Floor Statements

Mr. President, what is the order? As I understand it, Senator Burns will be offering an amendment, or has an amendment, and there will be a vote on my amendment and his side by side. First, mine; is my understanding correct?

And then his.

The time is equally divided an hour a side to debate both amendments; is that correct?

Mr. President, I ask unanimous consent that any quorum calls when placed be divided evenly.

I defer to him. I yield the floor.

That is reassuring.

Mr. President, is it necessary to now call up amendment No. 1023?

Mr. President, I think we are about to have a very important debate about a very moral subject which deals with intentional dosing of human beings, including children, with dangerous pesticides. I say this is a moral issue. As a matter of fact, I believe I can call my amendment a faith-based amendment because every major religious organization in this country supports my amendment.

My amendment passed the House without a single dissenting vote. It was by unanimous consent. I am shocked and stunned that we even have opposition to this very simple amendment.

The amendment that was offered by my good friend, the Senator from Montana, in my opinion and in the opinion of people who know about ethics and science and pesticide testing, it is actually a very dangerous amendment. It is offered as, I call it a CY amendment, cover yourself amendment. You can vote for his amendment and then against mine. If you look at his amendment, it is a step back to what is happening currently. It is a dangerous amendment because we will push through a new regulation that already has been condemned by, as I say, every major religious organization in this country.

We will debate this for the next couple of hours, but I wanted to make a statement in reaction to the President's speech last night.

President Bush's Speech

Mr. President, the President had every opportunity last night to lay out his plan for success in Iraq. I had given a number of interviews where I urged him to do that, and colleagues on both sides urged him to do that. Instead, what we got was a defense of the status quo and absolutely no mention of the need to be ready when our troops come back, 13,000 plus, with horrific injuries, physical and mental--an opportunity to say our troops will have everything they need when they come home and every bit of equipment they need on the field in Iraq was blown last night. And then there was no plan of how we are going to get out of this thing, and a continuation of the myth that the war in Iraq had something to do with 9/11, which it did not.

I looked back yesterday at the Department of State as they looked at where al-Qaida was on September 11. Not one al-Qaida cell was in Iraq on September 11. There were more al-Qaida cells in my home State of California.

I am very sorry to see we are on that status quo and the daily news continues with the disastrous effects of a policy that is not geared toward success.

Amendment No. 1023

Mr. President, I am now going to talk about my amendment. I see the Senator from Florida is here. At an appropriate moment, I will yield to him. I want to lay out the general aspects of my amendment.

The amendment that I offer will simply say we need to take a timeout in terms of the environmental protections action on accepting for review and, in essence, condoning pesticide testing on human beings. We need a timeout. Christy Todd Whitman thought we needed a moratorium. She put one in place. Carol Browner, under President Clinton, put a moratorium in place. But now the moratorium has lapsed and, shockingly, EPA is considering and encouraging intentional dosing of human beings with dangerous pesticides. This is not rhetoric. I am going to show the charts and show the experiments.

What my friend and colleague is offering is a figleaf cover amendment: Don't vote for Boxer, it actually does something; vote for the Burns amendment which--listen to what it does--speeds up a regulation that is already going through EPA that is downright dangerous and involves testing of human beings, including newborn babies--very ill newborn babies--pregnant women, and fetuses. That is why every major religious organization in America has entered on the side of the Boxer amendment and opposed to the Burns amendment.

I am going to show the actual language of the Boxer amendment. It is exactly the language of the House-passed amendment:

None of the funds made available in this Act may be used by

the Administrator of the Environmental Protection Agency to

(1) accept, consider, or rely on third-party intentional

dosing human studies for pesticides; or

(2) to conduct intentional dosing human studies for

pesticides.

It is simply a straightforward timeout so that we can look

at the ethical, moral, and health issues surrounding the

current policy at the EPA.

As I said, Carol Browner, a Democrat, put that moratorium in place; Christy Todd Whitman, a Republican, put that moratorium in place. But now it has been allowed to lapse.

I recently released a staff report with Congressman Waxman that reviewed 22 of the studies that EPA is currently looking at. I want to tell you what we found after reviewing these studies.

We found that human testing of pesticide moratorium was allowed to lapse by the EPA; that over 20 human dosing studies are currently being reviewed by the EPA; and that the studies--and this is the most important point, Mr. President--the studies routinely violate ethical and scientific standards laid out in the Nuremberg Code, the Declaration of Helsinki, the ``Common Rule,'' and the National Academy of Sciences recommendations on human testing. In other words, we have nothing in place that would guide these experiments.

I am going to show you one of these experiments that is being reviewed by the EPA. So let's go to the UC San Diego study.

I care a lot about this because this happened in my State.

This is a study on chloropicrin. What is chloropicrin? It is a fumigant. It is an active ingredient in tear gas, and it was a chemical warfare agent in World War I.

I told you about chloropicrin. In the material safety data sheet which is put out by the manufacturer, this is what it says about chloropicrin which was given to UC San Diego students, and I will talk about the dose they received.

Warning statements and warning properties, this is what it says:

Danger. May be fatal if inhaled or swallowed. Severe burn

follows liquid contact with eyes or skin. May cause severe

respiratory tract irritation. Causes eye and skin irritation.

Lachrymator--

This means it is the tear gas property--

poison may cause lung damage.

Chloropicrin was categorized as a category 1, which is the most toxic due to acute lethality and severe irritation.

Let's look at how the students got these doses. They were paid $15 an hour. They were told that this was not dangerous. They signed liability waivers. This is all unethical, and nothing in the Burns amendment will stop any of this and nothing in the Burns amendment addresses these issues.

Here we can see the students receiving this dangerous fumigant through this hose and breathing it in. This is right from the study:

Figure 10. Showing subjects sampling from two cones through

yokes that directed flow from the right cone into the right

nostril and from the left cone into the left nostril. The

subjects needed to decide whether they felt the chloropicrin

on the right or the left.

Do you want your daughter breathing in this dangerous chemical at doses that are very large, which I will explain?

This is a picture of a young woman taking part in an experiment where the chloropicrin dose was up to 1.2 parts per million. I want you to remember 1.2 parts per million because this is the point. The workplace safety standard for chloropicrin is .1 parts per million. This experiment dosed these kids with 12 times higher than the average level allowed in the workplace.

Let me repeat that. This experiment dosed these students with 12 times the level that is considered safe. And this is a recent experiment. It ended in December of 2004.

I am going to show you what OSHA says you should wear when you are exposed to chloropicrin at levels higher than .1, 12 times lower than these students were dosed with. It requires a full-face plate respirator or powered air purifying respirator with organic cartridge to protect from the chemical, according to the manufacturer.

I have to say, what more of a moral issue can we be facing than allowing these students to have chloropicrin pumped through their nostrils at a rate 12 times higher than the safety level that OSHA, our Federal Government, says is safe? What right do we have to allow that to go on? Yet the Burns amendment will allow it to go on.

The only way to stop it is with the Boxer amendment, which is the identical amendment to the House amendment where not even Tom DeLay, who comes from the pesticide industry, registered a ``no'' vote.

How can we in the Senate, the most deliberative body in the land, walk away from a simple moratorium on this kind of situation?

Let us look at the next chart. This next chart shows the 20 studies under review since the moratorium was allowed to lapse. I could not even pronounce all of these properly, but I will give a few of them. Carbofuran, ethephon, amitraz, methomyl, oxamyl, malathion, and chloropicrin was the top one.

It also shows the dates. These are all studies similar to this one. Actually, in one study did they not have to swallow pesticide pills for breakfast? That is a fact.

Because I am a member of the Environment and Public Works Committee, as a result of that membership we demanded to see all of these studies. They were being kept from the public and we now know these things are going on.

In some studies subjects were harmed--for example, experiencing heart arrhythmias; that is, an uneven heartbeat, a racing heart, and we now know it was a result of that chemical that was being used. Many of the studies had very misleading consent forms. Some described the pesticide as a drug. In some studies adverse outcomes were dismissed. They said, oh, they went to the hospital because they did not feel good, but it had nothing to do with the dosing of the pesticide. Hard to believe.

Most of the studies had no long-term monitoring reviews and few were large enough to be statistically valid. The deficiencies are significant and widespread and that is why we need this moratorium on this timeout to allow a set of standards to be developed that governs the use of these studies. The development of sound standards is critical, if the problems with human pesticide testing are to be addressed.

At this point, I yield 8 minutes to the Senator from Florida.

Would the Senator please yield back his extra time to me?

I thank the Senator from Florida. He is a protector of children, families, and the vulnerable of his State. His help on that CHEERS program and getting that stopped was an enormous contribution. Many times we do big things around here that deal with huge issues and we do not know the impact of our work for a long time. When one works for clean air, clean water, it takes a while.

I say to my friend from Florida, this is something he can be proud of because we together, as a team, with the help of some of our colleagues on the Environment and Public Works Committee, were able to use the leverage each Senator has to force a cancellation of a program that was intentionally dosing little children with pesticides, paying off their parents who tended to be poor, giving the parents a video camera, and subjecting these children to dangerous chemicals. So I think we have to be proud that we saved some kids from this.

I want to say why my amendment is so crucial and why the Burns amendment is so bad if one cares about protecting children and families. The amendment I have offered with my colleague from Florida-- and, by the way, I ask unanimous consent that the following Senators be added as cosponsors to this amendment: Senators Snowe, Collins, Nelson of Florida, Clinton, Schumer, Obama, Jeffords, Kerry, Lautenberg, Reid, and Levin.

I think my colleagues can see this is a bipartisan amendment. We want to protect our children. This has nothing to do with politics. We want to protect our families.

Here is what is happening. The Burns substitute, which he is going to try to tell everyone is better than the moratorium, essentially encourages the EPA to continue with their rulemaking. It says, go on, hurry, finish it up, and it does nothing to stop any of the testing that is going on right now. So it is a step back. It is a dangerous step back.

Now, why do I say that? I will tell my colleagues about the EPA rule that is coming at us if we do not stop this. This is straight from the EPA. We are fortunate enough to have this information today.

The Agency has decided not to include any proposed

requirements relating to a Human Studies Review Board as

suggested in the National Academy of Sciences recommendation

6-2.

The National Academy of Sciences--we looked for it so that we have ethical guidelines. The EPA has rejected the guidelines of the National Academy of Sciences and the Burns amendment says, oh, go right ahead, EPA, finish your regulations, and the Burns amendment makes no reference to the NAS. This is more from the EPA:

The promulgation of rules prescribing such details

[establishment of the Human Studies Review Board] would

unnecessarily confine EPA's discretion . . .

So, in other words, they are admitting they are turning away the guidelines of the National Academy of Sciences because they do not want to be confined in doing what they do.

What do they want to do? When you find that out you will be rather shocked. Are you ready for this? I say to my friend from Montana, if this doesn't shake his confidence in his amendment, nothing will. This is a bombshell that I am about to tell you.

The EPA is considering continuing a limited number of scientific studies involving pregnant women--meaning they will be dosed with pesticides, fetuses--meaning fetuses will be dosed with pesticides, neonates of uncertain viability--and just for those of you who do not know, neonates are newborn babies--of uncertain viability--meaning they are ill; sick babies will be in these experiments, or nonviable neonates--meaning newborns who may not make it. They are going to dose them as well.

If we can't take a stand to protect the sickest of the newborn babies, then we don't deserve to be here. If we are going to stand with the pesticide companies against ill, very ill newborn babies, what are we doing here? We don't belong here.

Let's see what some of the religious groups are saying. For those people who want to have faith-based legislation, you are on the faith- based legislation when you support the Boxer-Snowe-Nelson-Clinton- Collins, et cetera amendment. This is the statement of the Leadership of Diverse Faith Groups on human testing. It is signed by the National Council of Churches and the Coalition on the Environment and Jewish Life.

Our faiths teach us to protect the vulnerable among us and

to do so we need a moratorium on the use of human testing

data in the registration of pesticides, not another study or

report.

The Burns alternative is another study. But worse than that, the Burns amendment encourages and orders the EPA to get their regulations in place, regulations that, as I told you, allow testing on newborn babies and fetuses and pregnant women and desperately ill newborns. Why are we having a debate? Why aren't we all supporting a moratorium, a timeout, just as Christie Todd Whitman did, just as Carol Browner did? This is a bipartisan effort.

Unfortunately, we have to choose. Instead of walking down this aisle together and saying we will not allow testing on pregnant women--can you imagine testing pesticides on desperately ill newborn babies and testing

pesticides on fetuses? I just can't imagine that that is what we are going to do today by voting on the Burns amendment and telling EPA to hurry up with their regulations instead of taking a timeout.

Let's look at some of the churches that are involved in supporting the Boxer amendment. Let's take a look at the list of these churches and these religious organizations. I will just read some of them: The African Methodist Episcopal Church; the Alliance of Baptists; Archdiocese of America; the Diocese of the Armenian Church; Christian Church (Disciple of Christ); the Church of the Brethren; the Coptic Church; the Evangelical Lutheran Church; Friends United Meeting; Greek Orthodox Archdiocese of America; International Council of Community Churches; Korean Presbyterian Church; Moravian Church in America, Northern Province and Southern Province; National Baptist Convention of America; National Baptist Convention, USA; Orthodox Church in America; Polish National Catholic Church of America; Progressive National Baptist Convention; Syrian Orthodox Church of Antioch; Ukrainian Orthodox Church of the United States of America; United Church of Christ; The United Methodist Church.

It goes on.

The reason I am reading this is this is very unusual to see a faith- based amendment that deals with morality, to have so many of our religious leaders supporting us and opposing the Burns amendment. Why do we even have a debate? Certain things are right and certain things are wrong. Yes, it is an issue of social justice. Who is going to step up to the plate and offer up their newborn baby?

Let's take a look at that again, the statement about testing on newborns. I think Senator Durbin is interested in this and said he wanted to ask a question about it. The fact is, all of the religious organizations have stepped up to the plate, in part, because of this. This is EPA's own words.

EPA thinks it likely that it will continue a limited number

of scientific studies involving pregnant women, fetuses,

neonates [meaning newborns] of uncertain viability, or non-

viable neonates [in other words, desperately ill babies] in

the future.

It is hard to imagine how anyone in the Senate could vote for an alternative which encourages the EPA to hurry up and produce their regulation, when we can all come together as everyone did in the House of Representatives and say: Time out, EPA. This is a moral issue.

I will.

That is the essence. You can put lipstick on it but essentially the opposition is saying no to the Boxer amendment, and let's just tell the EPA to look at ethical guidelines and consider them and hurry up and issue a regulation.

Does it make any reference to the National Academy of Sciences, which has very strict regulations? It doesn't make any reference to any of the guidelines that are internationally recognized. So, in essence, the Burns amendment is the status quo with a kicker that we continue these studies and that, in essence, we say to the EPA: Hurry up with your regulation.

This test is being paid for by the pesticide maker, who wants to say that they should be allowed to use more chloropicrin in their pesticide. They have paid the University of San Diego to do this.

The EPA accepted that study. In other words, they are saying fine, we are going to look at the results of that study.

It was Ronald Reagan who put a stop to looking at the tests that came out of World War II. Because after World War II, we saw what was going on with medical studies. Ronald Reagan was the one who said we are going to stop this. We are not going to even look at these studies because they are immoral.

What we are saying today is, it is immoral to take a young woman like this--and tell her, by the way, she is not going to be harmed--make her sign a waiver of liability so she cannot really recover if she is sick, pay her $15 an hour because she is a student and probably needs the money desperately, and not tell her what this other picture shows, the man in the mask, that she is breathing chloropicrin at a rate 12 times the rate that our Federal Government, our OSHA says is dangerous.

If you were to have a concentration of this chemical 12 times less than what these kids are getting into their nostrils, into their lungs, you need to wear this type of full-face plate respirator or powered air purifying respirator with organic cartridge to protect from the chemicals.

That is the interesting question. Under Bill Clinton's administration, in the late 1990s, Carol Browner, the Administrator of EPA, stopped this kind of acceptance of these tests by the EPA.

Christie Todd Whitman agreed with her and stopped all of this and said EPA is not going to look at these. It is immoral. It is wrong.

It is only recently that this moratorium was allowed to lapse and the current Administrator--it is Leavitt, I think--started to accept these studies. So it is very recent.

Remember, we had two EPA Administrators who had said no to this. Now, suddenly we are back in the game of utilizing these studies and sending a signal out to the scientific world: Go ahead and do these dosing studies.

Yes.

Yes. Let me take back my time because the Senator from New York is on schedule. I want to make sure she has time to speak. But let me tell you this. The EPA's own words are that, in fact, they will consider testing on these neonates and the rest.

Yes. This is immoral. I would like to tell you, the U.S. Conference of Catholic Bishops, on their Web site, in 2005, say this:

We are very concerned about using humans for the direct

testing of pesticides under any conditions, particularly when

they will not receive any direct or immediate health benefit

but in fact may be harmed.

So we are not here testing pharmaceutical products that may help a baby. We are here looking at harming a baby, harming a pregnant woman.

So the Boxer moratorium vote is very important.

Mr. President, how much time do I have remaining?

I will yield 8 minutes to my colleague from New York, with an additional 2 minutes should she require it.

Mr. President, before the Senator leaves, I thank the Senator from New York who has always been such a credible voice for our children and our families and for their health and well-being.

As she said, this should be what the younger generations calls a ``no brainer.'' We need a timeout. We do not need to have the Burns amendment passed, which will speed up the EPA regulation which allows the testing of pesticides on newborn babies who are ill. It specifically says ``ill newborn babies or near-death newborn babies.'' If we stand for something, we should stand with all the religious organizations in this country that support the Boxer amendment and oppose the Burns amendment.

I ask unanimous consent to be able to reserve the balance of my time until the conclusion of Senator Burns's remarks and that the quorum call not be counted against my side.

If I could explain to the Senator from Alaska, I only have about 5 minutes remaining, and I want to retain that time for when Senator Burns concludes. He knows this. I don't think he has a problem with it.

I yield the floor, retain my remaining 9 minutes, and wait for the conclusion of the debate.

Mr. President, I yield myself 7 minutes and retain 2 minutes, if I may.

The Senator from Montana has, as he usually does, made a very good presentation for his side. The only problem is he made a very bad presentation about the amendment I had written. In criticizing it, he is criticizing the Republican-run House of Representatives which passed this same amendment without dissent, including the one and only Congressman I know of who was an exterminator, Tom DeLay. So for all the eloquence about pesticides, the one person who was involved in the pesticide over there did not object.

And with all due respect to my colleague, I don't have to be lectured about agriculture. I have been elected three times from my State. Agriculture is an enormous source of pride to our State. I visited thousands of acres of farmland. I want the Senator from Montana to understand something about my State and my farmers. Not one of them called and said: Oh, Senator Boxer, we want to dose babies and infants and pregnant women and fetuses with pesticides. Not one. So let's set the record straight. Maybe he heard from some of his farmers. Not one called me.

Why? Because this is all scare tactics. They know we are testing pesticides on animals. They know we are using computer modeling. They know that research moves forward. I am one of the biggest proponents of developing new pesticides.

Then he uses the scare tactics. My God, if we have this moratorium-- which, by the way, was put in place by Republican and Democratic administrations in the past--we won't be able to fight West Nile virus. Baloney. We are already using DEET. We know what to do. There are continuing studies and modeling going on. So let's get rid of the scare tactics.

I am offering a bipartisan amendment today that is the exact amendment that passed the House without a dissenting vote. The only people who don't like it are the pesticide makers. We have a chance to take a stand for the health of our kids or with the pesticide makers. That is just clear. We have a chance to take a stand with every major religious organization in this country. I have the list of those. The National Council of Churches, Jewish organizations, evangelical Lutherans, the Catholic bishops, all weighed in. My amendment is a faith-based amendment.

Then my colleague says: Let's not get emotional. Are we supposed to walk in here and lose all of our feelings? Are we not supposed to have emotion if we lose, for example, a constituent in the Iraqi war? If we visit Walter Reed Hospital, as many of us have done, are we supposed to check our emotions at the door when we are elected to the Senate? Let me tell you how I feel when I read about the kind of testing they are going to do which my colleague is endorsing with his amendment because he is saying the EPA should hurry up and bring out their regulation. By the way, he is wrong when he tells you it is a draft. It is a final draft, and we have the proof that this regulation was about to go for comment next week. So let's set the record straight.

Here is what my colleague supports. He supports an EPA regulation that says there will be a limited number of scientific studies involving pregnant women, fetuses, newborn babies of uncertain viability or nonviable newborns. Imagine, dosing a fetus with pesticides. Dosing a newborn baby. You want me to check my emotions at the door? Sorry. I will not be here and allow a rule to go into effect without doing everything in my power to stop it that is going to dose a dying newborn baby with pesticides because some poor mother is convinced to take $1,000 for it. This is just wrong. Why do you think we have all of these churches opposing the Burns amendment and supporting our amendment: We are appalled by the effort to go forward with yet another report--that is the Burns amendment--that does nothing to guarantee the well-being of the children and other vulnerable groups who are being subjected to pesticides by the chemical industry. We need a moratorium.

This moratorium was voted for without a dissenting vote in the House. Now my colleague calls for a thorough review based on the National Academy of Sciences standard.

There is not one mention of the National Academy of Sciences in his entire amendment. Not only is there not one mention there, there is not one mention of the Helsinki Accords. There is not one mention of any protocol that has ever been recognized nationally or internationally in his amendment. It is a general amendment. It is exactly what the EPA wants because they have told us, they don't want to be hemmed in. They don't want to have their options limited. They want to be able to dose or accept studies that dose people with chemicals whenever they want to and whoever these people are.

Here is what the EPA says they want: The promulgation of rules prescribing such details would unnecessarily confine EPA's discretion. Wonderful. My opponent is giving them that discretion by not referring to any acceptable scientific guidelines.

Then my opponent defends the CHEERS program. I have never heard anyone defend the CHEERS program. The CHEERS program was going to be done on these babies. Pay their parents in poor areas, give them a cam camera, tell them to continue dosing their homes with pesticides and study the reaction of the children, when we already know it is dangerous for kids to be exposed to pesticides. My esteemed friend--and he is my friend--actually gets up and defends this program which no one else in America has done. But it speaks to the purpose of his amendment which is to move forward with a rule that would allow all of this.

My opponent says I am stopping all testing. False. The testing will continue--animal testing, computer modeling. Do you know what Stephen Johnson of the EPA has said about human testing? I think it is important that Members know. He certainly doesn't agree with Senator Burns because this is his quote:

We believe that we have a more than sufficient database,

through use of animal studies, to make licensing decisions

that meet the standard--to protect the health of the public--

without using human studies.

So my friend is contradicting Stephen Johnson, head of the EPA.

I yield myself 1 more minute.

The fact is the attack Senator Burns has made on my amendment is false in every way. It is the same amendment as his Republican friends supported over in the House without a dissenting voice. It is the same policy that was put in place by Republicans and Democrats. And then my friend says: Wouldn't it be a waste to throw away studies, even if they did intentionally dose human beings? Ronald Reagan was faced with that same

issue. His head of the EPA said there are certain times when you don't accept studies because there is moral right and there is moral wrong. That is why the Boxer amendment--supported by Senators Snowe and Collins, Senators Clinton and Obama and Nelson and others--is so important.

I ask unanimous consent to add Senator Corzine as a cosponsor of my amendment.

To quote President Reagan's EPA, they said they would not accept human dosing type of experiments from World War II because they were ``morally repugnant.''

I reserve the remainder of my time.

Absolutely.

Sure.

Mr. President, this debate is a tough debate because when it comes to protecting the people of our country, there are going to be feelings on either side. This is what it is about. The quote of James Childress of the National Academy of Sciences, chairman of the panel, who said: A lot of us were troubled by the dosing studies. And personally my view is that the House amendment--that is what my amendment is--was within the range of ethically justifiable responses.

The fact is, there is no mention directly of the National Academy of Sciences in my colleague's amendment. My colleague's amendment is just a ``cover yourself'' amendment. I call it a ``CY'' amendment.

People can think they are doing something, but here is what I need to tell my colleagues: If they vote for the Burns amendment, they are taking us back. They are telling the EPA to hurry up with their regulations, regulations that we know will test pregnant women and babies. Every major religious organization views this as a faith-based debate, and the Boxer amendment is on the right side of that debate. I hope Members will vote for the Boxer amendment.

I yield the floor.

Is my friend going to ask for the yeas and nays on both his and my amendment, his first and then mine second?

I ask for the yeas and nays on the Burns amendment and the Boxer amendment.

That is very good.

Mr. President, if I could have Members' attention just for one moment, I hope they will vote for this. The EPA is about to utilize studies that will actually intentionally dose babies with pesticides, pregnant women with pesticides, newborns with pesticides, newborns of uncertain viability, meaning they might die, nonviable newborns. We are talking about a policy that has won the condemnation of every religious organization in this country who backed the Boxer amendment.

The Boxer amendment passed without a single dissenting vote in the House. If Members voted for Burns they can vote for Boxer. All we are saying is we need a timeout to look at this immoral policy. That is why we have

the Catholic bishops telling us that the intentional dosing of kids is immoral and they are very concerned about it. That is why we have the support of the National Council of Churches. If my colleagues ever wanted to vote for a faith-based amendment, this is the amendment. Stand on the side of the innocent, vulnerable kids and vote for the Boxer amendment.

I yield the floor.

Mr. President, for several years now we have been debating a national energy policy. In 2002 and 2003, I voted against the Energy bills because I believed they were bad for California and emphasized expanding old, dirty sources of energy instead of investing in clean, renewable energy.

Today's bill, however, is slightly better. It is more balanced and more protective of consumers. I will, therefore, vote for it.

However, this is not a perfect bill, and it contains many provisions that I oppose. I am voting to move the process forward today, but if the bill returns to us from conference more like the House bill, I will have to vote against it.

Let me begin with how this bill is better than previous bills. For the first time, we have an Energy bill that creates a Renewable Portfolio Standard, RPS. What that means is that utility companies will have to get 10 percent of their energy from renewable resources, such as wind and solar, by the year 2020. That is enough to supply 56 million U.S. homes with electricity generated by renewable sources.

There are a variety of other provisions in the bill that will encourage conservation, energy efficiency, and development and use of clean sources of energy. For example, there are $6.4 billion in tax breaks in the bill to provide incentives for alternative and renewable fuels. That includes something I have been advocating for several years--extending and strengthening the tax break for people who purchase hybrid cars. It also includes a tax deduction for energy- efficient buildings, the production of energy-efficient appliances, and the expansion of the credit for environmentally friendly geothermal facilities.

Unlike previous Energy bills, this bill actually contains some protections for consumers. We in California know all too well what happens when energy companies are allowed to manipulate the market and gouge consumers. This bill specifically prohibits manipulative practices in the electricity market, and it contains provisions for better accountability and more transparency so that consumers can know what is happening.

Speaking of the electricity crisis in California, we are still waiting for the refunds that are owed to us. The Federal Energy Regulatory Commission, FERC, found that rates were unjust and unreasonable; they found that markets were manipulated. They have ordered some refunds, but California has yet to see a penny 4 years later. And FERC continues to drag its feet in ordering the full $8.9 billion that is owed to my State.

That is why I am pleased that this bill includes my amendment calling on FERC to conclude action on the refunds issue and requiring FERC, if it has not done so by the end of this year, to explain to Congress what exactly has been done and to spell out a timetable for the rest of the process. Californians deserve their refunds, and I hope my amendment will finally bring this matter to a conclusion.

I am also glad the Senate approved an amendment Senators Dorgan and Stabenow and I offered that requires the Federal Trade Commission to investigate the possible manipulation of the price of gasoline. We are seeing unprecedented prices at the pump that cannot be completely explained by the rise in crude oil prices. Oil companies should not be making undeserved, windfall profits at the expense of consumers who, in many cases, have no alternative but to drive to work.

While I oppose the ethanol mandate in this bill, I am pleased that the bill includes a proposal I originally offered with Senator Lugar to count each gallon of ethanol made from agricultural waste products as 2.5 gallons toward meeting the mandate. This will be a big help to both the farmers and consumers of California. I am also pleased that this bill contains my original proposal to provide grants for the construction of agricultural waste ethanol production facilities.

As I mentioned, one of the bad things about this bill is the ethanol mandate. Even with the Feinstein provision to exempt California during the summer months, I am still concerned about what this mandate will mean for future gasoline prices in my State.

I am also adamantly opposed to the provision of this bill that requires an inventory of energy resources in America's Outer Continental Shelf. This could easily lead to future oil and gas development in some coastal areas. And an ``inventory'' is not as innocuous as it sounds. It will be conducted with seismic airguns, which shoot sounds into the seafloor for mapping. These sounds can injure marine mammals and fish, possibly leading to beachings and reduced fish catches.

The bill grants FERC the sole authority over the siting of liquefied natural gas terminals onshore, denying States the right to have a say in the decision.

This bill lacks what is probably the surest way to reduce our crippling dependence on foreign oil--increasing mileage standards on automobiles. Raising the fuel economy of passenger automobiles to 40 miles a gallon by 2016 would save about 95 billion gallons of oil by 2016.

Finally, I want to mention my disappointment at this bill's heavy reliance on nuclear energy at a time when we still have no solution for the nuclear waste problem and still have safety concerns about nuclear facilities. The bill reauthorizes the Price-Anderson Act to put the taxpayers on the hook in case of an accident, and it provides tax incentives and loan guarantees to encourage the construction of more nuclear powerplants. This does not make sense. We are subsidizing and encouraging the production of more nuclear waste when we have no place to put it.

As you can see, this is not a perfect bill. But, again, I will vote for it today in order to move the process forward and because it is better than the previous two Energy bills. I hope that the Senate conferees will fight to maintain

the Senate's language during the conference. If they do not--if this bill returns to the Senate looking more like the backward-thinking House bill--I will have to vote against it.

Mr. President, today I rise to salute a wonderful and historic event that is about to take place in my home State. On Friday, July 1, 2005, Antonio Villaraigosa will be sworn in as mayor of the great city of Los Angeles, CA.

With nearly 4 million residents, Los Angeles is a huge and dynamic city, and running it well will be a huge challenge. But Antonio Villaraigosa is ready, willing, and able to do the job.

I believe that Mayor Villaraigosa has the intelligence, talent, energy, courage, compassion, imagination, and experience needed to unite Los Angeles and move it forward to new greatness.

Antonio has shown this ability throughout his career as a labor leader, civic leader, and elected official. He has worked with Democrats and Republicans from all backgrounds and all parts of California to improve education, protect the rights of working families, expand health care coverage, and make our communities safer, better places to live.

Time and again, he has demonstrated the leadership skills that will help him make Los Angeles one of the world's great cities of the 21st century.

Antonio Villaraigosa has already made history by becoming the first Latino mayor of Los Angeles since 1872, but he has set his sights even higher. He hopes to make history by making Los Angeles work for all its residents, and I will do all I can to help him.

Mr. President, I rise to share with my colleagues the outstanding accomplishment of one of my constituents, Samuel Nassie of Paradise, CA. I am so proud to announce that in May 2005, Samuel was named the American Legion's national ``2005 Eagle Scout of the Year.''

The title of Eagle Scout represents the highest rank a Boy Scout can achieve. It takes years of hard work, dedication, leadership and community service to earn this honor that only 4 percent of all Boy Scouts achieve. Therefore, to be selected as the American Legion's Eagle Scout of the Year from hundreds other highly qualified Eagle Scouts across the Nation is an extraordinary achievement and I am very proud of Samuel for his accomplishments that led to this meritorious honor.

Samuel's list of awards and accomplishments are too numerous to list today, but I would like to share with you some of his work that proves Samuel's dedication to his community is second to none. He was the first Boy Scout in Northern California to receive the William T. Hornaday Award, the oldest conservation award in the history of this country, with only 1,000 recipients in its 94-year history. Because of his service to the community, Samuel earned the Medal of Merit Award and the Congressional Youth Award in Bronze, Silver, and Gold. At the age of 13, Samuel achieved the rank of Eagle Scout. He was chosen as Eagle Scout of the Year for both California and the United States by the Sons of the American Revolution. The Veterans of Foreign Wars also chose him as Eagle Scout of the Year for California and awarded him second place in the United States. He is a member of the Boy Scout Honor Society, and a life member of the National Eagle Scout Association. Samuel remains active in the Boy Scouts of America by teaching at Boy Scout camps and serving as a Junior Scoutmaster for his local Boy Scout troop.

I would like to highlight two of Samuel's community projects that are particularly noteworthy. In his first community service project, ``Veterans Honor,'' Samuel created a program to locate, identify, plot and record the location of every veteran at his local cemetery. Another community service project, ``Buckets Full of Batteries,'' created an environmental program to recycle household batteries. Four years ago, he implemented this program in two school districts and over 20 businesses in Paradise, and is now working with 4 other cities to expand his program.

Samuel maintains a 4.0 GPA, and plans to attend college and study American History Education and Business. Samuel has selflessly given years of his time and energy to the community.

Samuel Nassie brings a great deal of pride to California. He has accomplished more in his 17 years than most of us will in our entire lives. His community, State, and country are fortunate to have a citizen of his caliber. I have no doubt that his future will be a bright and fulfilling one.

Reserving the right to object, some of us have to catch a flight. I was hoping we would get the vote off here.

I object if it is more than a minute. That is how close it is. I can give him a minute.

Mr. President, I am pleased to co-sponsor Senator Feinstein's amendment to provide Governors with veto authority on the siting of onshore liquified natural gas, LNG, facilities. This is an extremely important issue in California, and I commend my colleague for her amendment.

The energy bill we are debating hands full authority for LNG siting decisions to a federal entity, the Federal Energy Regulatory Commission, FERC. It denies States a role in deciding whether and where LNG terminals may be located on our coastlines.

This is a misguided proposal.

Does FERC have a better understanding than a State's Governor of the potential environmental impact of an LNG facility located on or near the State's shore? Does FERC better understand the potential safety risk of facilities located near residential areas? Is FERC better qualified than a State to judge whether a proposed LNG facility would pose an unacceptable security risk to the area? Can FERC make a better judgment than the Governor of a State as to whether the benefits of an LNG facility will outweigh the drawbacks?

The answer to all of these questions is ``no.'' Only individual States can determine the best solution for their citizens when so much is at stake in terms of safety, security, and the sanctity of our environment.

We in California are all too aware that the Federal Energy Regulatory Commission's decisions may not be in our best interests. For too long during California's energy crisis in 2000-2001, FERC ignored the problem and took no action to help. Even today, four years later, we are still waiting for FERC to order refunds on the unjust and unreasonable rates charged by energy companies that were manipulating the market. We in California do not trust FERC to protect our interests.

I recognize that this country has a growing need for natural gas resources, and the construction of LNG facilities will help meet that need in the years to come. I am not arguing that no LNG terminals should be constructed on or close to our shores. I am simply arguing that FERC should not be the final arbiter in determining where those facilities are located. Each State deserves to decide for itself whether the benefits of such a facility outweigh the costs.

I urge my colleagues to vote for this amendment.

Mr. President, our Nation is faced with the threat of global climate change that could fundamentally alter all of our lives and the lives of our children. California has a great deal to lose if we do not take steps to halt and reverse climate change. My State enjoys tremendous ecological diversity ranging from our cool and wet redwood forests of the north coast, to the hot Mojave and Colorado deserts in the southeast, to the vast and fertile agricultural stretches in the central valley. Climate change is a very real threat to those natural ecosystems.

Scientific predictions indicate that human-induced global warming may

produce a 3- to 10-degree rise in temperature over the next 97 years. That may not initially sound dramatic. But it would be enough to change the timing and amount of precipitation in my State. This could, for instance, lead to decreased summer stream flows, which would intensify the already significant controversy over the allocation of water for urban, agricultural and environmental needs.

Scientists also predict that by the year 2050, California will face higher average temperatures every month of the year in every part of the State. The average temperature in June in the Sierra Nevada Mountains could increase by 11 degrees Fahrenheit. The snow pack in the Sierra, which is a vital source of water in the State, is expected to drop by 13 feet and to have melted entirely nearly 2 months earlier than it does now. This could reduce the amount of precious water on which we now rely for agriculture, drinking water and other purposes.

The solution to the climate change problem is to first reduce greenhouse gas emissions. In this regard, the McCain-Lieberman amendment would be a meaningful step in the right direction. It would create an innovative cap and trade system to reduce emissions. In 2010, the system would cap greenhouse gas emissions at the level that was released in the year 2000. It would then allow facilities to buy or sell credits that would allow for greenhouse gas emissions but within the overall cap. This could efficiently reduce overall levels of emissions while allowing flexibility for certain industries.

The second step in solving the climate change problem is to increase the use of renewable resources, such as wind and solar. Unfortunately, this is where the McCain-Lieberman amendment doesn't just fall short, but would be a step backwards. The amendment includes provisions to provide financial assistance to so-called ``clean'' technologies. On its face, it sounds good. But, the amendment makes nuclear power eligible for these subsidies.

Here we go again. The nuclear industry is once again knocking on Uncle Sam's door asking for Federal subsidies to pad their bottom line. We should oppose the nuclear industry's latest effort to raid the public purse. Nuclear power is not the solution to climate change, and it is not ``clean.'' The nuclear industry has not solved its waste and safety problems. By subsidizing the creation of new nuclear plants, we are condoning the creation of more waste and turning a blind eye to the hazards associated with nuclear power.

Proponents of these subsidies say that they are not limited to nuclear power, and that many types of zero or low-emission technologies could benefit. However, the amendment creates an unfair playing field for this assistance by side-stepping the costs of nuclear power's waste and safety problems. A candid analysis of energy choices must consider the full life-cycle costs associated with each technology. This amendment fails to contain such an analysis. Thus, the amendment unfairly and irresponsibly ignores nuclear power's biggest problem--the waste. This could easily tip the scales in favor of more subsidies for nuclear plants, and less for other truly renewable technologies.

The nuclear industry has already benefited from $145 billion in Federal subsidies over the last 50 years. Truly clean and renewable sources of energy, such as wind and solar, have received just $5 billion.

Moreover, these new subsidies could go to some of the world's biggest companies. The Top-10 nuclear energy producing corporations in the Nation are among the largest companies in the world. These companies include Duke Energy, Exelon and Dominion Resources, which are among the 200 largest companies in the world.

Do these large companies need Federal subsidies? No. These ten corporations earned more than $10 billion in profits in 2004 selling energy from a variety of sources.

Subsidies for new nuclear plants are not a sound investment. The Federal Energy Information Administration and a representative of the nuclear industry both acknowledge that nuclear plants are not a viable technology without new subsidies. The EIA has stated that between 2003 and 2025, ``new nuclear power plants are not expected to be economical.'' Thomas Capps, the Chief Executive Officer of Dominion Resources--which has more than $55 billion in assets--was asked about the economics of constructing new nuclear plants. He said, ``I am all for nuclear power--as long as Dominion doesn't have to take the risk . . .'' Instead of the nuclear industry taking the risk, the nuclear industry wants the public to shoulder the burden.

New subsidies for new nuclear plants are unnecessary. The Department of Energy has shown that we can drastically reduce our Nation's climate change pollution without increasing the number of nuclear plants. We can and should solve the problem of climate change without increasing the problems of nuclear waste and safety.

I wish that I could support the McCain-Lieberman amendment, as I did 2 years ago. But by making the nuclear industry eligible for yet more subsidies, as a matter of principle, I cannot vote for this year's version.

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

Mr. President, what is the parliamentary situation now? Are we having speeches on the amendment to strike the OCS inventory by Senators Martinez and Nelson and Corzine; is that correct?

Mr. President, I ask to be notified when I have spoken for 5

minutes. I know Senator Corzine is coming to speak. If you could let me know when my 5 minutes is up, I would appreciate it.

Mr. President, I am proud to sponsor the Martinez-Nelson- Corzine-Boxer amendment to strike the OCS inventory language from the Energy bill. For millions of Americans living near our coasts, this amendment is arguably the most important we will debate on this bill. We know huge numbers of people live within 50 miles of America's coastlines. Few things are synonymous with California more than the beautiful beaches and the coasts. We have some pictures to show what this means to our children.

This is a scene I remember with my own children and now with my own grandson when he comes to visit California. This is what we think about. The natural beauty that is the California coast helps form our State's identity, as these pictures show. I will show you another one at this time as well. When I look at this, I just think: California.

The coast is a huge reason so many millions of Americans have chosen California as their home. Indeed, out of our 36 million Californians, 21 million Californians live in coastal counties. That is roughly 64 percent of the State's population. And there is a reason for it. This is God's gift to our State and to the people of this country and, frankly, to the people of the world who come to spend time on California's coastline and beaches.

The California coast is home to dozens of threatened and endangered species, including the short-tailed albatross, California Gnatcatcher, sea otters, chinook and coho salmon, steelhead trout, guadalupe fur seal, and several species of whales. Our coast is a true national treasure.

But Californians are not the only people who treasure our coastline. We know that tourists, millions of them, come to our State, generating $51 billion in annual revenues for our State. The protection of California's coasts, frankly, as much as all the other coasts we will protect, is not just an environmental necessity, it is an economic necessity.

The underlying bill could very well lead to more offshore oil drilling, could devastate my State and its way of life, and I trust that this bipartisan legislation being offered by Senators Martinez and Nelson will be agreed to because the inventory that is agreed to in this bill could encourage further drilling in the not-so-distant future, putting all of our coasts at risk.

Make no mistake about it. This inventory is not a benign compiling of a grocery list of resources. The inventory proponents would have us believe that, but it is really not benign. The inventory will be conducted using seismic air guns which use explosive blasts to map rock formations beneath the sea. Sound from these blasts can be detected for thousands of miles, and hundreds of millions of blasts would be required to survey America's Outer Continental Shelf. These seismic blasts have been shown to have major consequences for marine life. So I do not see how it makes sense to say, on the one hand, we are protecting our beautiful coastline with moratoria and then allow the inventory to go forward in these areas.

Most fish use hearing to detect predators, find prey, communicate, and find mates. Loss of hearing can have profound, even fatal effects on our fish.

So why would we take God's precious gift and subject it to this kind of trauma? Frankly, it is wrong. To me, it is almost a moral issue, that we protect the beauty we have been given, this God-given beauty.

I ask for another minute.

Seismic air guns have been shown to result in severely diminished fish catches by so severely startling the fish, they quickly leave the area or descend to the sea floor, seeking shelter from the noise. One study showed that when seismic blasts had been conducted in 1996, catch rates of cod and haddock declined between 45 percent and 70 percent over a 1,400-square-mile area, and 5 days later the catch rate had still not recovered.

I ask for an additional minute on top of my minute to finish.

The fact is, with so many fishery stocks already depleted, should we really do anything else to harm them, and can our fishermen afford the risk?

Marine mammals such as whales also use sound to locate food, avoid predators, care for young, and navigate the oceans. Seismic blasts can interfere with all of these critical activities. Air gun blasts have been observed to affect the feeding behavior of sperm whales in the Gulf of Mexico, migrating bowhead whales in the Beaufort Sea off the Alaskan coast, and harbor porpoises, which appear to be dodging and evading the sounds dozens of miles away from the blasts. Indeed, last year, the International Whaling Commission's Scientific Committee concluded that the increased sound from seismic surveys was cause for serious concern.

Mr. President, I see the Senator from New Jersey is here. We are running out of time, so I am going to wrap this up and cede the rest of the time to the Senator from New Jersey. I hope everyone supports this bipartisan amendment before us.

Mr. President, I am honored to introduce today a bill-- cosponsored by Senator Feinstein--to designate a trail in the Headwaters Forest Reserve in California after John L. Burton, one of California's great public servants. The entire California Democratic delegation in the House, led by Representative George Miller, introduced the same bill last week.

John served honorably in the United States House of Representatives in the early 1980s and in the California State Assembly, before being elected to the California State Senate. There, in 1998, his colleagues elected him as the California Senate's President Pro Tem. John devoted his career to the service of all Californians, and for that, we honor him with this legislation.

Designating this particular trail is a fitting tribute because a few years ago, John was instrumental in protecting the pristine and invaluable land that is now known as the Headwaters Forest Reserve. Comprised of more than 7,000 acres of ancient redwoods, many of which are over 2,000 years old and 300 feet high, the Reserve was saved from potentially devastating logging in 1999. Numerous plant species and wildlife, including the Marbled Murrelet, dwell in this Reserve. The Reserve also protects rivers and streams that provide habitat essential for threatened salmon.

For his service to the people of California and his essential role in protecting a priceless parcel of California land, I am proud to introduce the John

L. Burton Trail Act. Through this small action, we recognize and honor a great man and his great work.

Mr. President, I am honored to introduce today a bill-- cosponsored by Senator Feinstein--to designate a trail in the Headwaters Forest Reserve in California after John L. Burton, one of California's great public servants. The entire California Democratic delegation in the House, led by Representative George Miller, introduced the same bill last week.

John served honorably in the United States House of Representatives in the early 1980s and in the California State Assembly, before being elected to the California State Senate. There, in 1998, his colleagues elected him as the California Senate's President Pro Tem. John devoted his career to the service of all Californians, and for that, we honor him with this legislation.

Designating this particular trail is a fitting tribute because a few years ago, John was instrumental in protecting the pristine and invaluable land that is now known as the Headwaters Forest Reserve. Comprised of more than 7,000 acres of ancient redwoods, many of which are over 2,000 years old and 300 feet high, the Reserve was saved from potentially devastating logging in 1999. Numerous plant species and wildlife, including the Marbled Murrelet, dwell in this Reserve. The Reserve also protects rivers and streams that provide habitat essential for threatened salmon.

For his service to the people of California and his essential role in protecting a priceless parcel of California land, I am proud to introduce the John

L. Burton Trail Act. Through this small action, we recognize and honor a great man and his great work.

I want to make sure, since it is my amendment--I don't want to lose total control of this. I would like to get to close after I have heard the opposition. I would love to have 2 minutes to rebut. If I could have 15 minutes to speak in favor of the amendment, have my colleagues lay out the argument against it, and if I could have 4 minutes to wind up, that will be good for me.

Yes.

My understanding, after that, I have 15 minutes at this point; is that correct?

Mr. President, I send an amendment to the desk and I ask for its immediate consideration.

As you can tell from the clerk's reading, it is a very straightforward amendment. What I am offering in this amendment is to recommend to my colleagues we strike out the liability waiver granted to the makers of ethanol.

The purpose is stated very clearly in the beginning. It says: To ensure that ethanol is treated like all other motor vehicle fuels and that taxpayers and local governments do not have to pay for environmental damage caused by ethanol.

The amendment before the Senate, to which I have authored this second-degree amendment, brings, once again, to the Senate an ethanol mandate. Some think mandates of ethanol are a good idea. Others think it is a bad idea. I hope we all agree taxpayers and local communities should not have to pay to clean up any mess caused by ethanol.

The point of the bill is to force States--whether they want to or not, frankly--to utilize more and more ethanol, not as a crowning blow to the States that did not want to do this, by virtue of the fact there is a safe harbor for ethanol, meaning that no liability can be found for the makers of ethanol, but we are saying to cities, States, and communities, even if you do not want to use it, A, you are forced to use it; and, B, if there is a problem, we, the ethanol makers, will not be there to help you. It will fall to the local communities to pick up the tab.

A lot of people say ethanol is totally safe. I ask a commonsense question to the people of the United States of America who are going to have to make sure they are pumping their cars with ethanol in greater and greater proportion: If it is so safe, why are the companies seeking a liability exemption?

I have been around enough years to know if somebody says, Step right up, step right up, try this product; this product is completely safe; it can bring no harm to you; it is perfect, never a problem; but, by the way, before you ingest it or use it, sign a form that says you won't hold us responsible if you choke or you get cancer or you die. If somebody does that to you, I will say as the daughter of a lawyer, the wife of a lawyer, and the mom of a lawyer, do not sign away your rights. Do not sign away your rights. A light bulb should go on: What is wrong with this picture? If this product is so safe, why should I sign this liability waiver?

That is what is happening in this bill. We have had a vote on this before, and we have gotten anywhere from between 38 and 42 votes. It is important to go on the record again.

Why do I say that? We have had a terrible problem with MTBE where, thank goodness, there was no safe harbor. Communities such as Santa Monica and Lake Tahoe, communities in New Hampshire, and all across this country have been able to go back and hold the companies accountable for MTBE. The courts have said yes, communities, you have a right to hold these companies accountable for the damage done by MTBE.

Now we have a new mandate--ethanol. My colleagues who love ethanol, who want ethanol, who dream of ethanol morning, noon, and night--and this is not a partisan issue; it cuts across party lines--are giving the makers of ethanol a pass. This is a special interest loophole.

The exemption language starts off with this: ``Notwithstanding any other provision of Federal or State law''--and then they talk about the waiver. When you see that in the bill, put up your antenna. It raises red flags. You know then the public is losing rights.

``Notwithstanding any other provision of Federal or State law''--and then they do harm and put the waiver in there. It goes on to say that renewable fuels--that is ethanol--cannot be found to be defectively designed or manufactured.

This is the Senate of the United States of America. I did not know we were expert scientists and doctors who deal with environmental damage. We are saying renewable fuels--ethanol--cannot be found to be defectively designed or manufactured. Compliance with laws and regulations is not necessary to getting the liability waiver except for limited compliance requirements under the Clean Air Act.

My colleagues are going to say--I am sure the Senators from North Dakota, from Oklahoma--Senator Boxer is wrong. This is a narrow waiver.

Not true. The special interests and the people who represent ethanol will say the waiver is not really broad. It only protects these makers of ethanol from one type of lawsuit.

But let me state the type of lawsuit they are protected against. It is the only lawsuit that has standing in the courts of the United States of America. How do we know this? Look at MTBE. Lake Tahoe won their MTBE suit. Why? Because they were able to use the defective product liability claim. The judge, as a matter of fact, threw out the negligence claim, the nuisance claim.

So when my colleagues get up here and say, Senator Boxer is exaggerating, we are not throwing out the ability of people to sue-- yes, we are because the only pathway for the public, for our cities, for our counties, for our States to hold people accountable for a defective product is the defective product cause of action. Losing that right to bring defective product liability lets the polluters off the hook entirely.

Again, I will talk about a San Francisco jury in a landmark case decided in April of 2002. The jury found that based on the theory that MTBE is a defective product, several major oil companies are legally responsible for the environmental harm to Lake Tahoe's groundwater. The jury also found many of these major oil companies acted with malice because they were aware of the dangers but withheld information. We did not have this safe harbor provision when MTBE was, essentially, mandated. Therefore, my communities in California and communities across the country are able to recover the damages.

Not so with ethanol. The makers of ethanol have made sure they are going to be covered and protected. It is an embarrassment we would do this. This is the place we are supposed to protect the public interest. This is the place we are supposed to protect our people from defective products, not put in language that waives all the ability of people to sue on a defective product claim.

It is a scary thought if this were in place for MTBE--by the way, there is still a move to do that on MTBE, which is another issue for another day. It is a scary thought if we had done this for MTBE. My people in Lake Tahoe, the good people there, could be left holding the bag, and your towns and cities could be left holding the bag. If ethanol

harms public health or the environment, the loophole in the Energy bill risks leaving our communities with a mess. Polluters, not taxpayers or victims of pollution, should pay for harm to public health and the environment.

When gasoline leaks today, there is no loophole. The polluter pays. Why should the oil companies and the ethanol producers get off the hook if they cause harm? They should not.

So again, you are going to hear a lot of doubletalk when people stand up. They are going to first say ethanol is safe, there is no problem. And I say you say to them: If ethanol is so safe and you feel so comfortable with it, why do you need a liability waiver for the makers of ethanol? And then they are going to say: Oh, don't worry, we are only saying you can't sue because of a defective product. That is all. You can still sue for nuisance, negligence, all the other things, when, in fact, we know from legal history that the only claim that has standing here is a defective product lawsuit.

Now, to talk about ethanol's safety--Mr. President, I ask, how many minutes do I have of my 15, please?

Thank you, Mr. President.

According to EPA's Blue Ribbon Panel on Oxygenates in gasoline, which include ethanol and MTBE, ethanol is extremely soluble in water and should spread if leaked into the environment at the same rate as MTBE. It may spread plumes of benzene, toluene, ethyl benzene, and xylene because ethanol may inhibit the breakdown of these toxic materials. Although ethanol contributes some clean air benefits, it also increases the formation of nitrogen oxides, which lead to increases in smog.

So I think if you listen to the experts and you forget the special interests, you will support my amendment. We need to ask ourselves, are we in the business of letting people off the hook, people who have a responsibility for what they are putting into our gasoline, into our air, into the ground?

We mandated airbags, and we did not say to those manufacturers that they should not be liable. If there is a defective product problem with an airbag, people can hold the companies responsible if it does not work or it harms them. Why would we give a free pass to ethanol? There is only one answer: special interests, powerful, powerful special interests. There is no other answer that you can come up with.

If we do not learn from our mistakes, we are doomed to repeat the mistakes of the past.

My amendment will eliminate the special interest liability exemption for ethanol in this amendment. It means that ethanol will not be treated any better or any worse than other fuels. It will mean ethanol will be treated the same way as any other fuel. We should not shift the burden of cleaning up any problems caused by ethanol to our communities. The polluters should pay. The safe harbor liability exemption for ethanol should be taken out of this amendment.

I have to say to my friends, I know how anxious you are to have ethanol. I know it means a lot to the corn producers, and, frankly, it means a lot to my agricultural people. I have some good language in this bill dealing with ethanol made from other materials. But I still believe that my people who will produce this ethanol should not be left off the hook if there is a serious problem to the health of the people of the United States of America.

So the amendment is simple. I hope we can have a good vote, a solid vote on this amendment.

I yield the floor with the understanding that I will close the debate. Thank you very much, Mr. President.

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

I am not asking unanimous consent. I am asking for the yeas and nays.

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

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

Mr. President, I won't take the 4 minutes, but I had asked for 4 in the unanimous consent request.

Mr. President, I am glad we are going to vote on my amendment. I understand that Senator Domenici will move to table. That is fine with me, as long as we have a vote.

Again, this is a very interesting issue in terms of what our responsibility is. As Members of the Senate, we have a responsibility to protect the health and safety of the people of our country. Why on Earth would we give a waiver of liability to the makers of ethanol when, in fact, we are not sure what is going to happen with heavy use of ethanol? We are not sure whether it is going to cause a problem for our people and who is going to have to pay to clean up the mess.

We know what happened with MTBE. We know it was in communities such as Lake Tahoe, Santa Monica, and communities in the Northeast and all across the country. I remember I had a map that showed where MTBE was a problem. It is practically in every State in the Union. The courts have made it clear that the people who made the MTBE have to come into these communities and clean it up. Now we are saying with ethanol, on the one hand, it is safe. Well, if it is so safe, why do we have to give it a special safe harbor and people give up their right to recover in their community in Tennessee or communities in California?

The fact is, they will say the waiver of liability is very narrow but, in fact, what they have waived is the only course of action a community can pursue.

Then you will hear: This is different because we are mandating ethanol. Therefore, we should protect the people who make it. We mandated airbags, and we didn't give a liability waiver to the people who make airbags. We mandate pollution control devices, but we don't give a liability waiver to the people who make it. So this is about the sheer power of special interests.

Let's not put our communities at risk. We could debate whether we ought to have this ethanol mandate. As we will see how it comes out, some people favor it, some don't. We should agree to protect our people.

I hope my colleagues will vote against the motion to table the Boxer amendment. I thank the Chair.

Mr. President, I rise today to acknowledge a special milestone for one of America's beloved entertainers and philanthropists. I am pleased to extend my sincere congratulations to Hugh O'Brian as he celebrates his 80th birthday.

Hugh O'Brian came into the public eye in the role of Wyatt Earp in the 1950s television series, ``The Life and Legend of Wyatt Earp.'' An accomplished stage and screen actor, he used his talents to bring history to life while expanding his influential role well beyond the theater and television to the broader stage.

In 1958, Mr. O'Brian established the organization HOBY, Hugh O'Brian Youth Leadership, aiming to provide support for young people striving for excellence. Over the past 47 years, HOBY has promoted extensive volunteerism, active global citizenship, and bright futures for young people. Through HOBY, Mr. O'Brian encourages local, national, and international communities to be responsive to the needs of our future leaders, empowering countless young people with knowledge and conscientious role models.

We are extremely fortunate that people like Hugh O'Brian are committed to bringing people together in the spirit of creative problem-solving and positive social change. In his many roles, Mr. O'Brian has led, inspired, and provided hope. On the occasion of his 80th birthday, please join me in congratulating Mr. Hugh O'Brian on his lifetime of accomplishment.

Mr. President, today we in the Senate are finally apologizing to the descendants of the nearly 5,000 victims of lynching, primarily African Americans, for our failure to enact antilynching legislation.

Even though the House of Representatives passed three strong antilynching measures between 1920 and 1940, the Senate filibustered all of those measures. This was wrong, and this resolution is long overdue.

Lynching, a widely acknowledged practice that continued until the middle of the 20th century, was a shameful chapter in our history. It was mob justice at its most heinous, motivated by racial and ethnic hatred. And it was a national problem occurring in all but four States in our country.

While passing this apology is important, it not going to right every wrong. And it does not absolve us of our responsibility to continue to work to provide justice in American society.

Justice at the polls for those who are made to stand in line for hours to exercise their right to vote.

Justice in the schools so that every child has an equal educational opportunity.

Justice in the workplace so that no worker will face discrimination.

Let us use this opportunity not only to apologize for a shameful injustice but to dedicate ourselves to eradicating the remaining injustices in our society.

Mr. President, as we commemorate World Oceans Week, we celebrate the wonder and beauty of the world's oceans. We celebrate the role our oceans play in commerce, fishing and shipping. We celebrate the beauty of our coral reefs and the potential lifesaving cures they might contain. And we celebrate our commitment to improving the health of our oceans, so that our children and grandchildren will have a chance to enjoy and cherish them.

That is why I am pleased to introduce the National Oceans Protection Act of 2005--comprehensive legislation to improve the health and governance of our oceans. The bill is co-sponsored by Senator Lautenberg.

This legislation ``was written after two major oceans commission reports in the past two years determined that our oceans are in a state of crisis. The congressionally-established U.S. Commission on Ocean Policy and the independent Pew Oceans Commission provided detailed descriptions of the challenges our oceans are facing as well as specific solutions to improve ocean health.

From pollution to over-fishing to invasive species, there are many factors that have contributed to the current crisis in which we find ourselves. Pollution threatens all aspects of ocean health. Every 8 months, nearly 11 million gallons of oil flow from American roads into our waters--the equivalent of the Exxon Valdez oil spill.

Our oceans are also showing signs of being over-fished, which affects the communities that depend on fish stocks for their livelihood. Many fish populations, including salmon, face the threat of being depleted to seriously low levels. Invasive species--such as the killer algae found near San Diego in 2000--are another threat to ocean health. In the San Francisco Bay alone, more than 175 invasive species threaten to overwhelm native species.

By targeting some of the most serious challenges facing our oceans, as outlined in the Commissions' reports, my legislation provides a comprehensive national approach to oceans protection and preservation.

Let me just mention a couple of the important provisions in four key areas:

First, the bill improves the governance of the oceans by giving the National Oceanic and Atmospheric Administration the independence it needs to better facilitate the management and oversight of our oceans.

Second, the bill protects and conserves marine wildlife and habitat by, among other things, creating protection areas and authorizing $50 million per year in grants to local communities to restore fisheries and coastal areas.

Third, the bill strengthens fisheries and encourages sustainable fishing in a number of ways, including requiring that entire ecosystems be taken into account when considering the health of a fishery.

And, fourth, the bill improves the quality of ocean water by establishing maximum amounts of pollution that a body of water can hold and still be healthy. In addition, financial assistance will be provided to local governments to reduce pollution and increase monitoring.

For their contributions to this legislation and their great leadership on

oceans issues, I would like to thank Senators Inouye, Gregg, Lautenberg, and Levin, as well as former Senator Hollings.

It is my hope that this bill will provide the framework needed to protect and improve our oceans. The great environmentalist and ocean- explorer Jacques Cousteau once said, ``If we were logical, the future would be bleak, indeed. But we are more than logical. We are human beings, and we have faith, and we have hope, and we can work.''

As we celebrate World Oceans Week, it is my hope that we can work together to provide a bright future for the world's oceans and continue to protect our coastal economy.

I encourage my colleagues to join me in this effort to implement the recommendations of the U.S. Commission on Ocean Policy and the Pew Ocean Commission.

I ask unanimous consent that a summary of the bill and list of endorsements be printed in the Record.

Mr. President, as we commemorate World Oceans Week, we celebrate the wonder and beauty of the world's oceans. We celebrate the role our oceans play in commerce, fishing and shipping. We celebrate the beauty of our coral reefs and the potential lifesaving cures they might contain. And we celebrate our commitment to improving the health of our oceans, so that our children and grandchildren will have a chance to enjoy and cherish them.

That is why I am pleased to introduce the National Oceans Protection Act of 2005--comprehensive legislation to improve the health and governance of our oceans. The bill is co-sponsored by Senator Lautenberg.

This legislation ``was written after two major oceans commission reports in the past two years determined that our oceans are in a state of crisis. The congressionally-established U.S. Commission on Ocean Policy and the independent Pew Oceans Commission provided detailed descriptions of the challenges our oceans are facing as well as specific solutions to improve ocean health.

From pollution to over-fishing to invasive species, there are many factors that have contributed to the current crisis in which we find ourselves. Pollution threatens all aspects of ocean health. Every 8 months, nearly 11 million gallons of oil flow from American roads into our waters--the equivalent of the Exxon Valdez oil spill.

Our oceans are also showing signs of being over-fished, which affects the communities that depend on fish stocks for their livelihood. Many fish populations, including salmon, face the threat of being depleted to seriously low levels. Invasive species--such as the killer algae found near San Diego in 2000--are another threat to ocean health. In the San Francisco Bay alone, more than 175 invasive species threaten to overwhelm native species.

By targeting some of the most serious challenges facing our oceans, as outlined in the Commissions' reports, my legislation provides a comprehensive national approach to oceans protection and preservation.

Let me just mention a couple of the important provisions in four key areas:

First, the bill improves the governance of the oceans by giving the National Oceanic and Atmospheric Administration the independence it needs to better facilitate the management and oversight of our oceans.

Second, the bill protects and conserves marine wildlife and habitat by, among other things, creating protection areas and authorizing $50 million per year in grants to local communities to restore fisheries and coastal areas.

Third, the bill strengthens fisheries and encourages sustainable fishing in a number of ways, including requiring that entire ecosystems be taken into account when considering the health of a fishery.

And, fourth, the bill improves the quality of ocean water by establishing maximum amounts of pollution that a body of water can hold and still be healthy. In addition, financial assistance will be provided to local governments to reduce pollution and increase monitoring.

For their contributions to this legislation and their great leadership on

oceans issues, I would like to thank Senators Inouye, Gregg, Lautenberg, and Levin, as well as former Senator Hollings.

It is my hope that this bill will provide the framework needed to protect and improve our oceans. The great environmentalist and ocean- explorer Jacques Cousteau once said, ``If we were logical, the future would be bleak, indeed. But we are more than logical. We are human beings, and we have faith, and we have hope, and we can work.''

As we celebrate World Oceans Week, it is my hope that we can work together to provide a bright future for the world's oceans and continue to protect our coastal economy.

I encourage my colleagues to join me in this effort to implement the recommendations of the U.S. Commission on Ocean Policy and the Pew Ocean Commission.

I ask unanimous consent that a summary of the bill and list of endorsements be printed in the Record.

Mr. President, I rise to speak to this nomination of this very controversial nominee who is opposed by both Senators from California, which is fairly extraordinary. I remember well a time in the not too distant past when even if one Senator from a State opposed a nominee from his or her State, that sank the nomination. Then they said it had to be both.

We have a situation where both Senators from California oppose this nominee. I can assure the Senator from Utah, if he opposed a nominee who came from his State, and his colleague did as well, I think I would give it a little more, shall we say, attention than he is.

The fact is, if you have watched this debate, you know by now that this nominee is way outside the mainstream. You can stand up here and say all you want that she is in the mainstream and within the mainstream. You can even say that she won election in California. What you are not saying is she came up for election about 11 months after she had served a 12-year appointment, and she had no opposition. Nobody ran against her. Most of

her controversial decisions occurred after that vote.

Anyone who knows anything about California politics knows that it is very rare that judges are made into an election issue. We usually approve our judges. It is very different than what is being presented here, that everyone went out and said: Oh, hurrah, Janice Rogers Brown is running. This is not the case at all. We have Senator Hatch coming up and saying this woman is well within the mainstream and all the rest of it, but the two Senators from California are saying: Watch out. Because no statement could be further from the truth.

I have spoken on this nomination and on the broader issue several times. Sometimes you ask yourself, is it worth just one more time? I would say, in answering my own question, to me it is worth it just one more time because the issues surrounding these nominations we are addressing these next days will bring home to the American people why it was that we had all this fuss over 10 judges the Democrats blocked. These are 10 judges put forward by President Bush who were all extraordinary cases, outside the mainstream, whether dealing with employment rights or the environment or civil rights or human rights-- any kind of rights you can think about: privacy rights, the right to make sure our kids are protected and our criminals are punished.

In these 10 cases, we found many examples where our people were left in the lurch because of decisions made by these judges. In some cases, these judges, fortunately, were in the minority. In the case of Janice Rogers Brown, she was in the minority many times because she is so out of the mainstream that not even her five Republican colleagues could join her in many of her dissents.

But this number, 208 to 10, reflects where we were when the Republicans threw a fit and the White House threw a fit and said: We want every one of our judges passed. We don't want to lose even 5 percent of our judges. They got 95 percent. They were not happy--208 to 10, and they threatened to change a system that has been in place well before the movie ``Mr. Smith Goes to Washington'' came out. For more than 200 years, the Senate has had the right to unlimited debate that can only be shut off by a supermajority. We have had that in place for a very long time.

The Republicans did not like it. They only got 95 percent of their judges and, by God, they wanted 100 percent. It reminds me of my kids when they were little, and probably I was that way when I was little. ``I want it all. I want everything. I don't want to give up a thing.'' That is not the way the Senate works. It is not the way the country works.

If you read what the Founders had in mind for our Nation, it was protecting minority rights. So when an appointment such as this, which is a lifetime appointment--at very high pay, by the way, and very good retirement--that there would be a check and balance against this nominee, so only those who deserve to be on the bench, who show that they had judicial temperament, who were qualified--underscore that, very important--and who were in the mainstream, will take their seats. So we had a crisis that, fortunately, I am very pleased to say, was resolved by some Republicans and Democrats who got together and stood up to the Republican leadership and said: Wrong. We are not going to do this. We are not going to see a packing of the courts. We are going to preserve the filibuster.

But what happened was three very controversial judges got past that filibuster. That was the deal that was cut, that Priscilla Owen, that Pryor, and here Janice Rogers Brown would be guaranteed their cloture vote, and then we will now be voting on them. It will take 51 votes to stop Janice Rogers Brown. I hope we can get that.

Senator Hatch said he hopes every single person in the Senate will vote for Janice Rogers Brown. I predict, if she gets confirmed, it will be by the fewest number of votes we have seen around here, probably, in many years. I think so.

Let me talk about the issue of qualifications because this is something I did not discuss with my colleagues up until now. On April 26, 1996, the Los Angeles Times wrote about an evaluation report that was written about Judge Janice Rogers Brown. This is what the Times reported:

Bar evaluators received complaints that Brown was

insensitive to established legal precedent . . . lacked

compassion and intellectual tolerance for opposing views,

misunderstood legal standards and was slow to produce

opinions.

Can you imagine? This is the person who everyone who spoke on the other side today has said is so great, everyone who spoke on the other side said is so wonderful? This is the person they all said deserves to be promoted? Let's read it again because it is important. This woman is going to the circuit court of appeals in Washington. ``Bar evaluators''--these are the people who are the experts--``received complaints that Brown was insensitive to established legal precedent . . . lacked compassion''--and we are going to show that--``and intellectual tolerance for opposing views. . . .'' In other words, intolerant to opposing views. Can you imagine a judge who is intolerant to opposing views? How can that judge be independent? How can that judge be fair if, going in, they are intolerant to certain views? And they said she ``misunderstood legal standards.'' That is a condemnation for someone who is going to be judging. ``And she was slow to produce opinions.'' We all know that we would like to have justice be swiftly delivered. Justice delayed is justice denied. She was slow to produce opinions.

The LA Times goes on:

She does not possess the minimum qualifications necessary

for appointment to the highest court in the State,

That is my State, the California Supreme Court.

. . . the bar commission that reviews judicial nominees told

Governor Pete Wilson in a confidential report.

Janice Rogers Brown

. . . does not possess the minimum qualifications necessary

for appointment to the highest court in the State, the bar

commission that reviews judicial nominees told Governor Pete

Wilson in a confidential report.

This is the nominee Senator Hatch says he hopes everybody votes for. Now she is moving over to an area where she hasn't really practiced before, to the Federal bench.

Yesterday, I was at a press conference with some fantastic women lawyers, including Eleanor Holmes Norton, who you know, I think, is the delegate to the House of Representatives from DC, and also Elaine Jones. They went through, chapter and verse, her decisions, her writings, her minority views. They agreed this is a terrible appointment. What is interesting is these are African-American women speaking about an African-American woman. This is not easy to do. It is not easy for a female Senator to say this is a terrible appointment.

This nominee's personal story is remarkable. There are a lot of remarkable stories in America. We are all so proud of our country, that it gives people opportunity. But what I am fearful about is what she is going to do to those who want to grab that dream. Her attitude toward what the government can and cannot do, her attitude about what is permissible in a workplace, is shocking. Her attitude toward senior citizens, her attitude toward children, her attitude toward rape victims, all of this is very frightening, to think this woman, with a great personal story, is going to bring those kinds of values and this kind of record to the court that many consider to be second in importance to the Supreme Court of the United States of America.

There is no question that this nominee is way out of the mainstream. This is one of her famous quotes. You listen to these words. These are not the words of Senator Barbara Boxer or Senator Dianne Feinstein or Senator Patrick Leahy or Senator Harry Reid or any other Senator who is opposing this nominee; these are the words of the nominee:

Where government moves in, community retreats, civil

society disintegrates, and our ability to control our own

destiny atrophies. The result is: Families under siege; war

in the streets; unapologetic expropriation of property; the

precipitous decline of the rule of law; the rapid rise of

corruption; the loss of civility and the triumph of deceit.

The result is a debased, debauched culture which finds moral

depravity entertaining and virtue contemptible.

I don't know what country she grew up in. I really don't know how she got her views of America because clearly she has been critical of the government in her writings, going back to the 1930s. So, presumably, because she has been in the minority view on all the things

she says and does, she has to be miserable about the state of America. She thinks our families are under siege, that there is war in the streets, that people are getting their property taken away from them, that there is a decline in the rule of law. I guess she doesn't know we are doing much better controlling crime. Who does she think is going to control crime if not government? Does she think we should have a private police force?

When government moves in, everything is terrible. Does that mean when we build a highway things get worse, or do they get better? Does that mean if we fund a transit system things get worse, or they get better? Does that mean when we fix a pothole or pass a law that you have to wear a seatbelt that things get worse, or things get better?

She is an idealogue because the answer is sometimes government does good things, and sometimes we don't. Sometimes we do things we should not do, and sometimes we don't do enough. But there is no way you can say when government moves in, deceit triumphs and we have a debauched culture and virtue is contemptible. Is she that critical of this country? Is she that down on this country? Is she that negative about the greatest country in the world? The answer is, she is.

Let's look at some of the other things she said. When we had the New Deal, this country was in the middle of a terrible depression, and the Congress and the President passed some overdue legislation such as the minimum wage because people were starving to death. They said it was important to have a 40-hour workweek because people were being worked to death. Social Security was instituted at that time. She calls this ``the triumph of our own Socialist revolution.''

I am assuming, therefore, she thinks we should go back to the days when we did not have Social Security. That is interesting because there are other people who feel that way around here. So they happily vote for Janice Rogers Brown. Does she think we should go back to the day when children worked in the workplace? Child labor laws were passed around that time. Does she think a boss can tell you, you have to work 100 hours? I guess she does because it is socialism.

And then her famous quote about senior citizens. This is a woman who this President wants to send to the second highest court in the land. Her view of senior citizens is extraordinary: She called senior citizens ``cannibals.'' I want everyone to think of their grandma right now. Does anyone think of their grandma as a militant? Does anyone think of their grandma as stealing from you? Or, rather, that your grandma thinks much more about you than she does about herself? I can assure you that is what we think of our grandmas. They will do anything for us, for their grandchildren. But not Janice Rogers Brown. She accuses senior citizens of ``blithely cannibalizing their grandchildren because they have a right to get as much `free stuff' as the political system permits them to extract.''

What a view of our senior citizens. The greatest generation; the generation that fought in World War II. And now, getting to be the generation that fought Vietnam, one of the toughest wars because it was so controversial, and the suffering that guess on. These are the folks that are now the grandparents and the senior citizens. They are getting as much ``free stuff.'' Why? Because they served in the military and they get veterans' benefits, veterans' health care, and prescription drugs if they are sick. I resent Janice Rogers Brown's statements. I resent that statement on behalf of every senior citizen in this country. You can put lipstick on it, you can put nail polish on it, it is still ugly.

She calls government ``the drug of choice.'' She even goes after rugged midwestern farmers. She says they are looking for big government.

Who does she know--a rugged midwestern farmer who is looking for the Government to support them? And ``militant senior citizen.'' Every time I say that I think of grandmothers in Army uniforms marching down the street. These are visions so ridiculous that they have no place being brought into this D.C. Court of Appeals. At the end of the day, that means there is deep hostility toward our senior citizens, toward our workers, toward our farmers, toward our people.

Janice Rogers Brown is way outside the mainstream to the extreme.

I hope the American people understand why we held her up for so long. The only reason she is getting the up-or-down vote today is she is part of the deal to preserve the filibuster for future out-of-the-mainstream folks. We were on the verge of losing that.

She argued that e-mail messages sent by a former employee to coworkers criticizing a company's employment practices were not protected by the first amendment, but she supported corporate speech. That was in Intel v. Hamidi.

She argued that a city's rent control ordinance was unconstitutional and a result of the ``revolution of 1937.'' The woman is stuck in the past. She keeps going back to the New Deal, to 1937. Get over it. The things that worked well, we have continued--such as Social Security, minimum wage, or the FDIC, where we protect your deposits. Get over it. The American people demand those minimum protections.

But not Janice Rogers Brown. She does not demand it. She argues that it was a revolution that the New Deal began. She opposed it and says it is all about takings and it is all wrong.

Here is an interesting fact. Janice Rogers Brown is on a court with six Republicans and one Democrat. People say, it is California, it is California, everyone there is a liberal Democrat. Wrong. I would not be here if it were not for Republican, Independent voters, and Democratic voters. Here is the deal: She stood alone on a court of six Republicans and one Democrat 31 times. Think about it. You are a judge. You are a Republican. You have five Republican colleagues and one Democratic colleague. Yet 31 times you disagreed with those five Republicans and that one Democrat.

Who could actually stand up here, look the American people in the eye, and say she is a mainstream judge? That is just not true, based on the facts. Members can say whatever they want on the Senate floor, and I would die for a Members' right to free speech. You can put lipstick on it, nail polish, and dress it up, but the facts are the facts: She stood alone 31 times on a court of six Republicans and one Democrat.

Maybe it goes back to what the bar said about her, when she was put up for her position, that she was unqualified, that she did not understand legal precedent. Maybe that explains why she stands alone, she does not know what she is doing. Maybe she does not understand it. Maybe she does not get it; otherwise, why would she find herself alone so many times?

Let's go back to what has been said when she was appointed by Pete Wilson. They received complaints that Brown was ``insensitive to established legal precedent.'' In a court of appeals, that is a key fact. You have to understand what the law is, what has come before. She ``lacked compassion and intellectual tolerance for opposing views, misunderstood legal standard and was slow to produce opinions.''

Maybe she just couldn't follow the reasoning of her colleagues because she did not understand the legal precedence, or maybe they were moving too fast for her. Or, maybe she chose just not to follow it because she lacked compassion, and she has no intellectual tolerance for opposing views, even if it is legal precedent.

Let's see what else they said:

She does not possess the minimum qualifications necessary

for appointment to the highest court in the State [that is

the California State court] the bar commission that reviews

judicial nominees told Gov. Pete Wilson in a confidential

report.

This was printed in the ``Los Angeles Times'' April 26, 1996.

One would think that the President's men who came up with this idea would have vetted this person. Why did we stop her from getting a vote? Simply because we knew the facts. If she wasn't qualified for the California Supreme Court, how does she now get to be qualified for this position? It makes no sense.

We will go back to some of the times she stood alone. This case is rather remarkable. We have Janice Rogers Brown, a female. A case comes before her of a woman who was 60 years old. She was a superstar working in a hospital, Huntington Memorial Hospital.

She was fired from her job based on age discrimination. Janice Rogers Brown said:

. . . discrimination based on age does not mark its victims

with a stigma of inferiority and second class citizenship.

I ask the average American: A 60-year-old employee is perky, who is sharp, who is wise, who is experienced, who has gotten stellar reviews, who does better than almost anyone else, but she is fired because someone in management said, 60, you are out. So she is out of a job. And this woman had a lot of pride in her work. Maybe it was her whole life, maybe she was so devoted. We know people like that. Janice Rogers Brown makes a statement that ``discrimination based on age does not mark its victims with a stigma of inferiority and second class citizenship.''

Yesterday in the press conference where I was with a lot of minority women lawyers, one of them, Elaine Jones, made an important point about this case. She said it is fine for Janice Rogers Brown to think that discrimination based on age does not mark its victim with a stigma of inferiority and second class citizenship. If she feels that way, she should run for public office, run for the Senate, go to the House and change the laws we have written which say, in fact, it is a stigma to be the victim of age discrimination. This is hurtful, and it does confer second-class citizenship on the individual.

Her position is her own opinion. Everyone has a right to his or her own opinion. I don't have a problem with that. I don't agree with her. I think it is mean. I think it is nasty. I think it hurts our people. But she has a right to think that if she wants. What she does not have a right to do as a judge is to say that the law we passed simply does not exist. That is why she is so out of the mainstream. We have found that age discrimination brings with it a stigma of inferiority and second-class citizenship. We have said it is illegal. It is not legal. Her position is contrary to State and Federal law and puts her way outside the mainstream.

And now a look at some of the others. She is the only member of the court to vote to overturn the conviction of the rapist of a 17-year-old girl because she felt the victim gave mixed messages to the rapist.

Maybe my colleagues on the other side want to send someone to this very important court that stands with a rapist against a victim. I wouldn't think so. If one reads details of the case, members will be shocked by the details. The young woman already was raped once. This was a second rape. The first man pleaded guilty. He claimed innocence, but she was the only member of the court to say this young woman did not have a right to see this rapist confined to prison.

It is shocking to me that my colleagues on the other side of the aisle think this woman is in the mainstream. Is it in the mainstream of America to side with a rapist over a 17-year-old girl? Is it in the mainstream of America to side with an employer who fires you because you turn 60? It is totally against the State and Federal law.

She was the only member of the court to oppose an effort to stop the sale of cigarettes to children. That case was Stop Youth Addiction v. Lucky Stores. There is a reason there is an organization called Stop Youth Addiction--because we all know that tobacco is so addictive. When you start young, it is very hard to kick the habit. I am sure everyone in this Chamber who has ever smoked knows how hard it is to kick the habit. The younger you start, the more hooked you get.

Therefore, parents and others who are advocates are trying to make sure they cannot go into the store and purchase cigarettes at an underage level. She was the only member of the court to oppose the effort we had going on to ensure that kids do not buy cigarettes.

Is that mainstream thought, to go up against parents and families and say it is fine for a retail store to go ahead and sell cigarettes to a kid--your kid, my kid, my grandson? That is not mainstream. It is out of the mainstream.

This woman is out of the mainstream. That is why the Democrats have stopped her, until today. We did use the filibuster on her. We were glad to use the filibuster on her. If it did not happen that we had this deal, we would still be using the filibuster on her, to protect the people of the United States of America from her kind of values which stand with a rapist, which stand with the tobacco companies, which stand with those who discriminate.

She can explain in any way she wants. We know the results of her thinking. She could come up with a fancy explanation to tell this young 17-year-old woman, but look her in the eye and say: Well, your rapist has to get out because you didn't say it exactly the right way--when every other member of the court sided with this 17-year-old girl.

I am shocked my colleagues are supporting this nominee. And this issue is not going to go away. These decisions are not going to go away. There are going to be writings about these decisions. There is going to be discussion about them. People will be held accountable for their votes here. They should be, one way or the other.

If people in my home State are going to write and say, Why are you speaking out against someone from California, a woman who is a sharecropper's daughter, I am going to say, That is a good question, and let me tell you why. She is out of the mainstream to the extreme, and she is hurting our people. It is pretty simple for me.

She is bad on discrimination. She is the only member of the court to find that a State fair housing commission could not award certain damages to housing discrimination victims. And how about this? An African-American policewoman needed to rent a place and knocked on a door and had the door slammed in her face--more than once, again and again. She sued for discrimination. Every single member of that court, the highest court in California, ruled in favor of this policewoman-- except Janice Rogers Brown. Oh, no. Oh, no. She said: You do not deserve any damages. You do not deserve any award for what you went through. Too bad.

Now, she may not have written it like that in her statement, but at the end of the day she had to look in this woman's eyes, this policewoman's, and say: Got the door slammed in your face three times? Too bad. That is the bottom line with how she ruled. She might as well have said that. And she stood alone. Is that American values? Is that mainstream America, that someone would stand on the side of someone who slammed the door in the face of someone simply because they did not like their appearance, they did not look like them? Seriously, folks, this is pretty basic American values 101.

She is the only member of the court to find that a disabled worker who was the victim of employment discrimination did not have the right to raise past instances of discrimination that had occurred. So here is someone who is saying they were victimized in an employment situation because they were disabled, they wanted to be able to tell about the series of events that led up to this particular lawsuit, how many times this had happened--she had MS and these discriminatory acts had taken place over many years--and Janice Rogers Brown stood alone and said she did not have the right to raise the past instances of discrimination.

Is that an American value, to tell someone who has multiple sclerosis, who has been discriminated against for years: Well, we are not interested; we are not interested in hearing about the past; just stick to this one case?

I do not think, if my colleagues really took the time and the energy and the effort to do the kind of work my great staff has done on this-- and I have to say, I heard Senator Hatch say, well, all this comes from--what did he say?--liberal groups writing these things. This is painstakingly difficult work done by my staff. And they went through it because I said: Did she ever stand alone--because I knew her reputation is so out of the mainstream--did she ever stand alone? And they came back to me with this: She stood alone on the side of a rapist. She stood alone on the side of people who would discriminate. She stood alone on the side of tobacco companies against families. That is how I look at it.

She said a manager could use racial slurs against his Latino employees. Can you imagine coming to work every day and having to put up with a slur about yourself, about your ethnicity, about your religion, about your disability? There has to be some value

placed on human dignity. Well, you do not get it when you look at the writings of Janice Rogers Brown. You do not get it when you look at the way she comes down on a lot of these cases.

She was the only member of the court who voted to strike down a State antidiscrimination law that provided a contraceptive drug benefit to women. There is a very important law in my State that says if a woman wants to get contraceptives through her insurance, she should be allowed to. We talk around here a lot about the right to choose and all of that. All of us, I would hope, would come together in saying we do not want to see so many abortions. That is right. We want to make sure we reduce the number of abortions. Well, the way you do that is through contraception.

There was a time and place when contraception use was illegal in this country, until there was a case in the Supreme Court that was actually memorialized yesterday, the Griswold case, which said: No. It is legal. Well, if contraception is legal, why on Earth would we discriminate against people who try to use their health insurance to get it, their drug benefit to get it?

So this case comes before the California Supreme Court, and every member of the court--five Republicans and one Democrat--except her, except Janice Rogers Brown, says that is an appropriate law. So, again, we have someone out of the mainstream. If she is so out of the mainstream on contraception, imagine where she will be on the right to privacy, if she gets into that issue.

She is the only member of the court to find that a jury should not hear expert testimony in a domestic violence case about ``battered women's syndrome.'' Now, this one really touches my heart because, fortunately, many years ago, Senator Joe Biden phoned me when I was a House Member, and he said that he had written a bill called the Violence Against Women Act. We knew women were being battered and women were being raped. The violence against women was growing, and yet there was no Federal response. We have made tremendous progress in this area. We still have a long way to go.

Mr. President, I have been asked a question. I suggest the absence of a quorum.

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

As we learned more about stopping violence against women, we found out something very ugly, which is sometimes women are in such a desperate circumstance, after being battered for so long, that they lose their center and their balance and they fight back. Sometimes you will have a case that comes before a court, and in defending a woman they want to bring in an expert to talk about battered women syndrome-- why is it that a woman, who is otherwise peaceful, otherwise decent, with no criminal record, no criminal history, would suddenly break out and do violence to another.

If you do not understand battered women syndrome, it makes it difficult. Janice Rogers Brown was the only member of the court to say a jury should not hear expert testimony in a domestic violence case about ``battered women's syndrome''--the only one. How is that in the mainstream of thinking? How is that in the mainstream of American values? How is that going to help us learn more about why people would act in a certain way? It does not say how a jury has to find. They just wanted to have this testimony. All of her colleagues found it would be perfectly appropriate. Not Janice Rogers Brown--out of the mainstream, in the extreme, standing alone time after time.

Janice Rogers Brown, the only member of the court who voted to bar an employee from suing for sexual harassment because she had signed a standard workers' compensation release form. She was the only member of the court who said: You do not have the right to sue if you have been sexually harassed because you have already signed a workers' comp release form. They are two different things. Yet for her, no, it was one and the same, and she stood alone in this case as well.

She was the only member of the court to find nothing improper about requiring a criminal defendant to wear a 50,000 volt stun belt while testifying. I think we discussed the fact that the U.S. Supreme Court recently made a judgment on this, that it is very important, in order to have a fair trial--and in America that is what we believe in.

Now, I, myself, am very tough on a criminal. I would do the worst of the worst to someone convicted of a heinous crime because I believe people give up their right to be among us if they commit a heinous crime. So I am very tough. At the same time, I understand you do not want to do something that would prejudice a case. When you bring someone into court, before they have been found guilty of anything, and they are wearing a 50,000 volt stun belt, it may give a message to the jury. And that may just result in an overturning of a conviction later on.

So the California Supreme Court found, except for Janice Rogers Brown, it was a mistake. She stood alone.

So let me finish up in this way. It is really an extraordinary nomination, this particular nomination. When the Democrats stood tall against this nominee, there were reasons. There were reasons we stood tall against 10 nominees. We allowed 208 to move forward, but we stood against 10. We stood against 10 and said: Do you know what. We are going to follow historic precedent. If we believe these nominees are out of the mainstream, we are going to stand and be counted.

It is not pleasant. It is not nice. It is not enjoyable. It is not something anyone looks forward to.

It is unusual to do it, and we did it 10 times. We gave this President a 95-percent ``yes'' record of judge confirmations, but he is not a happy camper unless he gets 100 percent. If I got 95 percent of the vote, I would be soaring high. If I got 95 percent of my bills passed through here, I would be soaring high. I would be so happy if my kids listened to me 95 percent of the time. I would be smiling. I would say: Yes, I think you are wrong on that 5 percent, but I feel good about it.

Not this President; he wants 100 percent. It is called the arrogance of power. It is called one-party rule. I think the American people want to be governed, not ruled. We had a King George once. It didn't work out very well. We like President George better than King George. But President George, as every President, whether it was Bill or Harry or you name it--some day it will be a woman, I can hope--every President who reads the Constitution knows there is an advice and consent clause. That means when you put people up for these lifetime appointments, the Senate has an important role to play. And instead of being annoyed about it, instead of being bothered about it, instead of feeling it is cramping your style, you should use your power, your effectiveness, your political capital, your charm, use whatever you have to come over to the Senate, to sit down with Senators, to say: Look, I am thinking of putting up Mr. X or Mrs. X. What do you think?

It is frustrating because early in the Bush Presidency, Alberto Gonzales, who was the White House counsel, came over and he did say to me--because I was against a Ninth Circuit Court nominee--do you have any good ideas for who else you might support? I did. I talked to my people, to my Republican supporters. We came in. We had six terrific Republican names. We sent them. Nothing. So they asked, but they never acted. Some of these people were quite conservative. I think they would have been pleased. But this seems to be an administration that wants 100 percent of what they want. They don't want the shared responsibility of governing. Either they don't want or they don't understand or they don't like the balance of powers, which is such a centerpiece of our Government.

We see it on the Bolton nomination as well. That is not for a judgeship. That is a nomination for U.N. ambassador. But, again, if we could just talk to each other, we could come up with someone who would be terrific, instead of having these standoffs, which are difficult. They are not pleasant. We are not getting a lot of work done because of how much time we are talking about Janice Rogers Brown, because many of us believe she is so out of the mainstream, we can't let it go. That is why

I so respect the moderates who came up with the agreement because part of that agreement said in the future the President should talk to us more, especially about Supreme Court nominees.

We are at a place and time where we have proven one point, that when we stood up against these 10 judges and allowed 208 to go through, it wasn't arbitrary or capricious or nasty or personal. It was because these people are out of the mainstream. I well remember when George Bush was declared the winner in 2000, he came right out and said: I am going to govern from the middle.

Here is where we are: George Will, `` `Extraordinary' Rhetoric.'' George Will calls Janice Rogers Brown out of the mainstream. George Will is very rightwing and he calls her out of the mainstream. He says it is a fact that she is out of the mainstream.

The Mercury News says:

As an appellate judge who would hear the bulk of challenges

to Federal laws coming out of Washington, Janice Rogers

Brown's appointment would be disastrous. She'd be likely to

strike down critical environmental, labor laws and

antidiscrimination protections. Brown, though, has infused

her legal opinions with her ideology, ignoring higher court

rulings that should temper her judgment.

That was the from San Jose Mercury News, a very mainstream newspaper in Silicon Valley.

From the Sacramento Bee that sits in the heart of the capital of California:

The minority in the Senate certainly is justified in

filibustering a lifetime appointment of Brown.

. . . The Court of Appeals for the District of Columbia

Circuit is the last place we need a judge who would impose

19th century economic theory on the Constitution and 21st

century problems.

The issue isn't Brown's qualifications; it's her judicial

philosophy.

I see my friend from Colorado is here. I will stop now and thank him for the work he did on that compromise on the filibuster. I was not a happy person that Janice Rogers Brown was in the group, but our side had to give up something. I have spent days expressing why I hope there will be a strong vote against her. She is out of the mainstream.

I thank the Chair and yield the balance of my time to Senator Salazar.