Floor Statements

Mr. President, I rise today in support of S. 151, the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act, or the PROTECT Act, a critical piece of legislation which is desperately needed to fight the war on child pornography.

And make no mistake, the fight against child pornography is indeed a war. It's a worldwide war being fought out largely on the worldwide web. Child pornographers are organized and spread across the globe, but the globe is a lot smaller now that the Internet reaches from Antwerp, Belgium, to Antwerp, New York, and everywhere in between.

As I speak, prosecutors across our country are fighting an exponential growth in child pornography, from here and abroad, and they are struggling to keep up with the wily tactics of the child pornographers.

To fight this critical fight, our prosecutors need new, more, and better weapons. Just as our local police in so many communities are taking to the streets outgunned by drug dealers, our cybercops are working at a technological disadvantage as they go after cybersmut purveyors.

The enemy does not sit still and neither should we. The PROTECT Act gives prosecutors more of the weapons they need.

We cannot and we will not permit child pornographers to hide behind the courts or modern technology. We cannot and we will not permit them to continue to abuse children, real, live children, children from all races, backgrounds and creeds.

We must send child pornographers the message that Congress will not tolerate child abuse or child pornography, today, tomorrow, or ever, no matter what the state of technology is. Technology is intended to help children, not hurt them. This bill helps us take a big step in that direction.

The PROTECT Act goes a long way toward strengthening federal law against child pornography.

For starters, it creates two new crimes which target distributors of child pornography and people who entice new children to engage in it.

The bill provides tough punishment with both of these crimes carrying a maximum penalty of 15 years in prison for a first offense and double that for repeat offenders. Only through serious measures like these can we show that we are serious about fighting this war on child pornography.

Like our anti-terrorism laws which deal with the threat from overseas, the PROTECT Act deals with the threat to our children from those who make child pornography overseas then bring it into the United States. This new law will say that if you force a child to participate in pornography and intend to send that pornography to the United States, you are committing a crime and answerable to our system of justice. In short, you are going to jail, and you're not looking at a short stint in any country club prison. You are doing serious time.

The PROTECT Act specifically increases penalties for people who commit repeat acts of sex offenses by expanding the types of crimes which can trigger mandatory minimum sentences. In this bill, we back up our tough talk on penalties by requiring the U.S. Sentencing Commission to fix a disparity in the current sentencing scheme.

Believe it or not, under current law, under some circumstances you can get less jail time for having sex with a child than you'd get for possessing child pornography. The PROTECT Act fixes this absurd disparity.

The PROTECT Act also provides protection for the true victims of child pornography, the children who are used and abused to make it.

A recent New York Times article highlighted the horrific truth about who these children are. In the article, in the Sunday New York Times from February 9, 2003, the author wrote that ``most children depicted in child pornography are prepubescent, with most of them appearing to be from 6 to 11 years old'' and ``many of the victims appear to be toddlers or infants.'' These are real children, our children, children who need to be protected from this despicable evil.

And as its name implies, the PROTECT Act protects these children. This legislation provides, for the first time, a ``child victim shield provision'' to protect the names of victims. Under this provision, the Government can file a motion in a child pornography case to keep the name, address, social security number and other nonphysical identifying information of the real child victim from being revealed.

This is critical to successful child pornography prosecutions. To get child victims to cooperate, we must protect their identities. To reveal the name of a child pornography victim without good cause and through a judge, would be to victimize that child twice. We cannot permit that to happen.

This bill also protects victims by creating, again for the first time, a new private right of action for victims of child pornography against those who produce it. We are hearing a lot about tort reform here these days, but I hope my colleagues will agree that victims of child pornography should have the right to collect punitive damages from their abusers. If anyone deserves punitive damages, they do.

But the bill does not stop there. It also addresses a subject that has been of some controversy in light of the Supreme Court decision last year, but which we need to address. That subject is the use of modern technology by child pornographers to attempt to hide the fact that their images are made using real children.

In the old days, child pornographers would ply their filthy craft by taking photographs and distributing them. With the advent of television, child pornographers began to take video images, images which displayed real, live children engaged in sick, perverted sexual or obscene acts.

With the development of the video recorder, child pornographers were able to store these images and distribute them more widely. With the development of the CD and DVD, the images could be stored on a disk which could literally fit in the palm of your hand.

The greatest growth in the creation and distribution of child pornography, however, has come in recent years with the development of the Internet and the digital image. These developments have permitted child pornographers to disseminate their product exponentially, not only across America, but around the world, with a few simple strokes of a keyboard.

As the New York Times observed, ``the combination of digital photograph and high-speed home Internet across has set off what authorities say is an explosion of homemade child pornography in recent years, with growing numbers of victims.'' We need to stop the number of victims by shrinking the number of child pornographers.

In fact, today, it has become apparent through evidence submitted to Congress by the National Center for Missing and Exploited Children and other groups that child pornographers use technology to disguise depictions of real children to make them unidentifiable and appear to be computer generated.

Some efforts are being undertaken to deal with so-called ``virtual porn'' which distorts the images of real children, but those efforts don't go far enough.

We need to do more to bring the law up to speed with the technology of child pornography. The PROTECT Act attempts to do so.

One of our Nation's biggest law enforcement problems is the failure of Federal authorities to work closely with their state counterparts. This is especially true when it comes to child pornography. There are countless cases where Federal officials have stepped on state officers' toes while conducting parallel investigations and never talking with each other. This bill requires a greater degree of Federal local coordination than has ever happened before in these kinds of cases.

In sum, the time has come to send a message to child pornographers. We are telling them that no matter how advanced their computers and cameras are, child porn makers and puveryors cannot run and hide from American law enforcement.

This is a 21st century problem in need of a 21st century solution. The PROTECT Act does not solve all of our problems in this area, but it's a step in the right direction.

Madam President, I appreciate the Senator yielding. I say to the Senator, my memories are those my parents told me.

I was not.

Will my friend and leader from West Virginia yield?

My colleague from West Virginia, if he might yield----

Is making everything come alive in this Chamber. We have not had a happier moment in a long time. And I very much appreciate the stories he is telling. I was going to say, I guess we all ought to take this up, because 65 years of marriage to Erma--and we all hope and pray she is in good health again; and I hope she is--is something we should all pay very good attention to.

Now, I don't know, these days, if the young ladies will just accept bubble gum. You might have to do a little more than that, maybe a whole basket of candy or something. But it is good for us to know.

I did not want to interrupt my colleague. I just, in terms of the scheduling, ask if it might be all right to ask unanimous consent that after the Senator from West Virginia is finished I be recognized for the time that I might need.

Madam President, if I may continue, I try to remember great speeches. One of the best speeches I ever heard was made by our colleague from West Virginia when he came to the floor, it must have been about a year and a half ago, and talked, with as much love as he has for his employee who has passed and almost as much love as for his wife, about the beauties of coming to West Virginia on a vacation. It was one of the finest, nicest speeches I ever heard. I will never forget it, and I think this one is going to be just as memorable. I look forward to hearing my friend continue. I thank him for his courtesy.

Will my colleague yield?

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

My colleague from Utah has talked about how it is unfair to block a conservative nominee who is Hispanic. I would like to ask my colleague a question about Judge Rosemary Barkett, a Hispanic woman, born in Mexico, who spent her early years there before her parents immigrated to the United States. At an early age, she devoted herself to religious service and took vows to become a nun, then a schoolteacher, educating children in Florida, then became a very distinguished lawyer. After years in private practice, she underwent a rigorous screening process, and she was appointed to the State trial bench.

My question is, did my good friend from Utah not say about Judge Barkett:

I led the fight to oppose [Judge Rosemary Barkett's]

confirmation . . . because [her] judicial records indicated

she would be an activist who would legislate from the bench?

Why is that any different than people on this side opposing Miguel Estrada because he might be a judicial activist who would legislate from the bench?

Why is my colleague accusing some on this side of being anti-Hispanic when he opposed a Hispanic judge similarly rising through the ranks because he disagreed with her philosophy?

I yield to my colleague for an answer to that question.

Will my colleague yield for a further question?

That is not the question I asked.

Will my colleague yield for an additional question?

Will my colleague yield for an additional question?

Now that the Senator from Utah knows that Judge Barkett is Hispanic, would he in any way characterize his own action as anti- Hispanic?

I would like to ask my friend from Utah a question.

My friend from Utah just characterized the kinds of questions, such as what are your opinions of court cases, in an attempt to destroy the career of Mr. Estrada. I would like to ask the Senator, you were just talking about Judge Paez with Senator Sessions. I ask the Senator, my friend from Utah, if you recall some of the questions Senator Sessions asked Richard Paez: In your opinion, what is the greatest Supreme Court decision in American history? What is the worst Supreme Court case?

I would ask my colleague two questions. Was Senator Sessions attempting to destroy the career of Richard Paez? Second, does he recall that instead of saying, I cannot answer that, Senator Paez gave answers to both of those questions?

Now Judge Paez.

Will the Senator yield for another question?

I am glad to see we are not destroying careers by asking those kinds of questions.

Will the Senator yield for a question?

I was pursuing this line of questioning before, and then somehow we turned to other people to ask questions. But when I asked my colleague before how he could say this about Judge Barkett, which is a reasonable thing for him to say--I do not

begrudge him one bit. I do not think he has an ounce of discrimination in his body--how that was not anti-Hispanic, but opposing Judge Estrada was anti-Hispanic, he prefaced his remarks by saying, well, you are opposing not Hispanics but conservative Hispanics; you are anti- conservative Hispanics--was my friend from Utah being anti-liberal Hispanic when he opposed Judge Barkett or was he simply ignoring the fact that she was Hispanic--he said he did not even know--and instead opposing her on her views and her record, something at least to this Senator is not only legitimate but an obligation to know about the views and the record? So I would like to--

I thank the Chair.

So, Mr. President, I ask my colleague, the Senator from Utah, how one is any different from the other. And isn't, as it seems to most of us, one the mirror image of the other, either exactly blasphemous or equally pure?

If my colleague from Utah will yield for a final question.

One judge nominated to the same DC Circuit Court of Appeals, Mr. Snyder--a fine judge, well respected, the highest ABA rating, same thing as Miguel Estrada in a lot of ways--never got a hearing, he never got a vote. He is from DC. There were no home State Senators to object to him, unlike Mr. Moreno.

I ask my colleague, why wasn't it very unfair not to let Mr. Snyder have a vote on the very same circuit to which we are debating Miguel Estrada's entrance?

Will the Senator yield?

I ask my final question. I have so many but I know the hour is late.

The final question in relation to the hearing tomorrow, would the chairman of the committee, the Senator from Utah, just give us 1 day of questions for Mr. Roberts? As the Senator well knows, we had an unprecedented three court of appeals nominees before us in 1 day--all three controversial, all three very erudite. We never had that before. We took all day.

To his credit, our chairman waited until 9:30 but that is when the questions finished with Mr. Sutton and one of the reasons many Members find difficulty voting on Judge Roberts, who is a brilliant man. I would just like to ask some questions. We have not had a chance to ask questions.

I ask my colleague, if you give us 1 day of hearings on Judge Roberts, we would agree to vote the very next day. Would that be acceptable to the Senator?

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.

Mr. President, I know my good friend from Utah feels very strongly about this and has spoken for about 30 minutes, so I think it

would be appropriate to go to the other side. But I have spoken to my colleague from Ohio and he only has about 10 minutes of remarks.

I ask unanimous consent that my colleague from Ohio be allowed to go for 10 minutes and then I be given the floor when he has finished.

I thank the Chair.

Mr. President, I very much thank my colleagues from Utah and Iowa for going through the order we did. I have spoken about this issue before for what, at least for me, is an uncharacteristically long amount of time. I did not finish what I had to say then. There is more to say. I wish to take up where I left off.

We are beginning to hear that anyone who opposes Mr. Estrada is anti- Hispanic. I have to tell you, Mr. President, I am disappointed in that rhetoric. I think it is low, I think it is not appropriate, and I think it is a way of hiding the real feelings here.

I cannot confine my remarks to such expressions because they do not begin to convey how deeply offensive those statements are. We deserve an apology, the American people deserve an apology, and, frankly, Mr. Estrada today deserves an apology.

This is not a debate about Mr. Estrada's ethnic background, plain and simple, and everyone in this Chamber knows it. It is a cheap argument to invoke.

Let me tell you, Mr. President, what this debate is really about. This debate is about whether the Senate should automatically defer to the President or whether the Senate should fully exercise its constitutional powers and closely examine Mr. Estrada before we hand him a lifetime appointment to the Nation's second most important court. This debate is about whether we should blithely rubberstamp nominees or whether we should insist that when we have questions, they are answered to our satisfaction.

We have been subject to accusations and allegations that would be funny if they were not so demeaning to those who state them and to those they are purporting to defend. Let me quote verbatim some of the remarks the other side has made in the course of debating this nomination.

We have heard it often said of late, but I believe Senator Lott was the first to say this last year:

They don't want Miguel Estrada because he's Hispanic.

It is so ludicrous that it is hard to imagine we have to respond to it, but to make sure the record is set straight, I will.

Under Chairman Leahy's leadership in the last Congress, we considered every other Latino nominee who could be considered, all six of them: Christina Arguello from New Mexico, Judge Philip Martinez from Texas, Randy Crane from Texas, Judge Jose Martinez from Florida, Judge Alia Ludlum from Texas, and Jose Linares from New Jersey. Every one of them was picked by the President, every one of them was confirmed quickly, and every one of them is Hispanic. We moved them on the bench because no red flags were raised suggesting they were extremists and because they did nothing to undermine the Senate's role in the confirmation process.

A seventh Latino nominee, Judge Otero from California, was unanimously supported by the Judiciary Democrats just last week, myself included, and I have every reason to believe the entire Democratic caucus will support his nomination when the majority leader brings it to the floor as scheduled later this evening. So this has nothing to do with Mr. Estrada's race, his ethnicity, or his heritage.

The only ones around here who are claiming that this debate is about race, ethnicity, and heritage are my colleagues from across the aisle, and their position puts them in the ludicrous position of saying the Congressional Hispanic Caucus or the Puerto Rican Legal Defense Fund is anti-Hispanic because they oppose Mr. Estrada. As I said, it is ludicrous. It is demeaning. Let's debate this on the merits but not on anything else.

As I mentioned, Senate Democrats unanimously supported seven Latino nominees already, all candidates offered by the President; all, I presume, sharing a conservative legal philosophy. I do not know if they are Democrats or Republicans, but I doubt all seven were Democrats. So then a lot of people on this side of the aisle supported Republican Hispanics, conservative Hispanics. It seems only when one disagrees with my good friend from Utah and those on the other side of the aisle do, the names get hurled and there is no consistency, there is no measure of appropriateness. It is similar to using a sledgehammer, a bludgeon, to get the nominee through.

None of the seven who have been nominated by President Bush--I do not know if my colleagues know how many are Republican. I do not, but again probably most of them--have raised red flags that they will be activists on the bench. None raised serious concerns that they will try to make law instead of interpreting law.

So when a Republican Senator says if someone is a minority and a conservative, we are against them, that is not only ludicrous, it is wrong; it is dead wrong and it is disproven by the facts of what has happened in the Judiciary Committee and on the floor of this Senate repeatedly last year and even tonight. Those kinds of allegations do not do anything to heighten the quality of dialog and debate. I am saddened by it. It is not a high moment for the Senate, and it is not the way to win a nomination. I wish, probably hope against hope, that we would try to raise the level of this debate, because those kinds of comments debase us, they debase this process, and everyone knows they are false. They are a red herring.

No wonder people are fed up with Washington. No wonder they do not want to pay attention to the work we are trying to do. Comments like that turn people off. It is a real disservice to the process, to the Senate, and to the country, and it ought to stop.

I will defer for a brief moment to my colleague from Utah.

I am going to reclaim my time.

I am going to reclaim my time from my colleague, if I might.

I am not familiar with those comments. I will certainly read them, but I do not think one person on a commission--I do not know who she is. I do not know if she is a Republican appointee or a Democratic appointee or anything to that effect.

But it does not gainsay the argument that we have repeatedly approved Hispanic nominees in this body, Hispanic nominees nominated by President Bush, Hispanic nominees who are Republican, and Hispanic nominees who are conservative.

I say this to my good friend from Utah: Of the 10 Hispanic appellate judges currently seated in the Federal courts, eight were appointed by President Clinton. Three other Hispanic nominees of President Clinton to the appellate courts were blocked by the other side a few years ago. I did not hear charges from Senators--I do not know what the outside world says, but I do not recall a single charge by a Senator saying that blocking those was anti-Hispanic. If somebody made those charges, they would be wrong.

Just as my colleague from Utah considers us friends, so do I. I have tremendous respect for him and I say the same as he said about me. He is tough, but he is fair. Please.

I am happy to read the letter. What I was saying was that of 10 Hispanic appellate judges currently seated in the Federal courts, eight were appointed by President Clinton. Three other Hispanic nominees of President Clinton to the appellate courts were blocked by my friends from the party on the other side, in addition to others for the district courts.

In fact, in contrast to President Bush's selection of only one Hispanic circuit court nominee in more than 2 years, with the second being nominated only last week, three of President Clinton's first 14 judicial nominees were Hispanic. He nominated more than 30 Hispanics to the Federal courts.

I am not saying Clinton's superior record on appointing Hispanic judges makes anyone on the other side or President Bush anti-Hispanic. That claim would be ludicrous, the same as to say those of us who are opposing the nomination of Miguel Estrada are anti-Hispanic. I just want to go over what happened to some Hispanic nominees when the Republicans ran the Senate during President Clinton's tenure. The consideration of Judge Richard Paez was delayed for over 1,500 days. Thirty-nine Republicans voted against it, because of his liberalism and their allegations that he was a judicial activist. These allegations were centered around two sentences contained in a lecture he gave to an audience of law students. They ran Judge Paez up and down the ladder. They demanded he answer more questions and produce more documents.

Did my colleagues put Judge Paez through the ringer because they were anti-Hispanic? I ask that to my colleague from Utah. Did his friends, not him--I know he tried to get the nominee through. After 1,500 days, he succeeded. That is close to 4 years. I think it is a little more than 4 years, but some of his colleagues and my friends on that side of the aisle vehemently opposed Judge Paez. Some of the arguments they made were the Ninth Circuit is out of balance, has a very liberal representation, and it does not need another liberal judge. Those arguments can be weighed for whatever they are worth, and different people will think they are worth different things, but it clearly does not make our friends from the other side who held up that nomination anti-Hispanic.

I am going to----

I yield to my colleague for the last time.

I am going to reclaim my time because we do not want to go through a rehash of who put through more judges. I do not think that is helpful.

I say this to my friend from Utah. He said his colleagues on the other side thought Paez might be a judicial activist. They disagreed with some of the ways Judge Paez thought. Fair enough. I did not agree with them. Nobody called them anti-Hispanic. We have had charges on this floor that to oppose Mr. Estrada makes one Senator or another anti-Hispanic. That is my point. That is demeaning to this process, and it ought to stop. The Senators who are opposing Mr. Estrada are no more anti-Hispanic than those who opposed Mr. Paez.

By the way, there were 39 Republicans who voted against him. Are those 39 Republicans anti-Hispanic? We would laugh at that. If someone on this side of the aisle tried to raise that charge, there would be a fury over there. Correctly so.

If someone had never voted for a Hispanic nominee, if President Clinton had not nominated Hispanic nominees, then maybe there would be someone bringing up this argument. But the record is to the contrary. In terms of the criteria of Hispanic nominees to the bench, this side of the aisle has a far better record than the other side.

I think those comments are demeaning. Those comments are wrong. Some on the outside may make them. We cannot help that. This is a free country. God bless America. They should not be made on the floor of the Senate. I implore my colleagues to cease. They know it is wrong. It is not even an effective debating technique.

Let me go over a few other Latino nominees. There were two Latino circuit nominees, Rosemary Barkett and Sonia Sotomayor, who were also delayed. Judge Sotomayor, who was appointed to the district court by President George H.W. Bush, was targeted by some on the other side for delay or defeat on the grounds of ideology or philosophy. Were they anti-Hispanic when they opposed her? I doubt it. While she was eventually confirmed, 29 Republicans voted against her. Were they anti- Hispanic? I doubt it. Yet we hear from some who voted against Judge Sotomayor and against Judge Paez, from some of those who have held those nominees up, the charge here. It was wrong then. It is wrong now. It ought to stop.

Judge Barkett was targeted for delay and defeat on the claims about her judicial philosophy. Thirty-six Republicans voted against her confirmation. My good friend from Utah--again, a true good friend; that is not just rhetoric, a fine man--said this of Judge Barkett: I led the fight to oppose her confirmation because her judicial records indicated she would be an activist who would legislate from the bench.

I don't doubt for a minute my friend's sincerity. I don't doubt for a minute that Chairman Hatch opposed Judge Barkett because he disagreed with her ideology and thought she would be an activist on the bench. I don't doubt for a minute he does not have an anti-Hispanic bone or atom in his body.

However, I say to my colleague, the same is true, the mirror image is going on here. Some on this side disagree with Mr. Estrada's philosophy. There are some who believe he will be a judicial activist, although none of us know for sure because the record is so thin. So there is an additional argument about the record.

Just as we did not doubt the sincerity of our friends from across the aisle when they opposed Hispanic nominees who they thought would be activist judges--not my words; out of the mainstream, who would legislate from the bench--I hope they will not doubt ours.

When scores and scores of our colleagues delayed Judge Barkett and Judge Sotomayor, when scores of Republicans voted against them, was it about race? Was it about ethnicity? Was it about heritage? Of course not. They had concerns about what kind of jurists Judge Barkett and Judge Sotomayor would be. It was not because they are Hispanic.

By the way, that is, in my judgment, just what the Founding Fathers wanted. They wanted to debate the philosophy and views of potential nominees as well as their legal ability, their probity, and where they came from in terms of judicial philosophy. That is what they wanted.

But it seems there is a double standard in this Senate now. It is OK to say Hispanics on the left are not qualified because of ideology, but it is not OK to say Hispanics on the right are not qualified because of ideology. That is patently unfair. That is wrong. Again, it demeans this great Senate. It is a sad day for the Senate when that happens. It ought to stop.

Enrique Moreno, Christine Arguello, and Jorge Rangel were all nominated to the circuit courts by President Clinton and were never afforded a hearing or vote in the Judiciary Committee when Republicans controlled. In addition, Hispanic district court nominees such as Ricardo Morado and Hilda Tagle of Texas were also blocked. Mr. Moreno and Mr. Rangel were blocked by blue slips. Senator Hatch, my friend and colleague, exercised his legitimate power as chairman of the Judiciary Committee to honor the blue slips from a Texas Senator or Texas Senators. Of course, now that we have someone else appointing the judges, Senator Hatch is changing the blue slip policies. But that is not the point. The point is, when a Texas Senator is blocked, Mr. Moreno and Mr. Rangel and the Republican leadership allowed these well- qualified, widely respected, moderate Hispanic nominations, approved by the bar association, just as Mr. Estrada was, to die on the vine.

I don't recall any claims coming from Senators on this side of the aisle that they they were anti-Hispanic. Again, to bring charges from outside this body, whether it be someone on the civil rights commission or someone in one of what my friend from Utah calls the ``left-wing Hispanic groups''--all the groups he disagrees with are left-wing Hispanics and all the groups he agrees with are fine Hispanic groups. But the point being we should not bring these issues up among ourselves because it demeans this body.

When these nominees were blocked, I assume my colleagues had their reasons. Maybe they were negotiating something. Maybe they had concerns about how the fine men would perform on the bench. But I assume those concerns had nothing to do with their being Hispanics. So why is it when they use procedural powers to block a nominee it is OK, but when we want a nominee to answer questions, disclose written materials and show he is not out of the mainstream, that he is not extreme, we get called vituperative names?

It sounds like a bad joke. I feel as if I traveled through the looking glass. We have a candidate whose picture is permanently on the floor but whose answers are permanently absent, who will not tell us what he really thinks. This is not the way the world really works. The Senate, if we do not watch it, could turn into a nonsensical California Wonderland.

Last week my good friend from Utah, who is doing a fine job defending something he believes in deeply here this afternoon and throughout this week and last weekend, said: I have never seen any Hispanic nominee whose nomination has so resonated with the

Latino community except for the partisans, the partisan Democrats.

That is just not the case. The fact is the opposite. No Hispanic nominee has ever engendered such opposition. Many mainstream Latino leaders and organizations have come to the conclusion that Mr. Estrada should not be confirmed. The nomination is not resonating with them. The nomination is not resonating with the millions of Hispanic Americans represented by the Puerto Rican Legal Defense and Education Fund, the Mexican American Legal Defense Fund, La Raza, and most of all the Congressional Hispanic Caucus.

I have heard that there are some groups of Hispanic lawyers who support Mr. Estrada or Hispanic businesspeople. Good for them. They are participating in the American process. But in my State, Congressman Serrano and Congressman Velazquez represent not only Hispanic lawyers and Hispanic businesspeople, but the whole Hispanic community. They are the two highest elected Latino officials we have. They would seem to me to speak better than any group, left, right, or center, for or against Mr. Estrada--at least talking about Hispanics in New York. They are against him.

So this battle of the organizations is a little silly. But it seems to me that by the very precepts of our democracy, those who have been elected to office are the ones who are probably the most representative, unless there is something so flawed in our democracy that it doesn't work. They seem to be overwhelmingly--not exclusively, but overwhelmingly against Mr. Estrada.

I have sat and talked to the members of the Hispanic Caucus. It is not simply a political issue to them. They feel it passionately. They believe deeply that the views that best represent those of the Hispanic people are not the views of Mr. Estrada.

These are the very organizations, by the way, some of the organizations I mentioned and some of the individuals I mentioned, who have worked vigilantly for years to put more Hispanics on the bench. Not so many of the others, who are claiming someone is not truly representing the Hispanic community. But these are the people who have done it. Do we think they have taken this position blithely, when they take such pride and have spent so much of their time trying to elevate Hispanics in the courts? Of course not. They have serious concerns, concerns about what kind of judge Mr. Estrada would be, legitimate concerns about what Mr. Estrada will do if given a lifetime appointment to the Nation's second highest court.

My friends across the aisle have accused my good friend and colleague--I know he is a friend and colleague of my friend from Utah-- Senator Leahy, of ``playing star marionette to these Hispanic groups.''

That is an insult both to our colleague from Vermont and to these fine organizations. It is absurd, and it ought to stop. They may have a philosophy closer to that of the Senator from Vermont--or to mine, for that matter--but they clearly make up their own minds. It is one of the meanest things I have heard in 30 years in government. Again, it is demeaning. It is demeaning to this body; it is demeaning to the groups; it is demeaning to Senator Leahy. It ought to stop.

I have not heard a single word on this floor denigrating the groups who have supported Mr. Estrada. I don't know who the Hispanic Chamber of Commerce is, but I am sure they are fine people. I don't know who the Hispanic Lawyers Association is, but I am sure they are fine people. I am not going to denounce them. I am not going to characterize them. So why is it OK to characterize other Hispanic groups, with whom some on the other side disagree, in such derogatory ways? I just assume that the groups on one side, cited by one Senator, and the groups cited by another looked at the same nominee and came to a different conclusion; that is all.

Another thing our colleagues across the aisle said was that we are taking blindfolded swings at Mr. Estrada. Maybe there is a little Freud in there. To the extent that we are blindfolded, it is only because Mr. Estrada will not answer questions, won't give us the memos he wrote, and we are being kept in the dark about what he believes.

I suggest we get this debate out of the low levels where it has been, at least at certain points in time, and back on the merits. Let's stop this foolishness. Let's start talking about whether the Senate should confirm a man about whom so many red flags have been raised, a man who I believe is thwarting the Senate's role in the constitutional process by refusing to answer questions, a man who is asking us to hand to him a lifetime appointment to this Nation's second most vital court without giving us even the slightest inkling as to what kind of judge he would be in terms of how he would rule, in terms of his philosophy.

In the interest of moving the debate along, let me move to the attacks that some have made on our insisting that Mr. Estrada answer the questions we have asked him. Another place where we venture into Alice in Wonderland is this idea, How dare we ask Mr. Estrada to answer questions?

Go back and look. The very ones of our colleagues who are condemning questions being asked of Mr. Estrada asked the most questions of previous nominees. God bless them for it. That is their right. It helped the debate. It helped the process.

Our friends have suggested that the questions put to Mr. Estrada, the questions he refused to answer, were unreasonable. I say to my friends on the other side that they ought to look more closely at the questions we asked, and then look in the mirror--or perhaps more correctly, look in the record--because virtually every question we asked Mr. Estrada was asked by Republican Senators of President Clinton's judicial nominees. The only difference is that when the Republicans asked questions, President Clinton's nominees gave answers.

It is also worth noting that we put the same questions to other nominees of President Bush. The only difference here, too, is that they answered. But don't take my word for it; let's go to the record.

Senator Durbin asked Mr. Estrada:

In terms of judicial philosophy, please name several

judges, living or dead, whom you admire and would like to

emulate on the bench.

Mr. Estrada declined, claiming there is no judge whatsoever, not one single judge in the entire history of jurisprudence, whom he would ``seek to emulate on the bench, whether in terms of judicial philosophy or otherwise.'' He named a couple of judges he was friendly with, a couple of judges he had personal respect for, but not one judge living or dead whom he would emulate in terms of judicial philosophy or otherwise. That is a pretty extraordinary answer from a man who wants a lifetime appointment on the Nation's second highest court. He is basically saying: ``Trust me, I am very smart''--which he is--``so I'll be a good judge.''

Forgive us if we want a little more proof. If a party in court before Mr. Estrada tried to make a case with such a paucity of evidence, I can't imagine that Mr. Estrada, then a judge, would rule in his favor.

Maybe this is an unfair question. Maybe, as my friends from the other side are suggesting, this question should not have to be answered by someone seeking such a powerful position. Maybe it is wrong for us to propound such questions to judicial nominees.

Perhaps we should call up the Department of Justice and ask the Attorney General what he thinks about Senator Durbin's question, because when Attorney General Ashcroft was a Senator, he agreed that Senator Durbin's question was a fair one. How do I know? Because Senator Ashcroft asked the very same question himself. And guess what. When Senator Ashcroft asked it, the question was answered. Let me quote Senator Ashcroft:

Which judge has served as a model for the way you would

want to conduct yourself as a judge, and why?

In response, William Traxler, a nominee of President Clinton, responded by naming a specific judge, John Gentry, a State court judge before whom Mr. Traxler appeared when he was a litigator, as exactly the kind of judge Mr. Traxler would want to emulate.

I am sure my friends on the other side will say, Well, you know, Senator Ashcroft didn't specifically ask about judicial philosophy. But remember, Mr. Estrada's answer to Senator Durbin's question went way beyond judicial philosophy. Mr. Estrada said he could not

name one single solitary judge he would want to emulate, in terms of judicial philosophy ``or otherwise.''

Regardless, we don't have to get into that argument. Let us look at what happened when the same question was put to another of President Clinton's nominees, Inge Prytz Johnson. Guess what. She answered.

Senator Ashcroft's question was: ``Which Supreme Court Justice, past or present, do you most admire and why?

Judge Johnson named Justice Potter Stewart and explained why she admired him.

Senator Ashcroft's followup question was: ``What Judge or Justice has most influenced your thinking concerning the constitutional separation of powers?''

Now we are getting right into judicial philosophy.

Now this is, for all intents and purposes, a question addressing the nominee's judicial philosophy on separation of powers issues.

I want to read Judge Johnson's answer in its entirety because it is really a model answer. It is the kind of answer we should not only expect from nominees, it is the kind of answer we should demand from them.

Judge Johnson said:

Judge Learned hand was one of the preeminent advocates of

judicial restraint and of respect for the doctrine of

separation of powers. He said: ``Some of us have chosen

America as the land of our adoption; the rest of us have come

from those who did the same. For this reason we have some

right to consider ourselves a picked group, a group of those

who had the courage to break from the past and brave the

dangers and the loneliness of a strange land. What was the

object that nerved us, or those who went before us, to this

choice? We sought liberty. . . .''

Judge Learned Hand demonstrated through his opinions that

this liberty can most fiercely be protected through respect

for our constitutional doctrine of separation of powers.

That is a pretty straightforward answer. It shows us a little bit about what kind of judge this nominee aspired to be. It helped the Senate decide that she merited confirmation. There was nothing wrong with Senator Ashcroft asking the question and there was nothing wrong with Judge Johnson answering it.

Shall we go on?

I asked Mr. Estrada to name a Supreme Court case he disagreed with. I first asked him to name a case from the last 40 years of Supreme Court history. Then I expanded the question to cover all of Supreme Court jurisprudence. He refused to answer, claiming he could not name a single such case.

My friends on the other side suggest there is something unfair about this question. Let me tell you, as I go through the records of questions they put to President Clinton's nominees, this question pales in comparison.

Time and again, Republican Senators asked Clinton nominees to take positions on issues that would come before them if confirmed as Federal judges. If you want us to detail those instances for you, we are happy to do so. Just let us know and we will put together some charts demonstrating the double standard of these attacks on us. I think we all know what that research would show. I think we all know how unfair and inconsistent the other side is being. I don't want to go back a couple of years to the questions they asked, but we can do it if we have to.

By the standards our colleagues set and by any objective measure, our questions were well within bounds. And, frankly, these weren't even hardball questions. There was no surprise in these questions--they had all been asked before in one form or another. Mr. Estrada simply just did not want to answer.

My colleagues have cited Canon 5 of the Code of Judicial Conduct of the American Bar Association as the defense for Mr. Estrada's refusing to answer questions.

As Chairman Hatch has said, Canon 5 that expressly forbids nominees to judicial duty from making ``pledges or promises of conduct in office [or] statements that commit or appear to commit the nominee with respect to cases, controversies, or issues that are likely to come before the courts.''

Let us be clear. My questions were about already decided Supreme Court cases, cases that by definition will never come before Mr. Estrada; cases that he can never reconsider; and cases that would not even arguably justify invoking Canon 5 as a basis for refusing to answer.

Why are these questions important? Because the answers will give us insight into how Mr. Estrada approaches the law. They will help tell us what kind of judge he will be. Is he likely to be a Marshall or a Scalia? A Brennan or a Rehnquist? Probably not. There is quite a bit of difference among those judges. These are legitimate questions that don't even begin to lead to a violation of Canon 5.

But don't take my word for it. Take John Ashcroft's.

I don't mean to limit my laudatory comments to Senator Ashcroft, but he asked such good questions when he was here that I can't help citing him favorably. Mr. Attorney General, if you are watching this debate, I hope that by complimenting your fine work on this issue I'm not hurting your reputation with certain communities.

Then-Senator Ashcroft asked this question of Marcia Berzon, a Ninth Circuit nominee:

Please define judicial activism. Is Lochner v. New York an

example of judicial activism? Please identify three Supreme

Court opinions that you believe are examples of judicial

activism (not including Lochner if your answer to the

previous question was yes). Is Roe v. Wade an example of

judicial activism?

Judge Berzon answered. She waited a few years for the Senate to confirm her, but she answered. She said Lochner was an example of judicial activism. She said Roe was not. And she named three other Supreme Court cases that she believed were judicial activism.

So there is just no question that our questions were reasonable.

So there was no question that, at least by John Ashcroft's standard, our questions were reasonable.

Once again, why isn't it that what is good for the goose has to be good for the gander? Why does it seem there is a double standard; that it is OK when there were Democratic nominees to ask them question after question after question about their philosophy, but when Mr. Estrada comes before us we don't need to know anything more? All he has to do is say, I will follow the law.

Suggesting that there's something wrong with our asking the exact same questions our friends asked is nothing short of absurd.

Let me note as well, that the very same question I asked of Mr. Estrada, I asked of the five District Court nominees whose hearings were held the same day as Mr. Estrada's. They all answered. I asked the same question of Jeffrey Sutton, a circuit court nominee whose hearing we held a couple of weeks ago. He answered too.

Judge Linda Reade, a judge who I voted for in committee and on the Floor--one of the 96 Bush judicial nominees I have supported so far-- and whom we unanimously confirmed to a District Court judgeship in Iowa, gave some particularly interesting answers.

Judge Reade was crucial of two Supreme Court cases that expanded police powers and diminished privacy rights under the fourth amendment. She answered interesting questions. It was a great moment for the committee.

One of the cases, United States v. Rabinowitz, held that police had the power to search someone's office when he was arrested with an arrest warrant but without a search warrant.

The other case was Harris v. United States where the court held, again, that a search of an arrestee's entire four-bedroom apartment was constitutional despite the fact that the police did not have a search warrant.

Her concerns about these cases reflect a heightened sensitivity to privacy rights protected by the fourth amendment. I don't want judges who read the fourth amendment so expansively that the police are handcuffed and unable to do their jobs. I want judges who will balance privacy rights with law enforcement interests.

I tend to be more conservative on criminal justice issues. I tend to side more with law and order than with the liberals out there. So I may not agree 100 percent with Judge Reade's answers. But her answers are fair and reasonable, and it allowed those of us on the committee to see what she was talking about.

Her answers suggest to me that Judge Reade will be attuned to American's privacy rights. I appreciate her candor, I appreciate her forthrightness, and I appreciate her straightforwardness. She is not hiding a thing. She is telling us what she thinks.

And there is obviously not a single Senator in this body who thinks Judge Reade's answers disqualify her for a Federal judgeship. Not a single one of us objected to her nomination or voted against her. The same is true of the four other nominees we asked questions the day of Mr. Estrada's hearing.

So this idea that the canons of ethics will be violated by asking questions about judicial philosophy is contradicted, is gainsaid, by the very fact that all of us voted for somebody who answered questions such as that. I do not think we would vote for someone who we thought repeatedly violated the canons of ethics.

So we want answers, we want forthright answers; we do not want the ball hidden. And then if judges appear to be somewhere within the mainstream--even though we may not agree with them on just about every issue--we will confirm them. That is what we did with these four nominees. We did it quickly. I voted for every one of them.

If the questions had been unreasonable, my colleagues on the other side, I presume, would not have asked them of Democratic nominees. But, as we have seen a little glimpse, the very questions we asked Mr. Estrada, Senators on the other side asked Democratic nominees, and there was no outcry or objection.

Just recently, I asked this question of a potential nominee in New York whom the President asked me to consider. I have not taken a position on her yet. She has not even been nominated. But let me tell you how much she impressed me with her answers. She named two cases, both of recent vintage.

The first case came from just last year, striking down the Child Pornography Prevention Act. In that case, a 6-to-3 Supreme Court said the first amendment protects purveyors of child pornography when they are using images of virtual children instead of actual children. I think the Court got the answer totally wrong. We are hopefully going to remedy that problem caused by the Court with legislation I am cosponsoring with Senators Hatch and Leahy, among others. But I was pleased to hear that the nominee agreed that the Court got the ruling wrong.

The other case was another decision from last year where the Court held that police were allowed to ask bus passengers permission to search their bags without explaining that passengers have the right to say no.

Just as I was with Judge Reade's answers, I was conflicted about this one. I believe in privacy rights, but I also believe, in this post-9/11 world, police have to have some legitimate tools at their disposal to fight both crime and terrorism. So while I may not agree or disagree at this point with the answer, I was pleased to hear that if this nominee becomes a judge, this nominee will be sensitive to citizens' privacy rights.

I do not doubt that Judge Reade and the other nominees who have named Supreme Court cases with which they disagree will faithfully follow the law despite their disagreements. These are mainstream judges who have conservative but not extreme ideologies. I respect them. I have voted, as have almost all of my colleagues, for 99 percent--or some number like that--of them so far. And I will continue to vote for them as long as I believe they will not be activists or extremists on the bench.

We are simply trying to hold Mr. Estrada to the same set of standards that other nominees are meeting. We are asking even less of him than Republicans asked of President Clinton's nominees. It is obvious these are fair, reasonable, and legitimate questions. It is obvious there is nothing wrong, constitutionally or by the canons of ethics or anything else, with answering them because hundreds of nominees have and they have been approved by this body. It is also obvious that Mr. Estrada is stonewalling us by refusing to tell us what he thinks.

So these two areas that I have had a chance to discuss today--whether opposition to Mr. Estrada can legitimately be labeled anti-Hispanic in any way, and whether it is fair to answer questions--again, are both pervaded by a double standard. It seems what folks on the other side of the aisle were saying 2 years ago they are not saying today.

I hope we will be somewhat consistent. I hope we will be somewhat fair. The nomination of judges, and then the advice and consent the Senate gives them, is a sacred process, one that the Founding Fathers debated long and hard. To ridicule the process by saying there are not legitimate questions to be asked and answered, to ridicule the process by saying that when those questions are not answered someone is opposing a nominee because of his background, particularly when so many of those opposing this nominee have had great records in terms of bringing Hispanics to the bench--far better than President Bush or those on the other side of the aisle--is unfair, is unwise, and demeans this body. I hope it will end.

Mr. President, I yield the floor.

Mr. President, I move to reconsider the vote.

Mr. President, will the Senator yield for a unanimous consent request?

Mr. President, I ask unanimous consent that immediately after Senator from Utah finishes, I be recognized for a period of time.

Mr. President, I ask unanimous consent before I speak the Senator from Pennsylvania be given 5 minutes. I also ask unanimous consent Senator Kennedy be allowed to speak at 5:40.

Mr. President, this is going to be a long debate, whatever happens. I very much appreciate the sincere concerns of my colleagues from Utah and Pennsylvania.

I say to my friend from Pennsylvania before he leaves, he asked, if Miguel Estrada cannot get confirmed, who can? I, for one, have voted for 96 of the 102 judges President Bush has nominated. We passed over 100 of them.

There seems to be an idea on the other side if we oppose a single judge we are totally blocking the President's program. I argue just the opposite. I argue to my friend, as he well knows because he knows the Constitution better than just about anyone else in this Chamber, with maybe the exception of our good friend from West Virginia, the Founding Fathers wanted debate. They wanted the Senate to have a role. Read the Federalist Papers. That is how it was for many years.

To sum up, the White House has started to nominate ideological nominees--not like President Clinton, not like the first President Bush--but when we try to examine the ideology of these nominees, that is wrong. We do virtually no moderates before us. Everyone is from conservative, to way out of the mainstream, and we have voted for most of the conservative judges. Let's be honest about it. This debate was not started by Democrats in the Senate. This debate was started by a White House that is intent on changing the character of the Federal bench, to go way beyond what is the mainstream of America. Everyone will agree, Justice Scalia and Justice Thomas are the two most conservative judges on the court. President Bush said it in his campaign. He said: I will nominate Justices like Scalia and Thomas.

That is not saying moderation. He promised the American people moderation when he ran. But when it comes to the article III section of Government, we don't see a drop of moderation.

We will continue to make this argument because we believe we are defending the Constitution. We are doing just what James Madison and John Jay and Alexander Hamilton and all of the great writers of this Constitution wanted us to do, which is have some influence on the article III section of Government.

I am going to speak at some length, which is not what I usually do here. I usually say I think you can say everything in 5 or 10 minutes. But this issue is so important to me that I intend to be on the floor here today for a period of time, and regularly after that.

I rise in opposition to the nomination before us today. Mr. Estrada has been nominated to a lifetime appointment, a lifetime seat on the DC Circuit, the Nation's second most important court. If confirmed, this 42-year-old man will spend the next half century making important decisions that will affect our children, our grandchildren, our great- grandchildren, and generations beyond. If we vote to confirm Mr. Estrada, there is no going back. There is no opportunity to look at what he does in his first years as judge and reconsider. The vote here is final. If he is confirmed, we are all going to have to live with the consequences for decades to come.

So this is not a trivial matter. This is not a trifling matter. This is one of the most important matters that comes before us. The ability to ratify or reject a President's nomination to a lifetime appointment in article III, the third branch of Government, is a solemn obligation. It is one that should not be taken lightly. To rush through the nomination, to not have questions fully answered and explored, does violation to the very Constitution that we all revere. Yet that is what the other side is asking us to do.

The Senate has a solemn, almost sacred duty when evaluating applicants for such powerful posts. I will quote my good friend from Utah, Senator Hatch:

The Senate has a duty not to be a rubberstamp.

Those are his words. That is every bit as true today as it was when he uttered them.

The Founding Fathers, in my opinion--not just mine, almost everybody's--were really quite brilliant in devising a system of checks and balances. When it came to judicial nominations, they had a robust debate. For a good period of time at the Constitutional Convention they were considering vesting all the power in the Senate. There was a period where they considered vesting all the power in the President. They realized, as they did with most matters, that our country was best off with a system of shared power.

The Framers gave the President the power to select nominees but gave the Senate coordinate responsibilities to advise the President on whom to nominate, and to decide whether the nominees deserve confirmation. By and large, the system has worked well for over 200 years. For those of us who revere the Constitution and who believe in the rule of law, it is a beautiful work of art.

I believe to this day what was said when America was founded, that we are God's noble experiment. We still are. That is why the debate today and in the following weeks has so much vitality. For this beautiful work of art to maintain its beauty and brilliance, the Senate must hold up its end of the bargain. We have a duty, a responsibility, an obligation to the judiciary, to the Constitution, and, yes, to the American people, to carefully evaluate these nominees and decide whether they merit confirmation.

This cannot be a rote process where the President sends us names and we just say ``OK,'' without undertaking an independent evaluation. As we hear so often from Senator Byrd, the keeper of tradition in this body, we have a duty to be vigilant defenders of constitutional principles and the Senate's role in checking executive power. For the Senate to retain its historical role in our system of government, we must live up to the standards set by those who came before us and ensure that we have balance in Government.

Too often, debates around here devolve into rancor and partisan backbiting. Too often in the past, debates involved personal attacks on people. Because we don't like a nominee, someone goes back and finds they smoked marijuana when they were in college, or they took out the wrong kind of movie when they were a young man or woman. That demeans the process.

To have a full debate and a fulsome discussion with the nominee about how he or she feels about important issues such as the first amendment and the second and the fourth and the commerce clause and the sovereignty clause and the right to privacy is not simply fun. It is not simply optional. It is deeply and solemnly necessary to uphold the will of the Founding Fathers, to uphold the very structure of the Government we revere. We should focus on facts in what we do and, equally important, on what we know and, equally important to this debate, what we don't know about this nominee.

When a nominee is seeking such a powerful post, this lifetime position on the Nation's second highest court, I believe the nominee has an obligation to answer questions. I believe the nominee has a duty to tell us what he thinks about the law, how he views vexing legal questions of the day, and to share with us his approach to the Constitution and his judicial philosophy. These are not only reasonable areas of inquiry, they are urgent and important areas of inquiry. We cannot be expected to undertake our constitutional duties without answers to these questions.

In the words of Mr. Dooley, ``this ain't beanbag.'' This isn't fun or a political game. This isn't trying one-upmanship. This goes to the very sacred obligation each of us has, when we take that oath of office upon our election or our reelection.

I know my friends on the other side of the aisle agree with me on this fundamental view. While I expect they will take to the floor and denounce the inquiries we have made, if we go back and look at the questions they asked--my friend from Utah and all the members of the Judiciary Committee, the questions they asked of President Clinton's nominees--they will see our questions pale in comparison. The questions we asked were exactly the kinds of questions the Founding Fathers expected us to ask to ensure balance in our system of government and justice. We asked nearly 100 questions of this nominee and he refused to answer all too many of them. He refused to answer most of the important ones. It is his right to duck or dodge or hide behind legal subterfuge. That he can do. But that doesn't mean we have to confirm him, plain and simple.

I have sat through a good number of judicial hearings in my years in the Senate. I followed many more in my career in the House. I have never seen such an incredible sense of avoidance and of ultimate stonewalling in any confirmation process as I saw when Miguel Estrada came before our committee. I chaired that hearing, as my good friend from Utah will remember, and one exchange we had was particularly memorable to me. Mr. Estrada kept saying, when we asked him about his views, that he didn't want to discuss it because future cases might come before him.

I'm a lawyer. Many of us are lawyers. We know, when you are asked what's your view of the first amendment, and you say: Well, a case might come before me on the first amendment and I can't discuss it, that is not the appropriate response. Certainly, if we were to ask Mr. Estrada how he might rule on, say, WorldCom and the suits against WorldCom, or on an existing case before the lower courts, he would have a right and an obligation not to answer that question. But to say he cannot discuss his views of the expansiveness or the narrowness of the commerce clause because eventually he will have to rule on the commerce clause makes a mockery of every judicial hearing we have had or will have.

But I kept trying. I decided if Mr. Estrada would answer nothing about his prospective views, why not look at what happened in the past.

So I asked him to discuss cases that by definition could never come before him if he were confirmed to a lifetime seat on the District of Columbia Circuit. I asked him about Supreme Court cases which are already decided. These cases are already the law of the land and can be reconsidered only by the Supreme Court. So there is no fear that a nominee would be doing something unethical by taking such a position. There is not only nothing wrong with discussing these cases, but there is a lot right about discussing these cases.

Answers to these questions will give us insight as to what kind of judge he will be:

Whether the nominee will fairly assess the claims of average people who want their basic rights vindicated in Federal courts;

Whether the nominee will approve the administration's environmental rollbacks against the interests of people who would protect the environment;

Whether the nominee has a general inclination to side with business interests or labor interests;

And whether this nominee basically supports States' rights or the rights of individuals within those States.

We have seen in the Supreme Court in the last decade these decisions being carefully discussed by the Justices with great differences of opinion.

These are the things the public wants to know. These are the things that determine, in my judgment, whether somebody should become a judge.

Everyone in this Chamber will come to a different conclusion once they know those answers. People will weigh answers differently. That is fair, and that is good.

But there is no question, my colleagues, that we should know something about how this nominee views the first amendment, the second amendment, the fourth amendment, the 11th amendment, and the 14th amendment before we just hand him such an important job.

We should know whether the nominee has an expansive view of the commerce clause or a narrow view; an expansive right to privacy or a narrow view.

These are the issues that are the sinew, that are the warp and woof of what our Republic is about. When the Founding Fathers in their beautiful and infinite wisdom decided that they would be careful with the one unelected branch of government--article III section of Government, the Judiciary--they knew what they were doing. They didn't want to vest too much power in any one person--the

President, any Member of this body--and simply appoint judges, because they knew with a lifetime appointment, which in its wisdom insulates people from the vicissitudes of political pressures--that was too serious and solemn a happening to just pass off to one person.

So the questions we hoped Mr. Estrada would answer honestly and forthrightly are the kinds of questions the American people depend on us to ask. These are the kinds of questions that should be answered before we vote on a nominee. Realizing Mr. Estrada would not answer anything about the future, despite the fact that countless others have--it hasn't interfered with their ability to be fine judges--I went back and asked him, Mr. Estrada, to answer questions about the past so we might get some feeling for his views. I asked him to name any one Supreme Court case from the history of all Supreme Court jurisprudence he was critical of. To the surprise of myself and some on the committee, he even declined to do that.

I asked him to tell me his views on a particular case I disagree with, Buckley v. Valeo. I don't think a millionaire has an absolute first amendment right to spend all the money he or she wants on putting on the same political commercial 411 times. I don't think it is what the Founding Fathers intended. There are two views on that. The Court disagrees with me. But I wanted to know Mr. Estrada's view. No matter how many times I tried, no matter how many opportunities he was given, Mr. Estrada insisted he could not state a view on a single court case-- not Korematsu, not Dred Scott, not Plessy 1v. Ferguson, not Brown v. Board of Education, not Miranda v. Arizona, not Griswold v. Connecticut, not Roe v. Wade, not a single case.

I would be happy to yield.

I say to my colleague, if I might reclaim my time, I first asked him about the first 40 years. And when he refused to answer that, frustrated as I was, I said, How about in all of jurisprudence?

Could I reclaim my time?

I will say to my colleague, reading from the transcript, I asked 40 years first. And then I said to him, So with all of your legal background and your immersion in the legal world, you can't think of three or even one single case that the Supreme Court has decided that you disagree with? I didn't say in the last 40 years at that point.

I asked both, as I said to my colleague. And he didn't say. And I will argue to my colleague--I will not yield on that point-- I asked him about 40 years. And then I asked him about it permanently on page 211. But I will say this.

I will say this. I think it is amazing he couldn't name a case he disagreed with in 40 years alone. I don't think that is really the point here, whether it is 40 years or all the way back in jurisprudence. But I will continue with my remarks, and then I will yield for a question.

(Ms. COLLINS assumed the chair.)

I will yield for one last question.

That is for each of us to judge, whether a nominee who is worried about his confirmation should not speak about any case he might disagree with, whether it be 40 years or in all of jurisprudence.

But I just wanted to say, if you look at the record, it is clear. I gave him many different opportunities to answer that question. I asked the question in different ways. I came back to it. And Mr. Estrada didn't answer. To the average citizen who looked at it, he was stonewalling. He was just not giving answers that every law professor, or law student, or lawyer when asked would venture a guess at.

Let me tell you why many of us think he refused to answer the question. I would like my colleagues to hear this, because I don't think this has come out. Mr. Estrada stonewalled because that is the game plan he was given by the Justice Department and the White House. They told him not to answer questions. That was what they told him to do. Because again, they know Mr. Estrada's views. They do not want anybody else to know, because I believe if they were revealed, they are so far out of the mainstream he would not be approved. I don't know if that prediction will prove to be true. Maybe we will know, if we find the views on the issue.

But there is no secret to this. This has been the game plan of those who have sought to stack the judiciary to the far right side for years.

Let me review with my colleagues an article in the Legal Times which talked about a meeting that Judge Laurence Silberman--a leading conservative judge, a very erudite man, but he shared his strategy with prospective judicial nominees at a Federalist Society meeting just last year.

The Federalist Society is the breeding ground for most of the States rights agenda, supporting nominees the administration is sending us. It is no secret that Federalist Society members are among the most active in the White House and Justice Department in choosing judges. I will let the American people judge for themselves, but most believe the Federalist Society is not moderate and not conservative but way over to the hard right.

Judge Silberman appeared along with Senator Kyl and Fred Fielding, President Reagan's counsel, to discuss with the group how to get these out-of-the-mainstream nominees on the bench, because they realized if they told the truth, they would have a difficult time because America is not far left or far right but moderate.

If President Clinton tried to stack the bench with far left nominees, we heard howls. He did not. But that is just what President Bush is trying to do. President Clinton, as I mentioned, nominated mostly partners in law firms and prosecutors, not many legal aid society people, not many ACLU advocates. President Bush is not doing the mirror image himself.

In any case, this is what was reported about that meeting. And I am quoting from an article in the Legal Times:

President George W. Bush's judicial nominees received some

very specific confirmation advice last week:

This is the article, not me--

"Keep your mouths shut.''

The warning came from someone who has been a part of the

process. Laurence Silberman, a senior judge on the U.S. Court

of Appeals for the D.C. Circuit--

The very court we are talking about--

Told an audience of 150 at a Federalist Society luncheon

that he served as an informal adviser to his then-D.C.

Circuit colleague Antonin Scalia when Scalia was nominated to

the Supreme Court in 1986.

This is a quote from the article:

"I was his counsel, and I counseled him to say nothing [at

his confirmation hearings] concerning any matter that could

be thought to bear on any cases coming before the Court,''

Silberman said.

Silberman said his advice led to Scalia's speedy

confirmation by keeping the nominee out of trouble on Capitol

Hill. He also explained that the advice was intended to be

rather far-reaching.

Scalia called Silberman at one point, the latter recalled,

and told him he was about to be questioned about his views

about Marbury v. Madison, the nearly 200-year-old case that

established the principle of judicial review.

"I told him that as a matter of principle, he shouldn't

answer that question either,'' Silberman said. He explained

that once a prospective judge discusses any case at all, the

floodgates open and he would be forced to discuss other

cases.

Does that help shed some light on why this nominee refused to discuss and answer an innocuous softball of a question: to name a case--whether it be in the last 40 years or all the way back--with which you disagree?

My colleagues, is the idea that a nominee to a powerful lifetime post on the Federal bench would be ``forced'' to discuss with the Senate his or her views on important historical cases really so terrifying?

If we cannot talk about Marbury v. Madison with nominees, if we cannot discuss the case that provides the foundation for jurisprudence in America, we are in pretty bad shape.

I was not in the Senate at the time of Justice Scalia's confirmation hearing, but I cannot imagine us confirming any nominee refusing to discuss a case that is 200 years old, a case that establishes the judiciary's power.

I do not think there was a philosophical reason by Judge Silberman. I think he thought that if the nominee's real views were known, many of the American people would rise up and say: This is not the kind of nominee we want. This is the kind of nominee who will not just interpret the laws as the Constitution calls for but make law.

It so happens judges on the far right and on the far left have a proclivity to want to make law because they feel things are so bad that they have to change them on their own.

I have to tell you that a nominee who refuses to discuss the single most important case in the history of the Supreme Court will have a hard time winning many Senators' votes. Confirming such a nominee would confirm that the Senate's role is nothing more than a mere formality. If the President picks you, and we cannot find something in your ancient past, some little personal transgression, then you go to the bench.

Balance becomes the baby that gets thrown out with the bath water. Our system of government gets thrown out of whack.

It is very interesting that Mr. Estrada seems to be executing the Federalist Society's game plan, remaining silent and stonewalling, while other nominees, who are generating less opposition, are simply answering questions.

There were five district court nominees at the hearing where Mr. Estrada testified. Because we spent so much time trying to get answers out of Mr. Estrada, we had little time to question each of them. So I asked each of them to answer, in writing, the very same question I asked of Mr. Estrada. I asked them to identify three Supreme Court cases with which they disagree. And do you know what? Each of them answered. Each was able to give me three cases with which they disagreed.

Some of them picked obvious cases, such as Korematsu, the Supreme Court case upholding the Government's power to put Japanese-American citizens into interment camps, a case which has been thoroughly discredited; cases such as Plessy v. Ferguson which held that separate was equal, a case that was later overruled by Brown v. Board of Education. But many of these nominees picked cases that have not been overruled.

Judge Linda Reade, a judge who I voted for in committee and on the floor--one of 96 judicial nominees by President Bush that I have supported so far, and who we unanimously confirmed to a district court judgeship in Iowa--gave some particularly interesting answers.

Judge Reade was critical of two Supreme Court cases that expanded police powers and diminished privacy rights under the fourth amendment.

One of the these cases, United States v. Rabinowitz, held that police had the power to search someone's office when he was arrested with an arrest warrant but without a search warrant.

The other case was Harris v. United States, where the court held, again, that a search of an arrestee's entire four-bedroom apartment was constitutional despite the fact that the police did not have a search warrant.

Her concerns about these cases reflected a heightened sensitivity to privacy rights protected by the fourth amendment. I do not want judges who read the fourth amendment so expansively that the police are handcuffed and unable to do their jobs. I want judges who will balance privacy rights with law enforcement interests.

Her answers suggested to me that Judge Reade would be attuned to the privacy side of the argument. I may not have fully agreed with her--I tend to be more conservative on these criminal justice issues--but I appreciated her candor and her forthrightness. I appreciated her straightforwardness. She was not hiding a thing. She was telling us what she thinks. And I voted for her.

Obviously, there is not a single Senator in this body who thinks Judge Reade's answers disqualify her for a Federal judgeship. Not a single one of us objected to her nomination or voted against her. And the same is true of the four other nominees we asked questions of the day of Mr. Estrada's hearing. They answered the questions forthrightly. They didn't hide the ball. They appeared to be within the mainstream. We confirmed them all quickly.

Just last week we held a confirmation hearing for Jeffrey Sutton, a very controversial nominee to the Sixth Circuit.

He is one of the leaders in the States rights movement. He has argued many of the seminal cases, and clearly he evokes much controversy. As my good friend from Utah will recall, the disabled community was so upset that they came out in large numbers, and we had to move the hearing room to a larger room, to which my friend from Utah graciously acceded.

I haven't decided how I will vote on Mr. Sutton's nomination, and there are still questions I have asked him to answer. But I will say this about him: He started on the right foot with me by at least telling us what he thinks of some cases. Twice Jeffrey Sutton told us on his own, without being asked, that he was critical of Supreme Court cases Buck v. Bell and Kiryas Joel.

When I asked him about other cases he was critical of, he said he had problems with Korematsu and Plessy v. Ferguson. I will grant these are not hard cases to be critical of, and I will repeat that there is still ground to cover with Mr. Sutton, but at least Mr. Sutton said that much and was committed to discussing other cases in writing.

Mr. Estrada told us nothing, not a single thing. This is reminiscent of what I thought was one of the least fine moments of the Judiciary Committee. It is reminiscent of Clarence Thomas telling America that he had never discussed Roe v. Wade and had no views on the case whatsoever. How many of us believed him then? How many of us believe him now? It is simply not credible. It is totally unbelievable that this nominee, Mr. Estrada, had no critical views on any Supreme Court case in history. Every lawyer in America, and most nonlawyers in America, can point to one Supreme Court case he or she is critical of. Of course, we all know Mr. Estrada has thoughts on the subject. Every single person, ask every one of the 100 Senators to bet all their money on whether Estrada has opinions on certain cases. We would all bet he does.

The bottom line is simple: If we confirm Miguel Estrada, we are ratifying a ``don't ask, don't tell'' policy for judicial nominees. Mr. Estrada sat there and said nothing, believing if he didn't say a word, we would rubberstamp him. By remaining silent, Mr. Estrada only buttressed the fear that he is a far-right stealth nominee, a sphinx- like candidate who will drive the Nation's

second most important court way out of the mainstream. I had hoped he would choose candor over secrecy. He refused to do so. All he said is: I will follow the law.

In my book, that doesn't explain much.

There is a myth that the law is something automatic, that the facts of a case, the applicable statutes can be dumped into a computer, and the right answer will just pop out, that a person's philosophy and ideology have nothing to do with determining how they vote when they get to be a judge. We all know that is poppycock. Anyone who studied the system knows that is not how the law works. If we did, we would have IBM build a computer, put some black robes on the computer, and obviate the need for these confirmation hearings or any judges. But we all know there is more to judging than that. We all know judges bring their experiences, their values, their judgment and, yes, their ideology to the bench with them.

If ideology didn't matter, both Republican and Democratic Presidents would nominate judges from across the political spectrum. Instead, Democrats tend to nominate Democrats; Republicans tend to nominate Republicans. That is fine. I know that as long as President Bush is President, I will be voting on mainly Republican nominees. I still voted for 96 out of 102, as did most of my colleagues. But that doesn't mean we have to rubberstamp each one. And certainly it doesn't mean that ideology is in play. If ideology was not in play, if we were just relying on the legal quality of the mind, then Estrada's mind is of good legal quality, excellent legal quality. But then the appointees of Democratic Presidents to the Supreme Court and other courts and the appointees of Republican Presidents to the Supreme Court and the other courts would be scattered all over the lot when it came to rendering decisions.

We know that is not true. There are always exceptions. Earl Warren became a very liberal Chief Justice although he was nominated by President Eisenhower. But by and large, the ideology matters. And that is why Democratic nominees tend to support different opinions and decisions than Republican nominees. That is our system, and that is great.

But to say ideology doesn't matter would mean President Bush would be nominating a whole lot of Democrats for judge and a whole lot of moderate Republicans. He has hardly nominated any of either category. The best you get is someone who is a conservative, not a hard right conservative.

Now let's go back to Mr. Estrada. There are some other ways to get at what Mr. Estrada actually believes and how he will act as a judge. By the way, this is all we have. If he refuses to answer questions at a hearing, and he doesn't, he is not a judge and he is not a law professor who opines on these issues.

I would say to my colleague, I will probably be another 15 minutes. I appreciate it. I rarely speak on the floor very long. I speak often, but usually for 5 or 10-minute amounts. But as my good friend from New Mexico knows, I feel very strongly about this issue.

I will try to finish as quickly as possible, in deference to my good friend from New Mexico.

So we don't have much on the record about Mr. Estrada. That is why his papers as Solicitor General mean so much. Because when Mr. Estrada worked in the Justice Department, he looked at cases and analyzed them and assessed the constitutionality of laws. That is, for all intents and purposes, what appellate judges do. Unlike a lawyer in a law firm who is looking out for a client with a vested interest, Mr. Estrada was working for the Government. His client was the Constitution. His memos would help show how he interprets the Constitution. Similar memoranda have been requested and produced when Congress was evaluating other nominees, both to the executive and judicial branches, creating ample precedent for such a request.

I know there has been a series of letters that have gone back and forth. I know we have differing views about the propriety of sharing these memoranda. But one thing is clear, there is precedent because others, including Bradford Reynolds and Justice Rehnquist, submitted those papers. It is clear there is no privilege. And it is clear these memos are needed to lift the veil covering whatever it is Mr. Estrada wants to remain covered.

So, in other words, because we have so little information on how Mr. Estrada thinks, these memos are more important to understand his thinking than they would be for the typical judicial nominees.

Mr. Estrada did work that was quintessentially judge-like, but we are being denied the opportunity to examine it, evaluate it, and assess for ourselves what kind of judge he would be. That doesn't seem right. A former supervisor has charged that Mr. Estrada advocated extreme positions, more aligned with his own interests than the Government's interest, when he was Solicitor General.

My friend from Utah said at a hearing that he had backed off those positions. He has not backed off those positions.

Many have said: Well, his evaluations were excellent.

We have talked to Mr. Bender, and he has said, first, when you look at those evaluations, they don't talk about his views and whether he would have fidelity to the Constitution or try to impose his own views. They talk about whether he was a hard worker. But what Mr. Bender said is: Everyone gets checked off excellent on those--we will have to check the record there--because it helps them get merit advancements.

So here you have the supervisor saying he was extreme, saying he would take his own views and not follow the law. Guess what the best way is to disprove that supervisor. Make the memos public. If the memos prove the supervisor wrong, Mr. Estrada has nothing to fear from their disclosure. If the memos prove the supervisor is right, this is someone no one in the Senate should want on the DC Circuit.

Mr. President, I have always used three criteria in evaluating judicial nominees. I call them excellence, moderation, and diversity.

Excellence is legal excellence, the quality of the mind. We don't want political hacks on these important courts. No one disputes that Mr. Estrada passes this point with flying colors. He comes highly recommended in this regard. When the ABA recommends him, that is all they are evaluating.

My second criteria is diversity. Clearly, he passes on this point. I have fought for as long as I have been in public service to promote diversity. A principal goal of mine in New York is to put more people of color on the Federal bench--and I have, as my record shows. We are going to talk a lot about the push for diversity, and we are going to see Mr. Estrada is the only Hispanic nominee of President Bush. Diversity seems to be limited at this point to Mr. Estrada when it comes to the court of appeals; whereas, those of us on this side, in the Hispanic caucus and others who oppose the nomination, have done far more for diversity than those who claim they are moving its cause forward today. In any case, I am for diversity. I will not talk more about that today. I will give that part of the speech next week.

The third factor forces me to take the floor today, and that is moderation. I don't like judges too far to the right, and I don't like them too far to the left. To be honest with you, when my judicial committee sends me recommendations, those are their instructions. I think judges too far left, as well as those too far right, want to make the law, not interpret it. I think they don't belong on the bench, with certain exceptions--rare, but certain.

So is Mr. Estrada moderate? Is he even a moderate conservative? Well, he gives every appearance of being extreme. People who know him say that, people who have talked to him about his views. That is one of the reasons, again, many of us feel he doesn't want to speak out, because if we knew his real views, he might well be rejected. Why has the Congressional Hispanic Caucus, the Puerto Rican Legal Defense and Education Fund, and the Mexican American Legal Defense Fund opposed Mr. Estrada? These groups have acted courageously in opposing

him because they share my commitment to promoting Latinos on the Federal judiciary. I have worked with them for years to diversify the bench. But the concerns about his views are overwhelming.

Let me tell you what Mr. Paul Bender had to say. He oversaw Mr. Estrada's work in the Solicitor General's office. He said he was too much of an ideologue to serve as a Federal judge. Mr. Bender said Mr. Estrada would bring his own personal agenda--an extreme agenda--to the courts if we confirm him.

My friend from Utah suggested Professor Bender has backed off. I assure my colleagues that is not the case. He stands by them 100 percent.

Again, my friends on the other side have suggested Bender is not credible because he gave Mr. Estrada high marks on his work evaluations. Every one of those evaluations went to legal excellence. I am not disputing that. Those evaluations did not deal with Mr. Estrada's potential extreme ideological nature. But don't take Professor Bender's word for it. Here is what Ann Coulter, the conservative pundit and Mr. Estrada's close friend, said about him this week:

The second [Mr. Estrada] gets in there, he'll overrule

everything you love.

This is a close friend of Mr. Estrada's, a conservative columnist. What was Ms. Coulter talking about? She was talking to Paul Begala. Was she saying Mr. Estrada will approve the Bush administration's rollback of environmental protections? Was she saying he would side with big business and special interests against the rights of labor and workers every time?

When Ms. Coulter says Miguel Estrada will overrule everything Mr. Begala cares about, it is not hard to worry that he will be another in a long line of rightwing judicial activists who prioritize States' rights over people's rights.

This is a lifetime appointment. Once it is done, it cannot be undone. If we approve Mr. Estrada, he is there for life and his decisions will affect all of us for generations to come. This Senate deserves a full and open debate. This Senate deserves answers to questions that may sound esoteric but will affect the lives of every single American. The people of this country, the American people, deserve these answers. They are so important to the future of this country.

When you have judges who try to make law, they make this Senate, the House, and the President--the elected branches of Government--less significant and less important. I say to my colleagues, many of us on this side of the aisle feel very strongly about this issue. We urge Mr. Estrada and the administration to reconsider. We urge them to give a fulsome view of how Mr. Estrada feels on the important issues of the day, and not simply to say he has a good legal mind, not simply to talk about the fact he has a nice history--which he does, and I give him credit for it--but to talk about the main thing that will influence what he does when he becomes a judge--his views.

We will continue this debate over the next few weeks and it could be one of the Senate's finest moments. I hope--no, I pray--we will rise to the occasion.

I yield the floor.

Will my colleague yield?

There were Hispanic nominees opposed by your side, and we never raised the issue because they were Hispanic--Paez, Rangel, Moreno.

I have no objection. The Senator is always a gentleman, and it is a pleasure to let him speak for his time first.

Mr. President, first let me join my friend from Utah in sentiments that he expressed at the end of his speech in that we hope and pray for the wisest decision from the President. And we hope and pray for our young men and women who are amassing in the Middle East now.

War, of course, should be the last resort. We still hope that it can be avoided. But if it cannot, we wish them and their families the best and pray for their speedy success.

Mr. President, my reason for coming to the Chamber today is similar to those of many of my colleagues on this side of the aisle. We are discussing what we hope the President will speak about tonight, what we want him to speak about, what we expect him to speak about.

Some of my colleagues have talked about areas such as the economy, the environment, education, and health care. I am going to address the issue of homeland security because, as much as we do overseas, we have to make sure our homeland is secure as well.

If, God willing, we were able to just eliminate all of al-Qaida and all of Saddam and his supporters, we would still face a danger from terrorism. Terrorists can strike almost at will in different ways, and our country is not yet secure against them, although I will say we have made some progress, particularly in the areas of air safety and in bioterrorism, since 9/11.

But we have so much more to do. What worries me is that the focus of this administration is almost exclusively on fighting the war on terrorism overseas. To beat the terrorists we need a one-two punch-- one, fighting that war overseas, dealing with terrorism overseas; but, two, making our homeland more secure. And there seems to be a rather quaint and quirky notion among many of those in the administration that we can successfully fight the war here at home without spending a nickel. That is just wrong.

The bottom line is if someone were to say to the Commander in Chief of the Armed Forces, go fight the war in Iraq without any new resources, without any new dollars, he would say: I can't. But that is basically what we are saying to Mr. Tom Ridge and those who work under him.

Time and time again, when Members on both sides of the aisle have done a lot of research and proposed measures that would increase our security here at home, we are told: Well, that's a good idea, but we can't spend any money on it.

That just cannot be. There are so many areas where we lie naked, possible prey, God forbid, to terrorists.

Take our ports. We are far, far behind where we should be in monitoring what comes in on our ships. As we all know, those ships could be filled with deadly devices.

Take our borders. On the northern border, my State has a long and peaceful border with Canada. But, right now, if we pass the budget that was passed in the Senate, there will be fewer Customs inspectors on that northern border than there were on 9/11.

As to the FBI, this new budget that we passed, unfortunately, cuts the number of FBI agents. While the counterterrorism parts of the FBI are increasing, all the other parts are decreasing. It makes no sense to say we are going to make our citizens more secure from a foreign threat and leave them prey to a domestic threat. Bank robberies in my community are going up. It seems logical to assume that one of the reasons for that is that the FBI is not able to do its function under the strained budget that we have given it--to do both functions: fighting terrorism and fighting crime here at home.

As to cyberterrorism, unfortunately, Richard Clark, a brilliant man-- the administration's point man on cyber-security--is leaving. But I am sure, as he has told many of you, we are again doing virtually nothing to make ourselves more secure from a deadly virus that might invade one of the very important technological systems that secure our country. And the list goes on and on and on.

As to truck safety, trucks that carry hazardous material, Brazil is doing a far better job in dealing with terrorism there than we are, even though they have not been the focus of terrorist attacks.

As to the rails, in my City of New York, Penn Station has a 1\1/2\- mile tunnel that has no egress. God forbid if something terrible happened there. What we have to do is look at all of our weak pressure points in terms of where terrorists would strike and strengthen them.

But this administration, in part because they do not want to spend the dollars necessary--as eager as they are to spend the dollars overseas that are necessary--is not doing the job.

So today we are going to look, as the President speaks, as to what specifically he is going to do to bolster our case in terms of homeland security. We are going to see if the promise that was made--for instance, in the USA Patriot Act, that we triple the number of Border Patrol and Customs agents and immigration authorities at the northern border--will be fulfilled.

We are going to look and see if there are the dollars necessary to update the INS computers, which are notoriously bad, so terrorists cannot slip into the country, and the FBI computers that, again, were so bad that all the signals we had about a plot that was hatched for 9/ 11 were missed, mainly because the FBI computers were less sophisticated, frankly, than the one my eighth grade, 14-year-old daughter has at our home.

The list goes on and on. And no one expects this administration will clean up every single problem we have in 6 months. But in terms of effort, in terms of focus, in terms of allocation of resources, they are woefully behind.

My good colleague from West Virginia, who has done so much to lead this fight, made a very good point on the homeland security bill. That bill, as you all know, rearranged agencies but did not change what happens within them.

Rearranging agencies does not change things. Moving the Coast Guard over to this new agency is not going to help it patrol 200 miles off the coast as it must do in our post 9/11 world.

When our President tonight gives his speech, we are all going to be looking to see what specifically he will say and

what resources he will devote to protect our domestic security. Up until now the administration's voice has been all too quiet and all too silent. We hope tonight's speech indicates a large change.

Will my colleague yield for a question?

Mr. President, I am happy to cosponsor this amendment. I will ask the Senator a question. We in New York--and I think it is true throughout the country--are seeing that our providers, whether they be hospitals or clinics or home health care, are laying off people and are not able to do the job anymore that they once did. There is no more fat in the system. We cut that out in New York in the 1980s, and then we did it further federally in the 1990s.

Aside from the No. 1 job, which is to provide the best health care possible to our seniors and others, aren't our cutbacks in New York and elsewhere causing the economy to go down even further because of the layoffs of many people? These are some of the poorest citizens--people who just climbed the ladder, with health care jobs, particularly at the entry level, which are important to immigrants and so many others. Doesn't she believe her amendment might have a small stimulative effect on the economy, and, conversely, not doing this amendment and allowing the cuts to go deeper would hurt our economy throughout the country?

Mr. President, I ask unanimous consent that Senators Hollings, Dorgan, Kennedy, Graham of Florida, Biden, Clinton, and Lautenberg be added as cosponsors of this amendment.

Mr. President, I ask unanimous consent to further modify my amendment with the changes that I now send to the desk.

Mr. President, first, I thank the Senator from Alaska, as well as the Senators from South Carolina, Washington State, and Arizona for their help.

Let me explain it quickly to my colleagues and how it is changed. As many of you know, something I have felt very strongly about is the ability to detect nuclear devices as they might be smuggled into this country by terrorists, either on ships in the large containers or over the Mexican or Canadian borders.

The scientists at our energy labs tell us they can develop or perfect detection devices much better than Geiger counters, which is the only detection device we have now that can prevent such devices from being smuggled in, which could cause an unimaginable tragedy--if a nuclear device were smuggled into the country and exploded.

The original amendment added $150 million for research. Through the good work of the chairman of the Appropriations Committee, we have now simply said that that money will come out of TSA. He has graciously agreed to protect that in conference. I think it is a happy compromise that solves the problem I have had getting research for this and the problem he has had making sure there are no new allocations.

It tracks the language that Senator Hollings and Senator McCain put in the port security bill and now provides the funding without adding any additional funding. So I am glad we have a compromise and look forward to seeing this research proceed very quickly. We cannot afford to wait.

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

Mr. President, I rise today with my colleagues from California and Arizona to ask for support for the State Criminal Alien Assistance Program (SCAAP) and to ask that it be funded, at the very least, at last year's level of $565 million in fiscal year 2003 in the Commerce, Justice, State Appropriations Report. Before I continue, I want to thank my colleagues for their hard work and dedication to the upkeep of this program.

SCAAP reimburses States and counties for the costs associated with the incarceration of undocumented criminal aliens. Unfortunately, Federal efforts are often not adequate to combat illegal immigration. By some estimates, the total annual cost to States and local governments exceeds $1.6 billion. The broad principle on which the SCAAP Program is based is simple: the control of illegal immigration is a Federal responsibility. When the Federal Government falls short in its efforts to control illegal immigration, it must bear the responsibility for the financial and human consequences of this failure. Thus, the ``State Criminal Alien Assistance Program Reauthorization Act'' would properly vest the Federal Government the fiscal burden of incarcerating illegal immigrants who commit crimes in our communities.

Southwestern States are not the only ones shouldering the extraordinary financial burdens of this type of incarceration. Northern border and interior States are increasingly bearing these costs, too. SCAAP funding has been on the rise even in historically low immigration States and counties. It is important to note that SCAAP receives widespread bipartisan and bicameral support. I encourage my colleagues on the Commerce, Justice, and State Subcommittee to support this very important program to help alleviate the impact of these unfunded Federal mandates on State, and in particular, county governments.

If it is all right with the Senator, 6 minutes.

I thank my colleague.

Mr. President, I stand here to back up our leader, the Senator from West Virginia, who has waged a long fight.

First, I wish to say that the Senator from New Hampshire is very erudite, and I am glad he chairs his subcommittee, but what he is saying, that we do not need money, does not square with the facts. The bottom line, if you have followed the fight of our good friend, our leader, the Senator from West Virginia, is that this administration has constantly cut back on homeland security, on requests they have made, and on things that we need.

We are in a strange situation; that is, when we fight a war on terrorism overseas, every penny is available, as it should be. We back up our men and women who are overseas. But when it comes to fighting here at the homeland, we have no money. The analogy would be telling the generals to fight the war in Iraq--the upcoming war we pray to God will not happen; but if it does, fight the war in Iraq--with no new money. It makes no sense.

I want to point out three areas because I heard my colleague from New Hampshire.

First, in my State--all of which I know from my State; and I will take one end of my State and the other--at one end we have a northern border; at the other end we have a port. The northern border is totally unguarded. Every 2 weeks we hear on television the fact that some unknown group may have come over the northern border.

In the PATRIOT Act, a bipartisan act which the Justice Department pushed, we called for tripling the Border Patrol, Customs, and INS on the northern border. In Buffalo we have the second largest port of entry between Canada and the United States. I have been there. I have talked to the head of the Border Patrol in New York on the northern border. I have talked to the head of Customs. I have talked to INS. They are desperately short of people.

If my friend from New Hampshire thinks we don't need money to increase personnel for Customs, INS, and the Border Patrol, I would invite him to come to my State.

For the southern border, we have some guards and strictures, and, unfortunately, the terrorists have realized that and they use the northern border.

Again, the President called for tripling--tripling--in the PATRIOT Act, the personnel of those three Departments on the northern border. The underlying amendment does virtually nothing. Even the amendment offered by my good friend from West Virginia does not triple the amount we need on the northern border, but at least it takes a step in that direction.

I have asked the people in Buffalo and in Plattsburgh and in Ogdensburg

why they can't hire people. Because they don't have the money. Not that the personnel aren't there, not that there are bureaucratic bottlenecks, but they don't have the money.

Let's go to the southern end of my State, New York City, the port. Right now, unfortunately--and this is well known--we are wide open in terms of what can be smuggled into our ports on the Pacific, on the Atlantic, and on the gulf coast. God forbid if a nuclear weapon was smuggled in.

My good friend from Virginia and I, Senator Warner and I, put in an amendment in the homeland security bill, and then in Senator Hollings's port security bill, to create detection devices to prevent these nuclear weapons from coming in. Do you know what we were told? There is no money. The President asked that it be taken out.

How can we say we need to go into Iraq to find nuclear weapons--I supported the President in his move to go into Iraq--and at the same time leave our ports wide open to someone else--al-Qaida, a Chechen-- smuggling in a weapon?

Again, the amendment of our leader, the distinguished Senator from West Virginia, does not come close to putting the money in we need, but he puts in some. At the same time we are raising the budget for the war overseas by tens of billions of dollars, we refuse to even begin to do what we need on homeland security.

Let me say to my friend from New Hampshire, the only bottleneck that prevents us from developing a detection device and implementing it on every container, on every toll booth at the northern and southern borders, to prevent nuclear weapons from coming in, is money. Again, if we are going to fight this war on terrorism abroad, we need the dollars to do it. Everyone agrees. But, somehow, there is a disconnect, and when we fight the war on terrorism at home, we say there are no dollars.

God forbid that something happens and we rue the day.

One final point. My friend, again, from New Hampshire was saying that our first responders in our localities do not need any more money, that the $3.4 billion they put in is enough. I beg to differ.

Let me talk about New York City.

If you drive over the Brooklyn Bridge, there is a police officer at each end of the bridge now. There never used to be. Now that has to be 24 hours, 7 days a week, to prevent someone from placing a bomb there. That is six police officers--three shifts, 24 hours a day--for each end of that bridge and for each end of every one of our bridges.

We, in New York City alone--Commissioner Kelly, Mayor Bloomberg--have requested $265 million of this committee, not for anything new, and not for the new equipment that my good friend from New Hampshire talks about, but simply to pay for some of the costs.

Let's face it, ladies and gentlemen, the city of New York has been-- up until now; I hope it does not happen again--their No. 1 target.

Mr. President, I ask the Senator for 2 more minutes to complete my point.

I thank the Senator very much.

We, in New York City, are stretched. I know what is going to happen. They are going to say: New York City, $265 million out of $3.4 billion? That is unfair. Everyone else needs the money.

Well, we are the No. 1 target. We don't have enough money for the first responders. And this is true throughout every part of our community--our hospitals, our firefighters. Everyone is stretched. Our States and local governments have no money to do all this. So, of course, we need more. The amendment of the Senator from West Virginia doesn't do enough, but at least it is a step on the road.

I could go on and on. I have talked about the northern border, which involves Customs, INS, and Border Patrol. I have talked about the port of New York and all the ports of the country which involve both TSA and some of the scientific research. I have talked about first responders. I could go on and on, but I know there is not enough time. We desperately need this money. Let us hope and pray that our stinginess in this vital area, where there is no ideological dispute, doesn't hurt our people this year or next year or the year after.

The Senator from West Virginia is making a lonely and difficult fight. He has done it for 6 months. But once again, we will look back on history and say he was right. We cannot fight a war on terror at home if we don't appropriate the dollars.

My good friend from New Hampshire can say we may not need this or we may not need that. In my State, the focal point of terrorism, we are not doing what we should on homeland security because we don't have the dollars--plain and simple.

I will enthusiastically support the amendment by the Senator from West Virginia, my leader. I hope the rest of the Senate will, too. God forbid we regret the day we do not.

I ask unanimous consent that I be allowed to address the body for 7 minutes after my colleague from Oregon.

Mr. President, I thank the Senator from Washington for her leadership, the Senator from South Carolina, the Senator from West Virginia, and I thank our Senator from Arizona for letting this amendment go through. If we did not, we would have the same situation we had last August when Amtrak closed.

I find it rather perplexing that so many of my colleagues are willing to subsidize the basic transportation infrastructure for roads--it is the Federal Government, not the passengers, that pays for roads--we are willing to pay for airports--again, Federal Government money pays for airports, both general aviation and commercial aviation--but we are not willing to do it for rail. It makes no sense, no sense whatever. It is unfair. It is probably geographic. Every State has airports and every State has roads but not every State has Amtrak. So people who do the same thing for air and for roads do not do it for rail.

On the Senator's time.

Reclaiming my time, that is something we could consider. May I answer on the Senator's time?

That is something we should consider, but we should not consider pulling the rug out from Amtrak. Roads are subsidized far beyond the nickel gas tax, and airports are taxed

far beyond the ticket price. Federal dollars go into each of those; we all know that. It is not simply that one is subsidized by the other. It makes no sense if you just believe in air and roads.

Before September 11, we had delay after delay after delay in the Northeast and then throughout the country in the air. In Europe, where they have as great a density, they do not have it. If you go a short distance, you take a speedy train. If you go from Paris to London, you take the Chunnel. From Paris to Frankfurt, you take the TGV. We will have to have rail in this country because we do not have enough space at the airports, we do not have enough space on the roads in the Northeast corridor, in California, and in so many other parts of the country where we have dense populations. So let's all pull together.

My good friend from Arizona fights subsidies in a lot of places, and I appreciate that. But so many others will vote for subsidies in every other place, but when it comes to rail, we say no. That makes no sense. It is unfair.

I am glad we have this amendment on the floor. I salute the leadership of my colleagues. I hope we will do something about Amtrak. The new head of Amtrak will shut that place down if we do not fund it, and then the country will have an economic cataclysm that will affect everyone, whether you have Amtrak in your community and in your State or not.

I yield the floor.

Mr. President, I call up amendment No. 31.

Mr. President, send a modification to the desk.

I believe the majority was given a copy of the amendment.

The only change I am changing, I inform my friend from Alaska, is on the second page where it says ``$50 million,'' it should say ``$150 million.''

I believe it would, yes. I believe it would.

The Senator from Alaska is correct. That is in the modified amendment.

I thank my colleague from Alaska. I will try to be brief on this amendment.

Mr. President, this amendment deals with port security, particularly port security research and development. And it increases the funding by $150 million. I believe this is a bare minimum of what we should be passing. First, let me make a point that we have lax security at our ports. And that has created a terrorist threat that jeopardizes not only the ports themselves but cities near the ports and any city in America because so much can be brought in through the ports and then be trucked elsewhere and cause untold damage.

The statistics are chilling. Mr. President, 95 percent of U.S. overseas trade is conducted at our Nation's 361 ports. The Port of New York and New Jersey, for my home State, in part, is the largest on the east coast. Yet in that port less than 3 percent of the total cargo is scanned or inspected. Despite the risk we face, despite the threat that hangs over our head, ports are receiving an extremely small amount of Federal funding--basically nothing. We need to do more.

Let me explain to my colleagues what the problem is.

What is the greatest danger that we could face here in America? It is very simple. A terrorist group could--it could be a country; it could be a group--smuggle a nuclear weapon into one of the large containers that comes to our ports by the tens of thousands every month.

They can put that container on a ship. They can put the container on a truck as it drives over the Canadian and Mexican borders. If that nuclear weapon is successfully smuggled into this country and detonated, as bad as 9/11 was, the damage would be much worse.

Right now we have no way to check whether such a nuclear weapon could be smuggled into our country. I have been worried about this. So I did some research. Here is what I found. I talked to scientists at Brookhaven National Laboratory on Long Island and at Argonne National Laboratory in Illinois. Those are two energy labs that don't produce weapons. I asked: What can we do to prevent a nuclear weapon from being smuggled into our ports?

They said: There is good news and bad news. The good news is that every radioactive device emits gamma rays which can pass through anything except lead and tungsten and some very thick metals. The bad news is, the only way to detect these devices right now in a practical way is a Geiger counter, and it has to be held about 3 feet in front of the nuclear source of the radioactive device.

You can't go on every container, each of which contains scores of these crates, put a Geiger counter by each one, and hope that you could detect any nuclear weapon that might be smuggled in because that would bring commerce to a standstill. They said: However, in that cyclotron in their laboratories, the scientists can detect radiation 50, 60, 70, 80 feet away, but the devices that detect nuclear radiation are big and delicate. They can't be bounced around.

The main purpose of this proposal is to make those devices practical, to make them smaller and more robust, and then they could be put on every crane that loads or unloads containers of ships, on every toll booth as the container goes through the toll booth, and any nuclear weapon smuggled into this country could be detected.

Our money here is for research and development. Such a device could probably be developed within a short period of time, as little as a year or two. And I find it totally anomalous that we are willing to go to war in Iraq, a war in which I have supported the President, to make sure they don't have nuclear weapons, when our whole foreign policy establishment is focused on North Korea, but when it comes to detection devices for al-Qaida or any other terrorist group that might smuggle those weapons in, we say we don't have the dollars.

The amendment I originally offered was with my good friend, Senator Warner. We were able to get it in the homeland security bill, through the support of former Senator Thompson, Senator Lieberman, as well as Senator Hollings and Senator McCain. When it came to the end of the day, we were told the administration wanted no spending in the homeland security bill. So our amendment didn't have the dollars, although it was authorized by Senator Hollings in the port security bill.

This is a relatively small amount of money that could save us from the worst catastrophe possible. One hundred fifty million dollars to develop such detection devices that could prevent any nuclear weapon from being smuggled in through our ports is something every one of us should support. Unfortunately, it is not in the bill. I understand there are lots of needs. I am hoping that my colleague from Alaska would examine this amendment and support it and accept it. The ports everywhere in America are vulnerable, and this is not just money at a random purpose. It is not pork. It is designed simply to deal with nuclear weapons that might be smuggled into our country.

We can't do it unless we have such devices. We are not going to be able to stop each container and inspect each one. As I said, we inspect 3 percent. Just as we can have X-ray machines at our airports that can detect explosives, we can have such devices at our ports and at our border crossings that detect an even worse danger--nuclear weapons.

In the Hollings port security bill, there was authorizing language. So this appropriation is authorized. It is, again, a small amount of money that would stop a nuclear weapon from being smuggled into this country. The shame of it is, this is not a very difficult thing to do. The science is there. The experts say we can create such a device. The danger is enormous. I don't know a single argument against doing this.

As I say, it is a bipartisan proposal. The original bill was by Senator Warner and myself. It was supported by both Democratic and Republican members of the Homeland Security Committee, but because the administration didn't want any spending in the homeland security bill, we are here.

I am hopeful that my colleagues will look at this amendment and support it because the safety of our country depends on it. If a nuclear weapon were smuggled in a container, put on a truck and exploded, whether it be in New York or Los Angeles or Chicago or St. Louis or any inland city because they can be put on that truck and driven there, we would rue the day we didn't develop such detection devices. The terrorists know our weaknesses. They know we have done a pretty good job on airport security. They know our ports are wide open. If they should get hold of a nuclear device right now, we would be naked to them. We can stop that. But we can stop it in a year or two for a small amount of money.

I am hopeful my colleagues will support this amendment.

With that, I don't know if my colleague has any questions or any comments, but I don't have anything more to say. I will only yield any time I might need to answer any of his questions or respond.

Will my colleague yield for a question?

I understand this is a large bill. I just ask my colleague, from what section of the bill could this be funded?

If I might, I understand there is a lot of money for homeland security, and I understand there are huge needs. I appreciate that my colleague said this is an important subject and probably needs to be done, but he has been around here much longer than I have. I have been in the House 18 years and now in the Senate 4. But in my experience, something like this that has no lobby behind it, has no interest pushing for it, no State or city is going to lobby, no group is going to lobby, no company is going to lobby, no union is going to lobby--in my experience, unless you earmark a certain amount of money-- and I am not out to increase the budget. If my friend from Alaska would be willing to take a part of that $24 billion and earmark $150 million for this subject, I would be happy to withdraw the amendment. I don't want to increase the budget.

My worry is, even though we say we have a lot of money in homeland security, in the scheme of things, this may not be funded. I am obsessed with this issue. I think this is the greatest danger we can face in the country, and I am worried we will not do it. I would wait until tomorrow morning, but if the Senator could show me a way to take it out of some existing pool of money and earmark it so it would not be caught in the political vicissitudes, I would support that. I don't want to add any more money, but I know there is a huge pot of money, and this is out there. The odds are that it is not going to be funded, as important as it is.

If the Senator would yield, I am not out to specifically do it for any one port. I rather want the research done to develop the devices. Once the devices were developed, we would have to deploy them at all our ports.

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