Floor Statements

Mr. President, I know there are a group of us who wish to speak about Senator Moynihan. I think that would be the next order of business, and so I will proceed.

Let me say that yesterday all of us were caused great sorrow when we heard the terrible news that Senator Daniel Patrick Moynihan, a giant among us, had passed from our midst. While the sadness is still there, today I rise to pay tribute to Pat Moynihan and to the extraordinary life that he led.

It can rarely be said about someone that they changed the world and made it a better place just with their ideas. Senator Moynihan was such an individual. He was a font of ideas. He was not afraid to utter them and he uttered them in such a way that people listened, paid attention, and changed the way they lived for the better.

Pat Moynihan was a friend to me, a mentor. I first met him when I attended his course at Harvard while I was a student and he was a professor. Throughout the many years, he extended me so many kindnesses I can't even count them. But beyond the personal--and every one of us has our personal stories about Pat--is what he did for all of us. He was known in the Senate as a unique individual, as a person of ideas in a body that, frankly, has always needed more of them. He was the kind of Senator that the Founding Fathers, as they look down on this body, would look at and smile and say: That's the kind of person we wanted to serve in the Senate.

I think the Washington Post editorial said it very well today. It said:

He pursued with distinction enough careers for half a dozen

men of lesser talents and imagination--politician,

Presidential adviser, diplomat, author, professor and public

intellectual.

As someone who is barely managing to pursue only one of those many careers, I can't help but observe that, as you look around, there are no more Pat Moynihans in part because of the man--Pat Moynihan's vision, erudition, intellect, dazzling wit, and moral conviction were second to none--and in part because of the times. Pat Moynihan was one of the preeminent public intellectuals in a time when such figures and their ideas could command the Nation's attention in a way that I fear is now all but gone from American life. I hope and pray that is not true.

But we mourn his passing. We mourn the passing of his time from the national stage and from this beloved institution that he loved so well and served so well in for 24 years, the Senate.

In the coming days, many will pay tribute to Pat Moynihan's leadership and vision on so many ideas where his mark on policy and his mark on individuals are well known. There are children born in this country and in foreign countries whose lives are better, who will live better lives because Pat Moynihan lived and worked on this Earth.

His leadership in Social Security, in welfare reform, in poverty, in tax policy, in trade, in education, in immigration, in foreign policy, and most recently in government secrecy--any one

of those would have been enough to be a capstone of an ordinary Senator's career. But Pat did them all.

Adam Clymer of the New York Times chronicled Pat's career and life movingly and brilliantly today. I ask unanimous consent his piece be printed in the Record.

As a fellow New Yorker, I am going to speak of Pat Moynihan as a builder. He was known as a thinker, but we forget he was also a builder, a builder of bricks and mortar, somebody who taught us in New York and the country to think grandly of public works once again. Those who knew Moynihan best say that is where his heart truly lay.

The week after I won election for the Senate, Pat Moynihan called me into his office. He told me he would announce he wasn't going to run again. He said: I am going to bequeath to you a gift. I am going to recommend that my staffer Polly Trottenberg work for you. Well I took his advice and hired

her to be my Legislative Director and she has been with me ever since. He did many nice things for me. That was certainly one of them.

Because she worked so long and well for him, I asked Polly today what Pat Moynihan had regarded as his greatest accomplishment and she said something that surprised me. But when you think about it, it should not be surprising. It was how he reclaimed Pennsylvania Avenue in this city and made it big and grand and beautiful again and how he lived out the rest of his days there with his wonderful wife Liz.

Pat Moynihan not only taught us to think grandly about public works on the national scale, he also taught us to cherish our cities, to make them lively and beautiful, and none so more than his two beloved cities, New York and Washington.

His groundbreaking work on Federal transportation policy remains without equal. Pat Moynihan is the father of ISTEA, the Intermodal Surface Transportation Efficiency Act of 1991, the most important piece of transportation legislation since President Eisenhower's Federal Highway Act of 1956.

Pat Moynihan, as a social scientist, urban planner, and old-fashioned New York politician, helped change the course of American transportation, weaning us from our highways-only approach that had destroyed so many urban neighbors.

Instead, ISTEA encouraged so many communities to invest in other modes, such as transit, rail, and even bipeds. I ride a bike every Saturday around New York. It is another small way I thank Pat Moynihan.

He provided citizens with far greater say in what types of projects would be built in their communities. ISTEA was especially important to New York. It enabled the State to restore some of our most important but neglected public works, such as the magnificent Brooklyn Bridge as well as dream new dreams like I-86 across the southern tier, and the Second Avenue subway.

His passion and dedication to public architecture is well known and dates from his days as a young aide to President Kennedy who, right before his death, tasked Moynihan with restoring Pennsylvania Avenue here in Washington. Moynihan succeeded brilliantly in his task, with the final piece of Pennsylvania Avenue, the Ronald Reagan Building and International Trade Center, unveiled a few years ago and instantly hailed as one of the best new buildings to grace the Capital.

Of course, Senator Moynihan was also a leading force for architecture in New York. He was responsible for building a beautiful Federal courthouse at 500 Pearl Street in Lower Manhattan, which we were proud to name after him. Completed in 1994, the Daniel Patrick Moynihan Federal Courthouse embodies the same spirit as his previous architectural endeavors, an extraordinary work of art inside and outside.

He was responsible for the restoration of the spectacular Beaux-Arts Customs House at Bowling Green and for recognizing what a treasure we have in Governors Island.

He is beloved in Buffalo, at the other end of our State, for reawakening the city's appreciation for its architectural heritage, which includes Frank Lloyd Wright houses and the Prudential Building, one of the best known early skyscrapers by the architect Louis H. Sullivan, a building which Moynihan helped restore and then chose as his Buffalo office.

Moynihan has also spurred a powerful and passionate popular movement, which is gaining strength as he leaves us, in Buffalo to build a new signature Peace Bridge over the Niagara River.

His last project--one that I regret he didn't live to see completed-- was his beloved Pennsylvania Station. In 1963, Pat Moynihan was one a group of prescient New Yorkers who protested the tragic razing of our city's spectacular Penn Station--a glorious public building designed by the Nation's premier architectural firm of the time, McKim, Mead & White.

It was Pat Moynihan who recognized years ago that across the street from what is now a sad basement terminal that functions--barely--as New York City's train station, sits the James A. Farley Post Office Building, built by the same architects in much the same grand design as the old Penn Station. Pat Moynihan recognized that since the very same railroad tracks that run under the current Penn Station also run beneath the Farley Building, we could use the Farley Building to once again create a train station worthy of our grand city.

He then did the impossible: He persuaded New York City, New York State, the U.S. Postal Service, the U.S. Department of Transportation, Amtrak, congressional appropriators, and President Clinton himself, to commit to making this project succeed. And I can tell you, I don't think President Clinton even knew what hit him.

Herbert Muschamp, the noted New York Times architecture critic, praised the new Penn Station design, which brilliantly fuses the classical elements of the Farley Building with a dramatic, light-filled concourse, when he wrote:

In an era better known for the decrepitude of its

infrastructure than for inspiring new visions of the city's

future, the plan comes as proof that New York can still

undertake major public works. This is the most important

transportation project undertaken in New York City in several

generations.

We have Pat Moynihan to thank for that and so many other things.

The epitaph given to Sir Christopher Wren, designer of St. Paul's Cathedral in London, is an equally fitting epitaph for Senator Daniel Patrick Moynihan: ``Si Monumentum Requiris Circumspice''--``If you would see this man's monument, look around.''

And not only look at the buildings, look at people, look at highways, look at Government projects and programs--all of which Pat Moynihan had a tremendous effect on.

I join with every New Yorker and every American in mourning Pat Moynihan's passing but celebrating his extraordinary life, his extraordinary career, celebrating the extraordinary man himself.

I give my heartfelt condolences to his family--Liz and Timothy and Maura and John and his grandchilden, Michael Patrick and Zora--and count myself among the many others who will miss him dearly.

Mr. President, I will end with a prayer. It is my hope, it is my prayer, that God grant us a few more Pat Moynihans in this Senate, in this country, in this world.

I yield the floor.

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

Madam President, I rise in abject sadness on the horrible news that Senator Moynihan has passed from our midst. When it was announced in our caucus that this terrible event had occurred, you could just see the energy come out of the room and the sadness come on everybody's face. Senator Moynihan was a unique individual. He wasn't just another Senator. He wasn't just another human being. He was very special.

Rarely has one man changed society so with his ideas, the idea that one man can change society for the better. Senator Moynihan's life was testament to that fact. His life was testament to the fact that one man who just thinks can make an enormous difference. He was truly a giant-- a giant as a thinker, as a Senator, and as a human being. He was a kind and compassionate person, a loving husband. Liz, our thoughts go out to you and to all of the Moynihan children and family. I have known him for a very long time.

When I was a student at Harvard College, I audited his course. I got to know him a little bit then. As I went through my congressional career, we used to have lunch every so often. He was a complete joy to just sit down and have lunch with and exchange ideas.

He looked out for people. He cared about people. He had real courage. When he disagreed with the conventional wisdom, nothing would stop Pat Moynihan from making his view heard and making it heard in such an interesting and intellectually and thoughtful way.

Again, he changed our world for the better. There are hundreds of millions of human beings in this country who do not know it, but he made their lives better. There are billions of people in the world, and through his work he made their lives better.

Senator Moynihan was loved in my home State of New York from one end of the State to the other. We are a big, broad, diverse State. It is very hard to find consensus with 19 million New Yorkers, but just about everybody loved Pat Moynihan. He did it through a big heart and a great mind.

He is now with his Maker. I know I will be looking up to the heavens for inspiration, as I looked to Senator Moynihan's office when he was still with us.

I very much regret his passing. I pray for the Moynihan family and for the children. I hope God gives us a few more Pat Moynihans in this Senate and in this country. I thank the Chair.

Madam President, I call up amendment No. 285.

Madam President, this amendment, which is a bipartisan amendment, cosponsored by Senator Biden of Delaware, Senator Snowe of Maine, Senator Smith of Oregon, Senator Bayh of Indiana, and myself is simply a sense-of-the-Senate amendment that when we come back with a

tax proposal, it ought to increase the deductibility of college tuition.

As you know, we worked 2 years ago and this year for the first time tuition is deductible, $3,000. It goes up to $4,000 in 2004.

This amendment is a sense of the Senate, a bipartisan amendment that urges that tuition deductibility be raised from $3,000 to $8,000 in the year 2003, and from $4,000 to $12,000 in the year 2004 and the years thereafter. The high cost of tuition, we know, is a huge burden, particularly on middle-class families.

I urge the adoption of the amendment.

Mr. President, the first vote will be on the amendment that I offered, along with many of my colleagues: Senator Clinton, Senator Daschle, Senator Byrd, and Senator Lieberman. It is the homeland security amendment that we debated. I remind my colleagues how important homeland security is, how we have to fight a good offense. Praise God, it seems as if that is going quite well in Iraq. It is also very important for us to fight defense and we have not been doing an adequate job.

I believe Senator Cochran will offer an alternative version later on today, but I would make two points about the Schumer amendment as opposed to the Cochran amendment. One is that the Cochran amendment is not as generous, as I understand it. I have just received it. It is even in this fiscal year, the 2003 fiscal year, when our police officers, our firefighters are hurting from one end of the country to the other, when our port security is not what it should be, when our rail security is not what it should be, the Cochran amendment is considerably lower.

I am sure if my colleagues go back and ask their police and fire departments which amendment they prefer, it is the Schumer amendment.

Second and more important, we have close to a $700 billion tax cut. We also have programs on education, on health care, on transportation, the FBI and everything else. The alternative amendment cuts every one of those. Are my colleagues going to tell their police departments that they are going to take away Byrne grants and COPS money to give them this money? Are they going to take away fire money to give them this money? Are they going to cut road building? Are they going to cut the FBI? Are they going to cut everything that is in function 920 to do homeland security? Just as we should not be pitting the defense and the money needed for our soldiers overseas against domestic needs like education, health care and transportation, we should not be pitting homeland security against that. I ask my colleagues to think about it. We have a huge tax cut. This amendment takes a very small amount-- in a quick calculation--less than 1 or 2 percent of that tax cut.

Where should the money come from? I don't believe we are actually going to cut education any further, no matter what this budget resolution does. I don't believe we will cut health care any further. I don't think we will cut road building any further. They are stretched to the bone because of the necessities of the budget.

This amendment offers the real chance at homeland security. This is the amendment. To insist that every dollar of the tax cut must be sacrosanct while we sacrifice the rest of the Government--when your school boards come to you, when your hospitals come to you, when your construction companies come to you, and your Governors and mayors and, of course, your police chiefs and firefighters, are you going to say you let them down?

I urge, I hope, I pray; this is a time when we need unity. There is no problem, none whatever, with taking a small amount, a total over 10 years of $38 billion, a total of over $5 billion this fiscal year, 2003, and next year, 2004, getting to $8 billion, out of that tax cut because that will fund homeland security.

I urge my colleagues to vote for this amendment and stand up for their local police, their local firefighters, their local schools.

I ask for the yeas and nays.

Mr. President, I am surprised at and happy to support the Cochran amendment. Unlike what I had been told last night, it does not take the money out of 920. It rather adds the cap. It is $3.5 billion of homeland security money which we very much need.

I hasten to add, I do not think $3.5 billion is enough. Our amendment had over $5 billion, and it does not go into 2004 and the outyears. We have a long way to go on homeland security, but this is a good first step.

I am delighted to support the amendment, and I thank the Senator from Mississippi for helping us raise the amount of homeland security money.

I would say 30 minutes.

Mr. President, before I begin, I ask unanimous consent that the pending amendments be set aside and I send an amendment to the desk and ask for its immediate consideration.

I ask unanimous consent the amendment be considered as read.

I could not hear the Senator.

Then I would imagine that we just--the chairman of the Budget Committee was off the floor. We had gotten unanimous consent to put this amendment forward. I take it we should just speak on the amendment.

I thank the Chair. This amendment is relevant, of course, to our new circumstances since last night, but I would just want to address my colleagues in the Senate on the circumstances of last night for a few minutes before getting to the amendment, because the President spoke to the American people. He said hostilities are commenced.

I would just leave three thoughts as we begin on the era of this war. First is a prayer.

First, Mr. President, as I listened to the chaplain from St. Joseph's give the prayer and we said the pledge, I think every one of us who was here felt a renewed depth and meaning to both the prayer and the pledge, given the times we are in.

I would like to just add my prayer. My prayer is a simple one: It is that our military action is swift and decisive, with a minimum of casualties, both military and civilian. And my prayer, of course, goes to the soldiers, first and foremost, who are now in the Iraqi theater. They are continuing a grand American tradition, a tradition where civilians have laid down their jobs and then defended this country when the Commander in Chief thought they should.

I have been to several of the debarkation ceremonies at Fort Drum and Canandaigua, on Long Island, as soldiers have boarded planes to go over to the Middle East. Because so many of our soldiers are now reservists and Army National Guard, they are a little older. They are every bit as trained and seasoned as the enlisted men and women, and I know our generals have complete confidence in them, as I do.

But you see them with their families--not only with their parents, whom we have always seen with our soldiers, but in much greater frequency with their husbands and wives and their children. And we know the butterflies that are in all the stomachs as they prepare to leave. I look in their faces as they leave, and I am humbled and proud of them. My prayers are with them. We all pray for them.

Again, we pray that the military action is swift and decisive and there be very few casualties, both military and civilian. The military, of course, I have spoken of. But I pray there are few civilian casualties. The war we are waging is not a war against the Iraqi people. It is a war aimed at the leadership of Iraq. The average Iraqi citizens--a husband or a wife, a mother or a father, a child, a son or a daughter--have the same loves and cares and worries in many ways that all the rest of the citizens of the world have. We pray that the number of casualties among the civilians is small.

So that is the prayer of which the guest Chaplain from St. Peter's reminded me.

Then we said the pledge to the flag. Our flag is a flag of unity. Now is the time for unity, for all of us to back our soldiers. There have been many different views held, with great passion, on what we should do in Iraq; there is no question about that. Every one of us here, on both sides of the aisle, might have scripted things differently. I, for one, have said I hoped we could get more international support. But if every one of us just said, ``Only our

plan, or nothing,'' we would be paralyzed. I believe Saddam Hussein has to be disarmed and removed from power. That is why I supported the President in his resolution. Now I believe is a time for unity. Now is a time for us to be backing up our troops. Now is a time that the President becomes Commander in Chief and that unity is called for.

I just add one caveat: Freedom is what we are fighting for. Not everyone will feel the call for unity that I think is incumbent upon all of us in this body as leaders of this country, and some will continue to dissent. I hope we respect that dissent. In my State, there are many people whose views are heartfelt. They are different from mine. They are different from yours. They are probably different from the views of most of us in this Chamber. And the right to dissent is what we are fighting for. It is part of this tradition. I hope we are mindful of that, as well.

Then one other thought. As I said, I pray that the military action is swift and decisive and that our victory comes quickly. Let us hope we can sow a wise peace in Iraq as well. Let us hope there can be a democratic Iraq despite the fact there are so many ethnic divisions. Let us hope we can bring democracy to the Middle East, a place starved for freedom, a place starved for individual choice, a place starved for prosperity.

Let us hope the people of the Middle East, the Iraqi people, like everyone else, want to bring stability and a good life to them and their families. The beauty of a democracy is that you can strive to help your family and help yourself and at the same time you help the whole country. Unfortunately, the peoples of the Middle East--many of them--have not been fed a diet of food, clothing, and shelter but have been fed a diet of propaganda and hatred, which dictators often use to feed their people when they cannot provide a system of freedom, democratically and economically, that provides food. Let's hope that can change as well.

So, Mr. President, we are in a new era. I realized this in my city from the time 9/11 happened. I put this flag on, on 9/12, in memory of all those who were then missing and the thousands who proved to be lost, gone. I met their families. I just met with some yesterday. I know the holes in their hearts, the sadness, frustration, and anger they feel. But we cannot forget them. We cannot forget what happened.

I will wear this flag, God willing, this very one, every day for the rest of my life to think of them, to remind me that whatever our views here are, we have to do something to stop the scourge of terrorism, which will grow and grow and grow if we do nothing.

Now, on to the amendment I would like to discuss, I realize it is not pending before us, but it is a relevant amendment. I, like my colleague from North Dakota, like my colleague from Nevada, hope we will have a full discussion about supporting our troops and the impending war. I have had an opportunity to express some of my views. I have limited them because I know the leadership wants to move forward, at least at this point, with this amendment. But this amendment at least has some relevance.

The amendment is one that deals with homeland security. It is an amendment that deals, in my judgment at least, with an unfulfilled need in the budget, the need to protect our homeland.

The whole world has changed since 9/11. We know that. We all have different views, again, as to how we ought to adapt to that change, but we cannot just ignore it. I think that is clear. History teaches us that.

One of the things we have to learn and adjust to do is protect our homeland. You cannot win the war on terror, in my opinion, with just an offense; you need a defense. Like any good sports team, like, say, the Syracuse Orangemen, who are playing in the NCAA, you need a good offense and a good defense.

There has been a great deal of focus on the offense. I do not think there has been enough focus on the defense because terrorists, unfortunately, are going to be with us for a while. The new technology that has blessed our lives and changed our country, that has created a lot of the prosperity we have seen in the last few decades, has an evil underside, and that is that small groups of bad people can use that technology to do huge damage in our homeland, damage we never imagined could be done until 2 years ago. That fact is going to be with us not just for 2 or 3 years, it is going to be with us for decades. And even if, God willing, we were to get rid of al-Qaida, and get rid of Saddam and his cronies who lead Iraq right now, there will be new terrorists who will come up.

We have to protect our homeland. The odds are we will not be able to catch up to every new terrorist group that starts. The sad fact is, you can be in a cave anywhere in this world and if you have a wireless connection to the Internet, you can learn a whole lot about America. Then even a small group united together can do real damage here. So we have to look at every one of our weak pressure points and tighten them up.

You can't just be content to fight a war overseas. To preserve and to protect our country, we must protect it at home. We have to try to think ahead of the terrorists. We have to try to think where they will hit us so that we can prevent that from happening. The list is a long one. There are probably places that no one has even thought of that we are weak in and where we need protection. But we have to do it.

I make one other point. We can't delay. It is a huge undertaking. That is true. The terrorists will look to our weaknesses. That is true. If we strengthen air security, they will look to rail. If we strengthen rail security, they will look to ports. If we deal with bioterrorism, they will look at cyber-terrorism. Because of the information revolution, they have access to everything about America. It is all on the Internet. We will not stop the Internet. So we have to tighten up, and tightening up costs money.

This budget does not acknowledge that reality. That is the fundamental problem. I am honored and privileged to introduce this amendment with my colleague from New York, as well as the help of the ranking member of the Budget Committee, Senator Conrad, our minority leader Senator Daschle, Senator Lieberman, and Senator Byrd. A large number of our Democratic caucus participated in crafting it.

This budget resolution is the first step, but we are going to continue to fight on the supplemental appropriation that comes up and throughout the year because we believe homeland security is an imperative for America. We believe we have to do something about it, and we can't wait. The horrible feeling that so many of us had on September 12, mostly for the loss and the danger and damage, but also it already came into our minds, what if we had done this, what if we had done that? As we learned more, there were lots more what ifs that were asked. We don't want a second terrorist incident to occur and we are saying ``what if'' again. This amendment is intended to make the likelihood of those what ifs much lower. It is an attempt to diminish it.

Let me explain what the amendment does. It provides an additional $88 billion for fiscal years 2003 to 2013 for homeland security over and above the current proposed 2004 budget, including $5 billion in the immediate 2003 funding for first responders, port, border, and transportation security. That is a limited amount of money, but remember we only have half a year left. We don't want to waste money. We want it spent wisely. We thought this was about the maximum amount in this fiscal year, where everything is just getting started up in homeland security, that people could use.

For 2004, the proposed budget would spend about $380 billion on defense--I support that, I support our troops--but we are only spending $37.7 billion on homeland security. We can do better than that. We should do better. I hope this amendment will be a bipartisan one in that regard. It is fully offset, and it provides a little deficit reduction as well.

I am happy to yield to my colleague for the purpose of a question.

In 2003, it is $5 billion. In 2004, it is approximately 6.5.

Mr. President, I ask unanimous consent that the amendment be sent to the desk.

I thank my friend from Oklahoma. I know that is what he wanted to do. We had brought it to the desk, and I had asked unanimous consent because I thought they had seen it and approved it. I appreciate that.

Madam President, the first part of this amendment deals with homeland security. The additional homeland security requirements on every one of our localities are enormous. Just yesterday, the mayor of my city, Mayor Bloomberg, and Secretary Tom Ridge announced that the administration would be seeking additional funding for homeland security in the next supplemental budget. That is a great first step. I hope there are sufficient resources to deal with the problem, particularly with the first responders who are definitely suffering.

Since September 11, the Congress has worked with the administration in a bipartisan fashion in many ways. I hope this homeland security issue can become a bipartisan one as well. But it does involve spending the dollars necessary. Words alone will not bring the homeland security that our people need.

Let's first go to first responders. I know in New York City, first responders are stretched as far as they can be. Like most other places, we have fiscal problems. So the number, for instance, of police officers is 4,000 lower than it was before. Many other agencies have fewer people working. In all instances, our police, firefighters, being the patriotic people they are, have a high proportion in the reserves, so we are losing people going overseas to fight for us. At the same time, there are huge new responsibilities. For instance, the many bridges and tunnels of New York City, the many buildings, houses of worship have to be guarded more carefully. That takes a huge expense. That is during normal times. In addition to all of those expenses, our police chief, Commissioner Kelly, set up something, with Mayor Bloomberg, called Operation Atlas to deal with wartime. It is another $5 million a week. The mayor wisely said that he was not going to cut back on security if we didn't get Federal help for it, but it is stretching the people of our city and the first responders of our city. That is true with the brave firefighters. That is true with other first responders. It is true with the hospital staff who have to prepare for, God forbid, a bioterrorist attack. Everywhere we look, there are new needs. It is not just in New York City.

I have an article from yesterday's Rochester Democratic Chronicle, the leading paper in Rochester. It talks about Rochester. It is a middle-size city. It has about 230,000 people in the city, close to a million in the greater metropolitan area--800,000. The city has its own burdens, as does every city. It is on Lake Ontario, which is pretty much unguarded. It is near the Canadian border. It is a little bit east of Lackawanna, which is near Buffalo, where the cell was found.

I ask unanimous consent that this article be printed in the Record.

I thank the Chair. Madam President, this article talks about what Rochester has to do. It talks about the airport and how they need new security and are dealing with new security at the airport. It talks about the border.

Again, Rochester is on the border. There is Lake Ontario, but like many cities in the Northeast and Middle West, it shares a border or is close to a border with Canada. It talks about some miles east of Rochester is the Ginna Nuclear Power Plant. It has to be protected. We cannot leave it open the way it was before.

Kodak, the largest employer in Rochester, uses huge amounts of chemicals that are flammable. Rochester is doing what it can to protect Kodak.

The food supply: We have a lot of farming areas in that part of our State, very prosperous, very fertile farms. People are worried, our authorities are worried about the food supply and food tampering. So they are looking at that area.

The Federal building, which houses some judges and other offices and law enforcement, has to be guarded. The State of my friend from Oklahoma was hit several years ago. We cannot leave our Federal buildings unguarded. We learned our lesson.

City schools: This is just the city government.

We then have the hospitals. We have everything the private sector is doing. This scenario in Rochester is a typical city. It could be any city repeated anywhere in our country.

What help is Rochester getting for all these extra burdens? Rochester is getting virtually no extra help. We know one of three things will happen, none of them good. Either the city, because it does not have the money, will not do everything it can for security--that is the least good choice; security must come first--or other services will be undersupplied and no help.

If you are a citizen in New York City, Rochester, Buffalo, or any other place, you certainly do not want to be made safer from terrorists but be made less safe from the criminals. If you are a citizen, you want to make sure your firefighters know how to deal with terrorism-- biological or chemical, God forbid, if it should come--but you do not want to be made less safe from the scourge of fire. That is the second choice.

The third choice is the city does both and then has to raise the property tax, which God knows is high enough.

It seems to me if there were ever a Federal responsibility, it is here for our first responders.

What do we propose to do in this amendment? We propose to support our first responders throughout the country in a measured but important way. The bill provides $35 billion over the proposed budget plan's funding level for the fiscal years 2003 to 2013 to provide first responder grants to States and localities to be used for hiring, for equipping, for training first responders, as well as covering related overtime costs.

The amendment includes an additional $3.5 billion for first responder grants for fiscal year 2003 to ensure that cities and States can get needed funds immediately.

On September 11, 2001, we know these first responders in New York City and elsewhere put their lives on the line to serve their country, just as our Armed Forces do. It is a different way, but they are brave and need help, and we should be backing them up just as we back up our soldiers.

Next, in terms of first responders, we restore the cuts to law enforcement and to firefighters. The State and local law enforcement agencies deserve an increased commitment from the Federal Government, and this amendment restores $10 billion in cuts to State and local law enforcement and fire programs. The COPS Program, which is so important in bringing about security, is restored. The fire program--I see my colleague from Connecticut on the floor. He was instrumental in bringing up the fire program. That is vital.

Byrne grants, that is part of this amendment. All of the Byrne grants are restored, and other areas.

I know there will be individual amendments on this issue. My colleague from New York and I are offering individual amendments on different parts of these issues that will be debated and voted on later. But this amendment has it all in one package. If my colleagues are for helping first responders throughout the country, this amendment is important. We do not just deal with personnel. We deal with equipment. Our police, fire, and emergency workers need new equipment. They have to guard, just as the soldiers do, against biological and chemical weaponry.

Again, the local cupboard is bare. The cities, the States do not have money to do this. Are we going to delay the safety of our citizens for several years, or is the Federal Government going to step up to the plate in terms of its responsibility?

Again, I am delighted that Secretary Ridge announced that the supplemental appropriations will contain new dollars, but how many? Is it enough? Is it similar to this amendment which, as I said, will be drawn tightly but mindful of real needs?

The amendment increases the much needed funding for firefighters, hiring, and equipment, including the FIRE and SAFER Acts, by providing $11 billion over 10 years. So on first responders, this bill is carefully drawn but does the job. It is certainly adequate, and it is what we need. It is a very fine first start.

I hope we will not repeat the mistake of either not funding these programs or funding them in a small way, mainly by taking money out of existing programs which does not make it any easier for our police departments, our fire departments, or anybody else.

There are other areas that need help in terms of homeland security as well. Our first responders are extremely important, and they get the majority of the money that we have proposed here, but there are lots of Federal responsibilities as well.

Port security, for instance, is an issue that I have become very concerned about and interested in. How could terrorists strike? As I mentioned earlier, they can strike in a myriad of ways, and they are going to look at our weak pressure points. One thing they could do is smuggle something in a ship, in a container that comes by our ports: the worst case scenario, a nuclear bomb.

I have talked long about that dreadful possibility and what we can do about it. My friend from South Carolina, Senator Hollings, has been a leader on this issue in terms of making sure we know what is in the containers and that someone cannot sneak something in. I have been fighting for nuclear detection devices that could be attached to every crane that loads or unloads a container. We need both.

Again, we are underfunding port security rather dramatically. The amendment does these two things on port security, as well as several other things. As we know, in the Budget Act we cannot lay out the specifics but we know it will go a long way.

I ask for an additional 10 minutes from my colleague.

I thank my friend from North Dakota.

So we have an additional $500 million in 2003, an additional $625 million in 2004, and we total $7.8 billion over the 10-year period that we are adding things on.

Right now, only 2 percent of the cargo containers are screened. Not every container is going to be screened. We know some of them are more suspicious than others. But most experts say it has to go up along with our ability to both track containers that come in and then secure them so nobody can come in after we know what is in the container, if it loads, say, in Rotterdam, and then someone sneaks something else in--to make sure that does not happen.

Another issue is rail and transit security. Many of our cities have large tunnels in which terrorists could do some dastardly actions. Our own Penn Station in New York City is a classic example. It is almost a mile of tunnel with no egress, poor ventilation, thousands of people on commuter trains during rush hour going in or going out, from the whole northeast area, not just from New York. We have to do something about that.

We have to do more to deal with truck security. Again, a method of choice of terrorists has been to take hazardous material, place it on a truck and then explode it. Of all places, Brazil has a good system using GPS and assigned routes. They can tell immediately if a truck goes off track, if it is a hazardous material truck. We do not do that. The Brazilians, by the way, have saved money by implementing this because the number of stolen trucks has greatly decreased.

The bottom line is that there are many other places in transportation security that is not air and that is not rail, where we have to be more secure. This amendment proposes a $5 billion increase for the TSA's budget to start doing these things.

Those of us from Washington State to Maine who share the border with Canada know how unguarded it is. We have been proud of our unguarded border. The Canadian Government does its best to cooperate, but we do not have close to the number of personnel and detection devices that are needed to make the northern border secure. The southern border needs help as well, but not close to the amount that the northern border does. The number of personnel in my State, which shares several hundred miles of border with Canada, is small and not enough.

We have to do more. The detection devices that have worked rather successfully on the southern border are not installed. Then border security needs other help because of commerce that cities such as Buffalo and Detroit and Seattle-Tacoma have with Canada. We need all kinds of new computer systems so we can check trucks quickly. We want to have both commerce and security, and we can if we provide the dollars.

If the dollars are not provided, you are either going to have weak security or you are going to have to go the old route and try to inspect so many trucks that the traffic is backed up at the border for hours, the economy suffers, and the number of jobs decline. So we have to do that as well.

The amendment provides $8.2 billion over 10 years for border security, $450 million in this remaining 6 months of the fiscal year.

The FBI, that is another place where homeland security matters. The FBI was in poor shape in terms of counterterrorism before 9/11. It is trying to move quickly, but it needs more help.

The computer system is still almost laughable. I have had lengthy discussions with Director Mueller. They are trying their best, they are working hard, but we should not have money be a barrier to them doing what they need to do.

Intelligence gathering, we are rearranging those agencies and restructuring them to make the synapse between domestic and foreign intelligence less of a barrier. That is a great idea. It takes dollars. While the leadership says the FBI has all the money they need, go talk to the people in the ranks, they do not think so. So we add an additional billion dollars in funding for the FBI to hire new personnel, particularly analysts and translators, and upgrade critical infrastructure.

Bioterrorism, this is a place where we have made some progress but not enough. Aside from the money our first responders need in terms of local government, in terms of hospitals--we are asking so many hospitals to do the job in terms of bioterrorism. I do not have a problem with that. I do not think there has to be a new Federal agency, but it takes dollars to store the vaccines; to do the training about how to administer the various programs; to do the training, how to spot the illnesses. With bioterrorism, we know early detection is vital. The amendment provides $5.7 billion for bioterrorism initiatives to improve the public health sector's ability to prepare for disasters and local governments' ability to cover the cost.

Finally, threat assessment and critical infrastructure assessment, the amendment provides a billion dollars so we can know what we are doing and we can stay ahead of other potential

weak pressure points that we do not know about now. Critical infrastructure such as chemical plants and nuclear powerplants and water infrastructure, they need to be protected. We are not sure even how to do it. We have had no blueprint and it is being done differently in different States, with varying degrees of success. The Federal Government has to be more involved. So we provide a billion dollars to conduct an assessment of the relative threat levels in coordination with intelligence and to begin to prepare to protect these areas.

Here, our first responder money will play in because it will not be Federal people who do this. It will be local people. But they need to know what to do.

I will have more to say later, but this is a basic outline of our proposal. There is large help for first responders, $38 billion over 10 years, an immediate shot in the arm in 2003 and then large funding levels in 2004; help in the other areas where we need help.

We have not covered everything, but we have covered a lot. As we work through the appropriations process, we will hope to refine them.

In conclusion, I ask my colleagues to look at this amendment. I ask them to ask themselves if we have done enough on homeland security. I ask them to answer the infamous ``what if'' question. How many of us want to be here the morning after, God forbid, another attack on our homeland and say, what if? This amendment prevents that what if. It goes a long way to preventing that what if. I hope it will receive broad and bipartisan support.

I ask for the yeas and nays on the amendment.

I yield the floor.

Mr. President, I thank my colleague for yielding time. I was on the floor as we began the session this morning. We had the prayer and the pledge, and of course this morning the prayer, by the pastor of St. Joseph's in our neighborhood here in Washington, and the pledge had renewed and deep meaning.

In terms of the prayer, I pray, too, Mr. President. I pray that our military action in Iraq is swift, is decisive, is successful, and I pray that the number of casualties, both military and civilian, is small.

I am deeply grateful--we all are deeply grateful--to the soldiers who are overseas. I spoke to departing guardsmen and enlisted men throughout my State of New York, in Canandaigua, Fort Drum, and on Long Island. When I addressed them, I had a lump in my throat because of their sacrifice, their bravery, their humanity, and because so many of them were there with their families before they were getting on planes to go to the Middle East.

They are part of a grand tradition, a tradition of young men and young women who are willing to sacrifice for the rest of us, and we pray for them. I think all Americans join in that prayer.

We have so many different views on the issues of the day and on the action in Iraq, but what always happens in this country in time of war is unity and prayer for our fighting men and women occur, and I believe that is what is happening now in this country.

One last point. I have been asked by so many of my fellow New Yorkers what should they do, being that we have been in the epicenter of terrorism. I say to my fellow New Yorkers, first, you cannot be too careful. If there is anything untoward, report it to authorities. Second, our intelligence, our ability to deal with al-Qaida and other terrorist groups, has vastly improved since September 10, 2001, and I believe New Yorkers should continue to go about their duties, their jobs, their businesses, their daily lives. I gave the advice to my wife and daughters who live in New York City to continue going about their life, and I give that advice to all New Yorkers as well.

Again, we hope and pray for a quick, decisive, successful military action in Iraq and for minimal casualties, military and civilian.

I yield whatever time I have remaining to my colleague from Michigan.

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

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

Yes, I ask for 5 minutes.

I thank my colleague from North Dakota for offering this amendment which is timely and important.

What is this budget? Why do we have a Budget Act? Why do we have a budget resolution? It is to set priorities. If we didn't have to set priorities, we could have as many tax cuts as we wanted and as much spending as we wanted and as big a deficit as we wanted, and the country would be in chaos.

The Budget Act is a disciplining process that says: Everyone wants a whole lot of good things in America, but we have to set priorities. And we say this as we are in the shadow of war.

I have spoken on this and issued a statement last night, and I will be speaking more later. I pray for our soldiers and hope and pray that Saddam sees the light and abdicates. But if he doesn't, we will back our soldiers and do everything we can. That is a priority that we have to set and will set. But we have other priorities.

The Senator from North Dakota has wisely said, before we set those other priorities, we ought to figure out what the war and the ensuing peace will cost. I, for one, believe tax cuts are appropriate to stimulate the economy. The amendment wisely allows that. But it says before we go into a long train of large tax cuts--it doesn't say don't do them--let's figure out as best we can what the costs of the war are. Are the costs of the war going to crowd out funding for Medicare and Social Security? Are the costs of the war going to crowd out money for education or money for transportation? They may. We just ought to know it before we do it. Then, if we do have a crowding out, do people prefer, say, Medicare or tax cuts? Do they prefer education or tax cuts? Do they prefer transportation money or tax cuts? That is what a budget resolution is all about.

To proceed with a budget resolution that is going to offer massive tax cuts without knowing the cost of the war would drive any accountant crazy. Last year we were all saying, accountants have to get a whole lot better. Any accountant in his first year of taking an accounting course in college would say: If you have a huge cost coming up--a cost we all support, the cost of the war--don't do other types of things, whether it be spending or cuts, before you know what that cost is.

My colleague has put together a great amendment. In fact, if you are a fiscal conservative, above all you should support the amendment. I don't care what your ideology is, this is a fiscally conservative amendment. It says, get your ducks in order; figure out what your costs are before you engage in a massive program of tax expenditure.

It leaves room for a stimulus which we all need and will support. But it simply says, figure out your priorities because if we don't and we do a budget resolution and we don't know what the costs of the war are going to be, one of two things will happen: We will have a deficit that goes way beyond what anyone imagined and it will wreck our economy, or other kinds of spending needs will be crowded out--spending for education, spending for transportation, spending for Medicare and Social Security. All we are saying is: Figure out the priorities.

It is virtually reckless to do a budget resolution until we know what the costs are. I say this as somebody who is not opposed to spending money on a war. But at the same time we have war, to have massive tax cuts and not know what the other consequences will be for our deficit and spending, as I said before, would drive any student in the first year of Accounting 101 absolutely crazy.

I thank my colleague from North Dakota for putting together a fiscally conservative and responsible amendment, for restoring some order to make sure that the Budget Act, which says, let's not be kids in a candy store and just pick everything without knowing the consequences--that is what the Budget Act says--to make sure it has some real teeth and real meaning.

I thank my colleague from North Dakota for offering the amendment. I hope we will have bipartisan support for it because it is only fair and right.

I yield back the remainder of my time.

Mr. President, I want to speak for 3 minutes on the nominee. I can do it before or after my leader on the Judiciary Committee.

I thank my colleague. I will try to be brief and leave the majority of the remaining time for him.

I rise in support of the nomination of Jay Bybee for the Ninth Circuit Court of Appeals. I realize that my support--I was one of two Democrats on the Judiciary Committee to be for Mr. Bybee--may surprise some people, so I wanted to explain for a few moments why I will be voting to confirm him.

As most of my colleagues know, I use three criteria to evaluate judicial nominees: Excellence, moderation, diversity.

Excellence, legal excellence, Mr. Bybee meets that criteria. Diversity, you can't judge that by one individual, but the Bush administration has been pretty good, certainly not terrible, in terms of diversity.

It is moderation where I have had the greatest problem with some of the President's nominees. I don't believe in judicial nominees too far left or too far right because in each case, they tend to make law, not interpret law, as the Founding Fathers said they should. I believe there has to be balance, balance on the courts. And I have said this many times, but there is nothing wrong with a Justice Scalia on the court if he is balanced by a Justice Marshall. I wouldn't want five Scalias, but one might make a good and interesting and thoughtful court with one Brennan. A Rehnquist should be balanced by a Marshall.

Jay Bybee, make no mistake about it, is a very conservative nominee. It is fair to put him in a similar category with many of the more conservative nominees we have had. If Mr. Bybee were nominated to another court that is hanging in the balance or where most of the nominees were conservative, I probably wouldn't vote for him. If he were nominated for the Supreme Court, for example, there would be a different calculus. But Mr. Bybee is nominated to the Ninth Circuit. The Ninth Circuit is by far the most liberal court in the country. Most of the nominees are Democratic from Democratic Presidents. It is the court that gave us the Pledge of Allegiance case which is way out of the mainstream on the left side. Therefore, I think Jay Bybee will provide some balance.

Let me repeat, if he were nominated to another court, I might have evaluated this differently. But when it comes to nominations, I mean what I say and I say what I mean. There has to be balance. Standards cannot only apply when they help achieve the desired outcome.

I want to be as fair and honest as I can be in this process. I have developed a set of criteria for evaluating nominees. I don't pretend to change them when after applying those criteria the scales tip in favor of supporting a nominee many of my friends oppose.

I respect those who arrive at a different conclusion. I understand their reasoning. I intend to vote yes on Mr. Bybee.

I yield the floor.

Mr. President, I am so glad to see so many of my colleagues in the Chamber today, although I wish they were here to debate the issues the American people are asking us about. What is happening with the impending war in Iraq? How will we pay for it? What is happening with stimulating the economy? What are we going to do to have average working men and women gain jobs? We have lost 2 million jobs.

Let the record show the reason we are not talking about those issues and we are continuing to talk about Mr. Estrada is that is what the Republican majority wants to do.

Mr. Estrada has a job. I think he probably gets paid a very nice salary, and he deserves it. But what about the 2 million Americans who do not have jobs, who have lost jobs since President Bush became President? Why can't we be debating that issue? I urge my colleagues to start talking about that and how we will stimulate the economy; and to start talking about how we will gain more allies in our struggle with Iraq; and to start talking about how we will pay for postwar Iraq.

It is at the insistence of my colleagues that we continue to debate this issue, although we have reached an impasse. We are not going to yield on something we think is a constitutional principle. We can sit here and debate and debate and debate, but you will not change anyone's voting. The reason is very simple. The reason is we believe sincerely and firmly this is not about any one individual, but this is about the constitutional process of advise and consent. This is about learning what potential judges think before they go to the bench to make decisions that affect our lives for a generation. We are entitled to do that. That is what the Founding Fathers intended, it is clear.

In the first nomination to the Supreme Court, where many of the original Founding Fathers who wrote the Constitution were present, Mr. Rutledge, the nominee of President Washington, was turned down because they did not agree with his views on the Jay Treaty.

The other side wanted debate; when they had nominees, they questioned. People asked, what is the difference? My colleagues on the other side knew Judge Paez's record and they knew Judge Berzon's record, and they chose to vote against him. That is fair. We all let ideology enter into the way we vote. Those who deny it are being less than candid. Otherwise, the votes would be sprinkled evenly between Democrats and Republicans.

When the other side was there, let me read a quote from Senator Hatch, a man I greatly respect and regard as a friend.

The careful scrutiny of judicial nominees is one important

step in the process, a step reserved to the Senate alone .

. . I have no problem with those who want to review these

nominees with great specificity.

My colleagues on the other side of the aisle, we are simply carrying out what Senator Hatch said was perfectly appropriate, what he had no problem with. We have not learned anything about Miguel Estrada's views with great specificity. And what we fear--and you will regret it if there comes a Democratic president--is that nominees will refuse to answer all questions, as Miguel Estrada did, and they will have no track record, and Presidents will endeavor to find people who have no known views when they nominate them to the bench.

My guess is the White House knows Miguel Estrada's views. My guess is they carefully researched it. When it comes time to make those views public, part of the constitutional process,

we are denied that right by a nominee who stonewalls and does not answer the most obvious questions, and by a White House that will not release documents that have been released--in the cases of Mr. Bork, Justice Rehnquist, Mr. Civiletti, and Mr. Reynolds. All of them released the same documents the White House refuses to release now.

I ask the American people, ask yourselves a question, my friends. Why are they so afraid to reveal Miguel Estrada's record? If he proves to be a mainstream conservative, he will pass this Chamber. I have voted for over 100 of the 110 nominees. I disagree with most of them, but I don't think they are out of the mainstream, and the President deserves some benefit. But if Mr. Miguel Estrada's record shows he is so far beyond the mainstream that he will try to make law from the bench and not interpret the law, which those who are on the far left and far right tend to do, he should not be made a judge. The bottom line is, we have no way of answering that question until we follow Senator Hatch's mandate.

I am delighted to yield for a question.

Mr. President, that is on the time of the Senator from Utah.

You are correct.

If I might answer briefly, my colleague.

I was asked a question.

If I might answer my good friend from Virginia, I have tremendous respect for his integrity.

Yes, there was a vote on Mr. Rutledge--after he revealed his views on the Jay Treaty and other issues. Of course, we should have a vote on Miguel Estrada. I don't disagree with that. But not until we know how he feels on the vital issues of the day.

How does he feel about the first amendment? How does he feel about the commerce clause? Does he believe, like some on the bench, that the commerce clause has been expanded too broadly and we ought to go back to regulation by the 50 States?

I have no idea, I say to my friend from Virginia. I have no idea of how he feels.

I have no idea how he feels about the first amendment or about the 11th amendment, and the balance between the Federal Government and the States, the very issues the Founding Fathers wanted us to know.

The judiciary, and I know my colleague knows this, is the one nonelected branch of the government. The advice and consent clause----

Mr. President, may I have 1 minute?

If Mr. Estrada feels good about the first amendment, I ask my colleague, why can't he tell us? And why can't he elaborate? What does he feel about Buckley v. Valeo, a case we debated here for a long time? It is a past case. How far does he feel the first amendment ought to go?

It is certainly not good enough, not only for the Senators but for the American people to hear my friend from Utah say he feels good about the first amendment, I say to my colleagues, or the second, or the fourth, or any of the other vital amendments.

I say to my colleagues, this is not a laughing matter. This is serious stuff about the one nonelected branch of Government.

The Founding Fathers wanted, in the advice and consent process, serious questions. Just as Senator Hatch said, it was a part of the process to ask those questions when President Clinton's nominees were before us. What is good for the goose is good for the gander. I yield.

Regular order, Mr. President.

Mr. President, may we have order?

Mr. President, will my colleague yield for a question?

How many of these nominees were never brought up even for debate? Does my colleague think it is even worse than trying to figure out what his views are than never having the debate on the floor and never bringing them up and never giving them a chance?

Mr. President, I rise to speak on a few matters of importance to us related to the nomination of Miguel Estrada, which is what we are now focused on, as well as some of the issues we should be focused on which we are not doing because the majority leader has determined we will continue to debate Estrada.

Last week, something happened in the Judiciary Committee that more of our colleagues should know about because a lot of us find this very confounding.

First, I have tremendous respect for and, indeed, consider the senior Senator from Utah my friend. I know he cares deeply about the issues and about the Senate. What we are seeing in the Judiciary Committee is going to do some significant harm--I hope not irreparable harm--not only to the Judiciary Committee but to the whole body. Up until last week, when we were moving closer and closer and closer to the edge of violating the rules the Judiciary Committee has worked upon, there were a lot of traditions on our committee. It is an important committee, a committee steeped in great legal tradition. If you look at the pictures on the wall of the various chairs of the committee, it goes long and deep.

But we have seen changes, first, in my judgment, when three court of appeals nominees were brought to a hearing at the same time. A court of appeals is an extremely important court. Every judge appointed to that court has a lifetime appointment. So the last chance there is to vet who they are, what their views are, how they think, comes in the advise and consent process on the floor of the Senate and, in the first instance, in the Judiciary Committee.

Many of us protested to the chairman of the committee that to have three courts of appeals witnesses, none of whom was without controversy, come before us on a single day did not make much sense. He said, well, that is how he wanted to do it. Although in fairness to Chairman Hatch, he was apologetic and said he would not do it again. But when we asked that we change it prospectively because these are important positions and important nominees, he said, no, he wanted to go forward.

We went until 9 that night. I was there. Chairman Hatch was gracious. I had a previous engagement at 7:30 that I had to go to and came back. By 9:30, with the members of the committee who had stayed that long quite exhausted, we had only really finished asking questions of one nominee, Jeffrey Sutton, to the Sixth Circuit.

I asked Senator Hatch if we could bring the two other witnesses back. He said he didn't want to inconvenience them. With all due respect, I expressed my disagreement. To inconvenience a nominee for the court of appeals, whether it be the Sixth Circuit or the DC Circuit, Mr. Roberts and Judge Cook, to ask them to spend an extra day here in return for what is a lifetime appointment didn't seem to me to be too much.

If normal workers, people who apply for jobs, are asked to come back by their prospective employer for a second interview or because something happened and that employer couldn't see them that day, they would hardly say it would inconvenience them, if they wanted the job.

But we seem to be running on a different schedule. So two of the nominees never got questioned. I asked them some written questions. I much prefer to ask oral questions. Answers given before the committee in the give and take are much better.

For instance, some people asked why didn't I ask written questions of Miguel Estrada, because I questioned him for 90 minutes. His answers were so obtuse and unenlightening, simply saying he will follow the law, he can't answer that because he hasn't seen the briefs, asking any written questions would have made no sense, to get those same answers back.

In any case, we did that. And then, of course, there was the hearing for Miguel Estrada, and we have rehearsed and rehearsed that over and over and over again, where questions were simply not answered. To say he was before the committee for a lengthy number of hours, and he answered some 100, or 500, or however many questions, doesn't tell the story. We all know that, because the answers he gave were to the effect: I cannot answer that; without the briefs, I cannot answer that; because it might be in a pending case before me, I cannot answer that.

Those are not real answers. With all due respect, in this Senator's judgment, I have never seen such stonewalling when a nominee was faced with so many different questions. And we continue to debate the Estrada nomination on the floor, not because the minority wants to debate it-- we are happy to move on--but because the majority has chosen to debate it by filibuster, which is not ours but, rather, theirs. I hear we are going to move to the Moscow Treaty this week--that being the choice of Majority Leader Frist--which is proof that we don't have to stay and debate the issue of Miguel Estrada. The schedule is in the hands of Senator Frist.

What happened in the Judiciary Committee last Thursday was even more disappointing. We have had a rule that has existed in the Judiciary Committee for quite a long period of time. I am not sure of the number of years, but it is certainly over a decade. That rule is not something that is whimsy or simply tradition, such as the issue that we should never have three judges before us--I have just been informed that rule has been on the books since 1979. That is a written rule of the Judiciary Committee. It has been abided by by chairpeople, Democrats and Republicans, repeatedly throughout that period of time. I will repeat that this is not a tradition, it is not something that is sort of fuzzy. This is not even like blue slips. That is another place where the committee just changed. I didn't mention that, but I will take a minute to mention that.

We have always had a tradition of blue slips where, if a Senator from a home State objected certainly to a district court judge, that judge would not go forward. Many colleagues on the other side of the aisle have used the blue slip with success, from their point of view, repeatedly in the nineties, particularly when President Clinton was President, and when they controlled the Senate, or when they didn't control it. That is a tradition simply cast aside by the majority.

So we have the way we conduct hearings, blue slips, and everything dealing with judicial nominees.

As I said, we were getting closer and closer to the edge of no longer having comity on the committee, abiding by traditions. It almost seems as if it is, like ``Alice in Wonderland,'' first the verdict, then the trial; the majority determined the result they wanted and changed the rules to fit the result: We want a lot of nominees put on the bench quickly. OK, we will stack them up in hearings and not give every Senator a chance to ask all the questions he or she wants. We have a nominee whose views, in all likelihood, were questioned and gone over thoroughly at the White House, but we don't want the public or the Senate to know, so we will instruct him not to answer questions in any dispositive or enlightening way. We have nominees we could never get through, in terms of comity--bipartisan comity--so we will get rid of the blue slip rule, or weaken it significantly.

As I said, all of those were traditions of the committee. I have been told over and over again that this body is very mindful of traditions, but they seem to be falling one by one--we have had more traditions falling in this month and a half that we have been under new leadership than in all the time I can remember being here. That is only 4 years.

But last Thursday, we had an unprecedented action. That action was that a rule of the committee--not a tradition, not something subject to anybody's interpretation--was just steamrolled over--ignored, forgotten, et cetera. That is one of the reasons we may need courts. That rule, which was written and ratified by the members of the Judiciary Committee when we organized this year, is a simple one. Rule 4 says:

The chairman shall entertain a nondebatable motion to bring

a matter before the committee to a vote.

The rule goes on to say:

If there is objection to bring the matter to a vote without

further debate, a rollcall of the committee shall be taken,

and debate shall be terminated if the motion to bring the

matter to a vote without further debate passes with 10 votes

in the affirmative, one of which must be cast by the

minority.

I will repeat that:

. . . debate shall be terminated if the motion to bring the

matter to a vote without further debate passes with 10 votes

in the affirmative, one of which must be cast by the

minority.

That is crystal clear. What it says is that if you want to cut off debate in the Judiciary Committee, you need one member of the minority party to vote to cut off that debate. It is obvious why it was put in the rules: so there would be some form of comity, so that the majority party--even if they had 15 members of the Judiciary Committee and the minority party only had 5--could not shut off debate. It doesn't relate to the actual vote itself. It relates to how long one is entitled to debate.

Well, last Thursday, when the committee was expected to vote on the three nominees I mentioned earlier, two of whom were not questioned because they were all stacked up to be debated at one point--I believe it was Senator Leahy and Senator Kennedy who were there; I was not because I was in the Banking Committee hearing Chairman Greenspan. But Senator Leahy and Senator Kennedy invoked rule 4 and said, ``We want to continue debate.'' At that point in time, Chairman Hatch called for a vote.

I am happy to yield.

I thank my colleague for asking the question which, as usual, from his lawyer-like mind, is able to pierce through the legalisms and reach the core of the debate that people can understand; it is an excellent question.

This is not simply a clash of egos, or even two lawyers arguing a point for the sake of it. The bottom line here is that this is what our country is all about in terms of protecting the rights of average people. The bottom line is that the Founding Fathers, and then Congresses from the very beginning--from 1789--understood the power a Federal judge has over an individual. The power of the judge is much closer to the power of a king--who also has a lifetime appointment--by definition, than is the power of a President or a Senator or a Congressman, because that judge is appointed for life and can just make up his or her mind and decide that should be done.

What we have had through the years of tradition is a very careful vetting of who should become a judge. The rules are simply a device to determine who those people are in terms of back-and-forth questioning, of hearings, of votes, et cetera.

The Founding Fathers certainly shied away from the idea of the President simply appointing judges. They knew the awesome power judges had, and they wanted to make sure there would be a thorough airing of who this person was before that person ascended to this lifetime appointment to a powerful position.

Every one of the rules the Senator mentioned goes to whether a person can organize in a union; whether a person can be discriminated against because of the color of his or her skin or their religion or their sex; whether a corporation can violate the Clean Water and Clean Air Acts and affect our lungs and affect our children's health; whether, for instance, an issue I know my friend from Illinois has been very much involved in, whether a meat packing company can decide how clean their plant ought to be, given there are Federal laws that govern them. The judges have all this kind of power.

The very reason we debate these issues and have these rules is we want to make sure the people who become judges will, indeed, follow the law and not simply get up there and say: I promise you I will follow the law. We have been there.

I will be happy to yield.

I thank my colleague for the question. It is a very good question. Of course, it would involve us going into the heads of our colleagues, both on the other side of the aisle and the White House, in figuring this out. But I will tell my colleague what I think.

For some reason, the other side fears an open debate. For some reason, the White House and the other side do not want their nominees fully questioned. They have gone through every device and, as of last Thursday, even breaking the Senate rules. If the average citizen broke the rules, whether it be the driving rules, the parking rules, the rules of how you have to maintain your house or your sidewalk, there would be some recourse. I do not know what the recourse is here, but to abjectly break the rules and just say, I am breaking it, tough rocks, Jack, is so against the traditions we have had. For some reason, they do not want these nominees to be questioned. Why is that? We can only speculate, but I will tell my colleague what I think. I think some of these nominees' views are probably, and in some cases certainly, so far out of the mainstream that they do not want those views to become public because then it would either be, at minimum, an embarrassment for them, because this is not how President Bush was elected or most of the Senators were elected. We have mainstream conservatives and mainstream liberals, but very few Americans say: Have such a change in the way the courts and the Government functions that we should go back to the days of the 1930s or the 1890s.

There is a movement called the Federalist movement which basically has been devoted to cutting back dramatically on Federal power, giving that power to the States, giving that power to corporations, giving that power to others. I did not hear any mandate in the elections of 2000 or 2002 to go back to the 1930s, to go back to the 1890s, the way, say, I believe Justice Scalia, who has gone through the process, thinks. In fact, not only was there no mandate, there was no discussion. So when one asks oneself the very good question my friend from Illinois has asked me, which is, Why are they so afraid of questions of nominees, of debate, it is not certainly because they are afraid we are going to slow it down. We asked for 1 extra day of debate for Judge Cook and for Mr. Roberts. We did not get it. All we want from Miguel Estrada is some answers to questions and some papers, which they could have sent months ago. So this is, clearly, not just an issue of delay. If it were simply an issue of delay, we could work out an agreement, put in a time limit, and vote.

In my judgment, it is clear they do not want these questions answered. They do not even want them asked. That is why we are cutting off debate. Why? My guess--and it can only be a guess--is because the nominees to the judiciary, at least some of them, are so far over that if their real views were ascertained, the American people would be aghast.

I do not believe so at all. I do believe--and this is another excellent question--a President should be given some degree of flexibility and latitude because the Constitution says the President should nominate judges. We advise and consent.

If choice were the issue, then I probably would have voted against--I think of the 106 nominees who have come before us, more or less, I have voted for 100. My guess is of those 100, given they were nominated by President Bush who made commitments to the pro-life groups, that they would agree with them and try to get judges to ``think like Scalia and Thomas,'' that the overwhelming majority were pro-life. In fact, I know some of them were because I have read their decisions. I have read what they said in lower courts. I voted for them. I do not believe in a litmus test. I believe very few Members of this Chamber on either side of the aisle believe in a litmus test.

My guess--and I cannot speak for others--when on issue after issue a judge would have such extreme views that he would take the courts and the rulings so far out of the mainstream that Americans would be aghast, that ideological-type judges, whether on the far left or the far right, instead of doing what the Constitution says, interpret the law, rather make law because they feel so strongly that they have to pull the country in a direction way beyond, those are the few judges we--at least I--have objected to. Again, I have to use my judgment. Obviously, this is not an objective meter here, but that is what we have done.

I say to my colleague, the irony is this: Our good friend from Utah and many of the others on the other side of the aisle played the same watchdog role when President Clinton was President, and we have quote after quote from Senator Hatch, from Senator Sessions, from Senator Ashcroft, from the leaders of the Judiciary Committee back in the nineties, that they had to be on guard against what they called ``activist judges.''

To them, activist meant too far left. To me, activist means either too far left or too far right. An activist judge--I sort of sympathize with that comment. An activist judge means that because they feel strongly, instead of just interpreting the law and trying to figure out what Congress meant, they will impose their own views.

Right.

Yes. The bottom line is the Court, despite the fact that Congress, on a bipartisan basis--by the way, supported by George H.W. Bush, the 41st President of the United States, who signed it into law-- somehow comes up with an interpretation that parts of the law are beyond the Constitution and millions of disabled people are deprived of rights. That did not just happen for disabled people. In that case, which was the Garrett case, I believe my colleague is referring to, they said the States did not have to abide by this. Even though it was clear that the intent of Congress was that everyone had to abide by it, they said the States could discriminate against disabled people.

I know my colleague from Illinois was involved in a law that says someone cannot bring a gun into school. Again, somehow the Supreme Court comes to the determination that a person can, or that the law that we passed, which seemed to be a general mainstream consensus law-- because some of these folks tend to be ideologues, they came up with some God-forsaken reason that that could not happen.

Another one on which I worked long and hard, along with our colleague from Delaware, Senator Biden, and our colleague from California, Senator Boxer--I know the Senator from Illinois was very supportive-- was something called the Violence Against Women Act, which for the first time said that the Federal Government could be involved in helping women who were abused by their spouses. Before that, it was a sort of dirty little secret hidden under the rug. The law had amazing effect.

I know this one better than I know the Garrett case, but it is the same type of thing. It affects average people. For the first time, women were able to get hotlines, find out whom they could call when they were abused. Shelters sprung up. When a woman was beaten in the past, all too often there would be nowhere to go and she would have to go home to the same husband who beat her before.

On issue after issue, we helped women who were abused come out of hiding and seek help and become productive citizens again, having a huge effect not only on them but on their children. Studies show that if a child is abused, which this act would have affected, or the child's mom was abused by the husband, they are much more likely to be criminals. So it affected all of us. All of a sudden, the Supreme Court says that Congress's finding that this law affected commerce in the United States was undone and throws out part of the Violence Against Women Act.

So this is not an abstract argument, this is not a bunch of lawyers just arguing how many angels can fit on the head of a pin, this is not partisanship--to me, at least. I have devoted my life to government. I was elected when I was 23. I want to make the Government help people. I want people to believe Government is on their side. When nonelected judges come in and take years of work that Congress does--whether it affects disabled people, kids in school, the cleanliness of the water we drink, how a meatpacker has to obey certain laws, or the Violence Against Women Act--and throws it out on reasoning that 10 years before would have been regarded as crazy, the very least we owe our constituents, in my judgment, is the obligation--it is not simply a right, it is an obligation--to question nominees for the bench.

Please.

If I might interrupt the Senator. Since 1979.

Twenty-four.

He is not on the math committee. He is on the Judiciary Committee.

If I might answer, I think my colleague has hit the nail on the head. This is so important. What we have come to is the fact that nominees are often told not to answer questions.

There is an article in the Legal Times where one of the leading conservative judges of the court of appeals instructed nominees not to answer questions. Why would someone say, do not answer questions; fudge on the questions? I think I know why, as we talked about before. Because if they gave their honest answers, they would become so controversial that many of them would not pass. But imagine the alternative: Not asking the question, or not getting the question answered, and then this nominee who has views way beyond the mainstream gets on the court and starts doing things. Do you know what would happen? Our constituents would come to us and say: Do something.

We would try, but it would be very difficult. We would probably have people on the other side saying: Well, I didn't know he thought like that. Yet when we have the opportunity to ask that nominee questions, to try and get some idea of how he thinks, we are denied the answers-- either because we did not have time, as in the case of the three nominees, or in the case of not allowing discussion to go on in the Judiciary Committee, or because we had the time--with Miguel Estrada we had plenty of time, but the nominee refused to answer the questions, simply saying: I will follow the law.

We have been through that. It is legendary that when Clarence Thomas was up for the Supreme Court, people wanted to know his view on Roe v. Wade. For me, it is an important issue, but it is not a litmus test. Of the 100 people I voted for judge, most are against Roe v. Wade, but I don't have a litmus case.

But for a nominee to the Supreme Court to say he had never discussed it before while in law school--lawyers always discuss these cases-- struck many as disingenuous. I was not in the Senate then, but people vowed they were not going to let that happen again; that was a mockery of the process. This is too solemn a process.

Before I yield to my friend from Utah, and I appreciate him yielding to me and yielding to all Members, and I will yield to him, speaking for myself, this transcends any one nominee. We are beginning to see a complete vitiation of the process whereby nominees will be nominated by the White House and rubberstamped by the Senate. In my judgment, nothing that we do here could do more damage to the fundamental underpinnings of our Republic than that.

I remind my colleagues, that is not what the Founding Fathers intended. The very first nomination to the Supreme Court was, I believe, Rutledge--I always forget if it was Randolph or Rutledge; my daughter was in the play ``1776'' and she played Rutledge, and I was constantly calling her Randolph, much to her chagrin. But in any case, Rutledge was defeated because the Senate had the temerity, I guess, in the opinion of my good friend from Utah, to ask Rutledge's judgment on something very controversial at the time, the Jay Treaty. The Jay Treaty was not what judges rule on, but the Founding Fathers--by the way, we just heard at our lunch that a large percentage of the first Senators were members of the Constitutional Conference, so they certainly knew what they wanted to do.

If they were questioning Rutledge on the Jay Treaty, then certainly asking Miguel Estrada how he feels about the commerce clause and the right to privacy and the 11th amendment and the first amendment and all of these things could hardly be out of bounds.

In fact, I would argue if the Founding Fathers were watching this debate, they would say: Yes, that is what we intended.

With that, I yield to my friend from Utah for a question only.

I thank the Senator for his question, and I think it is a good-faith statement to break this deadlock which I hope we will do because we have made the arguments over and over again.

Let me make an alternative suggestion and see what the Senator thinks and then I yield to him. Why don't we bring Miguel Estrada back for a second

day of questioning? I find written questions never to bring out the same analysis, the same understanding of how a person thinks. That is why we do not conduct trials by written question. Miguel Estrada may say something, and I will want to immediately ask him, well, what about this, and to take another week and ask another question and another question and another question, I am sure within a short amount of time my colleagues on the other side of the aisle will be saying we are being dilatory.

If we could have another hearing of Miguel Estrada and if he could let us see the documents he authored as attorney general, I think it was my good friend's junior colleague from Utah who suggested we do that, and then we would set--I cannot speak for my whole caucus, but I will state what I would be for. I would be for setting a time certain when we vote for him, another day of hearings, ask Miguel Estrada to come back for a day.

It cannot be too much to ask when one is 42 years old and, may God grant him a long and healthy life.

And to ask him for a day of questions and to give up these documents which are very important, then we can settle this whole issue.

I yield.

For a question only.

Let me try to answer my colleague.

Let me try to answer my colleague. Again, I have the same caveat he does, even more so. I cannot speak for my Democrat colleagues. I am not even chairman of anything.

I would say this to my colleague and make a couple of points. The best evidence of how Miguel Estrada feels--given that he has not written articles, he has not been a judge where we can see his record-- are these documents. We have debated this over and over again. There is no privilege. There is no anything else.

Senator Leahy and Senator Daschle, in a letter to my colleague--and I will be delighted to yield when I have finished my answer--have laid out the conditions by which we believe we would at least get some bit of evidence to see who Miguel Estrada really is. That is not in terms of his history, which has been repeated over and over again on the floor, and a wonderful history it is, but in terms of how he thinks and how he would think and how he would rule as a judge.

So the best evidence is not hearsay evidence; it is the written evidence. But let me just say in regard to the hearing--and here is my problem with the offer and why the written evidence is so important-- let us say Miguel Estrada again refuses. He sits for 10 hours and refuses to answer--or answers, let's characterize it, in the same way.

I ask him--Dianne Feinstein asks him his feelings on Roe v. Wade, and he says I can't tell you that.

And Senator Durbin, for instance, asks him how he feels, widely or narrowly, the commerce clause should be interpreted, and he says: Because I might rule on a case about the commerce clause, I can't answer that.

By the way, I have checked with a whole bunch of legal ethicists, and the canons--you know, what the lawyers say you are allowed to do when you are nominated to be a judge--have nothing to do with broad questions like that. They deal with specific cases.

So let us say we get, as we would characterize it, or as I would, stone- walled, no answers on anything.

As my colleague well knows, when I asked Miguel Estrada about previous cases he liked or didn't like, he said: Well, I would have to read the briefs.

I have asked subsequent witnesses how they feel on cases and they have given answers to me. I had an interview with someone the President is thinking of nominating in my State. I asked her what is a case you like, what is a case you don't like? She was very forthcoming--you know, that had already been ruled on. So we would be in a complete----

I would be happy to yield in a minute. We would be giving away the store without accomplishing our goal if we agreed, before we heard the answers, that we would agree to a date certain on the vote.

Perhaps we should have the hearing, see how he answers those questions, and then see where we are. If he is much more forthcoming, whatever his answers are, we might be able to make some progress. But if he gives the same exact answers as he gave 3 weeks ago, I for one could not agree to just having a vote on him unless we get the best evidence, the written evidence, which the administration will not give up. You are right. It is not Miguel Estrada, but it is the administration which has nominated him. So they are not sort of players from far away; they are part of this whole process. Other administrations, Democrat and Republican, have given up the same types of documents.

I don't want to get into a debate about that now, but that is our confirmed view.

So an alternative which I cannot even--I would have to talk to my colleagues about--would be: Let us have another day of hearings and then let us see what happens there and see where we go. But I think it would not make any sense, any sense whatsoever, to say today, or tomorrow, we will have a vote as long as he comes back. Because what if he does the same exact thing he did last time, which I know you find was fulsome and reliable--not reliable, but fulsome and elucidating testimony, but I found to be completely evasive.

I am happy to yield to my colleague for the purposes of another question only.

I'm sorry, I couldn't hear the Senator.

Let me reclaim my time because I am running out.

Reclaiming my time, Mr. President.

I make a counterproposal to my colleague. Either we have him come back for 1 day, and the administration, his nominator, releases the papers as Senator Daschle and Senator Leahy have asked, and we agree to a vote ahead of time; the papers and a day of hearings--again, I can only speak for myself that that would satisfy me--or, in an effort to break the deadlock, we have the day of hearings without any commitment. Because, in all candor--you know, the Senator from Utah is a very fine lawyer and probably a lot better than I am. But I am not going to give away the store for a pig in a poke.

If we were to agree to a vote right now and Miguel Estrada were to come before us and just verbatim give the exact same answers he gave before, we would not have accomplished anything.

So I say to my colleague, in an effort to break the deadlock which we all want to break, believe me, let us have Mr. Estrada come back for a day of hearings, no preconditions. There will be lots more people paying attention to those hearings now. And let the American people make a judgment as to whether he is being forthcoming or not. Maybe his answers will change and they will say he is. Then we will decide where we go from there.

Because I will say this: This is one place I disagree with what my colleague said. To say, poor Mr. Estrada, he sat through 9 hours of hearings and to ask him to do it again is not fair seems to me to be-- we are lawyers. Probably right now Mr. Estrada, who is earning a great salary because he is an excellent lawyer, sits through far more than 9 hours to try to win a single case. This, appointment to the second most important court in the land, is a lot more serious than any one single case Mr. Estrada is arguing.

So I say to my colleague, to achieve a lifetime appointment on this very serious court, Mr. Estrada ought to be willing to sit--I am not saying we should do this--for a week or a week and a half. He is 42 years old. He is likely to be on the bench for 30 years, God willing he has good health. So that should not be the consideration.

I yield to my colleague from Illinois.

Answering my colleague's question, he is exactly right. I am not someone who has practiced law, like my colleague from Illinois and my colleague from Utah--I was elected to the assembly right after law school--but every good lawyer knows, even every good law student knows, that hearsay evidence is not as good as written evidence.

So when we hear all these people say--I have heard my good colleague from Utah say: This one and this one and this one say he is great, and this one and this one say he will follow the law. If my colleague truly believes that, then he has nothing to hide in terms of giving up these documents because they will show that Miguel Estrada will follow the law.

The problem is, we have just as many people who worked with him in the Solicitor General's Office who said: Oh, no, this guy is so far over that he writes his own laws, and he would write his own laws.

I don't know which is true and which isn't.

His superior.

Bender, who was his immediate superior.

I am going to reclaim my time.

He was his immediate superior. But the bottom line is this: My colleague from Utah immediately discounts Mr. Bender because he does not agree with his view on certain issues. OK. If, if, if, if Mr. Bender is wrong, the documents will show it. If Mr. Bender is right, the documents will show it.

Not yet. I will in a minute.

But the bottom line is, as my colleague from Illinois stated, when somebody will not release documents, that you know can be released, then you say to yourself, What is in there?

Again, we are not just dealing with one case. We are not dealing with just one situation. We are dealing with a lifetime appointment to the second most important court in the land.

Why won't Mr. Estrada or the administration--which is his sponsor, his mentor in this particular situation--why won't he give up these documents?

I will tell you what most people think when they hear about it. And I have talked to my constituents, the few who ask me about this. They say he is hiding something. Do I know he is hiding something? Absolutely not. I have not seen the documents. But I tell you one thing: The great lengths that the administration and my colleagues on the other side have gone to not give up these documents makes one suspect there is something there they do not want people to see.

So the documents are crucial. And I, for one, believe we cannot agree to a date certain to vote until those documents are given up or unless Mr. Estrada somehow answers the questions in a truly dispositive way.

By the way, I say to my colleague, he said everyone else answered questions the same way. Absolutely not. And we have shown, in case after case, in nominee after nominee--the very nominee after Mr. Estrada, when I asked him the same exact question, was far more forthcoming than saying, ``I can't,'' or ``I will follow the law.''

So the bottom line is, I would repeat my tentative offer--because I would have to check with my colleagues--let's have a day of hearings of Mr. Estrada and see where that leaves us, see if he gives the same answers. And let everyone see him answer the questions the way we saw him. And let's see if they think he is being forthcoming. And let's see if they think--when he is asked crucial questions that will affect people's live--he gives answers that satisfy people that he be appointed to the second most powerful court in the land. That is a way to resolve this.

Shakespeare once said: Me thinks the lady doth protest too much. There has been so much protestation about figuring out Miguel Estrada's record--not his legal qualities, not his story of being the son of an immigrant coming to America when he was 17, not speaking English. That is all great. He deserves a pat on the back for that. But that alone, in my judgment, does not entitle him to appointment to the second highest court in the land with a lifetime appointment.

I will be happy to yield to my colleague in 1 minute. But, again, it is certainly worth, with all due respect, the chairman's time, and all of our time, to hear him again. And maybe he will be somewhat more forthcoming. And then maybe we can come up with a compromise.

Several Senators addressed the Chair.

I yield to my colleague from Massachusetts for a question.

Yes.

I yield to my colleague from Massachusetts for a question only.

Without losing my right to the floor.

The Senator is right on the money. The bottom line is, the Founding Fathers wanted the Senate to be actively involved in the process. It is my understanding, as I read the Federalist papers and the deliberations of the Founding Fathers, for a good period of time they were so afraid of the President, so much like a king, having too much power and knowing that judges would have lifetime appointments and have absolute power, at least on the cases they rendered, that for a long period of time they wanted the Senate to appoint the judges.

Without the President involved, exactly. I can't remember if it was Madison or somebody else, but they argued it would be too diffuse, that the buck will have to stop somewhere, so they were going to have the President nominate. But to keep the President's power in check, the very thing they intended--my good friend from Massachusetts is exactly on the money--was that the Senate play an active role.

Let me repeat, many of the very first Senators who debated whether the first nominee, Mr. Rutledge, should become a judge on the Supreme Court were members of the Constitutional Convention. We heard today that of the first eight who showed up, six were members of the Constitutional Convention. I don't know how many out of the original 22 because I think there were just 11 States that had ratified the Constitution then. And guess what debate they had in rejecting Mr. Rutledge? They debated his views on the Jay treaty, which was a treaty involving France and England and all sorts of foreign entanglements, as they used to refer to it in those days.

Let me say that if the Jay Treaty was legitimate grounds to determine

whether the Senate should consent, then certainly someone's views on the commerce clause and the first amendment and the second amendment and the fourth amendment and the 11th amendment and the right to privacy and the right to free speech should be.

Let's just get some corroboration for my colleague's excellent question. Here is what our good friend from Utah said when the shoe was on the other foot, when President Clinton was nominating people, and many of our colleagues on the other side were worried they would be too activist, which meant too many people who would let their own liberal views trump accurate interpretation of the law. I have great respect for the Senator from Utah. He knows this stuff inside out.

He said:

Determining which of President Clinton's nominees will

become activists is complicated and it will require the

Senate to be more diligent and extensive in its questioning

of nominees' jurisprudential views.

Well, one day of hearings and no other record, is that extensive when one is considering a lifetime appointment? I would argue not. It is not even close to extensive enough.

Let me read another quote from Senator Hatch:

The careful scrutiny of a judicial nominee is one important

step in the process, a step reserved to the Senate alone . .

. I have no problem with those who want to review these

nominees with great specificity.

Well, I hope the Senator who had no problem then when Senator Sessions and Senator Ashcroft and other Senators on the Judiciary Committee wanted to ask a whole lot of questions--and believe me they did, of the people they were worried about, the Paezes and the Bersons, not to mention them, but all the nominees who never got hearings. Great specificity? Nine hours of hearings for the second most important job on the judicial side of the Government? Nine hours, when the answers, when talking about his history, Miguel Estrada was specific. It is not a character trait. It is only when he was asked his views on matters of great judicial importance, this is with great specificity, to simply say, on question after question: I will follow the law, is that answering questions with great specificity?

I am happy to yield.

I thank the Senator for his question. He is exactly right once again in terms of his question. No one said: How will you rule on this case that is now in the lower courts in DC. No one said, there is a case in Texas about a meat packing company that refuses to go along with what the FDA wants them to or the Department of Agriculture wants them to. No one asked even close to that degree of specificity.

When one asks, what is your view on the commerce clause and how expansively or narrowly it should be interpreted, what is your view on the first amendment--I asked him, for instance, how it would affect his view on campaign finance spending. These are not questions of specific cases. In fact, the Senator was off the floor when I mentioned that I have made inquiries of some of the legal ethicists in our country who make a living by interpreting the canons of the ABA, what a lawyer can and cannot do. Not one of them thought any of the questions even came close in terms of the level of specificity.

One might think that was just a ruse, that that was a way to avoid giving one's opinions. And when one sees the article that was in the Legal Times in 1986, where it was reported that at a Federalist society meeting, Judge Silberman, already a member of the DC Court of Appeals, suggested to prospective nominees that Ronald Reagan might nominate, don't answer the questions, that was the beginning. That was the seed we are now seeing bear its evil fruit, which is to stonewall. And basically the Senator was exactly right in his previous question, at least in my opinion, going back to the view that the President should appoint.

Do you know what these hearings would be? They would be hearings for show.

I am happy to yield.

Yes.

I thank my colleague. Again, I completely agree with him on every one of the questions he has asked. I would like to cite for my colleagues this article I mentioned. It was in the Legal Times of April 22, 2002. Here is a quote from the article:

President George Bush's judicial nominees received some

very specific confirmation advice last week: ``Keep your

mouth shut.''

That statement in that article makes a mockery, as my good friend from Massachusetts has stated in his question, of the U.S. Constitution. ``Keep your mouth shut.'' One has to ask: Why should you keep your mouth shut? It is not because there is anything unethical you did. I don't think Miguel Estrada has done anything unethical. It is not because you are ashamed of your history or of something that happened in your past. Why are these nominees being told to keep their mouth shut, if this article is true?

We all know why. Because the people who are advising them are afraid if they gave their whole views, they would be rejected not only by the Senate but by the American people. And then there would have to be something different. The Senator is exactly right. We are on the road to mutilating our Constitution. I believe in this document. The older I get, the more in awe I am of the Constitution. The Founding Fathers called this country ``God's noble experiment.'' I believe that.

America took my family as refugees from Europe a hundred years ago--a

little more than that. They were discriminated against; they could not have any kind of job; but they were given a chance. My father never graduated from college and his son is a Senator. This is an amazing place. It is not just in the way my teenage children would say it, but in the biblical sense, an awesome place, where the angels tremble before God in awe.

Part of that awe that we so cherish is the fact that we try to fulfill what the Founding Fathers wanted and wished. For an immediate political purpose, to put before the courts people who might be out of the mainstream, to make a mockery of the process by having three controversial court of appeals nominees appear on the same day so that two could not be questioned, to change by fiat the blue slip rule, which had been in existence for quite a while, and not debate and vote on what should happen on the blue slip rule--but to just change it--to then take a rule that had been in the Judiciary Committee since the Senator was on the Judiciary Committee before in 1979----

The rule was even before he was chairman. It said you could debate an issue and not shut off debate, unless one member of the minority side--by the way, it wasn't written for a 10-to-9 minority; it could have been written for a 19-to-1 minority. On the Judiciary Committee some comity would have to reign. To take all these, and then this hearing, this nomination, where Miguel Estrada, being the good student he is, basically kept his mouth shut, I don't care how many thick books they put on the table. Read the answers, I say to my friends in America. Compare them to the answers of other judges, and then look at the fact that the only records we have of Miguel Estrada, his work as an Assistant Solicitor General, where we could determine how he thinks, other than by what he said at the hearing, where he didn't answer dispositively on anything in terms of his views--and the administration all of a sudden says we are not giving up such documents--it makes you scratch your head and wonder.

So I say to my colleague--and I will relinquish the floor in a minute--to me, this is not a fight over Miguel Estrada or Mr. Jeffrey Sutton or Judge Cook or John Roberts or Mr. Bybee or Mr. Tymkovich or any of the others; this is a fight for the sacredness of our Constitution. This is not the first time people who are a lot smarter than I am have tried to figure out ways around the Constitution and just say they are invoking the Constitution. That has happened repeatedly throughout our history.

But I believe, based on the patriotism that burns within me, based on my belief that this America still is ``God's noble experiment,'' it is our job to try to keep the flame of that Constitution burning brightly. Part of that flame is to have a full vetting of nominees for the one nonelected part of the Government, the article III part of the Government; and to rush nominees through and say they don't have any more time for a 40-year lifetime appointment, to say that they can answer every question by basically obfuscating, I believe in my heart of hearts is not what Madison or Hamilton or Jay or Washington or any of the Founders intended.

I yield for a final question to my colleague from Massachusetts.

Will the Senator yield?

I thank my colleague. Again--and I am going to yield the floor; we have had it a long time--that sums it up: The central role is the Senate. Can the Senate engage in a central role, not the President--and we hear all the people who are criticizing what we are doing, saying the President should be able to choose. Those very same people want to be strict constructionists.

My colleague from Massachusetts, in outlining what happened at the Constitutional Convention, shows who are the real strict constructionists in this Senate today. It is those of us who are trying to make sure the Senate has some real say in who the judges are--not a hearing at nine at night, not failure to answer questions, not somebody who will not give up their whole record. This is a job for which we would have lines from here to Baltimore if we offered it to every lawyer in America. How many of them would say: I won't give up my records, or I won't come and answer your questions. This is a standard that perverts the views of the Founding Fathers.

Again, I say to the American people, why is it Miguel Estrada and those supporting him are so afraid that we learn of his views? If they are mainstream, if they are moderate, if they are not way off the deep end, would not release of documents, would not his answering questions without evasion vindicate him? But instead, we have had a 3-, 4-, 5-week battle to get simple answers out of a man who seeks to be appointed to the second most powerful court in the land that will affect every one of the 280 million Americans who are living today, their lives and the lives of their children and the lives of their grandchildren. My colleague is exactly right.

I thank my colleague for that question. First, I say to him, certainly, and let the American people who are watching today and everybody else understand the reason we have been on the issue of Miguel Estrada is not the choice of the Senator from Massachusetts, the Senator from New York, or our Democratic leader. It is the choice of the Republican side. It is the choice of the Senator from Tennessee.

Any moment--we do not control the floor; we are in the minority--any moment our friend from Tennessee, the majority leader, should say, Let's start debating how we are going to start getting jobs for the American people, more than 2 million of whom have lost jobs, any time the majority leader from Tennessee should say, let's debate prescription drugs, we would be off this issue of Miguel Estrada and debating those issues. I say to my colleague, as long as our colleagues insist on debating Miguel Estrada, I for one, and I speak, I think, for many of us, will not let the Constitution be rolled over, will not allow the very discussion that the good Senator from Massachusetts outlined, where it is clear the Senate should have more power than the President in appointing judges, be made a laughingstock. This document, the Constitution, is far too sacred.

It is my preference, to be honest, that the majority leader, the Republican leader from Tennessee say: Let's start debating other issues. It is his choice. But as long as he does not, I will be here at 10 of 4 in the afternoon or 10 of 4 in the middle of the night to defend this Constitution and prevent it from becoming a laughingstock because of some temporary whim of a small number of people in this country.

I yield the floor.

Mr. President, first, let me thank our majority leader for the grace and hospitality he has shown our honored guest today, and all of our guests from the Bronx and the New York area who are present.

We are graced, of course, by God's presence but also by the presence of one of the great leaders in New York, the Reverend Diaz.

Visitors are not allowed to applaud, but we are applauding in our hearts--en nuestros corazones. And we are honored and blessed to have a leader such as Reverend Diaz. He is a leader in both the temporal world--God's world--and our secular world. And he brings the two together in such a beautiful and exquisite way that he is admired from one end of our State to the other.

He has been my friend for a very long time. We are honored that he serves us in our legislature, but we are even more honored that he brings the word of God to all of us here in the Senate as well as in New York. And may he be granted many, many more years of leadership and good health.

Mr. President, I thank the majority leader.

Mr. President, will my colleague yield for a unanimous consent request?

I understand, Mr. President, that there has already been a request that Senator Specter immediately follow Senator Dorgan. I haven't had a chance to speak in the last few days. I ask unanimous consent that I be allowed to follow Senator Specter when he finishes his remarks.

I thank the Chair.

I thank my colleague. I think what he is doing on these fuel-cell cars is great and the way to the future. I commend him for his bill.

Reserving the right to object--and I am not going to object--I want to get a time line. My friend has important things to say. How much longer does my colleague from Pennsylvania--if he will yield for a question--expect to hold the floor?

I thank my colleague. I am trying to work out our schedule. I have no objection, of course. I am very interested in what my colleague has to say.

Mr. President, I think Members on both sides of the aisle greatly respect the work of our colleague on the FBI and we appreciate his work.

Well deserved, not just in my opinion but in the opinion of many Members.

Mr. President, I will continue our discussion on so many issues facing the Nation. Obviously, in the Senate the business is the business of Miguel Estrada. I will comment on that in a few minutes.

I do want to say, however, that some on the other side are attempting to convey the impression that it is we, the Democrats, who continue the debate on Miguel Estrada. We do not. We have, indeed, asked Mr. Estrada to answer the most rudimentary questions that every person who seeks to achieve a lifetime appointment of the high office of judge of the DC Circuit Court of Appeals is asked to answer. There are a large number of Members who will not move to vote until those questions are answered. That seems to be entirely logical.

Let me make clear the reason we continue to debate Mr. Estrada--not the economy, not homeland security, not the many issues that our constituents are asking about--is the choice not of the Democratic minority but of the Republican majority that controls the floor.

In fact, 2 weeks ago, when the Republican majority thought they ought to get other things done, they have. We actually approved three other judges at the majority leader's request. We left the subject of Mr. Estrada and debated those judges. We approved the omnibus budget--late, of course--but we approved that budget, the largest amount of Federal spending we have ever voted on, debated it, amended it, while the Estrada nomination was still pending.

I ask my colleagues on the other side of the aisle, until we resolve this impasse about who Mr. Estrada is and what he actually believes, what his judicial philosophy is, and get the best evidence--not hearsay evidence because there is hearsay evidence on both sides--that we do move to other issues.

When I go to New York, virtually none of my constituents ask me about Miguel Estrada. Yes, you will get some editorials and you get some talk shows talking about him one way or the other. But not average voters. Not even any voter except those in the political class.

My constituents are asking me about the war, when we might go to war and what is happening. I get a lot of negative comments about France, which I am sympathetic toward--not France but the negative comments. And more than that I get questions about the economy. I get question after question after question: What are you guys in Washington doing about the economy?

This morning I flew back from New York and the man at the gate of the airport, obviously somebody who makes an average salary working for Delta Airlines, asked me: Senator, when are you guys going to get the economy going?

We on this side would love to start debating on the economy. We would love to start talking about how we will get people to work. As our minority leader, Tom Daschle, put it so well yesterday, the Republicans on the other side of the aisle are concerned about one job, that of Mr. Estrada. And by the way, he already has a job. My guess is he is being paid well into the six figures. He can live quite a nice life, as he deserves, on that ample salary.

But what about the 2.8 million Americans who have lost jobs? What about the tens of millions of other Americans who have jobs, but they are not getting the salaries they used to get in terms of buying power? What about all the companies, the small businesses, that say the business climate is not good enough so they can expand? What about the large businesses? I was reading my clips here and some of the largest companies in upstate New York have stopped putting dollars into research or decreased the amount of money they are putting into research, which is the lifeblood of our future, our information-based economy, because very simply, the economy is so squishy soft.

We have plans to deal with the economy. We would like to debate them. I was told this morning that many think the majority leader will not even bring up a stimulus package until late spring. We cannot afford to wait. We can sit here and make the speeches.

Do you know how many times I have heard that Mr. Estrada graduated from Harvard Law School? It is not new news. We are not making any new points in this debate. I guess every one of the Senators could answer this question: How many former Solicitors General have said that the records should not be revealed? We have heard that probably 100 times on the floor. No new ground is being broken in this debate.

Yet for some strange reason the majority leader seeks to keep us on this issue. We all know what the issue is. It is a simple issue. That is, many Members believe Mr. Estrada has to tell not only the Senate but the American people--because the Founding Fathers regarded us as a mechanism by which the American people could learn--his views on fundamental issues. What is his view of the first amendment and whether it is an expansive view or narrowing view?

Right now we are faced with the age-old conflict between security and liberty as we debate the PATRIOT Act. It is all challenged in court. What are Mr. Estrada's views? How does he see it? Is he hard on the security side? Is he hard on the liberty side? What are his views on the commerce clause?

We all know that there is a move among many Justices in the Supreme Court and judges in the courts of appeals to narrow that commerce clause. Some want to narrow it, in my opinion, so severely we could go back not to the 1930s but the 1890s.

The American people are entitled to know his views. They are not simply entitled to know that Mr. Seth Waxman says he is a good fellow. That is not an answer.

I am sure my colleague from Pennsylvania would admit if he were here, direct evidence is a lot better than hearsay evidence. There are various ways you get direct evidence. One is by asking a witness questions. As anyone who has read the transcript of the hearing that I chaired for Mr. Estrada, he went to every length to avoid any answers that were substantive on any direct questions. I have never seen anything like it.

Of course, subsequent to Mr. Estrada answering that way, I believe there are new nominees saying the same thing. But none of the nominees before were ever so restrictive. And I believe the only reason the others have not answered questions, they were afraid they would embarrass Mr. Estrada, acting at the request of the White House. It is a good guess he has been instructed not to answer these.

Another way is to look at somebody's past history. There is only one place where we can find Mr. Estrada's own views in his past history because he has written very little.

He clearly was not previously a judge; he was a lawyer. He was obviously representing clients; that is, by his writings and by his views when he was in the Solicitor General's office. There are some who say those should not be revealed. There are arguments on that side. But there are no legal arguments and there is plenty of precedent on the other side.

Should everybody who worked in the Solicitor General's Office have to reveal such information? Probably it would be better. I believe in openness. But it wouldn't be essential because just about every nominee who has come before us for this kind of high court has had some kind of record.

There are some who say Mr. Estrada is way to the right of Justice Scalia. If that is true, he should not be approved. If, on the other hand, he is a mainstream conservative, he should be approved.

Of the 106 people the President nominated for judge for whom we voted, on whom we have had votes here in the Senate, I have supported 98, 99, or 100 of them. I am sure the vast majority of those were mainstream conservatives--people I might disagree with on this issue or that. But the real issue here is, Is Mr. Estrada so far out of the mainstream on the second highest court in the land that if the American people knew his views they would be aghast?

Do you know what many people say when they hear this argument? When I went back home and anyone asked me--as I said, almost no one did--but when I was asked or when I entered an opinion, there was not a soul who would disagree that he should reveal what he thinks. There is too much power in this awesome lifetime appointment not to do so.

So the issue is drawn. We know the issue. No one has budged over the last 2 to 3 weeks.

Why are we still debating Estrada? Because the Republican majority insists on doing it. Maybe they think they can win political points. I doubt it. I think most people do not care. Maybe they feel so strongly that they want to keep the Senate tied up. I will tell you, if they do, they are not representing what the American people want, which is debate on other issues.

The two issues I think we should be debating now are the economy and what we are doing about homeland security. Those two issues, in my judgment, are the two that have a real impact. We have disagreements on the war. We know that. That is now pretty much in executive branch hands. But what to do about homeland security and what to do about the economy or what the American people are asking us to do--and I will say to you, ladies and gentlemen of America--the reason we are not debating those extremely serious issues is because the Republican majority insists that we stay on the Estrada issue.

If I heard from the other side new arguments that might convince people, I would say, well, maybe they have a point. But a new argument has not been made on this issue for a week or two. Do you know what. If someone comes up with an ingenious argument that might convince a number of Members on this side, we can go back and debate Mr. Estrada. But right now, I will challenge my good friends, my Republican colleagues on the other side of the aisle, to start doing something about the economy. Let us debate that issue.

Again, I say this to the American people. We do not control the floor.

When they say Democrats are filibustering on Mr. Estrada, that is not true. It is the Republican side that is keeping us debating the issue of Mr. Estrada. They say until you see it our way, we are going to stay with Mr. Estrada. If this were the No. 1 issue most Americans think should be tackled, they might have a point. But it isn't, although I am afraid some of my colleagues are sort of out of touch.

I want to quote my good friend, the junior Senator from Pennsylvania, Mr. Santorum. He came out of a White House meeting, according to the National Journal, and said that getting Estrada to the Senate was first and foremost on President Bush's mind.

More important than the war in Iraq? More important than protecting our homeland? More important than starting the economy going and getting the jobs we need? I don't think more than 1 percent of the American people would agree with that analysis. If so, the President ought to rethink. If Mr. Santorum is properly reporting on President Bush's views that Estrada is first and foremost, then the President ought to get out on the hustings and start talking to the American people and finding out what is on their minds because it isn't Mr. Estrada.

I would like to talk about one thing about the economy which I think is important. Today, along with my colleague from New Jersey, Senator Corzine, and my colleague from Michigan, Ms. Stabenow, and my colleague from Delaware, Senator Carper, all members of the Banking Committee, we put in a sense-of-the-Congress resolution that says the independence of the Federal Reserve Board should be preserved; that praises Chairman Greenspan as an independent voice and that asks this Senate to go on record in support of Mr. Greenspan.

Why have we done that? Very simply, 2 weeks ago Mr. Greenspan, before our Banking Committee, was his usual independent self. He said that while he likes the dividend tax cut, that he was so worried about plunging this Nation into fiscal chaos with huge deficits that we only ought to do it if it could be revenue-neutral--in other words, if we could find other cuts in spending or other increases in taxes that would equal the dividend tax cut--a view, by the way, that I find is corroborated by most of the business leaders I talk to.

Right after that happened, there were reports in all the newspapers that the White House was furious at Alan Greenspan. Bob Novak said in his column--which I believe was entitled, ``Goodbye Greenspan?''--the White House was so angry at Alan Greenspan's show of display of independence that they might not reappoint him.

I will be happy to yield in a few minutes. I want to finish my point.

When the Federal Reserve Board was set up, it was supposed to be independent. That is why it was a board. That is why the appointments are for such lengths of time. If you go back and read the history, it was set up to be as far removed from the political forces within the White House and elsewhere as it could be. Sometimes the independence of Chairman Greenspan benefits the White House.

Two years ago, many of us on this side of the aisle were quite upset with him when he encouraged a tax cut that many economists thought seemed too high--not that there shouldn't have been a tax cut, but that it was too large. At that point, the White House was very happy with the independence of the chairman. Now he said something else. Our economy is weaker. We have a large deficit. It is getting worse. The White House, which says we have no money for homeland security and no money to help the States out of their problems, has $670 billion for a tax cut.

I tend to like tax cuts. I tend to support them. But they ought to be stimulative to the economy. They ought to be fair. In other words, the middle-class people ought to get a good, decent share of the benefit. And they ought to be responsible. They ought not throw us into such large deficits that our economy has a burden on its shoulders for a decade. Chairman Greenspan was saying on the last point that we need to correct it.

When I mentioned this resolution in the Banking Committee a few hours ago, I was glad to hear that three or four of my Republican colleagues, including Chairman Shelby, said that Alan Greenspan was a fine man, that the Federal Reserve Board ought to be independent, and that he ought to be reappointed.

I ask unanimous consent right now to bring up that amendment, to bring up that sense-of-the-Senate resolution because that would help calm the markets that are jittery enough as they are right now.

I understand that my colleague objected. It didn't surprise me.

But, again, on the issue of great importance to Americans, the state of this economy, and the independence of the Federal Reserve Board and the need that we don't just become profligate with the tax cut or the spending side, the other side wants not to debate that subject and continue debating Mr. Estrada.

I am happy to debate it. I have been on this floor for many hours. But, again, there are no new arguments that come out. I think every one of us could take a quiz on the three major points the Republican side makes and the Democrat side makes. So I say to my

colleagues, it is time to move on. There is another issue I think we should move on to.

I am going to yield just for the purposes of a question to my colleague because I am going on to another little area.

Let me respond to my colleague, I did not. I usually do send written questions. I had ample time to question Mr. Estrada. I got to ask a lot of the questions I wanted to ask. There was one problem: I got no answers. When I asked Mr. Estrada his views on, say, the 1st amendment, or on the commerce clause, or on the 11th amendment, I got back an answer that I found extremely unsatisfying. Some might call it disingenuous. I am not going to go that far. He said: Senator, I will follow the law.

Of course, every judge believes they are following the law. But if following the law was all one needed to say, we would not need a confirmation process. How Justice Scalia thinks we ought to follow the law is quite different than how Justice Breyer or Justice Thomas thinks we ought to follow the law.

If simply following the law told us how a judge would vote on the most important issues, then why is it that judges who tend to be appointed by Republican Presidents--not always, but usually--vote quite differently than judges who get appointed by Democratic Presidents? It is because even as you follow the law, your own views always influence you as a judge. And the higher the court is, and the more important the court is, the more that is the case, because there are fewer precedents.

In fact, I commend to my good friend from Montana a study done by Professor Sunstein of the University of Chicago. He looked at this very DC Court of Appeals, and he said there were huge differences on just about every issue between the judges appointed by Democratic Presidents and judges appointed by Republican Presidents.

So the bottom line is, I asked Mr. Estrada, and first he said: I can't answer these questions because it might influence me when I have to make a future decision. And he cited the canons of ethics. We all know that the canons of ethics means you cannot say: Well, there is a case over there about the logging standards in the Sawtooth Mountains. I think those are in Montana.

Idaho. My family and I have traveled through there, and it is a beautiful part of America. We go hiking out there every summer, although I am sure my friend from Montana would think not enough of the West has rubbed off on me yet, but we are trying.

But in any case, that prospective nominee should not answer. But if you ask a prospective nominee his views or her views on: What are your general views on how much leeway the Federal Government has versus the State governments on how logging should be done or how the environment should be regulated? I would argue to my colleague from Montana that is exactly what we should be asking the nominee, and that is exactly what they should be answering.

Let me read you a quote from your leader on the Judiciary Committee. He said, on February 18, 1997, before the University of Utah Federalist Society:

Determining which of President Clinton's nominees will

become activists is complicated and it will require the

Senate to be more diligent and extensive in its questioning

of nominees' jurisprudential views.

That is exactly what we are saying. He was asked by Senator Feinstein his views on Roe v. Wade. Now, I do not believe in a litmus test, and I would say, of the 99 or so judges I voted for, who were nominated by President Bush, most of them disagree with my view on choice, but I voted for them because they were mainstream conservatives. They were mainstream.

I will yield when I finish my point.

But when Miguel Estrada was asked if he had any personal views on Roe v. Wade, he said, no--something to that effect. I said to him: Name three Supreme Court cases already decided that you do not like. There would be no worry about the canons of ethics. And guess what he said. ``I won't answer.''

So after 90 minutes of basically being stonewalled, there was no further point in asking written questions and getting the same answers. It is not that we did not ask the questions. We asked him a ton of questions, my colleague from Illinois and all the members of the Judiciary Committee. He just simply dead flat refused to answer them. And that when you are being nominated for the second most important court in the land, a court that is going to have huge power over every one of our lives.

That is not what the Founding Fathers intended. You read The Federalist Papers. It is not fair to this Senate. It makes a mockery of the process. And most of all, I say to my good friend from Montana, it is not fair to the American people. Because the judiciary is the one unelected branch of Government. It is where the people have the least say. That is why sometimes it garners such fervent opinions, pro and con. But the only chance you have--before this lifetime appointment passes--is at this point. And, in all fairness, I cannot think of anybody who has shown less of what he thinks about the major issues of the day before nomination than Mr. Estrada. I am sure my colleague would agree with me, if you asked 100 Americans: Should nominees for such awesome positions be--not required--but should they reveal their views? I bet 99 or 98 would say: Yes.

So I just want to make one other point. I see my other colleagues are in the Chamber. There is another issue--I am going to yield.

I ask the Senator, do you have another question?

Mr. President, just reclaiming my time, I would say it has been made about 50 times--not very well, in my judgment but 50 times.

I appreciate that.

Mr. President, let me say this. I don't have all of the nominees here. I have been on the Judiciary Committee for 4 years. I have not come across a nominee to the court of appeals, when given

so many extensive questions, who had so few answers as Miguel Estrada.

I don't think there is a double standard. I will quote one. Probably, the nominee of President Clinton that garnered the most controversy-- because my colleagues on the other side thought he was too far out of the mainstream from the left side--happened to be a Hispanic nominee named Richard Paez. As the Senator knows, he was held up for over 1,500 days. Let me read the same question that was asked of Mr. Paez--by the way, these were asked by your colleague, my colleague, our friend, Senator Sessions. Senator Sessions asked him:

In your opinion, what is the greatest Supreme Court

decision in American history?

Did Judge Paez refuse to answer that question, say he could not, as Mr. Estrada did? No. He right away named Brown v. Board of Education.

Senator Sessions then asked the same question I asked of Mr. Estrada. He said:

What is the worst Supreme Court decision?

Again, Paez answered without hesitation, without ducking, without hiding behind some legal subterfuge--which I know my colleague from Montana doesn't like--that it was Dred Scott.

So if these questions were fair to ask Judge Paez, why are they not fair to ask Miguel Estrada?

One other point I will make rhetorically is, we have heard some charges here--not directed at any one of us specifically--that asking Mr. Estrada all these questions means we are against Hispanics. Why wasn't asking these questions of Judge Paez anti-Hispanic? If you want to talk about a double standard, the double standard, I am afraid, has been brought up by many of my colleagues on the other side of the aisle who seem to think it was perfectly OK then.

This is what Senator Hatch said about another Hispanic nominee. Her name was Rosemary Barkett--a Hispanic nominee, by the way, with the same kind of rags-to-riches story--well, Miguel Estrada didn't come from poverty, but it was the same quick advancement story. She tried to become a nun. She worked in schools and made herself a lawyer--very admirable, with high ratings from the American Bar Association. Same thing. This is what our good friend, Orrin Hatch, said:

I led the fight to oppose Judge Barkett's confirmation . .

. because her judicial records indicated that she would be an

activist who would legislate from the bench.

Why isn't what's good for the goose good for the gander? Senator Hatch believed--and nobody on this side stopped him--that he had to ask this nominee, who also happens to be Hispanic--a Mexican American, not from Central America--a whole lot of questions. He had to go through her records and now all of a sudden when Miguel Estrada comes up, not only are we being told we should not ask questions, but it is a ``double standard'' because he is Hispanic. I think the double standard comes from the people who are making that charge on the other side. They ought to look in the mirror.

I yield to my colleague from Nevada for a question.

I am indeed.

I am.

Exactly true.

Yes. Senator Leahy, our chairman, made every effort to bring nominees through. When I tell my constituents--the few who care about this, frankly, because most of them want us to talk about the economy or homeland security--that we have approved something like 99 out of 106 nominees, a lot of them said we approved too many. Everyone should not be rubberstamped.

My colleague is exactly correct. I brought this up before while we were debating Miguel Estrada, so we could go off the Estrada issue to debate the economy and homeland security, which my good friend from Montana had the good grace to say is also far more on the minds of his constituents.

I am not familiar with that particular one, but Pew Research has a good reputation.

I was not aware of that poll.

I am aware of that. I was sitting on the floor when Senator Daschle brought it up. He made an excellent point, I thought. He said the other side seemed to be concerned about one man's job, Miguel Estrada.

By the way--and Senator Daschle didn't say this--Mr. Estrada already has a job. My guess is that he is probably making in the high six figures, so he can do pretty well feeding his family.

In a minute, I will be delighted to yield.

We have 2.8 million fewer Americans in jobs than we had when President Bush took office. We have tens of millions of Americans who have jobs, but their jobs are not as good as the jobs they used to have. We should be debating that issue.

I say to my colleague from Nevada and my colleague from Montana that we should be debating homeland security, which is vital to our future. Those of us who follow football, or basketball, or baseball know that a good team needs both a good offense and a good defense. There are many opinions on the offense, but clearly President Bush has a plan and has implemented it. I have been sometimes critical, but usually supportive, of the President's plan in that regard. But a good team needs defense.

On homeland security, this country is not doing close to what we need to do. Even if, God willing, tomorrow we were to get rid of Saddam Hussein, Osama bin Laden, and al-Qaida, other groups would come forward. Are we protected from shoulder-held missile launchers? Are our planes protected? No. Are we protected from somebody smuggling a nuclear weapon into this country? Are we doing much about it? No.

Is our northern border, which my State shares with Canada for hundreds of miles, at all adequately guarded so bad people cannot come in? No.

Is there money in the President's budget to do these activities? No.

I do not know if this is true of my colleague from Montana, but when I go back and talk to my police chiefs and fire chiefs of big towns, little towns, urban areas, rural areas, and suburban areas, does my colleague know what they tell me? They have huge new responsibilities post 9/11, and they are not getting one thin dime from Washington. In my opinion, most Americans would rather we debate that than debating Miguel Estrada.

So we are at an impasse with Estrada. We believe records should be revealed. The other side says: No, let's vote on him without the records. Nothing has changed in the last week or two. Why don't we just put the issue of Mr. Estrada aside until someone a lot smarter than the Senator from New

York and the Senator from Montana thinks of some kind of compromise, because right now we are at loggerheads and nothing has budged, and why don't we start talking about the economy, which my colleague from Nevada brought up; why don't we start talking about homeland security as we are on the edge of war with Iraq, which is what, again, my good friend from Montana has admitted his constituents would prefer. I can certainly tell the Senator that my constituents in New York would much prefer that.

I yield for another question.

I say to my colleague----

Wait, in the Senate--I have only been here 4 years, and my colleague has been here longer, but we do not do that yes or no, cross-examination stuff. In fact, when I came here, I only spoke for 5 or 10 minutes on subjects, and people thought I was crazy, but I am not going to take that long. I am not going to take more than 5 minutes.

At first, Judge Paez, as my friend knows, was held up for 4 years. If my colleague wants to make it equal, start complaining in 2 more years about Judge Estrada. Second, and far more important than the amount of time, Judge Paez had an ample record in the courts. By the way, so ample that I believe it was 39 Members from the other side--perhaps my friend from Montana; I do not know how he voted--voted against Judge Paez, and when Judge Paez came before us and was subjected to extensive questioning by Senator Sessions, by Senator Ashcroft, who was then a Senator, by many of my colleagues on the Judiciary Committee, did he duck? Did he hide behind the legal shibboleth of: I have to see all the briefs before I answer, or it is a case that might come before me? He did not. He had the courage, he had the decency, and, most of all, he had the respect for the advise and consent process to answer those questions. So he deserved a vote.

I say to my colleague, if in 2005 we have a Democratic President--God willing--and if that Democratic President should nominate somebody who many on the other side fear would be so far over to the left that he would do real damage on the bench, I would support my colleagues, if he did not answer questions and had as skimpy a record and did as much of a job of stonewalling, in not bringing that nominee to a vote as I would today.

This is not an issue of left or right, in my judgment. It should not be. This is not an issue even of my view, which is: Should ideology matter when you vote for judges? I believe it should, but some do not. This is a matter, in my judgment--and I mean this sincerely to my colleague--that goes to the sacredness of the Constitution of the United States.

When the Founding Fathers, in their wisdom, set up the advice and consent clause, they did not intend it to be degraded by having a sham hearing where the witness answers no questions.

Well----

Let me say to my colleague that snow comes from the clouds, and it happens when the temperature is below 32 degrees up in the clouds.

Mr. President, it is always a pleasure to debate with my colleague from Montana. I say to my colleague, this, plain and simple, he knows in his heart--I hope he knows; I think he knows--that what Miguel Estrada did in terms of how he treated this body--all of us--was wrong, and if it is allowed to continue, we will have dramatic changes in the way this country is governed, and that is why so many of us feel so strongly about this issue.

I reiterate to my colleague once more, he is not going to change our views, at least not with the same old arguments. I have been asked about four or five times did Judge Paez get a vote. Let's put this aside and talk about the issues the American people want us to talk about: the economy and homeland security. If my colleague can get the record of Mr. Estrada, we will be happy then to bring him to a vote.

I thank my colleague. I yield the floor.

Will the Senator yield?

Two questions. I want to follow up again on what the Senator from South Dakota said in the dialog with my colleague from Illinois. First, I know the Estrada judge issue has gotten a lot of attention in the newspapers. When I go back to my State of New York, virtually no one asks me about it--very few people. I get lots of people asking about the war and also about the economy and jobs. Is that particular to New York because we had September 11 or is the same thing happening in South Dakota?

If my colleague will yield for another question, we have seen in the newspapers the talk that the Democrats are filibustering, that Democrats are preventing the Senate from going forward to other issues, whereas the Republicans are eager to go to other issues.

The real truth on this floor is, first of all, that we have asked just now to go to economic issues, that last week when the Republican leadership--they run the show--decided to bring up this omnibus budget, the Estrada nomination did not stand in the way. We did it. We voted in one fell swoop for the entire Federal budget, and, in fact, last week this floor, because the Republican leadership chose to do so, actually voted on three other judges who I believe passed unanimously, if not close to unanimously. And the filibuster, in a sense--in a very real sense--is not being conducted by the Democrats but rather, led by my capable and good friend from Utah, by the Republicans, and we would be happy to move on to other issues that are pressing, that are on people's minds, and maybe come back to this issue at some point when we get the requested material.

Just to rephrase my question, who is really preventing us from moving forward? Who is filibustering? Why are we staying on this issue? Is that the Senator's choice as the leader of the Democrats or is that the choice of our good friend from Tennessee as leader of the Republicans?

If my colleague will yield for just one final question, might it not be fair to say that it is not the Democrats filibustering to prevent Estrada from coming forward for a vote but, rather, the Republicans are filibustering until they get the vote on Estrada, which they have so far refused to call for? Is that an unfair characterization?

I thank the leader.

Will my good friend yield for a question?

Will my colleague yield for a question?

I would like to ask the Senator two questions.

The first question is this. My colleague said, in a very well done speech--I read it--before the University of Utah Federalist Society, in 1997:

Determining which of President Clinton's nominees will

become activists is complicated and it will require the

Senate to be more diligent and extensive in its questioning

of nominees' ``jurisprudential views.''

Now, in fairness to my friend----

I have a question. I am coming to it. In fairness, the Senator just said how important the judiciary is.

Now, in those papers, the books that my colleague has held up--I have read them. I read the whole transcript. I was there for much of it. I chaired that hearing.

I know. I ask my colleague, does Miguel Estrada talk about how he feels about the 1st amendment, or the 2nd amendment, or the 11th amendment, or the commerce clause, or the right to privacy, or all the major issues that he will rule on for the rest of his life if he becomes a judge? And if he does not, other than to say, ``I will follow the law''--and we all know judges follow the law in different ways--then why isn't what is good for the goose good for the gander?

In other words, when it was a Democratic nominee--and this is not tit for tat. My colleague, who cares about the judiciary, said he needed extensive questions. We didn't get that opportunity because, as my colleague well knows, Mr. Estrada just said, on every issue asked, ``I will follow the law.''

My question to my colleague is----

Why shouldn't we be accorded the same right, as he espoused in his speech in 1997, to get all the details to this appointment to the second highest court of the land, which is going to have a lifetime--Mr. Estrada has a job now; but this is a different job--a lifetime appointment that will affect everybody? Why is the one different than the other?

Could I ask my colleague to yield?

Will my colleague yield for a question?

Sir, I was waiting longer than Senator Domenici. If my colleague will yield?