Floor Statements

Mr. President, on behalf of Senator Cantwell, I ask unanimous consent Bernie Saffell, a fellow in her office, be granted floor privileges during consideration of the bill that will shortly be before the Senate, H.R. 6.

Mr. President, I have a statement of a few minutes. Does the Senator want me to do that now?

I appreciate the courtesy of the distinguished majority leader. I do have something to do, so I appreciate that.

Mr. President, I am terribly saddened by the death of Jim Exon. Those of us who had the opportunity to serve with him are so troubled by his death. He was an outstanding Senator. He was fair. He worked on both sides of the aisle. He protected the State of Nebraska and our country so well.

I have so many fond memories of him. His enthusiasm for the work he did here was contagious. His sense of humor was wonderful. Jim Exon loved Nebraska football. He cared about a lot of issues, but other than his family, Nebraska football came first. He is going to be buried in Lincoln, NE, on this Wednesday. He died, I believe it was Friday night. Ben Nelson called me Saturday morning. Jim Exon was certainly a mentor of Ben Nelson. We will all miss him very much.

I hope those who have some knowledge of Senator Exon will recognize we hope to take an airplane trip to Nebraska Wednesday afternoon to attend his funeral. He was a wonderful man. I miss him so much.

Mr. President, this past Friday, I was in Cincinnati. I had some business to conduct there, but my plane got in early, and I had some time on my hands. My staff said: Would you like to go to a new museum that opened in August of 2004? I said: Sure, I will be happy to. It is a museum that is dedicated to forcing us to remember what went on in the dark days of the history of this country dealing with slavery.

The museum is done so well. You walk in, and the first thing you see is this large facility--big, tall--and it is a facility that was used in the late 1700s, 1800s for holding slaves. The upper story--using that term loosely--was for the men and the bottom for the women. They still have the shackles there, the chains that were used to hold these people. They have the writing on the walls used to describe what these human beings were worth, how much money, and for what they could be used.

So it is very appropriate that I returned to Washington today since we are going to debate some legislation that is very pertinent.

In this body's two centuries of history, we have done many great things. We sent men to the Moon, created schools for our kids, fed the hungry, and lent a helping hand to struggling families. But today I rise to speak about one of this institution's great failures--its shameful refusal to enact antilynching legislation in the first half of the 20th century.

Today, one of the saddest chapters in our Chamber's history will come to a close when we apologize for the Senate's inaction. I join my colleagues in apologizing to the deceased victims of lynchings and their surviving loved ones. I pray this Chamber will never fail to see this injustice that was done. We must realize and understand what it was. It was an injustice.

While the exact number is impossible to determine, records indicate that since 1882--the best records we have--4,749 individuals have died from lynching, men and women, mostly men, and most of them by far African Americans. These Americans were killed, tortured, mutilated, and maimed with near impunity. Most were denied due process under the law, and their killers rarely--very rarely--faced consequences for their actions, as indicated by the prayer offered today by our Chaplain which indicated little less than 1 percent who saw some retribution in the courts. The Senate's inaction helped create a culture of acceptance toward these heinous crimes against humanity.

Photos from this book--``Without Sanctuary'' is the name of the book--a book of lynchings that occurred in America, and it is depicted in photographs--photographs that are so hard to accept--is the principal reason we are here today, this one book.

This book shows men, women, children donning their finest clothing and gleefully posing in front of deceased people who had been hanged and, prior to being hanged, often mutilated. Even worse, many photos were turned into postcards, until 1908, when the Senate at least amended U.S. Postal Service regulations to forbid the mailing of lynching photographs made into postcards. Think about that.

American history is rich with stories of heroes and heroines, as well as patriots, of patriotism. However, the lynching of so many Americans will always be a stain on our great democracy. Only after passage of time, only after growing pressure from civil rights organizations, only after over 200 antilynching bills, condemnation by foreign nations, petitions from seven U.S. Presidents, and outcries from the African- American press and some mainstream publications did the occurrence of this horrible act decline. But this book, published in 2000, is the real reason we are moving today.

It is my sincere hope that the relatives of the victims of these horrible acts will accept this body's sincere apology and take solace in the Senate finally recognizing its shortcomings.

It is also my sincere hope that the Senate does not stop with its apologies. There is much more to be done. We can honor the legacy of these victims by continuing to confront the challenges in civil rights before us in enacting legislation that will protect, for example, voting rights and improve the lives of so many Americans.

First, I encourage my colleagues on both sides of the aisle to stand strong in support of reauthorizing the Voting Rights Act.

Second, disparities between African Americans and Whites in health care and education are still too great. I encourage this body to support legislation that will improve health care among African Americans, improve educational resources, and provide opportunities for African Americans in many different avenues.

Finally, I ask the families of the victims of these terrible crimes to accept the Senate's apology, and I pray that my colleagues will act positively on upcoming legislation to honor the souls of those passed and that they may finally rest in peace.

Mr. President, again, I extend my appreciation to the majority leader in allowing me to go before him this afternoon.

Faced with uncertainties in electricity energy markets, turmoil in the Middle East, the need to cut back on the fossil fuel emissions linked to global warming, air pollution that contributes to high rates of asthma and fills even our national parks with smog, the United States must diversify its energy supply by promoting the growth of renewable energy.

Since 1999, Las Vegas electricity rates have increased by 50 percent. In the same time period, natural gas prices across Nevada rose 45 percent. We need to change the energy equation. We need to diversify the nation's energy supply to reduce volatility and ensure a stable supply of electricity. We must harness the brilliance of the sun, the strength of the wind, and the heat of the Earth to provide clean renewable energy for our Nation.

Mr. President, I rise today to introduce a bill with Senators Feinstein, Cantwell, Snowe, Jeffords, Lieberman and Kerry that expands the existing Section 45 production tax credit for renewable energy resources to cover all renewable energy resources. Our legislation accomplishes this by ensuring that geothermal, incremental geothermal, solar, open-loop biomass, incremental hydropower, landfill gas, and animal waste to the list of renewable energy resources that would qualify for a production tax credit.

Our legislation also makes the production tax credit permanent to signal America's longterm commitment to renewable energy resources. The existing production tax credit will expire at the end of the year. Since it inception in 1992, the production tax credit has expired and been renewed three times--in 1999, 2001, and 2004. Development of wind energy has closely mirrored these renewal cycles. Clearly, the private investment necessary to develop renewable energy resources requires the business certainty afforded by a long-term extension of the production tax credit. Our bill allows for co-production credits to encourage blending of renewable energy with traditional fuels and provides a credit for renewable facilities on Native American and Native Alaskan lands.

In northern Nevada, the Pyramid Lake Paiute Tribe is working with Advanced Thermal Systems to develop geothermal resources on Indian lands that will spur economic development by creating business opportunities and jobs for tribal members.

This legislation also provides production incentives to not-for- profit public power utilities and rural electric cooperatives, which serve 25 percent of the Nation's power customers, by allowing them to transfer their credits to taxable entities. The good news is that the production tax credit for renewable energy resources really works to promote the growth of renewable energy.

In 1990, the cost of wind energy was 22.5 cents per kilowatt hour and, today, with new technology and the help of a modest production tax credit, wind is a competitive energy source at approximately 5.5 cents per kilowatt hour. In the last 5 years, wind energy has experienced a 30 percent growth rate. The production tax credit provides 1.8 cents for every kilowatt-hour of electricity produced. Similar to wind energy, this credit will allow geothermal energy, incremental hydropower, and landfill gas to immediately compete with fossil fuels, while biomass will follow closely behind. The Department of Energy estimates that we could increase our geothermal energy production almost tenfold, supplying ten percent of the energy needs of the West. As fantastic as it sounds, enough sunlight falls on 100 square miles of southern Nevada that--if covered with solar panels--could power the entire Nation.

Let's never lose sight of the fact that renewable energy resources are domestic sources of energy, and using them instead of foreign sources contributes to our energy security. Renewables provide fuel diversify and price stability. After all, the fuel--from the wind, the sun, and heat from the core of the earth--cost nothing. And they provide jobs, especially in rural areas that have been largely left out of America's recent economic growth. The production tax credit for renewable energy resources is a powerful, fast-acting stimulus to the economy. According to the Western Governors Association, the Department of Energy's Initiative to deploy 1,000 Megawatts of concentrated solar power in the Southwestern area of the United States by the year 2006 would create approximately 10,000 jobs and estimated expenditures of more than $3.7 billion over 14 years.

Nevada has already developed 200 megawatts of geothermal power, with a longer-term potential of more than 2,500 megawatts; this development will provide billions of dollars in private investment and create thousands of jobs. Our production tax credit means immediate economic development and jobs.

In the U.S. today, we get 2 percent of our electricity from renewable energy sources like wind, solar, geothermal, and biomass. But the potential for much greater supply is here. For example, Nevada could use geothermal energy to meet one-third of its electricity needs, but today this source of energy only supplies 2 percent. I am proud to say that Nevada has adopted one of the most aggressive Renewable Portfolio Standards in the Nation, requiring 15 percent of the State's electricity needs be met by renewable energy resources in 2013.

After pouring billions of dollars into oil and gas, we need to invest in a clean energy future. Fossil fuel plants pump over 11 million tons of pollutants into our air each year. Federal energy policy must promote reductions in greenhouse gas emissions. By including landfill gas in this legislation, we systematically reduce the largest single human source of methane emissions in the United States, effectively eliminating the greenhouse gas equivalent of 233 million tons of carbon dioxide.

Medical studies have revealed an alarming link between soot particles from power plants and motor vehicles and lung cancer and heart disease. The adverse health effects of power plant and vehicle emissions cost Americans billions of dollars in medical care, and our cost in human suffering is immeasurable. Simply put, the human cost of dirty air is staggering. If we factor in environmental and health effects, the real cost of energy becomes apparent, and renewable energy becomes the fuel of choice.

America's abundant and untapped renewable resources can fuel our journey into a more prosperous and safer tomorrow without compromising air and water quality. Renewable energy is a critical component of a successful, forward-looking, and secure energy policy for the 21st Century.

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

Faced with uncertainties in electricity energy markets, turmoil in the Middle East, the need to cut back on the fossil fuel emissions linked to global warming, air pollution that contributes to high rates of asthma and fills even our national parks with smog, the United States must diversify its energy supply by promoting the growth of renewable energy.

Since 1999, Las Vegas electricity rates have increased by 50 percent. In the same time period, natural gas prices across Nevada rose 45 percent. We need to change the energy equation. We need to diversify the nation's energy supply to reduce volatility and ensure a stable supply of electricity. We must harness the brilliance of the sun, the strength of the wind, and the heat of the Earth to provide clean renewable energy for our Nation.

Mr. President, I rise today to introduce a bill with Senators Feinstein, Cantwell, Snowe, Jeffords, Lieberman and Kerry that expands the existing Section 45 production tax credit for renewable energy resources to cover all renewable energy resources. Our legislation accomplishes this by ensuring that geothermal, incremental geothermal, solar, open-loop biomass, incremental hydropower, landfill gas, and animal waste to the list of renewable energy resources that would qualify for a production tax credit.

Our legislation also makes the production tax credit permanent to signal America's longterm commitment to renewable energy resources. The existing production tax credit will expire at the end of the year. Since it inception in 1992, the production tax credit has expired and been renewed three times--in 1999, 2001, and 2004. Development of wind energy has closely mirrored these renewal cycles. Clearly, the private investment necessary to develop renewable energy resources requires the business certainty afforded by a long-term extension of the production tax credit. Our bill allows for co-production credits to encourage blending of renewable energy with traditional fuels and provides a credit for renewable facilities on Native American and Native Alaskan lands.

In northern Nevada, the Pyramid Lake Paiute Tribe is working with Advanced Thermal Systems to develop geothermal resources on Indian lands that will spur economic development by creating business opportunities and jobs for tribal members.

This legislation also provides production incentives to not-for- profit public power utilities and rural electric cooperatives, which serve 25 percent of the Nation's power customers, by allowing them to transfer their credits to taxable entities. The good news is that the production tax credit for renewable energy resources really works to promote the growth of renewable energy.

In 1990, the cost of wind energy was 22.5 cents per kilowatt hour and, today, with new technology and the help of a modest production tax credit, wind is a competitive energy source at approximately 5.5 cents per kilowatt hour. In the last 5 years, wind energy has experienced a 30 percent growth rate. The production tax credit provides 1.8 cents for every kilowatt-hour of electricity produced. Similar to wind energy, this credit will allow geothermal energy, incremental hydropower, and landfill gas to immediately compete with fossil fuels, while biomass will follow closely behind. The Department of Energy estimates that we could increase our geothermal energy production almost tenfold, supplying ten percent of the energy needs of the West. As fantastic as it sounds, enough sunlight falls on 100 square miles of southern Nevada that--if covered with solar panels--could power the entire Nation.

Let's never lose sight of the fact that renewable energy resources are domestic sources of energy, and using them instead of foreign sources contributes to our energy security. Renewables provide fuel diversify and price stability. After all, the fuel--from the wind, the sun, and heat from the core of the earth--cost nothing. And they provide jobs, especially in rural areas that have been largely left out of America's recent economic growth. The production tax credit for renewable energy resources is a powerful, fast-acting stimulus to the economy. According to the Western Governors Association, the Department of Energy's Initiative to deploy 1,000 Megawatts of concentrated solar power in the Southwestern area of the United States by the year 2006 would create approximately 10,000 jobs and estimated expenditures of more than $3.7 billion over 14 years.

Nevada has already developed 200 megawatts of geothermal power, with a longer-term potential of more than 2,500 megawatts; this development will provide billions of dollars in private investment and create thousands of jobs. Our production tax credit means immediate economic development and jobs.

In the U.S. today, we get 2 percent of our electricity from renewable energy sources like wind, solar, geothermal, and biomass. But the potential for much greater supply is here. For example, Nevada could use geothermal energy to meet one-third of its electricity needs, but today this source of energy only supplies 2 percent. I am proud to say that Nevada has adopted one of the most aggressive Renewable Portfolio Standards in the Nation, requiring 15 percent of the State's electricity needs be met by renewable energy resources in 2013.

After pouring billions of dollars into oil and gas, we need to invest in a clean energy future. Fossil fuel plants pump over 11 million tons of pollutants into our air each year. Federal energy policy must promote reductions in greenhouse gas emissions. By including landfill gas in this legislation, we systematically reduce the largest single human source of methane emissions in the United States, effectively eliminating the greenhouse gas equivalent of 233 million tons of carbon dioxide.

Medical studies have revealed an alarming link between soot particles from power plants and motor vehicles and lung cancer and heart disease. The adverse health effects of power plant and vehicle emissions cost Americans billions of dollars in medical care, and our cost in human suffering is immeasurable. Simply put, the human cost of dirty air is staggering. If we factor in environmental and health effects, the real cost of energy becomes apparent, and renewable energy becomes the fuel of choice.

America's abundant and untapped renewable resources can fuel our journey into a more prosperous and safer tomorrow without compromising air and water quality. Renewable energy is a critical component of a successful, forward-looking, and secure energy policy for the 21st Century.

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

Mr. President, as the Chair and distinguished majority leader know, I am sorry we have spent so

much time on judges, but the fact is I wish to express my appreciation to Democratic Senators for being so cooperative. Since the agreement was made a week or two ago, my Senators have been so cooperative. Senator Leahy has had to change his whole schedule around this Monday to take care of the Griffith nomination. There has been an agreement made that we are not going to use all the time on Pryor.

I also express my appreciation to Senators Levin and Stabenow for allowing us to move forward on the Michigan judges. In spite of the fact that there are some hurt feelings as a result of the way the Michigan Senators were treated, they have agreed to set those aside and move forward on these two individuals. From all I have been able to determine, the two Michigan judges coming before us are well qualified, and there will not be any rancorous debate about either one of them. But I just want the majority leader to know that we have moved forward on these matters as expeditiously as possible, in spite of the relatively difficult time we have had arriving at this point.

I look forward next week to a vigorous debate on the Energy bill. It is great that we are going to be legislating here for a change. This is an extremely important piece of legislation. I am also indicating to all those within the sound of my voice how appreciative--I don't think the word ``proud'' is right but how appreciative--I am of the work of Senators Bingaman and Domenici to get the bill to this point.

We haven't had such cooperation on this committee in many years. We have a bill now that was reported out by a heavy margin of the committee, and I think as a result of that we will have some vigorous debate. There are some things on this side we believe should be done differently, but that is what legislation is all about. Again, having spent most of my life as a legislator, I look forward to the Senate returning to what it does best.

Mr. President, the time I have left over from the 15 minutes that is from 3:30 to 3:45 I will leave to Senator Leahy. I am going to use part of his time now.

Mr. President, I rise to express my strong opposition to the nomination of William Pryor to the Eleventh Circuit Court of Appeals.

At the outset, let me note the unusual fact that we are considering whether to confirm this nominee to a court on which he has been sitting for over a year as a recess appointee. In my view) this nomination is entitled to no special deference as a result of the nominee's status as a sitting federal judge.

There are serious constitutional questions about the validity of Mr. Pryor's recess appointment, and his confirmation at this time does not answer those questions with regard to cases heard by this or other recess appointees. Nor should it embolden President Bush to continue the questionable practice of appointing judges without the advice and consent of the Senate.

I oppose this nominee because his views on a wide range of vital issues are far outside the mainstream of legal thought, and I question his ability to put those views aside to decide cases impartially.

I said during the floor debate yesterday that Janice Rogers Brown is President Bush's most objectionable nominee. But I want to be clear: on the critical issue of civil rights, William Pryor holds views that are equally offensive as those of Justice Brown. The Pryor nomination deserves to be defeated just as the Brown nomination deserved to be defeated.

Any analysis of Mr. Pryor's judicial philosophy should begin with his views on federalism. This nominee has been a self-styled leader of the so-called federalism revolution conservative legal circles, a movement that challenges the authority of Congress to remedy civil rights violations.

Now, I am certainly thankful that the Framers of the Constitution had the wisdom to create a Federal system that divided power between the national and State governments. But for Mr. Pryor, the word ``federalism'' is more than that--it is a code word or a systematic effort to undermine important Federal protections for the disabled, the aged, women, minorities, labor, and the environment.

While attorney general of Alabama, Pryor told a Federalist Society conference that Congress:

should not be in the business of public education nor the

control of street crimes . . . With real federalism, Congress

would . . . make free trade its main domestic concern.

Congress would not be allowed to subvert the commerce clause

to regulate crime, education, land use, family relations, or

social policy . . .

One proponent of the federalism movement is Michael Greve, a conservative scholar at the American Enterprise Institute. Greve told the New York Times that:

what is really needed here is a fundamental intellectual

assault on the entire New Deal edifice.

Greve said he thinks this attack on the New Deal will get a good hearing from judges like William Pryor. Greve says of Pryor:

[he] is the key to this puzzle; there's nobody like him.

Let's look at some of the bedrock laws that Mr. Pryor has challenged under the banner of federalism. Mr. Pryor has argued that the Federal courts should narrow, or throw out entirely, all or portions of the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Civil Rights Act, the Clean Water Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Violence Against Women Act, and the Voting Rights Act.

What would America look like if this federalist revolution were to take hold in the Federal courts? University of Chicago Law Professor Cass Sunstein describes it well:

Many decisions of the Federal Communications Commission,

the Environmental Protection Agency, the Occupational Safety

and Health Administration and possibly the National Labor

Relations Board would be unconstitutional. It would mean that

the Social Security Act would not only be under political but

also constitutional stress . . . the Securities and Exchange

Commission and maybe even the Federal Reserve would be in

trouble. Some applications or the Endangered Species Act and

Clean Water Act would be struck down as beyond Congress's

commerce power.

As attorney general of Alabama, Pryor had the sole power to decide what legal action the State and its agencies would take, and he used that power to file ``friend of the court'' briefs attacking many of these statutes. In fact, Alabama was the only State to file a brief against the Violence Against Women Act, while 36 States submitted briefs in support of the statute--which had passed Congress with bipartisan support.

With regard to the Voting Rights Act, Mr. Pryor had the following to say when he testified before Congress in 1997:

I encourage you to consider seriously, for example, the

repeal or amendment of section 5 of the Voting Rights Act,

which is an affront to federalism and an expensive burden

that has far outlived its usefulness, and consider modifying

other provisions of the Act that have led to extraordinary

abuses of judicial power.

The Voting Rights Act is still of vital importance, and section 5 is one of its most important sections. I have grave concerns that if Mr. Pryor cannot understand the continuing need for voting rights protections for minorities, he is unlikely to rigorously enforce the act in cases before the Circuit. This is especially important since all of the States within the circuit are covered, in whole or in part, by Section 5.

Mr. Pryor has waged an assault on other civil rights laws. In the case of Alexander v. Sandoval, Pryor filed a brief for Alabama which urged the Court to drastically restrict title VI of the Civil Rights Act, which bars discrimination in federally funded programs. In a 5-to- 4 opinion written by Justice Scalia, the Supreme Court agreed with Pryor and held that there is no private right of action to enforce title VI regulations. This ruling was a dramatic setback for the civil rights movement and continues to impede the enforcement of civil rights laws.

While five Supreme Court Justices agreed with Pryor about title VI, his outside-the-mainstream views have often been rejected by the current conservative Supreme Court. In fact, the Court unanimously rejected three of Mr. Pryor's federalism arguments: that sovereign immunity applies not only to States but to counties; that the Americans with Disabilities Act does not apply to State prisons; and that a law barring a State from selling the personal information of its citizens without permission is unconstitutional.

It is no wonder that the Atlanta-Journal Constitution, in an editorial entitled ``Right-wing Zealot is Unfit to Judge,'' wrote that Mr. Pryor's nomination:

is an affront to the basic premise that a candidate for the

federal bench must exhibit respect for established

constitutional principles and individual liberties. Pryor may

be a good lawyer and a faithful Republican, but his lifelong

extremism disqualifies him for a federal judgeship.

And there is more.

There is Mr. Pryor's view of the equal protection clause, which led him to oppose a 7-to-1 ruling by the Supreme Court that opened the Virginia Military Institute, a State-funded university, to women. Predictably, Mr. Pryor called that case an example of the Supreme Court being ``both anti-democratic and insensitive to federalism.''

There is Mr. Pryor's contempt for what he called the ``so-called wall of separation between church and state'' and his belief that this important doctrine was created by ``errors of case law.'' In fact, Mr. Pryor remarked at a graduation ceremony that ``the challenge of the next millennium will be to preserve the American experiment by restoring its Christian perspective.''

There is his view of the Constitution's prohibition on cruel and unusual punishment. The Supreme Court--which has not exactly been liberal on this issue--rejected Mr. Pryor's argument that prison guards could handcuff prisoners to a hitching post in the Alabama sun and deny them bathroom breaks or water. It also rejected his argument that it is permissible to execute the mentally retarded. It also rejected his argument that counsel need not be provided to indigent defendants charged with a misdemeanor that carries a jail sentence.

Is this the kind of judge we want to confirm to a lifetime seat on a Federal appellate court?

Do we want a judge who, when the Supreme Court questioned the constitutionality of Alabama's use of the electric chair in 2000, lashed out at the Court by saying ``[T]his issue should not be decided by nine octogenarian lawyers who happen to sit on the U.S. Supreme Court''?

Do we want a judge who, on the day after the Supreme Court's final ruling in Bush v. Gore, said:

I'm probably the only one who wanted it 5-4. I wanted

Governor Bush to have a full appreciation of the judiciary

and judicial selection so we can have no more appointments

like Justice Souter.

On another occasion he said:

Please God, no more Souters.

This kind of temperament served Pryor well as a Republican politician, but this doesn't represent the kind of judicial temperament we want on the Federal bench.

The Senate must exercise its advice and consent responsibility with great care. In fact, we should follow Mr. Pryor's own advice. He once told a Senate subcommittee that:

your role of advice and consent in judicial nominations

cannot be overstated.

I agree with him on that point. For these reasons, I urge my colleagues to withhold the in consent to this very unacceptable nomination.

Mr. President, I apologize to my friend. Since he was not here, I used my time a little early. So the record is clear, my friend is the great Senator Pat Leahy from Vermont.

Mr. President, this week marks the fortieth anniversary of the U.S. Supreme Court decision in Griswold v. Connecticut that struck down a Connecticut law that had made the use of birth control by married couples illegal. This decision laid the groundwork for widespread access to birth control for all American women.

In the 40 years since this landmark decision, increased access to birth control has contributed to a dramatic improvement in maternal and infant health and has drastically reduced the infant death rate in our country.

In spite of these advances, we still have a long way to go. The United States has among the highest rates of unintended pregnancies of all industrialized nations. Half of all pregnancies in the United States are unintended, and nearly half of those end in abortion.

Making contraception more accessible and affordable is one crucial step toward reducing unintended pregnancies, reducing abortions and improving women's health.

We cannot allow the pendulum to swing backwards. That is why Senator Snowe and I are reintroducing the Equity in Prescription and Contraception Coverage Act of 2005, EPICC. Over the last 8 years, Senator Snowe and I have joined together to advance this important legislation.

The EPICC legislation is also a critical component of the Prevention First Act, S. 20. This legislation includes a number of provisions that will improve women's health, reduce the rate of unintended pregnancy and reduce abortions.

The legislation we are introducing today proves we can find not only common ground, but also a commonsense solution to these important challenges.

By making sure women can afford their prescription contraceptives, our bill will help to reduce the staggering rates of unintended pregnancy in the United States, and reduce abortions.

It is a national tragedy that half of all pregnancies nationwide are unintended, and that half of those will end in abortions. It is a tragedy, but it doesn't have to be. If we work together, we can prevent these unintended pregnancies and abortions.

One of the most important steps we can take to prevent unintended pregnancies, and to reduce abortions, is to make sure American women have access to affordable, effective contraception.

There are a number of safe and effective contraceptives available by prescription. Used properly, they greatly reduce the rate of unintended pregnancies.

However, many women simply can't afford these prescriptions, and their insurance doesn't pay for them, even though it covers other prescriptions.

This is not fair. We know women on average earn less than men, yet they must pay far more than men for health-related expenses.

According to the Women's Research and Education Institute, women of reproductive age pay 68 percent more in out-of-pocket medical expenses than men, largely due to their reproductive health-care needs.

Because many women can't afford the prescription contraceptives they would like to use, many do without

them, and the result, all too often, is unintended pregnancy and abortion.

This isn't an isolated problem. The fact is, a majority of women in this country are covered by health insurance plans that do not provide coverage for prescription contraceptives

This is unfair to women. It is bad policy that causes additional unintended pregnancies, and adversely affects women's health.

Senator Snowe and I first introduced our legislation in 1997. Since then, the Viagra pill went on the market, and one month later it was covered by most insurance policies.

Birth control pills have been on the market since 1960, and today, 45 years later, they are covered by only one-third of health insurance policies.

So, today we find ourselves in the inexplicable situation where most insurance policies pay for Viagra, but not for prescription contraceptives that prevent unintentional pregnancies and abortions.

This isn't fair, and it isn't even cost-effective, because most insurance policies do cover sterilization and abortion procedures. In other words, they won't pay for the pills that could prevent an abortion, but they will pay for the procedure itself, which is much more costly.

The Federal Employee Health Benefits Program, which has provided contraceptive coverage for several years, shows that adding such coverage does not make the plan more expensive.

In December 2000, the U.S. Equal Employment Opportunity Commission, EEOC ruled that an employer's failure to include insurance coverage for prescription contraceptives, when other prescription drugs and devices are covered, constitutes unlawful sex discrimination under Title VII of the Civil Rights Act of 1964.

On June 12, 2001, a Federal district court in Seattle made the same finding in the case of Erickson vs. Bartell Drug Company.

These decisions confirm what we have known all along: contraceptive coverage is a matter of equity and fairness for women.

We are not asking for special treatment of contraceptives, only equitable treatment within the context of an existing prescription drug benefit.

This legislation is right because it is fair to women.

It is right because it is more cost-effective than other services, including abortions, sterilizations and tubal ligations, costly procedures that most insurance companies routinely cover.

And it is right because it will prevent unintended pregnancies and reduce abortions, goals we all share.

This is common sense, common-ground legislation, and it is long overdue.

Mr. President, this week marks the fortieth anniversary of the U.S. Supreme Court decision in Griswold v. Connecticut that struck down a Connecticut law that had made the use of birth control by married couples illegal. This decision laid the groundwork for widespread access to birth control for all American women.

In the 40 years since this landmark decision, increased access to birth control has contributed to a dramatic improvement in maternal and infant health and has drastically reduced the infant death rate in our country.

In spite of these advances, we still have a long way to go. The United States has among the highest rates of unintended pregnancies of all industrialized nations. Half of all pregnancies in the United States are unintended, and nearly half of those end in abortion.

Making contraception more accessible and affordable is one crucial step toward reducing unintended pregnancies, reducing abortions and improving women's health.

We cannot allow the pendulum to swing backwards. That is why Senator Snowe and I are reintroducing the Equity in Prescription and Contraception Coverage Act of 2005, EPICC. Over the last 8 years, Senator Snowe and I have joined together to advance this important legislation.

The EPICC legislation is also a critical component of the Prevention First Act, S. 20. This legislation includes a number of provisions that will improve women's health, reduce the rate of unintended pregnancy and reduce abortions.

The legislation we are introducing today proves we can find not only common ground, but also a commonsense solution to these important challenges.

By making sure women can afford their prescription contraceptives, our bill will help to reduce the staggering rates of unintended pregnancy in the United States, and reduce abortions.

It is a national tragedy that half of all pregnancies nationwide are unintended, and that half of those will end in abortions. It is a tragedy, but it doesn't have to be. If we work together, we can prevent these unintended pregnancies and abortions.

One of the most important steps we can take to prevent unintended pregnancies, and to reduce abortions, is to make sure American women have access to affordable, effective contraception.

There are a number of safe and effective contraceptives available by prescription. Used properly, they greatly reduce the rate of unintended pregnancies.

However, many women simply can't afford these prescriptions, and their insurance doesn't pay for them, even though it covers other prescriptions.

This is not fair. We know women on average earn less than men, yet they must pay far more than men for health-related expenses.

According to the Women's Research and Education Institute, women of reproductive age pay 68 percent more in out-of-pocket medical expenses than men, largely due to their reproductive health-care needs.

Because many women can't afford the prescription contraceptives they would like to use, many do without

them, and the result, all too often, is unintended pregnancy and abortion.

This isn't an isolated problem. The fact is, a majority of women in this country are covered by health insurance plans that do not provide coverage for prescription contraceptives

This is unfair to women. It is bad policy that causes additional unintended pregnancies, and adversely affects women's health.

Senator Snowe and I first introduced our legislation in 1997. Since then, the Viagra pill went on the market, and one month later it was covered by most insurance policies.

Birth control pills have been on the market since 1960, and today, 45 years later, they are covered by only one-third of health insurance policies.

So, today we find ourselves in the inexplicable situation where most insurance policies pay for Viagra, but not for prescription contraceptives that prevent unintentional pregnancies and abortions.

This isn't fair, and it isn't even cost-effective, because most insurance policies do cover sterilization and abortion procedures. In other words, they won't pay for the pills that could prevent an abortion, but they will pay for the procedure itself, which is much more costly.

The Federal Employee Health Benefits Program, which has provided contraceptive coverage for several years, shows that adding such coverage does not make the plan more expensive.

In December 2000, the U.S. Equal Employment Opportunity Commission, EEOC ruled that an employer's failure to include insurance coverage for prescription contraceptives, when other prescription drugs and devices are covered, constitutes unlawful sex discrimination under Title VII of the Civil Rights Act of 1964.

On June 12, 2001, a Federal district court in Seattle made the same finding in the case of Erickson vs. Bartell Drug Company.

These decisions confirm what we have known all along: contraceptive coverage is a matter of equity and fairness for women.

We are not asking for special treatment of contraceptives, only equitable treatment within the context of an existing prescription drug benefit.

This legislation is right because it is fair to women.

It is right because it is more cost-effective than other services, including abortions, sterilizations and tubal ligations, costly procedures that most insurance companies routinely cover.

And it is right because it will prevent unintended pregnancies and reduce abortions, goals we all share.

This is common sense, common-ground legislation, and it is long overdue.

Reserving the right to object.

Mr. President, as I expressed to the distinguished majority leader personally, and I say so today, and I have said so publicly on a number of occasions, I wish this week we had been working on something else. The

fact is, we have now what I consider a bump in the road out of the way. I am glad we are now going to move on to legislative business. We have so much to do in the next few, literally, weeks we have remaining in this legislative session.

I appreciate very much the people on both sides of the aisle allowing us to move forward on the Energy bill. It is a big piece of legislation that is vitally important to the people of America. Of course, in a big piece of legislation such as this, there will be problems, and certainly there will be in this bill.

Again, as I said previously, I am grateful to Senators Domenici and Bingaman for getting the bill to us initially. It is a bill that is developed by consensus of the committee. That speaks well of both Senator Domenici and Senator Bingaman and the members of the committee. That is going to be some heavy lifting in legislative terms.

The distinguished majority leader has set a very high mark for the Senate before we leave here. He wants to finish at least two appropriations bills. I think it is possible we can do three appropriations bills. I hope we can do that. If we can get rid of--I say that in a most positive sense--the Homeland Security, the Energy, water, and Interior bill, and it does not matter what order, that would be good work for this work period.

I also express to the distinguished majority leader my appreciation for his hard work. We are not there yet. But we hope we can arrive at some agreement on stem cell research during that work period. It would make everything move a little more quickly if we do that. The leader is working on that. I am working on that. I hope we can, maybe in the next week, agree on something that will allow us to do that so we do not have a lot of hurdles thrown up in other legislation because of that.

I do.

Will the Senator yield?

It has been brought to my attention that we also have to do in the next few weeks the Native Hawaiian legislation we talked about that we would help Senator Akaka on; also, we have a couple of hours the Majority Leader has agreed to set aside for the China trade issue with Senator Schumer. Those things I am sure we can work in, but those are things we have to keep in mind that we have to do.

Mr. President, I say through the Chair to the distinguished majority leader, we have spoken to staff on the situation involving the Griffith nomination. I have not had the opportunity to speak to the ranking member, Senator Leahy. Hopefully, we can get that resolved so maybe even on Monday we can complete debate on that nomination.

We are trying to cooperate as much as we can getting through this little hurdle we have had here so we can move on to other issues.

Mr. President, I ask unanimous consent that today the Democratic time for debate, with respect to the Brown nomination, be controlled as indicated on the list which I now send to the desk.

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

Mr. President, yesterday the Senate invoked cloture on the nomination now before this body. That came about as a result of a bipartisan agreement that was reached several weeks ago. The agreement, though, did not proclaim in any way that Justice Brown would be confirmed. The agreement does not obligate any Senator to vote for this or any other nominee. Nor did the agreement establish Janice Rogers Brown as the benchmark for what is acceptable, as far as judicial nominees go.

Whether one is from the left or the right, this nominee should be rejected. We should reject any nominee who twists the law to advance his or her own ideological bent. We should reject any nominee who does not believe in or abide by precedent, and we should reject any nominee who holds deep hostility to Government, such deep hostility that it renders them blind to what the law mandates.

Janice Rogers Brown does not fail on just one of these standards, she fails on all three. She is an exceptional candidate, there is no question--but in a negative sense. She twists the law and does it routinely. She does not follow precedent. She has a hostility to Government I have never seen in a judge at any time during my years as a lawyer and as a member of a legislative body.

Under these standards, of course, her nomination should fail resoundingly. In speeches and opinions, Janice Rogers Brown has repeatedly assailed protections for the elderly, for workers, for the environment, for victims of racial discrimination. If confirmed today, she will be a newly empowered person to destroy those protections. Why? Because the D.C. Circuit, where she is intending to go, is the second most powerful court in our land. It has special jurisdiction over protections for the environment, for consumers, for workers, for women, for the elderly. Putting her on the D.C. Circuit Court of Appeals is truly like putting the fox in to guard the henhouse.

The concerns about this woman have not been developed in the last 6 months. Deep concerns over her objectivity and fairness, or lack thereof, have followed her through her whole career. In 1996, when Justice Brown was up for her current job--that is a member of the Supreme Court of the State of California--she was rated unqualified by a 23-member commission that was set up by the State of California to review people going to the court. Twenty out of 23 said she was unqualified to be a member of the California Supreme Court. The commission specifically found that as a lower court judge, Brown exhibited:

a tendency to interject her political and philosophical views

into her opinions.

Press reports at the time indicated that commission members had received complaints that she was insensitive to established legal precedent, lacked compassion, lacked intellectual tolerance for opposing views, and misapplied legal standards.

These are not the words coming from Democratic Senators. This is from a commission set up to review candidates the Governor was going to appoint in the State of California. They found her unqualified, not by a narrow margin--overwhelmingly. Twenty out of the 23 said she was unqualified.

I will say one thing, in the 10 years since they did their work, the State commission has been proven to be visionary, to have had foresight, because she has definitively proven them right. She has established a record as a habitual lone dissenter who lacks an open mind. I heard one of the Senators over here on the majority side say there have been other dissents. She dissented alone 31 times. In a Republican supreme court--6 of the 7 members are Republicans--she has dissented alone 31 times.

Justice Brown's record is the record of a judge who would discard the foundation of our basic legal system, precedent, in order to elevate her own extreme views over the law.

When I was going to law school, they taught us a lot of Latin terms. One of the Latin terms they have in the law we learned as new law students is something called stare decisis. What do those words mean? They are Latin words that mean ``to stand by decided matter.'' It stands for certainty. Janice Rogers Brown is a judge; she is not a legislator. She has no right to do the things she does. I am dumbfounded that we are going to have Republican Senators who have decried for decades about activism--she is the epitome of an activist judge. She does not follow precedent. She is not a legislator, she is a judge.

This is not Harry Reid coming up with some new theory. In Federalist Paper 78, the brilliant Alexander Hamilton wrote, explaining the importance of a judiciary bound by precedent:

To avoid arbitrary discretion in the courts it is

indispensable that they should be bound by strict rules and

precedent.

Yet we are going to have people on the other side of the aisle walk over here and vote for this woman. She stands for everything I have heard my Republican colleagues rail against for years. The fact that you are a so-called conservative does not make your activism any better. I believe in stare decisis. When the Court over here across the street renders a decision based on precedent, I support that. I don't like judges to be legislators and that is what she is.

I think it would be hard to find a Senator, if the truth came out, with everyone being candid, who would not agree with Hamilton's view. But with Brown we have a nominee who doesn't believe in precedent. She not only doesn't believe in it, she doesn't abide by it. Here are a few examples.

In the case called People v. McKay, she argued against existing precedent by saying:

If our hands are tied it behooves us to gnaw through the

ropes.

To gnaw through the ropes of precedent? Why did Alexander Hamilton want judges bound by precedent? Because you need stability in the law. You can't have judges acting as legislators. That is what people complain about. I thought most of the complaints about this problem, in fact, came from this side of the aisle.

In Kasky v. Nike, she argued for overturning precedent because it ``did not take into account realities of the modern world.''

That is what we hear. We hear that the Federalist Society and all these other so-called conservative groups who want the Constitution to be interpreted based on the words of that Constitution, not her ``realities of the modern world.''

In People v. Williams, she summarized her views stating she is ``disinclined to perpetuate dubious law for no better reason than that it exists.''

How could a judge say that? But she does. These are the words of a judicial activist.

I said yesterday, when somebody asked me:

If you like judicial activism, she is a doozy.

I wanted to make sure I didn't insult her. I went and looked up in the dictionary what a doozy is. Doozy is ``extraordinary.'' She is an extraordinary activist, not even a mainstream activist. She is the most activist judge, in my many years in the courts and in the legislature, I have ever seen.

She has a deep disdain for Government. Don't take my word it. Listen to what she says, for example, about Government.

Where government moves in, community retreats, civil

society disintegrates, our ability to control our own

destinies atrophies.

We have a world out there that is looking to America for guidance. Why are they looking to us? It is our ability to govern, our Government. We are the envy of the rest of the world, with our constitutional form of Government. What does she think of it? Not much.

She also says the result of Government is:

Families under siege; war on the streets; unapologetic

expropriation of property; the precipitous decline of the

rule of law; the rapid rise of corruption; the loss of

civility and the triumph of deceit.

What world is she living in? She also says the result of Government is:

a debased, debauched culture which finds moral depravity

entertaining and virtue contemptible.

I don't recognize that government she describes. Is a government which strives to provide children with a better education one which leads to war in the streets? Is a government which works to provide health care to people one which results in families under siege? Is a government which protects beautiful landmarks of our land one which leads to an unapologetic expropriation of property?

I don't think mainstream Americans would agree to this, mainstream Democrats, Republicans, Independents. These views are not those of a person who should be awarded tremendous power in our federal court system.

Take one area of the D.C. Circuit's special jurisdiction, hearing appeals from the National Labor Relations Board. These cases involve employee rights to unionize to achieve better health care, better wages, and a decent standard of living. In Nevada, our culinary union, which represents almost 60,000 people who work in our leisure-time industry, has so effectively represented the position of these tens of thousands of employees that such jobs are the best jobs for maids, cooks, waitresses, waiters, and car valets of any place in the world. Over the years, farsighted casino owners have worked with this union because they know that in the hospitality industry, staff can make or break an enterprise. Our labor laws encourage businesses to work with laborers so both sides benefit.

In 1905, a case was decided by the U.S. Supreme Court called Lochner. It invalidated worker protection laws--things such as how many hours you could work, do you get paid overtime, basic safety measures in the workplace. In Lochner, the U.S. Supreme Court said, No, you can't do that. So for 32 years that was the law of the land.

In a unique situation, the Supreme Court said: Times have changed. We are going to change that. They did that in 1937. Lochner is a case that we look back at, not with as much dread as the Dred Scott case, but it is pretty bad. In that case, the Lochner case, they invalidated the New York labor statute that limited the number of hours employees could work.

Over the passionate dissent, and I heard the distinguished chairman of the Judiciary Committee, the distinguished Senator Specter from Pennsylvania talk about Oliver Wendell Holmes--Oliver Wendell Holmes dissented in the Lochner case and his dissent was one of the most beautifully written opinions in our history. For decades, Lochner stood as a hard-hearted barrier to worker protections enjoyed by Americans today. Its reversal by the Supreme Court was one of the most pivotal moments in our Nation's history.

Where does Janice Rogers Brown come in here? She laments that the case was overturned. She wants to return to the way it used to be. She said of Holmes' famous dissent in Lochner--in this case he was simply wrong. She said the Lochner dissent has troubled me and has annoyed me for a long time.

She has compared the demise of Lochner and the worker protections that followed in its wake as a socialist revolution.

She seeks to return to Lochner, and if confirmed, she will have power to effect those changes she wants. Why should we have a 40-hour workweek, according to Janice Rogers Brown? Why should we have workers compensation law, worker safety laws? Why should people have to be paid by their employers overtime? They should not be, according to Janice Rogers Brown.

She has attempted to distinguish between her legal opinions and her speeches, which she said are designed to stir the pot. But she can't. But that is not true. It is simply not true. She is being disingenuous. Her speeches are carried forward in her opinions. The inflammatory rhetoric in her speeches carries over into her opinions as if copied on the old copying machines.

For example, in a speech at the Institute of Justice, she said:

If we can invoke no ultimate limits on the power of

government, a democracy is inevitably transformed into a

Kleptocracy--a license to steal, a warrant for oppression.

She wrote an opinion in the San Remo Hotel v. City and County of San Francisco case where she said the same thing, almost identical words:

Turning a democracy into Kleptocracy does not enhance the

stature of thieves; it only diminishes the legitimacy of

government.

In another speech, she assailed senior citizens with this verbiage:

. . . today's senior citizens blithely cannibalize their

grandchildren because they have a right to extract as much

``free'' stuff as a political system will permit them to

extract.

In a case involving discrimination against a senior citizen, Stevenson v. Superior, she said the same thing--in a dissent, of course--that California's public policy against age discrimination cannot benefit the public. She said that such age discrimination:

is not . . . Like race and sex discrimination. It does not

mark its victims with a stigma of inferiority and second

class citizenship; it is an unavoidable consequence of that

universal level of time.

She is saying you get old, you take the consequence, and if you get a little gray hair and you have worked there 30 years, they can dump you just because your hair is gray.

I am not making this up. Setting her speeches aside, and these few opinions, her judicial opinions are enough to disqualify her for the job.

There is another case, Aguilar vs. Avis Rent A Car. I cannot in good taste on the Senate floor repeat what this Hispanic employee, Aguilar, was being called in the workplace. I cannot repeat it. They are the most vile words we have in English. I cannot do that. I have them. I cannot do that. Vile. What did she say? There was a race discrimination suit against an employee who had repeatedly been subjected to racial slurs. She argued the slurs were protected by the first amendment. While the majority soundly rejected this defense, she, in her single dissent, endorsed these people being able to say that. I am not making this up. She argued that even an illegal racial discriminatory speech in the workplace--discrimination prohibited by title VII of our Civil Rights Act--is protected by the first amendment. She believes racial slurs in the workplace are acceptable in America. This is a woman who is going to the second highest court in the land?

Take another case, Konig v. Fair Employment and Housing Commission.

There--again in a dissent, what else--she argued that an African- American police officer who had been discriminated against should not be awarded damages for this illegal conduct perpetrated against her.

In her world, discrimination is without an effective remedy, and wrongdoers are rewarded.

While she displays hostility toward victims of discrimination-- willing to twist the law to deny relief--she exhibits the opposite view when it comes to corporations. Corporations can do no wrong.

In Kasky v. Nike, the plaintiff sued Nike, alleging Nike had engaged in false and misleading advertising in a false campaign to deny it had mistreated its overseas workers. The majority held that these false statements were not protected by the Constitution. Again, in dissent, Justice Brown argued they are protected.

Under Justice Brown's reasoning of this case, corporate lies should be protected and public protections rejected. That was her opinion.

As the Enron wrongdoers finally head to trial 4 years after they destroyed the retirement security of its employees and devastated investors, do we want a judge who believes that corporate lies are protected by the Constitution?

Justice Brown also believes that the takings clause of the Constitution should be transformed into a weapon to tear government down. For example, in the San Remo case, a hotel owner challenged a city permitting requirement. In dissent--again--she argued this scheme was a taking of property requiring compensation under the Constitution. Her assertion that a permit fee was a taking requiring compensation is totally at odds with longstanding U.S. Supreme Court precedent. That does not matter to her. Her radical view would mandate compensation for everything. That is her point. She does not want government and her view is a way to achieve that end.

If you disapprove of zoning laws which keep strip clubs and factories from opening next door to your house, or an adult bookstore, if you dislike the environmental process which saved the bald eagle, our golden eagle, if you oppose the communication laws which protect our children from indecent programming, then Janice Rogers Brown is your kind of a judge. She does not believe in these protections and wants to twist the Constitution to abolish them.

I said she was a doozy as an activist, and I think I have proven my case. Her views, in my word and I think the word of the American people, are absurd. They are without any basis in the law. They should not be given voice on the DC Circuit.

I say to my colleagues, to the American people, if you believe in America--and I know we do--where workers are entitled to a fair wage for a fair day's work, where racial slurs are not condoned, where discrimination is not tolerated, where corporations are not given license to lie, where senior citizens are valued and honored, where we have protections for the air we breathe, the food we eat, the water we drink, and these are embraced instead of evaded, if you believe in these things, no one in good conscience can approve this nomination. The record is too clear, too disturbing, too expansive.

The influence of this court, the DC Circuit Court, is too important, too fundamental to the rights Americans hold dear. If there were ever a nominee whom my colleagues, Republicans and Democrats, should reject, this is it.

This bipartisan rejection would do more to change the tenor of the debate on judicial nominations than any step we could take. It would send a signal to President Bush that while we may confirm the conservative nominee--and we have confirmed 209 so far--the Senate will not approve results-oriented activist ideologues to our Federal courts. It would breathe new life into the ``advice'' part of the advice and consent clause of our Constitution, encouraging partnership between the President and the Congress.

The American people want to see us--Democrats and Republicans-- working together to improve the retirement security, their health care, their children's education. Because of the time we have spent on judges for weeks and weeks, we will never catch up. We have the Energy bill to do. We have the armed services bill we have to do. We have TANF. We hope to do something on estate tax. It goes on and on. It is all catchup time. Why? Because of five judges and the President did not get his way. And it will be catchup time for a long time because of it.

The people want to see us work together. They want to see the President bring forward fair judicial nominees who will not bring an ideological agenda to this body, whether liberal or conservative, to these lifetime positions. The American people should demand, the Senate should demand, that a nominee possess a fair, open mind, and an instinctual understanding that the job of a judge is not to make law but to interpret our laws. It is this very basic standard that this nominee so utterly and completely fails to meet.

I urge my colleagues to reject this very bad nomination.

Mr. President, it is my understanding the vote Monday will be around 6 o'clock rather than our normal 5:30 p.m. time.