Floor Statements

I only need 5 minutes of time, and I can yield back the rest of my time to my colleague from Washington to finish. I know she had an hour.

How much time remains?

I ask unanimous consent I be given 5 minutes, and the remainder of that 21 minutes goes back to my colleague from Washington State.

Mr. President, I thank my colleague from Washington for her stellar leadership on this issue. She has been just a beacon on this bill, on which it is appropriate to have a beacon. She is the beacon from Washington State, and I thank her for the good work she has done.

I thank my colleague from New Mexico. We are good friends. I regret I feel so strongly about this legislation in opposition to him. But I believe this is the worst legislation that I have seen in my over 20 years in the Congress. It is bad for what is in it, and it is bad for what is not in it. I will speak at much greater length on those issues when I have more time, but I would just like to mention a few things.

It is laden with special interest provisions. There is no question about it. So many people got little things for their States. Some of them are good, some of them are not good. When you add them up they are extremely expensive. It is hard to believe in an administration that is watching costs so much that a bill that was originally $8 billion should balloon to $23 billion. This includes $1 billion to build a nuclear reactor in Idaho. I understand we need projects in people's States to sort of grease the wheels of legislation, but at $1 billion a shot?

There is so much bad in this bill. To me, the two worst provisions are the MTBE and the ethanol provision: MTBE, taking people's livelihood they put into their home; their homes are ruined. Their only hope is for the oil companies, which knew how bad MTBEs were and didn't tell anybody, to help pay. We pulled the rug out from under tens of thousands of present homeowners, and millions of future homeowners who cannot even live in their homes anymore. They can't take a shower. They can't drink the water. And we are saying: Tough luck. We are giving the MTBE industry $2 billion to close. We don't give a small store owner any money when they close. In addition, we say you are absolved from your mistakes and the taxpayers, the homeowners, pick up the bill.

The ethanol provision, I have such disagreement with so many on my side of the aisle I am not going to get into it. Suffice it to say, if you want to subsidize corn, good. Don't make the drivers of New York State or Washington State or some of the other States on the coasts pay for it. I believe this can raise our gasoline prices 4 cents to 10 cents a gallon in my State, and in many others. That is not how we do things around here. It is not how we should do things around here.

How can we be asked to support a bill that does that?

But the worst thing about this bill is what my colleague from Washington mentioned, which is the missed opportunities. If there was ever a time, if there was ever a perfect storm to create a real energy policy in this country, one that we don't have, it is now. We have 9/ 11, and everyone realizes how we have to become independent of Middle Eastern oil. We had Enron, and everyone realizes the problems in trafficking in electricity and in the grid and that things have to be changed. We had the blackouts this summer, and everyone realizes the grid that we have can't be piecemeal anymore.

These are perfect opportunities to get our hands around the policy that will serve us well for the future. Nothing is in there. It is not simply that there are special interests and a policy, but there are special interest provisions and they take the place of any real energy policy. That is what so bothers me about this bill.

China is adopting more stringent CAFE standards than we are. Should that make us wonder what we are doing?

I read history. Great empires, great countries--and I love this country. It has been the most wonderful thing for my family that has ever happened--begin to lose it when they fail to come to grips with reality. We have a reality here. We have three realities. We are

just fiddling while Rome burns. We are dancing on our merry way and giving out a little bit of pork here and a little bit there and a little bit here and not dealing with the fundamental energy problems we face.

I will have more to say later. I thank the Chair. I thank my colleague from Washington for her courtesy. I yield the remainder back to her.

I thank my friends from Missouri and Maryland for engaging us in this colloquy, and appreciate their efforts to work with us on addressing our concerns with the CARES process. Among these concerns, I am particularly pleased that the managers of this bill have agreed to work with us in addressing the participation of veterans at hearings held by the CARES Commission. The participation of veterans is critical to a process that so directly impacts the quality of healthcare they receive from the VA. It is my understanding that the managers have committed to addressing this specific issue by presenting language to the conference that would recognize the benefits of and the need to have CARES related hearings within 30 miles of all facilities facing closure or a reduction in services, as well as the importance of veteran participation at these hearings. I also understand that the managers have committed to presenting language to the conference that encourages the VA to hold additional hearings in all affected communities following the Secretary's final recommendation.

I thank my colleague from New York and all of those who have worked so hard. I plead to my colleagues, the CARES Commission had a good idea. Let's study and see how we can make health services better for veterans. But looking at what they recommended in New York State, something went amuck; to close the Canandaigua Hospital makes no sense whatsoever. It is desperately needed by so many veterans. It is a fountain point of the community, and it does special work in mental health and psychological services that no hospital within miles and miles and miles around, tens of miles, hundreds of miles around, can do.

All we are asking is a chance. Let the CARES Commission go back to the drawing board and figure out what they did wrong. Let them look at what they have done wrong in New York in terms particularly of Canandaigua but also of Montrose and the Manhattan VA hospital where anyone who looks at it up close sort of scratches their head in wonderment and says: How did they come up with these recommendations? This is a bipartisan bill. It does not stop any kind of restructuring except for the fact that it says: Go back and look at other factors they seem to have missed.

It is desperately needed in many parts of the country. The veterans groups of America are totally for this amendment.

This Chamber and the other just voted for $87 billion for Iraq. Whatever one's opinion of that was, how can we at the same time turn our backs on so many of those veterans who fought in other wars? I know the intentions of the commission may have been good, but the effect, at least in our State, is to do just that. It is to turn its back on tens of thousands of veterans who served their country, many of whom were wounded in the course of battle.

This is a pro-veteran amendment, supported by veterans throughout the country. I urge my colleagues to support it.

I thank my colleague from New York for the great job she has done. We have worked as a team to try to prevent this from happening. This amendment gives us a good opportunity to go back and reargue. We hope our colleagues will support it.

It is my understanding that the managers of this legislation have agreed to work to address the concerns shared by Sen. Clinton, Sen. Enzi, myself and others through the inclusion of language in the conference report on the FY04 VA-HUD Appropriations Act. It is my further understanding that this language will specifically address our concerns regarding the CARES Initiative's impact on long-term care, domiciliary care and mental health care as well as the ability of veterans to attend and participate in hearings regarding facility closings and the special needs of rural veterans in the process. I also understand that the managers have agreed to send a letter to Secretary Principi on these matters. In addition I understand that I will join my colleagues and the managers in submitting a longer colloquy for the record with the specific language to be included.

I could not hear the Senator from Utah.

Mr. President, they say one picture says a thousand words; one sign will equal 30 hours of palaver. The bottom line is very simple, we have supported and confirmed 168 judges whom President Bush has sent us. We have blocked 4.

All the rhetoric, all the splitting of hairs, all the talking about angels on the head of a pin don't equal that. This debate will boomerang on my colleagues from the other side of the aisle because all the American people have to do is look at that sign and they say: Gee, you're right.

The bottom line is the President, the majority leader, and the chairman of the Judiciary Committee will not be content unless every single judge the President nominates is rubberstamped by this body. That is what they want. We all know it. We have been very careful and very judicious in whom we have opposed.

People who are getting life appointments should not be extremists, should not be out of the mainstream, should not be asked to roll back 30 or 60 years of jurisprudence, and the four we have blocked fall in that category.

The bottom line is very simple: If you want agreement, then read the Constitution and tell the President, in all due respect, to read the Constitution. It says advise and consent. Advise means consult. We get no consultation. Consent means the Senate does its own independent review. That is what we have done.

So I understand why early on this sign vexed my colleagues from the other side. The bottom line is simple: We have been reasonable; we have been careful; we have been moderate; we have been judicious. The other side and the President simply say my way or the highway. That will not stand.

Will the Senator yield?

Will the Senator yield?

Would my colleague from Utah yield for a question?

We have had some misstatements on the floor about how many filibusters we have had.

I said, we have had some misstatements repeatedly by the Senator from Virginia and the Senator from Minnesota about how many have been filibustered. There have been a bunch who have been filibustered, it is just that we happened to succeed. Isn't that correct?

I thank the Chair.

Mr. President, I listened to the debate, and I would say basically, kindly, it is just a repetition of arguments we have heard over and over again. A little less kindly, sound and fury signifying nothing.

I tried to ask some questions of the other side a few minutes ago and was rebuffed. It is no wonder because we are not having a coming together here. We are not having an elucidation. What we are having is a rehash of arguments we have heard over and over again.

It is not going to change anything, I say to my colleagues. It is not going to change a thing. There is only one way to change things, and that is for the President and the other side to follow the Constitution and take the words ``advise and consent'' seriously. If they think we can be bludgeoned, if they think more talk radio makes a difference, it is not going to make a difference. In fact, I would argue to my colleagues, this debate is helping us because the hard-right media, the talk radio, and the others don't mention this fact.

This chart is worth 30 hours of palaver, of gibberish. The Wall Street

Journal today has an editorial with the pictures of the six. Do they mention how many have been approved? They don't dare. They have had editorial after editorial and some of them criticize me. I write letters, and they don't publish them. You would think if they are going to do a whole editorial being critical of someone, they would give them the courtesy of publishing a letter. They are not interested in the debate of facts. No.

At least we are getting a chance to show this. One picture is worth a thousand words; one chart is equal to all the talk we have heard. Nothing will change that.

This is actually going to help our side. It is backfiring. I know many of you on the other side didn't really want to do this, but I guess I have to say to those of you who argued for it, thanks.

I heard from a constituent earlier tonight. They were watching the debate. I said: Did you know about 168 to 4? No. Most people don't because the big storm on this has come from a small narrow band on the hard right. We know the other side has to pay attention to them. They accuse us of being subject to beltway liberal groups. There are groups on both sides. They both feel as passionately.

I don't know why one group is any better than the other, but the group on that side has made this an issue. They just can't stand the fact that four have been rejected--four.

I begin by saying, better be careful about what you wish for because this at least is an even airing of the facts. What I would like this to be is a real debate. I would like us to ask each other questions. I would like us to challenge each other's assumptions and misstatements. But it is obviously not happening. Obviously not at all.

I will be happy to yield for a question. I give the Senator from Texas the courtesy I was not given.

Yes, reclaiming my time, that is exactly the point. I haven't gotten up to this chart, but I will go to it now.

Let me please answer my colleague's question. The bottom line is the other side has said--and in the chart of the Senator from Pennsylvania, he was careful. He said ``successfully filibustered, none.'' Then when it was repeated by many of the other colleagues, they said there has never been a filibuster.

As my good colleague from Nevada pointed out, there have been filibusters. Here are some of the judges who have been filibustered.

Don't claim there has never been a filibuster. In fact, I would ask anyone on the other side, when you filibustered just 3 years ago, did anybody object and say the Constitution is being defiled? Judge Berzon was filibustered in 2000. Judge Paez was filibustered in 2000. Judge Sarokin was filibustered in 1994.

I didn't hear the outcries from the Senator from Pennsylvania or others that filibuster is constitutionally wrong. Oh, no. Oh, no. So the one difference----

Let me finish--the one difference--and then I will be happy to yield for a question--is this. We succeeded. Do you know why we succeeded? I will tell you why. Because President Clinton made an effort to nominate moderate judges, by and large; because President Clinton did far more of the advise-and-consent process than President Bush, and President Clinton was able to persuade 15 or 20 Members from the other side to finally vote for these judges.

We have had no advice, meaning consultation. I am consulted in New York, and we have filled every vacancy. On the main court of appeals nominees, there is no advise, and that means there isn't consent.

I would argue this to my good friend from Texas: No President has chosen judges through an ideological prism more than President Bush. He said it when he ran, to his credit. He was going to appoint judges in the mold of Scalia and Thomas, two of the most conservative judges we have. Some of them are to the right of Scalia and Thomas. Clearly, Justice Brown is. I believe Miguel Estrada was. He has appointed judges ideologically. Then we are supposed to not challenge that ideology? It is two-faced. It is hypocritical.

Most of President Clinton's nominees--not all, but most--were not legal aid lawyers or ACLU attorneys. They were partners in law firms; they were prosecutors. Anyone who has followed this knows President Clinton decided to nominate, by and large, decidedly moderate judges. That is why the filibusters were not successful.

Our filibusters are successful, frankly, not because of any of us. It is because President Bush has decided to nominate people from the hard right so that he gives us no choice. Nothing would please me more--and I am one of the leaders in this--nothing would please me more than for Counsel Gonzales to call some of us in and say: How do we come to some kind of comity? Guess what, the same thing that happened in New York and a few other States will happen nationally.

Will most of the judges be far more conservative than me? Yes. Will many of the judges disagree with my view on choice or affirmative action or anything else? Yes. But at least we will feel they will interpret the law, not make law.

As my good friends know on the other side, the Constitution requires interpretation of the law, and ideologues, far left or far right--I don't like far-left judges, either--want to make law because they feel they are so right and the country is so wrong, and so they try to make law.

The Founding Fathers in their wisdom--I will yield in a minute, and maybe the Senator would ask the others on their time to yield to us as well. Then we can get some debate here and maybe make a little progress instead of just talking past one another.

The bottom line is this: We are defending the Constitution. We are saying there should be some balance. President Bush didn't win by a landslide. This Senate is not 62 to 38 or 70 to 30. This country is narrowly divided, and that means when laws are made, they tend to move to the middle. The prescription drug law is an example right now. But judges don't have to move to the middle. Once they are appointed, they are there for life, and they have virtually absolute power over cases. All we have is the constraints within their own heads.

My good, learned friend from Texas knows that in the ``Federalist Papers,'' Alexander Hamilton said ideology should play a role. My good friend from Texas--he is a student of history--knows one of the first nominees of George Washington, John Rutledge, was rejected because of his views on the Jay Treaty. My good friend knows in that Senate that rejected John Rutledge were a good number of the Founding Fathers. So this is not new. This is not made up. In fact, what is new is the view on the other side that if they don't get their whole way, they want to change the rules. If there had been for 20 years protests from many of my colleagues who sat in those seats in 2000 and 2000 and 1994 and 1994 when there were filibusters, maybe we could feel there was some genuine feeling here, some genuine fidelity. Instead, I would argue most of those who study logic know that things can be made; that the weakest arguments are outcome determinant. In other words, you look for the outcome you want and then you make the argument. That, I would argue, with all due respect, is what my colleagues are doing.

The bottom line is filibusters were not an abomination to the Constitution when President Clinton nominated. And, by the way, in the inverse case, holding back judges from even getting a vote in the Judiciary Committee was perfectly OK. That didn't unbalance the Constitution.

What my colleagues have done is taken the result they want, which is 172 to 0, and then come up with an argument that all of a sudden filibusters are bad. Blocking judges can't be bad because look at all these judges the other side blocked and didn't even

allow to come up for a vote. So it can't be that blocking judges is wrong. But it also can't be that filibusters are wrong because they did them in recent history. They just didn't succeed.

Now they have this twisted logic that only a successful filibuster is bad. That doesn't make much sense. I am sure my good colleague from Alabama wishes his filibuster had succeeded. He felt it passionately. He felt Judge Berzon and Judge Paez were too far over, maybe.

I will be happy to yield since I mentioned the Senator's name.

Let me reclaim my time.

I simply say to my colleague----

Thank you, Mr. President.

What I said before was, and I say it again, I did not hear an outcry about filibustering being wrong or being unconstitutional or being evil when these judges came up. I didn't see people get on the floor for 30 hours. There were four of them in the last 6 years. I didn't even hear people get on the floor for 3 hours and take up time to say why filibustering is bad.

Do you know why they say it is bad now? Because we have succeeded. Again, why have we succeeded? Because President Bush has changed the way people are appointed to the judiciary. He has nominated judges through an ideological prism to a far greater extent than any President in history.

I say to my colleagues, do you want to get it to be 172 to 0? Tell the President to sit down with us, to advise, to come to some compromise, and then you will probably get 172 to 0. But as long as this process continues where there is no advise and consent, as long as this process continues where certain judges who believe decisions that have been discredited 50 and 100 years ago should be law, we have no alternative but to do what we are doing.

I will be happy to yield to my colleague for a question.

I say to my colleague, most definitely, because, first, not only do these people have a job, but they shouldn't be on the bench.

More than once.

I say to my colleague, it would be an excellent idea. This debate, as I mentioned earlier, is not going to accomplish a thing. In fact, if it accomplishes anything, since we haven't had the media drumbeat on our side the way the others have, it is going to help us; it is going to get this very fact out. Why not have a debate on something we haven't debated, such as minimum wage, such as health care, such as energy policy, instead of having two people decide energy policy. Nobody knows what the conference report will be. Let's have a debate about that.

Here we are repeating over and over and over and over again the arguments that have been made and made and made.

The bottom line, I say to my good colleague from Nevada, is there are 100, 200, 300 better ways to spend 30 hours in the Senate than redebate these issues. If this is frustration on the other side because 4 of the 172 have been blocked, the solution is not to repeat the same arguments which we regard as specious. The solution is to come to the middle and compromise and talk to us, as we have done in certain States.

I say this to my colleagues: Stop using outcome-determinative arguments. Filibusters are fine when you do them. Only when we do them successfully are they no good. And blocking judges? That is just fine. You blocked so many more than we have. This argument is like trying to thread a needle: Blocking judges is OK; filibustering is OK; only successful filibustering is unconstitutional.

I doubt many legal scholars of any political persuasion would be able to sustain the contradictions in my friends' arguments from across the aisle.

The bottom line is simple: We believe advise and consent really means what it says.

We believe keeping judges in the mainstream is within what the Founding Fathers wished us to do. I will have more to say in the next hour.

Will my colleague yield for a question?

I yield a minute to my colleague from California.

Thank you, Mr. President.

First, I thank my colleague from California. She is feisty any time of the day but, not only feisty, on target. I very much appreciate her great work, particularly in bringing to our caucus's attention the problems with Judge Kuhl.

Now, I would like to review the bidding so far. First, we have had a lot of talking, virtually none of it new. Second, there have been repeated refusals to go on to issues that we do not talk about, such as minimum wage, loss of jobs, health care. Third, we believe this debate is helping us because the rightwing radio and the rightwing groups have talked about their argument.

I mentioned the Wall Street Journal editorials that never mention this number, what anything fair would be. We are getting this number out: 168 to 4.

When I go to parades in upstate New York, conservative areas, they say: Why are you stopping the President's judges? I say: It is 168 to 4. They say: Never mind. Well, that is what this debate is doing. The American people are going to say: Never mind.

Finally, I think we have revealed how our colleagues' arguments are outcome-determinative. Lawyers will tell you they are the weakest arguments. You pick your outcome and then you determine it.

Are they against filibusters? No. Again, I will repeat my challenge: Let a Senator on the other side show me that they got up and demanded 30 hours or 3 hours or 5 hours when Members on their side attempted to filibuster Judge Barkett, Judge Sarokin, Judge Marsha Berzon, Judge Paez. Did anyone get up and complain? No.

So you are not against filibusters and you are not against blocking judges. Here they are. You have blocked a whole lot of judges. You did not use filibuster. You refused to give them a vote. But they were blocked--same effect. The only thing you seem to object to is a successful filibuster. Where is the logic there?

Finally, you want to have viewer-successful filibusters? Talk to us. Come and meet with us. Nominate judges who may be conservative but are not so far out of the mainstream, such as Justice Brown who believes that Government is evil. She is against all zoning laws, at least according to her speech to the Federalist Society. And she thinks the Lochner decision, one of the most discredited decisions which said the State government could not regulate the number of 60 hours--New York State said 60 hours is when a bakery worker could not work any longer. They can't do that.

So nominate some people who are conservative but not so far out that they want to make law, not interpret law. That is the bidding so far.

Now, one other point that was made since I last spoke. My good friend from Idaho, I love him. He is a fine guy. We even worked together on a gun control bill, so it shows you anything is possible around here. But he is saying Judge Abe Fortas was not filibustered? What is this argument? A cloture vote is not a filibuster? As my daughter would say: ``Hello.''

Why do we have a cloture vote? Because there is a filibuster. Here is the headline in the New York Times: ``Critics of Fortas Begin Filibuster. . . .'' Why is that not a filibuster? But the New York Times, they are one of those wacky, liberal publications, and this is one of these slanted liberal headlines.

So let's take the U.S. Senate Web site. What is the headline? October 1, 1968: ``Filibuster Derails Supreme Court Appointment.'' I am paraphrasing: In June 1968, Chief Justice Earl Warren informed President Lyndon Johnson that he planned to retire because of a filibuster.

Mr. President, I ask unanimous consent to have a document from the Senate's own Web page printed in the Record. I would ask all of my colleagues who believe that Abe Fortas was not filibustered to make a motion to correct the Web site.

I thank you, Mr. President. So I guess I have caught a little of the feistiness of my friend from California.

Now, Senators, this is a serious issue. Many of my colleagues have done a great job of bringing up the issue of jobs and health care and all of that. I think we should do that because we have heard these arguments over and over and over and over again. We have not talked about the minimum wage once or for providing health care for the uninsured or many other issues. But so be it.

Let me again go over what our Constitution says. Does our Constitution say, ``Do not filibuster''? It does not say that. In fact, our Constitution says the Senate ought to be the cooling saucer.

We all know the story. James Madison was explaining, I believe it was to Thomas Jefferson, why there was a Senate. Jefferson thought it looked too much like the House of Lords. He had been over in Paris. And he had not written the Constitution.

He came back and he goes over to James Madison's house and Madison is pouring tea. He says: You see. He pours the boiling water into a cup, and he says: You see the boiling water in the cup? That is the House of Representatives, where the people's passion bubbles over. Then he poured some of the water into the saucer, and he said: The Senate is the cooling saucer.

Well, James Madison, we have been, by stopping these four nominees, a little bit of that cooling saucer. Our job, when the President goes too far, as he has with some of these nominees, is to be the cooling saucer.

Now, unfortunately, our being the cooling saucer gets some of the others on the other side very hot. But we are defending the Constitution. The idea that a successful filibuster is bad has nothing to do with the Constitution. That comes from a few of my colleagues' view that they want to get every nominee. So let's make an argument. Because if a successful filibuster is bad and an unsuccessful filibuster is OK--and we have been through that before--then you cannot make any argument about a filibuster.

Again, I would like my colleagues to read this over and over and over again. There is nothing in there that says: No filibuster. There is nothing in the Constitution that says: A majority will decide judges, a 51-to-49 majority. It says the President must seek the Senate's ``Advice and Consent.''

Constitutional scholars will tell us that the reason we have these rules in the Senate--unlimited debate, two-thirds to change the rules, the idea that 60 have to close off debate--is embodied in the spirit and rule of the Constitution.

Yes, my colleagues, we are the cooling saucer. When the President's passion for hot rightwing judges who might make law rather than interpret law gets overwhelming, we will cool the President's passion. That is what the Constitution is all about, and we all know it.

By the way, when, again, my colleagues thought President Clinton was nominating a few judges too far left, what did they do? What did you do over there? You filibustered. Paez and Berzon were very liberal, no question about it. But because President Clinton had, by and large, nominated moderate nominees, nominated moderate people, your filibuster could not last.

Let me say something to my colleagues. We did not want to undertake a filibuster. Many of us on the Judiciary pleaded with Chairman Hatch to go to the White House and say: Meet with us. No. Many of us pleaded with Counsel Gonzales to come meet us a little bit of the way. No.

So we had no choice. Either we could be a rubberstamp or we could use the only means we had at our disposal to stop the President from getting every nominee, and that was the filibuster. Again, it is in keeping with the Constitution. We believe we are fulfilling our constitutional obligation.

Again, I see my colleague from Pennsylvania brought up his chart: No successful filibusters. Did my colleague object to the unsuccessful filibusters of Barkett, Sarokin, Berzon, and Paez? Did my colleague say he wanted 30 hours on the floor because a filibuster was wrong?

I am happy to yield. I want to finish my point and then I will yield to my friend from Virginia, who is one of the most respected and erudite Members of this body, and I consider him a friend of mine.

I would simply say that the argument that filibusters are OK but successful filibusters are not OK just melts under even the sunshine of a distant logic.

I yield to my colleague from Virginia.

I thank my colleague from Virginia for that excellent inter--I do not mean interruption--I mean it in the classical sense, trying to bring us together.

I will be happy to yield to either of my colleagues from Alabama or Pennsylvania and ask them, because I would like to have debate here instead of each of us getting up and making speeches. I asked a few times and my colleagues were not on the floor.

Well, this is a good interjection by my friend from Virginia.

Why is it that a successful filibuster is wrong but an unsuccessful filibuster is OK? Because we have had them before, and many on your side participated in them. We did not hear any of these arguments about the Constitution or anything else. I would be happy to yield to my colleague from either Alabama or Pennsylvania for an answer. Maybe we can come to some meeting of the minds.

Will my colleague yield? I was here the last 2 years of the Clinton years. I was here for Berzon and Paez.

If I might respond to my colleague from Alabama, let me say to everyone here, I have great respect for my colleague from Alabama. We work together on the Judiciary Committee quite well. We have had some legislation together. Let me make a few points.

First, I don't disagree that Paez and Berzon were very liberal. There could be made an argument--I didn't agree with it--that they may have been out of the mainstream and maybe should have been blocked. Certainly, that is what our former colleague, Mr. Smith from New Hampshire, believed.

In fact, I agree with the Senator from Alabama. I think the Ninth Circuit is a very liberal circuit. I voted for Jay Bybee, who is far to the right of me, because I thought the Ninth Circuit could use some balance. I don't have a problem with people saying Paez and Berzon were very liberal and we ought to try to block them.

Let me make two points in reference to what is a hold. A hold is saying ``I am going to filibuster.''

If I might finish. That is why the hold is able to hold things. There is nothing in the rules about one Senator can hold things up, but the way things work around here, you say: If you bring this to the floor at this point, I am going to keep talking and you are going to need 60 votes. I don't know it to be any different than a filibuster. It is certainly not a difference that makes a difference. One may call it a hold rather than a filibuster, but it is a filibuster.

Second, I say, in all due respect to my colleague, again, let's not get semantical here. It is true that my good friend from Alabama opposed cloture. How many Senators voted for cloture? How many voted against? Thirty-one? I don't think there was a Democrat among them-- maybe; maybe one. I don't recall if Senator Miller was here then. Thirteen voted against Judge Berzon.

But immediately after on the vote for Paez, my colleague from Alabama got up and made a motion to ``indefinitely postpone the nomination.''

Let's not get semantical here. If you are indefinitely postponing the nomination, you are seeking to do what we are seeking to do, which is block a nomination you thought was ideologically incompatible.

The bottom line is this: I will make this argument and then yield--I defer to our great whip here--we have divided up all our time and I am taking somebody else's time; maybe my friend from Minnesota, and I don't know who the other Senator was--Senator Boxer. So I don't want to take too much of it.

I simply say, again, these arguments sort of, a little bit, contain a bit of sophistry. Blocking a judge is the goal--successful filibuster, unsuccessful filibuster, a motion to indefinitely postpone, not allowing a judge to come to a vote. When either side has thought a judge out of the mainstream, they have used the device that was available to them to allow the Senate, I would argue, to do what the Founding Fathers wanted us to do, which is to be the cooling saucer. Sometimes it was successful, sometimes it wasn't, but it is not a difference that makes a difference, as the law professors used to say.

I yield the floor.

If I might make a parliamentary inquiry.

I thank the Senator.

Mr. President, I thank my colleague from New Mexico for, as usual, his thoughtful, balanced, and fair remarks.

We have, I guess, now been debating 13 hours 45 minutes here. I don't think too many new arguments have come out. I don't think we have accomplished anything. But let's proceed, although I couldn't agree more with my colleagues that we could have devoted some of this time to speaking about issues we have not debated on the floor at length--jobs, the yearning of the average American to have a secure and good job; health care, and the millions who are not covered and millions more who are covered and cannot afford health care; even a debate on the war in Iraq, where we are going and what we should be doing. It would be far more instructive and illuminating to the American people than what we have done here.

But we are here, and I think we should be talking about the judicial nominations. One point I make, just before getting into the substance: We heard some paeans to Miguel Estrada; Horatio Alger, we heard. He is a bright man of accomplishment, but let's be fair here. His father was a banker in Honduras. He came from a privileged background. America welcomes people of all backgrounds. That is wonderful. But the bottom line is he was not typical of an American immigrant. His father was a banker, they were part of the Honduran elite. The Senator from the other side said he didn't speak English when he came here. We think he probably did.

But Horatio Alger? No. Horatio Alger was somebody who started off poor. There are indeed, I would like to inform my colleague from Virginia, millions of immigrants who came here poor as church mice and struggled and worked their way up. It is sort of interesting that the hero to those on the other side is a wealthy Honduran who became a wealthy American--that is the modern-day Horatio Alger story. So let's be straight here.

Miguel Estrada, to be fair, is a very bright man. But just because he is bright and just because he came from a good background doesn't give him carte blanche to become a judge. He didn't answer any of our questions. How many Americans would get a job if they told the boss: I refuse to fill out the questionnaire. I don't want to answer that question.

These were not esoteric questions; these were not demeaning questions; they were very simple questions: What is your view of the first amendment and how expansive it ought to be? What is your view of the commerce clause? The very things on which he would opine as a judge.

These have been regarded as legitimate questions from the day of the founding of the Republic. Let me say, why are my colleagues so appalled that we would ask such questions? I will tell you why. It is very simple. Because this President, George Bush, despite his wanting his image to be moderate, on the issue of judicial nominations has been the most hard right President we have seen. His nominees are not mainstream, many of them.

People on this side of the aisle have voted for many of them with whom we do not agree. But when some go so far, we believe the Founding Fathers almost importune us to question them thoroughly, and to block them if necessary.

Again, this chart, I would say to the American people, says more than all the words and rhetoric and name calling we have heard from the other side: 168 to 4.

Is the process broken down? No. Is the process so much so that a reasonable judge can't get through? Obviously not, unless you think George Bush is not nominating any reasonable judges.

What has happened here? There is such anger on the hard right that they can't get every single judge they are pushing many on the other side, against their own will, to engage in performances like we have seen over the last 14 hours. We want every single judge approved. That is their goal. That is the goal. And then we come up with the arguments.

So we went through this last night. Filibusters are OK, as long as they fail. That makes no sense. We have had filibusters in the past. We have had six of them, four by the Congresses in the 1990s and 2000. If a filibuster is wrong, it should be wrong whether it passes or it fails.

But then look at the other argument. Over 50 judges were blocked by the other side. We didn't hear any speeches about Constitution in crisis. They weren't even giving hearings.

The logic defies me: It is OK to block judges by not giving them hearings, and it is OK to filibuster as long as you fail; the only thing that is wrong is to have a filibuster succeed and that brings the Constitution in disrepute and brings the Republic to its knees.

My colleagues, that argument does not hold up in first year law school. It

is just totally hypocritical and contradictory. It is saying, I want my results so I am making whatever argument it takes. Sort of like the judges we don't want. A little like Justice Brown's way of arguing--of deciding cases. Blocking is not bad because they blocked 50 of them and there was no outcry. Filibusters aren't bad because they filibustered six of them, or four of them, and that was just fine.

So let's be honest here. For some reason, there is white hot anger among a small, narrow group of people that they can't get every judge. Again, I welcomed--I don't think this serves our time well--but I welcome it, in the sense that all of those talk shows and all of those radio programs and all of those editorial boards leave out the one overwhelming fact, which is 168 to 4.

I will march in parades in conservative parts of my State and once in a blue moon--most people don't care about this issue, to be honest, compared to the things that make their lives better, compared to the relief American families want when they sit down at the dinner table on Friday night to figure out how to pay these bills. But the occasional time somebody called out, ``Why are you blocking the President's judges?'' because they listen to the radio or read a biased article in the editorial pages, I would say: ``We approved 168 to 4,'' whatever the number is, and they say, ``Oh, OK.''

You can do all the sophistic arguments you want, how many angels are on the head of a pin, say this way to block judges is OK.

By the way, I would like one of my colleagues to defend, in the 30 hours we have, was it all right to block the 50 judges of President Clinton? Was that OK? Do we ignore that fact? It is not ancient history; it was in the last decade. Was that OK? I would ask any of my colleagues to answer that.

Then I would ask them to point out to me when Senators on the Republican side of the aisle launched filibusters, who got up and complained and said the Constitution was being violated?

No, no, no. The arguments here, again, are outcome determined. There is no internally consistent logic. It just says: We want all the judges; we will take whatever argument it takes. When they originally put forward Miguel Estrada, they said he was a rags-to-riches case, and then of course the facts came out. Now he is Horatio Alger: Honduran banker's son becomes successful American lawyer. I don't know if that is going to tug at the heartstrings of most Americans. Most, I think, would say Horatio Alger is the person who came here penniless and worked in a factory, who tried to struggle to provide for his family, who started a small business and struggled, the whole family worked in it and then they got a little money, and they got richer and God bless America. That is what is wonderful about this country.

But again, whatever argument fits. Is there a solution to this conundrum? Obviously, there is. There is. It is to follow the Constitution, not to come up with this idea that somehow, buried in the Constitution--by the way, that is not being literalist. When my colleagues say the Constitution says you can't filibuster a judge, they are reading words into the Constitution. I believe in a flexible Constitution. I think most people do in the 21st century. But if you want literal reading of the Constitution, find the word ``filibuster.'' Find me the number 60. Find me the sentence that says everything in the House and Senate, or just the Senate, should be supported by majority rule.

If majority rule were so important, then we should not have committees because when committees block judges, as they did, we don't even know what the majority thinks. The Senate has a very important function in this Republic. It has had for 200-some-odd years. It is to be, as Madison put it, the cooling saucer.

As I mentioned last night, I didn't have qualms about some of my colleagues trying to stop Judges Paez and Berzon. The Ninth Circuit is a very liberal circuit. It is too liberal for my taste. To put more liberal judges on there probably didn't increase the balance. That is why this year I supported the nomination of Judge Bybee, Jay Bybee. I don't agree with him on almost anything, but on the Ninth Circuit to have a hard right conservative is probably a good thing.

My view is there ought to be moderation on the courts. And probably it is great to have one Justice Scalia on the Supreme Court and one Justice Brennan. You should not have five of either. Judges should not be at the extremes because they are the ones who tend to make law.

We have a nominee coming up Friday, Justice Brown, who wants to go back and reratify the Lochner decision that has been in disrepute for 70 years. Is that justice, someone who is interpreting the law? Lochner, which said a State couldn't pass a law that said bakery workers could work only 60 hours a week? We have come a long way since then.

But it is true, there are some in America who say: We don't want the Government doing anything. If I am a businessman, I should be able to do whatever I want. I should be able to pollute the air. I am a self- made person. Or I should be able to take my property and do exactly what I want with it--no zoning.

That is a view, certainly a view that can be argued in this Chamber or anywhere else. It is not the view close to the mainstream of the American people.

So the bottom line is a very simple one. We believe--it may drive some crazy, but we believe we are defending the Constitution. We believe that through whatever sophistry and sophistic arguments we hear that every one of the President's judges should be approved does not do justice to this wonderful document, this living, breathing document, the Constitution. We believe that if the only way you were to reject a judge was because the judge didn't have high enough grades in law school or because they smoked marijuana when they were in college, it would demean the process. We believe that asking questions about a judge's judicial philosophy--that is what is at the core of what makes a good judge. We believe that when a President brings ideology into the nominating process--we didn't, he did, and he said it. To his credit, he was honest. He said he is appointing judges in the mold of Scalia and Thomas. That wasn't about their law school grades or diversity; it was about a philosophy: Let's take the courts and change the way they view things.

We believe that our examination of these nominees and their views, and what they do as judges, is not only appropriate but obligatory.

I say this to the American people, to those of you who may be watching here at 7 in the morning. Judges have a tremendous effect on all of our lives. It is hard to see because it is not like a debate here in the Senate, this wonderful institution, or the President deciding a policy. It is done on a case-by-case basis. That is the beauty of this country. But that can determine, if you are a woman or a minority or disabled, what kind of discrimination might be allowed to exist against you. They can determine, if you are a worker, what kind of structure there is to protect your rights.

Thank you, Mr. President.

Mr. President, I thank all of my colleagues for the debate. I repeat something I have repeated in the five other times I have been here. We have had a lot of talk, a lot of palaver. But this one sign, this one chart is more persuasive than everything that has been said. No one, except a far-right militant, extreme minority, believes that the courts are obstructed when 168 judges are approved and four are not approved. Say whatever you will, that fact is transcendent. That fact is dominant.

I thank my colleagues on the other side for giving us the opportunity to repeat it over and over.

Now, we have been engaged in a lot of sophistry, a lot of arguments that do not make a difference. The lead argument is that there should not be filibusters. Last night, I talked at some length about all the filibusters that have gone on before. By the way, if you believe that the Constitution prohibits filibusters, you certainly believe it prohibits them not only for the judicial branch but the executive branch. Of course, that would be interpreting the Constitution because there are no words in there that say it. So my colleagues on the other side who are so worried about those who expand the law are doing it themselves.

I make another point today. We have heard this morning a little bit of a shift in the themes from my colleagues. Majority should rule. Just give them a vote. That is all we want, they say. If we want to give every nominee a vote, how is it different preventing the vote by speaking on the Senate floor or preventing the vote by refusing to bring the nominee up in the committee?

Did Annabelle Rodriguez get a vote? All she wanted was a majority vote. No. Did Clarence Sundram or John Bingler or Robert Freedberg or Lynette Norton or Legrome Davis or Robert Raymar or Robert Cindrich or Stephen Orlofsky get a vote? Nope, these are President Clinton nominees who were not brought before the committee.

What is the rule? That when the President nominates someone, all the other side is saying is, majority vote. Here is a list of 63 people who did not get that majority vote. If the Constitution is telling us every nominee should get a majority vote, why didn't it apply to these 63 as well as those 4?

And one other thing my learned colleague from Texas got up and said, hypocrisy is when you did one thing 10 years ago and do a different thing now. These were not 10 years ago; these were 5 years ago. I would ask but he is not here. Is it hypocrisy for the members of the Judiciary Committee on the other side, who never called these people for a vote, who deprived them of the principle of a majority vote, not to bring them up and now complain they want a majority vote for these four? I am not sure either measures up for hypocrisy. That is a strong word. But what is good for the goose is certainly good for the gander.

The whole issue of majority vote----

Is this on the time of the Senator from Pennsylvania?

Please repeat.

I do not, in answering his question. But sometimes he has occasional lapses in his very fine judgment. And this is obviously one of those.

I will say to my colleague, I heard him speak on this before, and when it comes to the issue of judicial nominees, where my colleague has usually quite good judgment, in recent months he is sort of edging way over to the right side, for reasons I am not sure of. But his normally sound and moderate judgment, in my judgment, when some of these nominees came up, has abandoned him, at least in this moment.

I say to my colleague, any nominee who believes that Lochner--and my colleague is very erudite, so I do not even have to describe to him what it is--who says that Lochner was correctly decided does not belong on the bench, in anyone's book, and, my guess is, really in his heart of hearts, does not belong on the bench in the book of the Senator from Pennsylvania. I know he will dispute that, but seeing his record, I have admired his record. And a judge who believes that property rights, that zoning is taking----

I was responding to the question.

As I said--and I will try to be brief; and I know neither the Senator from Pennsylvania nor I is known for brevity on the floor----

As I said, normally I think the judgment of my colleague is a good one. Berzon, in my judgment, the nomination of Judge Berzon, she was quite far to the left. But I spoke about this last night. I believe, at least, because President Clinton, by and large----

I ask unanimous consent that he be allowed to continue asking me questions.

Mr. President, there was no--do we have unanimous consent? I did not hear.

Mr. President, I yield myself 15 minutes and the remaining 15 minutes to my colleague from New Jersey.

I have enjoyed these debates. I said at the very beginning these debates would be good for our side. They have proven to be. One little chart here, this chart seems to be under all of my colleagues' skin because they are debating it and coming with up with their own numbers, et cetera. But let me tell you, this one chart has won this debate. You can come up with as many others as you want, and tonight what have we debated, why 168 to 4 is not true? That is what the other side has said.

I said at the beginning of this debate this would help us. Because this one chart was equal to 30 hours of palaver. To my good friend from Utah, he is a good man. He is my friend. But do you know what he just said? Rollcall votes are a form of obstructionism. I would just like my colleagues to have recalled the words of my good friend

from Utah: Rollcall votes are obstructionist.

My goodness. What are we called on to do here if not vote. And letting people know how you voted, isn't that the whole mark of democracy?

I realize my colleagues on the other side of the aisle are frustrated, and so they have had to come up with all kinds of sophistic arguments. But this one tops the cake. The fact Democrats have asked for rollcall votes on judges is a means of obstructing. Maybe we should just, when the President nominates somebody, not have a hearing and not have asked questions and not have any votes and just let the President appoint all the judges. Next we will be hearing from my colleagues on the other side of the aisle that is what the Founding Fathers really wanted.

Again, to all of those who are listening, I hope there are a few left, 168 to 4. That fact is immutable, unchangeable, irrefutable. The reason it has such resonance is because the other side fails to mention it. Whether it be our colleagues when they speak, whether it be the rightwing radio shows when they say we are obstructing all of the President's judges or most of the President's judges, whether it be the editorial pages that try to kneecap us, 168 to 4, 168 to 4, 168 to 4. Don't forget it. There is no judiciary in crisis. There is no obstructionism.

There are some judges--whether they be Black, Hispanic, women, Catholic, Jewish, Muslim, Baptist, southern, northern, eastern, western--who are so far out of the mainstream that they should not be on the bench, and we are upholding the Constitution by doing that.

Now the arguments of my good friend from Minnesota, these charts, are getting to the point of ridiculous. They are what logicians and lawyers would call ``outcome determinative.'' We want an outcome so we put together numbers. Successful filibusters. I ask my colleagues, if a filibuster is against the Constitution, why is an unsuccessful anymore unconstitutional than a successful filibuster? Why is a filibuster of an executive branch nominee any different than a filibuster of a judicial nominee?

Do you know what the other side is saying? We are just going to take judges in green shoes and give you the numbers on those and not judges in pink shoes or purple shoes.

They are differences that don't make a difference. What we are talking about here, again very simply, is how many judges have come before this Chamber and how many have been approved. One hundred sixty- eight to four. No denying it. No refuting it. No getting around it. The truth hurts because the American people know--30 hours, I guess now it is 39 hours, you can debate this for 390 hours, 3,900 hours, 39,000 hours, and all your words are not equal to 168 to 4.

For those who watched this debate, this has been elucidating, because what the hard right and their allies tried to spread throughout America is, we were holding up all the judges, most of the judges, a judiciary in crisis, a huge number of vacancies. My colleagues, do you know what answers all of that hyperbolic falsity? One hundred sixty-eight to four.

We are going to keep that chart up. I realized when I first put the chart up, one of my colleagues objected. I understand it gets under your skin. I understand it pulls the rug out from the argument.

Now, do you want to talk about judges rejected? Do you want to talk about judges who didn't get a majority vote? Then talk about them. Here we have two charts. Sixty-three of President Clinton's judges didn't get a majority vote. It doesn't matter whether they didn't get it by filibuster or by not bringing them up for any vote. Again, that is like green shoes versus pink shoes. They are all judges.

Here are some names. Did every one of these people twist in the wind? You bet. Some longer, some shorter. Were some withdrawn by the President? Of course. Some withdrew their names themselves. My good friend from Utah, who I dearly love said: Well, some of the names were withdrawn by President Clinton. Does that mean we can erase the name of Miguel Estrada from this debate? He was withdrawn. That is not going to work. He was blocked. So were the others.

One final thing I would say, because I do want to spend about half my time now, or less than half, talking about one of the nominees. The Senator from Louisiana was correct. We are opposing judges because of their views, not their ratings by the bar association, which talks about their education and legal training, and not their sex, ethnicity, or religion.

The other side seems to think that should be a determination of who becomes a judge. Shame on the women because they won't just rubberstamp any woman. Shame on the Blacks or on the rest of us because we won't rubberstamp every Black, shame on everybody, me. They called me because I didn't agree with Miguel Estrada, but should I have let him go because he was Hispanic? That is un-American. It is not right. It is un-American. It is below the belt.

My good friend from Louisiana--I have never heard her more eloquent-- had every right to be angry and upset. To say the women should be ashamed of themselves because they are not voting for another woman. What do you think the American people would think if they thought that ought to be our norm? Every Baptist should vote for every Baptist and every Catholic should vote for every Catholic and every Jew should vote for every Jew. What kind of logic is that?

Let's get back to the reality here. The reality is a handful of these judges are way out of the mainstream, at least in the opinion of a good number of us. Enough to block them. The one that I would like to talk about for the little bit of time I have left is Justice Brown.

I don't agree with her views on affirmative action, but that is not dispositive to me in this case. What is dispositive to me is that we have not seen--I have not seen, in the 18 years I have been here, a judge further out of the mainstream than Justice Brown. I want to read to you what she said in a case called San Remo Hotel v. City and County of San Francisco:

Turning a democracy into a kleptocracy does not enhance the

stature of the thieves, it only diminishes the legitimacy of

government.

What does she mean by that? She was against zoning laws. Do most people think zoning laws are a kleptocracy in 2003? Maybe that went on in 1900, when we could have factories built next to homes and when workers' lungs would be polluted. But no more.

Here is what else she said in a speech to the Federalist Society:

Where government moves in community retreats, civil society

disintegrates, and our ability to control our own destiny

atrophies. The result is [this is when government is around]

families under siege, war in the streets, unapologetic

expropriation of property, the precipitous decline of rule of

law, the rapid rise of corruption, the loss of civility, and

the triumph of deceit. The result [this is what government

brings] is a debased, debauched culture which finds moral

depravity entertaining and virtue contemptible.

Many colleagues on the other side of the aisle believe in limited government. That is legitimate. I, for one, feel in certain areas Government goes too far. But this view? That is kind of disturbing, particularly for a judge on the DC Court of Appeals, which has more to do with Government than any other court in the land, with the exception of the Supreme Court. Please, you can find conservatives, you can find people who are against affirmative action who don't express these views; but these views are circa 1850, and even then would not be supported by most Americans. We are supposed to support a judge like that? Do you know what. I would guess if you asked my 51 colleagues on the other side of the aisle to nominate someone for the DC Court of Appeals and the record of Justice Brown were brought before them, they never would have nominated her.

Why is she here today? That is the question we ask. Is this to be deliberately provocative? Is it that the President doesn't believe he should nominate African Americans who are within the mainstream? I don't think so. He has nominated a few. I don't get it. The views of Justice Brown go so beyond what there is in a consensus in America, liberals and conservatives, that it is appalling to me she would be nominated for the DC Court of Appeals. There is only one reason: The extremists on the hard right are demanding something of the President. He is doing a prescription drug bill. He is talking

to the United Nations. He is not demanding Roe v. Wade be repealed at this very moment. By nominating somebody like Justice Brown, maybe he appeases them, even though he may know she will not be approved. I don't know. That is just a theory.

But I will tell you this. If Justice Brown were White, or Asian, or Hispanic, a man, or if she were Protestant, Catholic, or Jewish, or Muslim, or Hindu, I would oppose her nomination. If Justice Brown got 100 percent of the vote in California, I would oppose Justice Brown. Justice Brown does not belong on the DC Court of Appeals where over decades, over centuries, beliefs among Democrats, Republicans, liberals, conservatives, 99 percent of Americans about what Government should and could do would be totally rejected. Justice Brown will be defeated tomorrow, I hope and I believe. It will not be because of outside groups and it will not be because of any of the women not standing up for women. It will simply be because her views are so ideologically out of the mainstream that she does not belong on the DC Court of Appeals. It is that simple.

When we knock out Justice Brown, I believe the Founding Fathers will be smiling upon us. One of them might say to the other: That is why we gave the Senate some power to block the President's nominees. This is the kind of nominee who should be knocked out. This is the kind of role the Senate, as the cooling saucer, should play, and whether it be by filibuster or by not bringing her up for a vote, or by defeating her in committee, which are the various ways the Senate has to be the cooling saucer, none of them--51-49, none of them simple majority, the Senate will be fulfilling its hallowed, ancient, and continuing role as a check on abuse of power of the President.

Thank you.

Mr. President, I thank my colleague from South Dakota for once again being our leader in every way. We are grateful to him, and I think I speak for every Member on this side of the aisle.

Mr. President, this debate ends as it began, with this one immutable fact: 168 to 4; 168 judges confirmed, 4 rejected.

The other side has spent 39 hours trying to come up with other signs, trying to come up with other ways. In reality, this debate has actually helped our side because this fact stands out above all others.

Are we being obstructionist when we approve 168 and reject 4? Everyone but the most extreme of Americans say absolutely not. Are we violating what the Founding Fathers wanted when they talked about advise and consent when we merely blocked 4, 2 percent of the 100 percent of the judges brought up? Every seventh grader who studies constitutional law knows that 168 to 4 is not obstructionist.

The bottom line is the other side has spent hours on sophistry, successful filibusters are wrong, but unsuccessful filibusters are OK because they engaged in filibusters on judicial candidates in 2000 and 1994 and previously. Filibusters of judges are unconstitutional, but filibusters of statutes, of laws, of bills are perfectly OK. What sophistry.

The bottom line is that the other side comes up first with the result and then tries to make the argument backward. I understand why. The small hard-right minority has a scorched earth policy in America. They have to get everything their way and then are pushing, pushing, pushing the other side. They are saying: Do something. But, frankly, because of the wisdom of the Founding Fathers, the Senate still is the cooling saucer, and there is nothing they can do.

This debate has degenerated. To try and get this to be 172 to 0, there is name-calling: anti-Hispanic, anti-Black, anti-Catholic. We know what low and cheap shots those are. We are opposing judges based on their being out of the mainstream, judges who would make law, not interpret law. I don't like judges far left or far right who do that.

Then last night we got from my good friend from Utah, whom I love, he says calling for rollcall votes was obstructionist. That is how absurd and how frustrated and how piqued the other side has been. Calling for rollcall votes on judges is obstructionist? I say to my colleagues, we on this side would have rather spent the time debating how to bring jobs back to America, how to bring health care to America, how to raise the minimum wage.

But at the end of the day, this exercise, come up in the mind of a few, has ended up benefiting us, and there is one solution, I say to my good friend from Pennsylvania, who pleads earnestly----

To stop this, and that is come talk to us, work with us in a bipartisan way, nominate judges both sides can support. Don't say my way or the highway and this will stop. But that is the only way to stop it.

Thank you, Mr. President.

Mr. President, could I ask my colleague from Nevada to yield for the purpose of a question?

I want to first tell my colleague I have been watching him in the other room, and he has been doing a masterful job on the CJS bill, and now on what has happened in the first 1,000 days of the Bush Presidency.

An area of particular concern to me, which I know my colleague has touched on, has been the judges. I simply ask my colleague if he says the judicial vacancies--it is on the chart. I can't read it, but I think it is down from 9 percent to 4.7 percent. He has been around here a lot longer time than I have. But does my colleague recall a time when we moved so many--knowing his knowledge of the history of the Senate-- judges so quickly and when any President could have gotten such a high percentage of the judges which he has asked for? Does my colleague agree with this? He might want to talk about this at some point. He was talking about the gag rule, but I was so interested in what he said on judges I wanted to come to the floor.

It is ridiculous, when 168 of 172 judges have been approved, to call the minority ``obstructionists'' given the record they have. I am hearing from many people in New York that we are letting too many judges through.

Will my colleague yield for the purpose of one additional question.

Even on the issue of judges, and my colleague is exactly on point, with all these other problems we have, to talk about four judges sounds like a totally misplaced priority. No one puts it better than he.

I ask one other question about another point. To solve the problem of the judges, when we are not able to come together, it would seem to me, and I ask my good friend from Nevada to comment, it is not that we need more talking. The other side will spend 30 hours talking about this, or now maybe 15 because of my friend from Nevada and his astute parliamentary request. Do you think they will say anything new? We have heard the arguments over and over and over and over and over and over again. No one is going to be educated about this. We all know their viewpoint.

It seems to me, and I ask my colleague this question, what we need on judges is not more speeches telling us what our colleagues on the other side of the aisle think--Lord knows we know that. We do not agree, but we know--but, rather, the President and the leaders of the Senate and the Judiciary Committee, sitting down with our side, and asking, Could we come to some agreement on who the judges ought to be? There is the constitutional role of advice and consent which has existed in this country for a very long time, and I tell the Senator as the ranking Democrat, I am never consulted about judges in New York. By the way, in New York we are filling all the vacancies because we have come to an agreement. I do not get every judge I want or even judges who are philosophically exactly like me, but there is some comity and some agreement.

So my question to my colleague is, Doesn't it seem that if they really want to solve the problem on the judges, instead of spending 30 hours repeating, ad nauseam, the same arguments we have heard over and over and over again, that, rather, they would sit down with us and, in good faith, say: How can we come to some kind of agreement instead of what they do say: My way or the highway. If you don't give us all 172, we're mad. I ask my colleague that question and yield the floor back to him.

Thank you, Madam President. I thank our great leader of the Judiciary Committee, Pat Leahy, leader on our side, for his stalwart defense of having a mainstream Judiciary and for his leadership on so many other issues.

I will note what we all start by noting: We have now confirmed 168 of the President's nominees and opposed 4. The President is getting his way 98 percent of the time on judicial nominations. To say that is obstructionism is to rewrite Webster's Dictionary. We have bent over backwards to be fair.

In fact, in many of our States, including my own State of New York, when the President and the White House ask for an agreement, we do agree; we are in the process of filling every vacancy in New York. I don't agree with many of the judges we are nominating on particular issues but they meet the fundamental test. The only litmus test I have is not on any one issue but, rather, will the judge interpret the law, not make it. That is what the Founding Fathers wanted judges to do in their infinite wisdom. I say ``infinite'' because my hair stands on edge; the longer I am around, the more I respect the wisdom of our Founding Fathers. In their infinite wisdom, they wanted judges to interpret law, not make it; they wanted the Senate, in its infinite wisdom, to be a check--a real check, not a rubberstamp--on the President's power to nominate. The Senate is a cooling saucer.

The other side says, let the majority rule. We know what will happen. Every single one of the President's nominees, so many chosen through ideological prisms, will be approved. I don't think we have had a situation, since the President has nominated anyone--I may be wrong-- where a single Republican opposed any of the President's nominees. Is that the open, grand debate the Founding Fathers envisioned? I may be off by an instance here and an instance there, but I am sure if you tabulate all the votes taken by Republicans on all of the nominees, the number of ``no'' votes, the percentage of ``no'' votes, is infinitesimal.

Yes, we are blocking judges by filibuster. That is part of the hallowed process around here of the Founding Fathers saying the Senate is the cooling saucer. We do not work as quickly as the House. We are not as restricted as the House. That is how it was intended to be. I don't believe in tit for tat. This is not a tit-for-tat comment, but the other side did not even let 50 judges come up for a vote in committee. They blocked a far higher percentage of President Clinton's judges than we have blocked of President Bush's judges.

The means is not the issue here; it is the end. So that is how it is. We have been very careful when we have opposed nominees. We have tried to give the President--it makes sense to do it--the benefit of the doubt. But some nominees are so far out of the mainstream, it is so clear they are going to make law, not interpret law, that we believe it is our constitutional obligation to our country and to the next generation of Americans to oppose them. Mr. Pryor is one of those nominees.

What the other side has tried to do is two types of things. One, they say we are opposing someone because of their race or sex, his or her religion. Those are cheap shots. We are opposing people because they are ideologically out of the mainstream, without any discrimination. If they are Black and out of the mainstream, or a woman and out of the mainstream, or Protestant, Catholic, or Jewish and out of the mainstream, we are going to oppose them.

The second thing they try to do is say it is because of one particular issue. There is a litmus test on Justice Brown; they are saying it is on affirmative action. On Attorney General Pryor, they are saying it is because of the issue of abortion.

Let's look at the record. I, myself, Senator Leahy, and just about every Democrat have voted for a majority of judges who disagree with our views on affirmative action and abortion. The number of judges I have voted for who are pro-life in the last 2 years far exceeds the number I have voted for who are pro-choice. That demolishes any argument of a litmus test. I have not asked too many judges their views on affirmative action, but my guess is, how ideologically driven the President's nominees are, that I have voted for a large number of nominees who disagree with my view on affirmative action as well. But it is not a litmus test. It is again a question, Will they make law or will they interpret law?

If we look at Attorney General Pryor's record, he is not a mainstream conservative. He is far out of the mainstream. Let me give some examples.

On criminal justice issues, I tend to be conservative. I tend to agree often with my Republican colleagues on criminal justice and other such issues. But, again, there are limits. He defended his State's practice of handcuffing prisoners to hitching posts in the hot Alabama summer for 7 hours

without giving them a drop of water to drink, and when the conservative supreme court said this violated the 8th amendment ban on cruel and unusual punishment, he criticized the court's decision, saying they were applying their ``own subjective views on the appropriate methods of prison discipline.''

How about States rights? Attorney General Pryor has been one of the staunchest advocates of the Reagan court's efforts to roll back the clock not just to the 1930s but to the 1890s. He is an ardent supporter of an activist Supreme Court agenda cutting back Congress's power to protect women, workers, consumers, the environment, and civil rights.

As Alabama attorney general, why was he the only one of 50 attorneys general urging the Supreme Court to undo significant portions of the Violence Against Women Act? The Violence Against Women Act is not out of the mainstream. In fact, it has overwhelming support from both parties. But here is Pryor, way beyond.

How about on the case of child welfare? At the same time he was conceding that Alabama had failed to fulfill the requirements of a Federal consent decree regarding the operation of the State's child welfare system, he was demanding that the State be let out of the deal. It is not so much the position he took but the comments he made afterward. Attorney General Pryor said:

My job is to make sure the State of Alabama isn't run by

federal courts. . . . My job isn't to come here and help

children.

I wonder how many Alabamians would agree with that statement.

When it comes to the environment, more of the same concerns. We have had a consensus for 40 years that the Constitution allows the Federal Government to regulate interstate waters. Not Attorney General Pryor-- again, the lone attorney general to file an amicus brief arguing the Constitution does not give the Federal Government the power to regulate interstate waters. He took this position despite decades of precedent and the Federal Clean Water Act, standing for the contrary position.

He has been probably the staunchest advocate of States rights of all the attorneys general, of the ability of the States to do what they want and the Federal Government cannot tell them what to do. But then, all of a sudden, when the Supreme Court in Bush v. Gore made a decision that overruled the State of Florida, only one attorney general intervened on behalf of either side; 49 attorneys general, whatever their views, had the good sense not to intervene in that highly charged case. Not Attorney General Pryor. It is so contrary to everything he believed in, everything else, that when he says, I will interpret the law--which he has stated before us; every nominee does, and some do, and some don't, and we have to make a judgment whether, when they say it to us, it will actually happen. As we all know, once we appoint them, the horse is out of the barn--lifetime appointment; they are there forever. But when he goes through a pretzel-like contortion--

Madam President, I ask my colleague to yield me another 2 minutes.

But when he goes through such a contortion to advocate against States rights on Bush v. Gore, you say this is not a man interpreting law; this is a man who is outcome determinative. He comes to the result he wants and then takes the law in that direction.

I do not have an easel here, so I thank my staff aide for helping me hold up this very heavy sign. It is heavy in its words.

Here is what Grant Woods, a former Republican attorney general of Arizona, said:

I would have great question of whether Mr. Pryor has an

ability to be nonpartisan. I would say he was probably the

most doctrinaire and most partisan of any attorney general I

dealt with in 8 years. So I think people would be wise to

question whether or not he's the right person to be

nonpartisan on the bench.

That did not come from some wild-eyed, crazy, liberal Democrat. It came from the attorney general--a Republican--of a conservative State, Arizona. He makes the case as good as anybody.

Let me say, in conclusion, Bill Pryor is a proud and distinguished ideological warrior. I respect him for it. But ideological warriors, whether from the left or from the right, are bad news for the bench. They want to make law, not interpret it. That is not what the Founding Fathers wanted and that is not what the American people want from their judges. I oppose the nomination.

Mr. President, I would like to take a moment to thank Senator Kohl for his generosity in including the increase of $200,000 for the control of the numerous species of birds that cause hardship throughout New York. When making the request, I meant for the money to be increased specifically to address needs of the Hudson Valley and parts on Long Island to control their populations of geese and ask that the report specifically refer to ``an increase of $200,000 for the control of geese in the State of New York.''

Mr. President, I would like to recognize Senator Bennett and Senator Kohl for their effort on behalf of our Nation's farmers. At this time, I would like to engage them in a colloquy regarding the need to provide aid to the fruit orchards of Western New York through the Tree Assistance Program.

As the Senators may know, New York is the third largest producer of tart cherries in the nation and Wayne County is the largest cherry-producing county in New York. Unfortunately, fruit orchards throughout Western New York sustained major damages as a result of a 3- day long ice storm in April. Approximately 85 percent of the tart cherry trees in Wayne County were severely damaged or destroyed by the storm. Throughout the region, sweet cherry, peach, pear, apple and plum trees were destroyed by the violent ice storm. The impact that these losses are already having on the fruit tree industry in New York is devastating and will continue to effect growers in for years to come since it takes new trees over eight years to mature. In fact, it is estimated that losses resulting from this April's storms could reach a total of $15,000,000.

Federal assistance is greatly needed to cover the expenses of removing and replacing the ruined trees. The Tree Assistance Program (TAP) was created in order to help farmers facing the challenges now faced by those in Western New York. The TAP provides assistance to eligible growers who have lost trees used for commercial purposes as a result of a natural disaster.

Since its reauthorization, the TAP has yet to receive funding in order to carry out its mission. However, the House-passed version of the FY04 Agricultural Appropriations Act contains $5,000,000 in funding for the TAP program in order to provide assistance to the growers of Western New York. The inclusion of these funds in this year's USDA budget are extremely important to the long term health of the fruit industry in New York.

I commend Senators Shelby and Sarbanes on a strong, bipartisan bill.

Reauthorizing the Fair Credit Reporting Act is vital to our national credit markets, to the broad credit access American consumers enjoy, and to the businesses that provide that credit. Indeed, it may be the most important piece of legislation that we enact in 2003.

Like all great pieces of legislation, this bill strikes a balance between those who would like to see more change and those who would like to see less. It is a true compromise between competing interests.

While preserving some of the structure of how businesses operate, it adds significant new consumer protections and disclosure rights-- enhanced protection from identity theft, distribution of free credit reports annually, better notice when adverse actions are taken.

I want to speak for a minute about identity theft.

While our national credit system--and the digital age we now live in--has brought great benefits, it also has a dark underside: identity theft.

It is now so easy for credit histories to be accessed, that the security of some of our most private data is easily compromised. As a result, becoming a victim of identity theft is as easy as saying your ABCs.

So what is identity theft? It sounds like something out of an Isaac Asimov

science fiction novel but it is a very real crime that could affect all of us. Anyone who has ever applied for a credit card, a driver's license, a social security number, even a cell phone, could become a victim.

Last year, the Federal Trade Commission received twice as many complaints about identity theft as it did in 2001. And ID theft is projected to grow in the future. Some forecasts predict that by 2006, between 500,000 and 700,000 Americans will be victimized annually.

This issue is of particular concern to New York State. New York has the second highest number of cases of ID theft of any state in the county. And my hometown, New York City, has the unfortunate distinction of being the identity theft capital of the United States--it suffers more identity theft than any other city in the nation. New York businesses also suffer as the financial costs of identity theft nationwide often fall on the financial institutions based in New York. ID theft costs businesses millions of dollars each year because criminals use false pretenses to purchase goods, leaving businesses to foot the bill. Identity theft is a scourge on New York consumers and New York businesses. And it is high time we fixed this problem.

Victims of identity theft often spend hundreds if not thousands of dollars and years repairing their financial lives. But there is more at stake here than just money. By destroying a person's credit rating, identity theft jeopardizes an honest person's ability to get a credit card, receive approval for a loan, get a job, or even buy a house.

Identity theft doesn't just mean having to replace an ATM card, it means having to rebuild a life.

So I am glad we are addressing ID theft in a strong manner in this bill and commend my colleagues for their leadership on this issue.

I also want to speak about another critical part of the bill-- improving consumer access to their credit scores, the principle factor in determining a person's credit worthiness and the loan terms they receive. For years, consumers have been kept in the dark about what their credit score is and how it is computed. At long last, this legislation lifts the veil of secrecy over credit scores and creates greater opportunity for securing a home mortgage at considerably less expense.

The legislation that Senator Allard and I worked on with our Chairman and ranking member will finally put an end to this practice by ensuring that consumers have access to their credit score. This will level the information playing field between consumers and lenders.

Specifically, S. 1753 would require credit bureaus to disclose a consumer's credit score upon application for a mortgage. The bill also would require any bank using a credit score to service a mortgage to provide the borrower with the information used to create this credit score. And the credit score, whether obtained from a credit bureau, generated internally by the lender, or created by a third party, would have to be accompanied by a description of credit scores and the data used to generate them. This will go a long way toward demystifying credit scores for consumers. I think it is a real victory for consumers. And, again, I am proud to have worked with my colleague Senator Allard on this section of the bill.

So in conclusion let me say that I think the bill maintains the key foundation of the national credit system which has served consumers and the country so well--the ability to get instant credit, to get world class customer service, and to get some of the lowest credit rates in the world. And it enhances some of the new rights consumers need in this digital age we now live in.

Thank you, Madam President.

I thank Chairman Shelby and Ranking Member Sarbanes for the wonderful job they did on this legislation. An important measure such as this that sails through the floor in 1 day is a tribute to the statesmanlike and fine legislative hand of our new chairman of the Banking Committee and, of course, the steady and wise old hand of our former chairman of the Banking Committee and now the ranking member.

I have been ready to offer an amendment on an issue related but not directly on point to this legislation; that is, debit cards. Right now, millions of Americans use debit cards. They are great. You don't need a checkbook when you have a debit card. It solves many problems. It is a real measure of convenience. They are easy and they save a little time. You don't have to go to the bank and get cash. It is a win-win, except for one catch: Most consumers think when they pay with a debit card it is free; that it doesn't cost anything. However, many banks are now charging the consumer when he or she uses the debit card as much as $1.50. In my State of New York, about half the banks charge anywhere between 25 cents to $1.50. When I have asked consumers, they don't know. My wife didn't know.

What I want to do is what I did in the House on credit cards and what I was able to do here in the Senate with ATMs--not eliminate the fees, because that is up to each bank but, rather, disclose them.

There are a couple of problems with disclosure. One is because it is not the banks that own the machines--the ATMs--rather, it is the stores.

It is a little more difficult to get that information out to the consumer even when the consumer swipes the card. What we have done here is ask the Federal Reserve to within 6 months study this issue and show us how it can be done.

In addition, there is another point our amendment has that we ask the Federal Reserve to study; that is, at least putting it on the monthly bank statement in clear letters what the fees are for debit cards. That is not done now. There are kids in college who were mailed these cards, and they used them to buy a Coke. The Coke was a dollar. The fee was a dollar. If they knew it cost $1, they probably wouldn't do it anymore.

I would like to engage in a colloquy with the chairman of the committee.

As the chairman knows, after a long fight Congress enacted legislation so that every ATM--no matter if it is run by a bank or private operator--tells you when you are being charged. Customers have come to know and expect that warning. But there is no warning when you use your card at a store and use it as a debit card. As often as not, you are charged. Is that correct?

I ask unanimous consent that the letter the chairman, the ranking member, and myself are submitting to the Federal Reserve Board be printed in the Record.

Mr. Chairman, I know you have been in support of the Feds doing the study so we can see what to do next year in terms of legislation; I ask if that is amenable to you?

I ask the ranking member for his views on this letter and what we have to do in terms of disclosure on debit cards.

I thank the ranking member. We will make progress on debit cards. I will not go into all the details of the study. The letter is quite detailed. The Federal Reserve is willing to do it.

I make two other points after commending my colleagues on the bill overall. I am proud to be a cosponsor and supporter of this bill. There are two parts of the bill in which I was particularly interested. One is identity theft which has become an epidemic.

When your identity is stolen, it can take years to bring back your credit rating, even through no fault of your own. The criminals are getting very good at identity theft.

I introduced comprehensive legislation in this regard much earlier this year. The chairman has added provisions very similar to those I have introduced. As a result, this bill does a good job. Right now, becoming a victim of identity theft is as easy as saying your ABC's. With this legislation, it will be tougher.

My hometown, New York City, has the unfortunate distinction of being the identity theft capital of the world. I am glad we were able to do something quickly in that regard.

Second, on credit scoring, this is another issue on which the Senator from Colorado and myself worked long and hard. We thank the chairman and ranking member for incorporating that into the legislation.

The bottom line is, consumers have been kept in the dark about what their credit score is and how it is computed. This legislation, by adding the Schumer-Allard provision, lifts the veil of secrecy over credit scores. When a bank is going to charge you more for your mortgage, which could mean hundreds and hundreds of dollars every quarter, much more money every month, now you will be able to find out why and if there is incorrect information as to why you are being charged more. Maybe it is because you have a whole lot of credit cards, for instance, even if you pay your bills on time. You will be able to correct it.

This is fine legislation. I am speeding things along here because I know people want to move quickly. I thank the chairman.

I thank my colleague for yielding.

Mr. President, this is a difficult decision in a very certain sense. I listened to the sincere words of my colleague from Tennessee. I think they were heartfelt and well spoken. I have tremendous respect for my two colleagues from Mississippi, and I know particularly to my friend Senator Lott how much this means. He has worked very hard and diligently on behalf of Judge Pickering's nomination.

I must rise to oppose it, and let me explain both to my colleagues and to everybody, I guess, why. I am a patriot. I love America. My family came to this country 5, 3, and 2 generations ago, poor as church mice, discriminated against in Europe. My dad could not graduate from college, and I am a United States Senator. God bless America. What a great country.

I study the history of America. One of the things I try to study is what are our faults, what are our strengths, how do we make sure what happened to the Roman Empire and the British Empire does not happen to this country. One of the most profound scholars who studied America was Alexis de Tocqueville. He came to America in 1832 or so, traveled across the country, including upstate New York, and he wrote a couple of things. First, he wrote then when we were a small nation, not mighty like the great European nations of Britain, France, or Russia. He wrote that we would become the greatest country in the world. That was pretty omniscient. But he also wrote that there was one thing that could do America in, and that was the poison of race.

We have made great progress. We all know it and everybody knows it. Much of the progress was made--all of it just about--in the last 40 years. We did not make much progress from 1865 to, say, 1960 or 1955.

I guess Brown v. Board started the whole wellspring. Frankly, for the first time in my life I am optimistic about racial relations in America. I think, over time, things will heal. I didn't used to think that, even 5 years ago.

But we still have a lot of healing to do, despite the progress. I have to say I don't think the nomination of Judge Pickering--I know he is people's friend; I know lots of fine people think he is a fine man-- helps that healing. I think it hurts it. I base my decision not only on his record, which--I would have to disagree, in all due respect, with my friend from Tennessee--on race issues is, at best, mixed. The cross- burning case bothers me greatly because if you are sensitive to race, even if you think a case was wrongly decided, you don't go through the extra legal means, on a cross-burning case, to do what you have to do.

Does that mean a person should be put in jail or excoriated? No. Does it mean if he runs for public office that he is going to lose? No.

But on the Fifth Circuit, the circuit that has had the great names at healing race and racial divisions that my colleague from Tennessee mentioned, should not we be extra careful about trying to bring a unifying figure to that bench, particularly when it represents more minorities than any other?

The bottom line is, while we can find individual names, to me it is overwhelmingly clear that the Black community in Mississippi--which ought to have pretty good judgment about who did what, when, and how far we have come--is quite overwhelmingly against Judge Pickering.

You can say it is politics. But when we hear the head of the NAACP say, as he told us yesterday, that every single chapter--I don't remember how many there were, like 140--were against Judge Pickering, that means something. When you hear that all but a handful of the Black elected officials in Mississippi are against Judge Pickering, that means something.

Frankly, in this body we don't have an African American to give voice to their view, the African American view, diverse as it is, about whether Judge Pickering is a healing figure and deserves to be on this exalted circuit. We are not demoting him. We are not excoriating him. We are debating whether he should be promoted to this important bench, particularly when it comes to race and civil rights. And the overwhelming voice is no.

I ask unanimous consent from my colleague to be given an additional 3 minutes.

So the overwhelming voice is no. The elected Black officials of Mississippi--I don't know the percentage, but I think it is against him. The only Black Member of Congress speaks strongly against him. He doesn't just say, well, I wouldn't vote for him, but it is an either/or situation, and that has to influence us. It is not dispositive. People can say ``these groups.'' Well, the NAACP is not just a group. It has been the leading organization. It is a mainstream African-American organization.

There are groups on the other side lobbying for Judge Pickering. There are groups on this side against. I don't know why my colleagues, some on the other side, say the groups that lobby against what they want are evil, and the groups that lobby for are doing American justice. That is what groups do, and we listen to them sometimes.

I, from New York, don't know that much about this. I try to study history, but I haven't lived there. I haven't gone through the history that my colleagues from Mississippi or Tennessee have. But I have to rely on other voices as well.

So the fork in the road we come to here is this: On this nomination in this important circuit which has, indeed, done so much to move us forward--and I do believe we will continue to move forward as a country; even as Alexis de Toqueville said, on the poison of race--do we appoint a man who, on racial issues, has a record that at best is mixed, and who recently, at a very minimum, has shown insensitivity on the cross-burning case? Sure, there was a disparity of sentence. One thing I know quite well, in criminal law there are always disparities of sentence when there is a plea bargain, and prosecutors always go to someone in the case and say: If you plea bargain, you will get fewer years than if you don't. So that is not a great injustice. It happens every day in every court in this land. On this particular case, that is where Judge Pickering's heart was, to take it to a higher level. It is bothersome, particularly when it comes to nominating someone, not just to be a district court judge--which he is now--but nominated to the exalted Fifth Circuit, the racial healer in America for so long.

So in my view--no aspersions to my colleagues from Mississippi who feel so strongly about this; no aspersions to my colleague from Tennessee who was eloquent, in my opinion; and no aspersions to Judge Pickering as well--but we can do better, particularly on the Fifth Circuit, when it comes to the issue of race, which has plagued the regions of the Fifth Circuit and plagued my region as well. We can do better.

I urge this nomination be defeated.