 1985 and 1986; Senator Byrd, three times in 1987 and 1988. Senator Mitchell did not use it at all in 1989 and 1990. Then in 1991 and 1992, Senator Mitchell used it one time. Then in 1993 and 1994, Senator Mitchell used it nine times. In 1995 and 1996, Senator Dole and Senator Lott used it five times. In 1997 and 1998, Senator Lott used it three times. In 1999 and 2000, Senator Lott used it nine times. Senator Daschle then used it once in the next 2 years. The following 2 years, 2003 and 2004, Senator Frist used it three times. Then in 2005 and 2006, Senator Frist used it nine times. And in the 110th Congress, so far, Senator Reid has used it 12 times. Every time that it is used, it totally undercuts the ability of the Senate to function in its traditional way.

Senator Reid had this to say about this practice when he was not the majority leader but when he was the leader of the minority, the leader of the Democrats back on February 28, 2006. He was speaking in defense of a fellow Democrat's ability to offer amendments to the PATRIOT Act reauthorization. Senator Reid of Nevada said this:

Of course, even a good bill can be improved. That is why we

have an amendment process in the Senate. I am disappointed

that he has been denied that opportunity by a procedural

maneuver known as ``filling the amendment tree.''

Senator Reid goes on:

This is a very bad practice. It runs against the basic

nature of the Senate. The hallmark of the Senate is free

speech and open debate. Rule XXII establishes a process for

cutting off debate and amendments, but rule XXII should

rarely be invoked before any amendments have been offered . .

. I will vote against cloture to register my objection to

this flawed process.

Senator Reid made similar comments a short time later on March 2, 2006, saying:

Don't fill the tree . . . That is a bad way, in my opinion,

to run this Senate.

Senator Durbin, speaking on May 11, 2006, on the 2005 tax reconciliation conference report said:

The Republican majority brings a bill to the Senate, fills

the tree so no amendments can be offered, and then files

cloture which stops debate. So we cannot have this

conversation. We cannot offer other amendments.

I cite Senator Reid and Senator Durbin with particularity because they are the two leaders of the Democrats at the present time.

An eloquent statement on this subject was made by Senator Dodd on May 11, 2006. Senator Dodd had this to say when he was speaking about health care legislation:

I want to point out to our colleagues why I am terribly

disappointed with the procedures we have been confronted with

this evening dealing with this legislation . . . This is the

Senate. This Chamber historically is the place where debate

occurs. To have a process here this evening . . . to

basically lock out any amendments that might be offered to

this proposal runs contrary to the very essence of this body

. . . if you believe the Senate ought to be heard on a

variety of issues relating to the subject matter--when the

amendment tree has been entirely filled, then obviously we

are dealing with a process that ought not to be . . . the

Senate ought to be a place where we can offer amendments,

have healthy debate over a reasonable time, and then come to

closure on the subject matter.

I could go on at considerable length with other Senators making the same point. But here we have issues of gigantic importance which are not being considered. They are not being debated. They are not being explained. They are not being subject to questioning on the Senate floor, one Senator on another.

The educational process of telling America what the alternatives and prospects are for legislative change is not being explored. Not surprisingly, it is bipartisan. About the only thing that is bipartisan around this place is various mechanisms to gain political advantage.

We have had furious debates over the issue of confirmation of judges, a subject on which I have spoken repeatedly

and have noted that in the past 20 years, every time the Senate is controlled by a party opposite the President, there is a slowdown of the confirmation process. It happened during the last 2 years of President Reagan's administration in 1987 and 1988 when Democrats won control of the Senate in the 1986 election. It happened in the last 2 years of the administration of President George H.W. Bush, and during the administration of President Clinton where we Republicans controlled the Senate for the last 6 years, it was exacerbated. It was even worse in blocking President Clinton's nominations.

As I have said on this floor on occasion, I voted with the Democrats. I thought the Republican caucus was wrong and said so. But each time it has been exacerbated and become more intense.

Then this body saw a very sharp debate in 2005 where there was the consideration of the so-called nuclear or constitutional option, which would have changed the filibuster rule from 60 to 51. Now we are, again, in a period of gridlock. There is no doubt that the very low public opinion ratings of us are due to the public realization, the public disgust about all the bickering that goes on here. The public sees it on many items, the partisanship and the effort at a partisan advantage. But I do believe the public does not have an understanding of these arcane rules, like filling the tree. They can hardly have an understanding since most Members of this body don't understand exactly how it works.

Mr. President, this is not a matter that comes to me this afternoon or yesterday or the day before. I have been watching it for a considerable period of time, and 18 months ago, on February 15, 2007, I introduced S. Res. 83, a resolution to amend the Standing Rules of the Senate to prohibit filling the amendment tree. So far there has not been a hearing and not been any action on that, but I intend to press this issue. I intend to try to bring some understanding to the American people beyond the confines of this Chamber.

I don't think I am going to have a whole lot of effect on my colleagues this afternoon because there are none of my colleagues here this afternoon, except for the--no, no, I know the distinguished Senator from Maryland is here--except for the distinguished Presiding Officer. And I compliment my colleague, Senator Ben Cardin, on his fast start in the Senate. Of course, he had a lot of advanced training having come from the House of Representatives and been a leader in the Maryland Legislature. I work with him on the Judiciary Committee, and he is a first-class Senator. That extract can be used--let's see, you ran in 2006--you can use it in 2012, 2018, 2024, and 2030, Senator Cardin, but beyond 2030, I am reserving my judgment.

But Senators are busy, and I am not in any way critical of Senators not being here, but I intend to speak on the subject repetitively. I don't know that will do any good, but I intend to do that.

For years, Senator Proxmire used to stand at his seat on the aisle speaking about genocide. Every day he came to the Senate floor, and he was motivated because there was no television at the time he was speaking about genocide. I think television came while he was still speaking on the subject. Senator Proxmire was a remarkable Senator in many ways. My recollection is that he had 17,000 votes, which he didn't miss. I am not sure about the exact statistic, but I am sure he spoke extensively on genocide, and he had an impact. And now we know that genocide has been picked up as a crime against humanity and has been the subject of prosecutions under the War Crimes Tribunal.

So I intend to speak about this subject with some frequency, and I intend to press for a hearing on my resolution. I intend to press to see if we can get some action because if the American people knew what was going on, the American people would not like it. The American people live under the illusion that we have a United States Senate. The facts show that the Senate is realistically dysfunctional. It is on life support, perhaps even moribund. The only facet of Senate bipartisanship is the conspiracy of successive Republican and Democratic leaders to employ this procedural device known as filling the tree. It is known that way to insiders, and it is incomprehensible to outsiders.

Once known as a unique legislative institution, the Senate was referred to as the world's greatest deliberative body because any Senator could introduce almost any amendment on virtually any subject and get a vote on it. That was, as noted, the distinguishing feature from the House of Representatives, which is tightly controlled by the Rules Committee to restrict the parameters on what amendments are in order.

A principal reason, perhaps the main reason for the use of the procedural device of filling the tree, was to save the majority from taking tough votes. That backfired on Republicans in the last Congress, where the filling the tree rule was used in order to avoid bad votes. And, of course, we know the procedure backfired pretty hard for Republicans to lose control of the Senate. In the 2006 election we had to lose seven seats, a virtual impossibility, but we managed to do it.

But more important than the partisanship, more important than the increased use by both Democratic and Republican majority leaders is the impact it has on this institution. And more important than that is the impact it has on the legislative process and the working through legislation, which ought to be considered and, where warranted, enacted for the benefit of the American people.

Mr. President, in the absence of any Senator seeking recognition, I suggest the absence of a quorum.

Mr. President, the Senate must act to pass the Lilly Ledbetter Fair Pay Act, and we must do so now. The House has already acted on this bill to restore the basic protection against pay discrimination as part of our Nation's commitment to equal justice and full civil rights for all.

Protecting these fundamental rights and ending discrimination in all forms are essential to our success as a nation. Republicans and Democrats worked together to enact our civil rights laws, and the American people want and deserve these protections to be implemented in full.

The guarantee of equal pay was first enacted in 1963. When President Kennedy signed the Equal Pay Act in 1963, he emphasized that protection against pay discrimination is ``basic to democracy,'' and those words are still true today.

In the years that followed, Congress passed other strong, bipartisan laws to strengthen the guarantee of equal pay for millions of Americans. Over the years, the Senate has gone on record time and again in favor of fairness and against discrimination.

The Civil Rights Act of 1964 was enacted after long, difficult, and contentious debate, but the cause of justice eventually prevailed. That landmark legislation included many important protections, including, for the first time, protection against pay discrimination on the job because of race, national origin, gender, and religion. That is title VII of the Civil Rights Act of 1964. Public accommodations is another very major part of that legislation. But title VII provided these kinds of protections against discrimination. That legislation passed 73 to 27.

We went on record again when the Age Discrimination in Employment Act was passed in 1967, with unanimous support in the Senate. Equal pay for those who are older; you are not going to be able to discriminate against the elderly. It was passed unanimously.

The consensus in favor of the Rehabilitation Act of 1973, which outlaws discrimination based on disability in federally funded programs and activities, was so strong it passed the Senate by a voice vote.

All of us are familiar with the fact that if there is going to be a dispute or major differences, people are going to call for a rollcall vote, even if there is going to be only a handful of people against it. In this situation, with regard to fair pay, equal pay, in the areas of those people who are working with the disabled, the guarantee was going to be fair pay. It, effectively, in the Rehabilitation Act of 1973, passed the Senate by a voice vote.

In 1990, the Senate passed the Americans with Disabilities Act 91 to 6, and it was signed into law by the first President Bush. The first President Bush has stated--and I have heard him eloquently say it was the most important piece of legislation that passed and he signed into law. It had protections against discriminating against those who are disabled individuals.

We passed the Civil Rights Act of 1991 by an overwhelming margin of 93 to 5. That was a clear vote in favor of fairness. It too was signed into law by the current President's father.

On this chart is the list where the Senate has addressed this issue of equal pay for equal work. Going back to 1963, these are the different Presidents who signed legislation--including President Johnson, President Nixon, President Reagan, President Bush. Look at the overwhelming votes: a clear indication of what the intention has been by this Congress in terms of fairness and justice, and correctly so.

Each time we have considered the issue, the Senate has taken the high road. Once again, we must demonstrate that we mean what we say. These important laws established the bedrock principle of equal pay for equal work, and they have made our Nation a stronger and better and fairer land.

In these times of economic hardship, working people deserve more than ever the chance to earn a fair day's pay for an honest day's work. Yet, as a result of the Supreme Court's 5-to-4 decision--5 to 4: one vote-- last May in Ledbetter v. Goodyear Tire & Rubber Company, more American workers will have to endure pay discrimination, without the means to stop it.

Let me show what is happening with regard to women at the present time. We have serious economic challenges we are facing today. But look at the overall economic challenges, the downturn in our economy, and how it is playing out in terms of women. Women's earnings are falling faster than men's. We all hear about the falling of purchasing power among working families across this country. We can see it is falling a good deal faster in terms of the decline in median wages in the year 2007 for women.

As I mentioned, this legislation also applies in terms of African Americans, the disability community, age discrimination, national origin quotas--all of them. Look what is happening with the current economic crisis. Minorities are hit hardest by the economic downturn. So we have the economic downturn going on, and we have this decision which said the employers are going to be able to discriminate against workers on the basis of race, gender, national origin. It is unbelievable that a Supreme Court of the United States, 5 to 4, would overturn 5 to 6 major pieces of legislation that were decided overwhelmingly by this body over a 30-year period which say we want equal pay for equal work.

The list goes on. We know, basically, women make 77 cents for every dollar paid to men. That is existing. These are the current data of the U.S. census in 2007. So this is the current situation, generally. What we are trying to do is change this; to get equal pay for equal work. But inherently, this is where we are in 2007, and unless we change this, it is going to continue or probably even grow worse.

It is reflected, as we would expect, in family income. This chart shows we are talking about equal pay for women, and this legislation also applies to African Americans and national origin. Here we have African-American men receiving 21 percent less pay than White men. We find the same for Latinos. They are affected by this decision as well. Latinos receive 72 cents for every dollar earned by White workers. This shows the distinction, the annual distinction, about $8,000 a year. This has been true.

So we know we are facing a difficult economic time. We also know the people who suffer the most are the people--whether it is women, whether it is African Americans, whether it is Latino, whether it is disability or whether it is elderly, all those groups are affected by the Ledbetter decision, and in the face of 30 years of this Congress saying time and time and time again, in a bipartisan way, we are going to insist on equality of pay for equal work. That is the issue. That had been the law. This legislation we are talking about with Ledbetter, we are trying to go back to what the law was.

This chart indicates--the light green is what we would go back to, and the dark green is where the EEOC held the same as we are proposing in this legislation. This had worked and worked effectively. That is why the CBO said this isn't any further additional burden on industry or business. We are going to hear that argument. We have the CBO study which says that, because basically most employers want to do the right thing. They understand it, they respect it, and they want to do the right thing. So they are not going to be penalized; it will be others who will be penalized.

On this final point, as I mentioned the different groups affected, this shows pay discrimination hurts all kinds of Americans. This orange depicts the disabled, this is national origin, 760. These are cases of pay discrimination charges, including 2,470 in terms of the gender; and on race, 2,352; on age discrimination, 978. So this is 7,000--these are the cases that are brought. Most estimates are it is in the hundreds of thousands of actual cases that are out there that people don't know about.

Lilly Ledbetter didn't know about the fact that she was being shortchanged for years and years and years because people keep the payroll secret. Finally, she hears from others who are working and who are doing comparable work, and she gradually puts it together that she has been shortchanged. Sure enough, she had been shortchanged for years and years and years. The local jury made the decision to pay the damages and the Supreme Court overruled it and said: You are out of luck, Lilly Ledbetter. You should have brought your case within 180 days of the time you were employed. Even though you didn't know about it, you still should have brought it. Even if you didn't know about it, tough luck. You have no remedies. No remedies. No remedies. It has been going on for years. None. That is fundamentally and basically wrong, and that is what we are changing.

We have very strong support for this legislation. We have the support of various groups, including the American Association of People With Disabilities; the AARP, obviously, because of discrimination of the elderly; Business and Professional Women, the NAACP, United Auto Workers, National Congress of Black Women, the Religious Action Center, U.S. Women's Chamber of Commerce. They understand it and see it. The list goes on. I will include a more complete list with my remarks for the Record.

Many people give speeches on fairness and the need to help people in these tough economic times. An important way we can do so is by proving we still stand strongly against pay discrimination, that we would not allow the rights workers thought they had to be undone by misguided court decisions. Fair treatment for all employees is especially important now. As I mentioned, our faltering economy is hitting working families hard. There were 230,000 jobs lost in the first 3 months of this year. Unemployment rates climbed. Over 1 million working men and women have joined the unemployed since this past year.

Few doubt that we are now in a serious recession. It has been particularly hard on women and minorities and on workers--particularly hard. Of the 80,000 jobs that were lost in this last month, 50,000 were construction workers. The unemployment rate among women has risen sharply in the past year. Minorities are suffering more. Unemployment for African Americans is now well over 9 percent, almost twice the national average.

The impact of unfair pay practices is staggering. Today, as I mentioned, women still earn 23 percent less than men; African Americans, 21 percent less than White men; and Latinos earn 72 cents for every dollar paid to White workers.

In fact, the financial security of all working men and women is undermined by this recession. Workers are suffering already, and millions increasingly find their paychecks do not go far enough. They don't deserve to bear the additional burden of discrimination in their pay. The cost of this discrimination becomes more and more intolerable over time. Lilly Ledbetter lost tens of thousands of dollars over the course of her career because every paycheck made the burden of the discrimination even greater.

There is no doubt that the Supreme Court's decision in the Ledbetter case has left employees without one of the fundamental protections against pay discrimination that Congress intended them to have. The Court decision undermined their ability to hold employers accountable for such discrimination by imposing serious and unnecessary obstacles to ending the discrimination against them.

Under the Ledbetter case, the time limit for filing of pay discrimination claim begins to run, as I mentioned, when an employer decides to discriminate--not when the worker finds out about the discriminatory paycheck. Employers who conceal their illegal action for 180 days are free to discriminate. They can pay women less than men. They can pay African Americans less than Whites. They can pay older Americans less than younger ones and pay religious minorities and persons with disabilities less than other workers. These employees can never, ever obtain relief. Paycheck after paycheck can keep implementing the discrimination, and workers have no way to hold employers accountable.

Clearly, the decision has opened up a flagrant loophole in our civil rights, and the Congress cannot let it stand. Under this bill, the 180- day clock restarts with every discriminatory paycheck, so employees can challenge ongoing discrimination, even if their employer successfully hides its true motives at first.

Lilly Ledbetter was one of the few women supervisors at the Goodyear Tire and Rubber Company in Gadsen,

AL. She worked at the plant for almost two decades, constantly fighting to prove that women could do a job traditionally done by men. She endured insults from her male supervisors. She was told the plant didn't need women. Yet she persevered and gave the company a fair day's work. She had children and both she and her husband were working hard to support them. She had no idea Goodyear was not living up to its responsibility to pay her fairly.

For almost two decades, the company discriminated against her by using discriminatory evaluations to pay her less than her male colleagues who performed exactly the same duties. Many of those male colleagues had less seniority and experience than she had, but they were still paid more than she was for identical work.

The jury saw the injustice of Goodyear's mistreatment of Ms. Ledbetter and awarded her full damages. Five members of the Supreme Court ignored that injustice and ruled Ms. Ledbetter was entitled to nothing at all--nothing at all--because she filed her claim too late. The Court's decision gives countless employers a free hand to conceal and continue illegal discrimination and leaves workers powerless to stop it.

The bipartisan Fair Pay Restoration Act will restore the clear intent of Congress when we passed the important laws I mentioned earlier. It would restore the fair and reasonable rule that applied in the vast majority of the country until May 29 of last year. If we pass this bill, we can go back to the longstanding rule that the clock begins to run for filing a pay discrimination claim on the day a worker receives a discriminatory paycheck, rather than the day the employer first decides to discriminate.

By enacting this law, we will restore a rule that reflects how pay discrimination actually occurs in the workplace, and it will give all workers a fair means to stop ongoing discrimination and obtain fair compensation for the discrimination they have endured. By doing so, we will also be helping to prevent employers from engaging in such discrimination in the first place.

There is nothing radical about the changes this bill will make. It simply restores the law employers and workers had lived with for many years, until last May 29, the date of the Supreme Court's distressing decision.

I urge my colleagues to join me in restoring the full strength of the antipay discrimination laws we have enacted in the past. Let's take a clear stand for all working men and women and pass the Lilly Ledbetter Fair Pay Act.

Mr. President, I ask unanimous consent that this list of supporters be printed in the Record.

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

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

I request permission to speak as in morning business for no more than 7 minutes.

Mr. President, on February 29, 2008, the U.S. Air Force announced its award of the KC-45A air refueling tanker program, a replacement to the aging KC-135 fleet. The two competitors in this process were Northrop Grumman-EADS on the one hand and the Boeing Company on the other. After a 13-month-long process, the Northrop Grumman proposal was selected as the better product for the American soldier and also the better value for the American taxpayer. It should come as no surprise that this decision amounted to a major disappointment for Boeing. Their employees and executives would understandably have appreciated the economic benefit such an award would have brought to them.

The award of the tanker program to Northrop Grumman was not the first setback to the Boeing Company in this regard.

In 2004, Congress intervened, in the fiscal year 2005 Defense bill, to terminate the Air Force tanker lease agreement. This agreement would have been costly and simply bad public policy. Afterward, the Air Force responded with one of the clearest and most transparent acquisition processes in history. The Air Force is now able to purchase and own 179 KC-45s for the same price it was going to spend to lease 100 Boeing 767s.

Compared to the reactions in States where Boeing has a presence, the selection of Northrop Grumman was greeted with enthusiasm in Mobile, AL, and along the gulf coast of my State of Mississippi, where thousands of jobs will be created locally. The tankers will be built in Mobile, but the economic impact will be felt throughout the gulf coast and, in reality, throughout the Nation. Such is the nature of the competitive process. One contestant is selected, and the other must deal with disappointing news.

It is important for Senators to understand that the Air Force and the Defense Department utilized an extremely fair and open acquisition process. The Government requested and received proposals for the tanker in early 2007 and then continued with an open review process until Northrop Grumman was announced as the winner in February of this year.

In winning this contract, Northrop Grumman simply did a better analysis and provided a better solution for the Air Force. The KC-45A carries more fuel, more passengers, and more cargo. It will also cost less to produce, passing along savings to the American taxpayers. By utilizing a broad base of suppliers in 49 of our 50 States, the Northrop Grumman tanker will create 48,000 direct and indirect jobs across our country.

Despite this, some want to stop this process from going forward. I have been disturbed by the words and actions of Boeing and its supporters. The level of misinformation injected into this process with the clear intent of derailing the award is troubling for many reasons-- not the least of which is the precedent that would be set by Congress should it overturn this decision. The Air Force should be allowed to make this acquisition decision based solely on the facts and the merits of the two competing proposals, and that is exactly what it did in choosing the Northrop Grumman tanker.

Let's look at some of the claims made by Boeing and its supporters-- first, that the competition was somehow unfair. The Air Force and the Defense Department testified recently to the Senate Armed Services Committee that the KC-45A tanker competition was perhaps the most rigorous, fair, and transparent acquisition in DOD history. This open process allowed for a significant amount of dialog among the Air Force, the Department of Defense, and the two bidders. This included weekly teleconferences with the Air Force, which, during the review process, sent Northrop Grumman 295 evaluation notices. They sent approximately 250 notices to Boeing.

Furthermore, following the formal request for proposals in January 2007, the Air Force received no complaints from Boeing or anyone else that the proposal request was somehow unfair. There were ample opportunities for those concerns to be aired, but no one said a word in this regard. Considering this, it is very hard to make a straight-faced claim that the process was not open or fair.

There has also been a high level of misinformation about the so- called exportation of American jobs. Some erroneously claim the Northrop Grumman award will outsource thousands of U.S. jobs to Europe. This is simply not true. No jobs are being exported to Europe. On the contrary, the KC-45A will create thousands of new jobs in America and will support a total of 48,000 direct and indirect jobs in 49 States, as I have said.

More than 230 suppliers across the United States helped make up the 60 percent U.S. content in the KC-45A tanker. This will truly be America's tanker, assembled in America by American workers and for the protection of the American military. The KC-45A will be fully assembled and militarized for U.S. Air Force operations by American workers in two separate facilities in Mobile.

No sensitive military technology will be exported to Europe in connection with this program. Instead, a new aerospace corridor will continue to grow and flourish along the gulf coast region.

The KC-45A tanker will join the Global Hawk, Fire Scout, joint cargo aircraft, and the light utility helicopter production facilities that are already successfully producing high-reliability defense systems for our Nation. The light utility helicopter, for example, is being built by EADS North America in Columbus, MS. It is a true success for the Army and for our economy. The Lakota, as the helicopter is known, was delivered to the Army 3 months ahead of schedule. To date, 24 Lakota helicopters have been delivered on or ahead of schedule. The Lakota has over 2,000 flight hours, with over a 90-percent full mission capable rate. In addition, EADS North America completed a 314,000-square-foot expansion to its Mississippi facility to manufacture this helicopter. Perhaps most importantly, the program is on budget and on schedule to deliver a critical platform to the American warfighter--just another example of EADS North America producing a product for our country's defense, using American workers.

There should be no doubt that the workforce in the gulf coast region is up to the task of building these complex systems. The results to date on the systems I just mentioned speak for themselves.

Our workforce is second to none in the Nation. So this debate, as much as some would make you believe otherwise, is not about American jobs versus European jobs. It is about where in the United States those jobs will be.

A recent full-page ad in newspapers across the country represented the worst of the misinformation. The ad claimed the Air Force selection ``penalized the warfighter and the taxpayer.''

The facts tell another story. The KC-45A was evaluated to be a superior product for the warfighter. It was also judged by the Air Force to be a better value for the taxpayer, providing superior military capability across the board at a lower total cost than the competing KC-767 aircraft.

The U.S. Air Force is not alone in choosing the KC-45A. Our friend and ally, the United Kingdom, recently announced the selection of this same aircraft frame as the best solution to meet their national security requirements. The U.K. selection is the fifth tanker competition in a row where the EADS platform was chosen as the winner over all other competitors. Australia, Saudi Arabia, and the United Arab Emirates have also recently placed orders for this tanker.

Some are calling for tighter restrictions on the level of international content in U.S. defense systems. That, to my mind, would be a mistake and would amount to changing the rules in the middle of the game. The U.S. economy is tightly integrated into the global economy, and the aerospace sector is no exception.

There are numerous examples of transatlantic cooperation on vital U.S. military programs where foreign suppliers do play essential roles. Some of the more visible programs include the F-35 Joint Strike Fighter produced by Lockheed Martin, Northrop Grumman, and British Aerospace; the VH-71 Presidential helicopter produced by Lockheed Martin and Augusta Westland, a European consortium; and the Joint Cargo Aircraft produced by L-3, Boeing, and Alenia, built in Florida from an Italian airframe.

I don't recall anyone in this Chamber or from Boeing expressing concern about the level of European participation in the Joint Cargo Aircraft, which has only about 60 percent U.S. content, nor did anyone complain about possible interruption of supplies of spare parts, which some have suggested would be a likely outcome of buying the KC-45A.

To repeat, Boeing's Joint Cargo Aircraft is 60 percent U.S. content and 40 percent international. When this contract was awarded, no one raised a single complaint about that. Now, when Boeing loses a competition to a partnership with a similar domestic-foreign ratio, they make it sound as if the world is coming to an end.

It seems to me the level of noise depends on whose ox is being gored.

Mr. President, might I inquire, how much of the 10 minutes is remaining from the request of the Senator from California?

I will do my best.

Mr. President, I thank Senator McCain and Senator Kyl for putting forward this proposal. I was delighted to see it. I would, frankly, hope that Democrats and Republicans could come together on this issue in a bipartisan manner and provide this temporary relief for hard- pressed Americans during the summer months.

Many people ask us, why are gas prices so high? Why is this continuing to happen? As we know, there are many complex factors involved in that: worldwide demand, countries such as China and India increasing their demand for oil and gas at this point; also, unstable governments in oil-producing regions; and Americans' continued reliance on foreign sources of oil.

But, also, I must confess the problem being experienced by Americans, in large measure, is due to Federal policies. In the mid-1990s, President Clinton vetoed a proposal to drill in ANWR, even though the residents of the State of Alaska have asked us for permission to drill there and have told us they are satisfied it can be done in an environmentally friendly manner. Also, we have had the refusal to produce energy in America when we know it can be done in an environmentally safe way, whether that be the production of more crude oil, oil shale, or liquefied coal.

So the Federal Government and this Congress bear a good bit of the responsibility. In light of that, I think we have to ask ourselves--Mr. President, might I have an additional 1\1/2\ minutes?

Thank you, Mr. President.

I think this Senate--Republicans and Democrats--needs to ask: We have a choice. Do we ask the Federal Government to tighten its belt a bit and adopt this summer-long Federal gasoline tax holiday or do we continue to require American families to tighten their belts and pay higher gasoline prices? Do we continue to require American farmers and small businesses, who have to use transportation to earn a living, to tighten their belts?

I think the better answer there is to provide 18 cents per gallon of relief for American families, 24 cents per gallon of relief to those who are required to use diesel to earn their livelihoods, and for the Federal Government to tighten its belt and absorb this $8 billion to $9 billion that the Senator from California talked about.

The Senator from South Carolina mentioned we have already passed a much more expensive economic stimulus measure because we are concerned about the economy. This economy could go either way. We can take action to prevent it from sliding into a recession. We have already adopted one a few months ago. The McCain plan is another one. I enthusiastically support the concept. I think it is time we give Americans a break at the pump. This would do so during an important period as our economy teeters on the edge.

I hope we continue to have this debate, as the Senator from California suggested, and adopt it on a bipartisan basis.

I yield the floor.