Floor Statements

Mr. President, through the Chair to the distinguished Republican leader, does the leader have an indication of when you may be in a position to indicate how late we would go tonight?

And we would continue dividing the time?

Mr. President, I wish to respond briefly to the distinguished Republican leader's comments. Priscilla Owen has had numerous votes. She has had three that I am aware of on the Senate floor. Those votes dealt with whether we should stop debating her. The votes three times have said no.

The Senate reception area is a beautiful part of the Capitol. I can remember coming here in 1974 and Hubert Humphrey coming off the Senate floor. He had to sit down. He couldn't stand to talk to me. I remember the first time I had a conversation in that beautiful hall. I worked here 10 years before that as a policeman. Of course, I recognized the beauty of the building and of that beautiful room.

We have put out there what we refer to as a Hall of Fame of Senators. It is a place where you have photographs of Senators who were extra special Senators, people who the rest of the Senate, after that Senator left the Senate, determined was somebody who deserved to be in the Hall of Fame. One such man is Arthur Vandenberg. I wish I could have known him. He was a wonderful Senator, a very progressive, thoughtful man.

My distinguished colleague, the Senator from Michigan, Mr. Levin, read into the Record last week, May 20:

What the present Senate rules mean: and for the sake of law

and order, shall they be protected in the meaning until

changed by the Senate itself in the fashion required by the

rules?

He summarized this issue that is before the Senate today and did it about 60 years ago on an occasion similar to this. How prescient are his comments to the situation in which we find ourselves today.

Senator Vandenberg:

. . . [T]he rules of the Senate as they exist at any given

time and as they are clinched by precedents should not be

changed substantively by the interpretive action of the

Senate's Presiding Officer, even with the transient sanction

of an equally transient Senate majority. The rules can be

safely changed only by the direct and conscious action of the

Senate itself, acting in the fashion prescribed by the rules.

Otherwise, no rule in the Senate is worth the paper it is

written on, and this so-called ``greatest deliberative

body in the world'' is at the mercy of every change in

parliamentary authority, which means the Republicans are

in power today and the Democrats may be tomorrow, and a

simple majority can change anything.

Mr. President, this is the way it should be. You should not be able to come in here and change willy-nilly a rule of the Senate. A rule of the Senate, you change by the rules. This so-called nuclear option has now been stood on its head, and they are now using what I refer to as the Orwellian language, saying that it is the ``constitutional option,'' and that, by all legal scholars, is foolishness.

I served in the Senate with Malcolm Wallop of Wyoming and Jim McClure of Idaho, westerners who are extremely conservative politically. But here is what they said, and they wrote this in the Wall Street Journal:

. . . [I]t is naive to think that what is done to the

judicial filibuster will not later be done to its legislative

counterpart. . . . [E]ven if a Senator were that naive, he or

she should take a broader look at Senate procedure. The very

reasons being given for allowing a 51-vote majority to shut

off debate on judges apply equally well--in fact, they apply

more aptly--to the rest of the Executive Calendar, of which

judicial nominations are only one part. That includes all

executive branch nominations, even military promotions.

Treaties, too, go on the Executive Calendar, and the

arguments in favor of a 51-vote cloture on judicial

nominations apply to those diplomatic agreements as well. It

is little comfort that treaty ratification requires a two-

thirds vote. Without the possibility of a filibuster, a

future majority leader could bring up objectionable

international committments with only an hour or two for

debate, hardly enough time for opponents to inform the public

and rally the citizenry against ratification.

What they are attempting to do in this instance is really too bad. It will change this body forever. We will be an extension of the House of Representatives, where a simple majority there can determine everything. Those of us who went to law school--and the Presiding Officer is a Harvard graduate. I went to George Washington. We know the precedent in the law is important. A precedent of the Senate is even more important. There will be a precedent set that will be here forever if the vote we take tomorrow prevails.

I feel there are Republicans of good will who are willing to be profiles in courage and step to this well tomorrow afternoon or evening and say we cannot do that. We believe that conservative Senators such as Malcolm Wallop

and Jim McClure are right. They believe--Malcolm Wallop and Jim McClure--that especially small Western States need protection. The reason we had the Great Compromise of 1787 was to allow the State of Rhode Island to have equal power in the Senate with New York. What is being attempted will take that away, change the Senate forever.

So I am convinced and hopeful and confident that there will be six courageous Republican Senators who will step down here and go against their leader, go against their President, as was done by Thomas Jefferson's Senate when he had a significant majority and tried to play with the courts; and when Franklin Roosevelt, with a tremendous majority--and no President has ever been more popular than he was when elected in 1936--tried to pack the courts. His Democratic Senators said no. Even the Vice President who served under President Roosevelt, James Garner, said no deal. The President called the Democratic leadership to the White House and said this is what we are going to do. He never conferred with them. And they, wanting to go along with what was the most popular President, probably, in many years--when they walked out, they said no, we are not going to do that. Democratic Senators made the difference. We need Republican Senators here to make the difference, stand and be counted when we vote. We only need six courageous people to stop the Senate from becoming an extension of the House of Representatives.

I suggest the absence of a quorum.

Mr. President, this is a day I have waited for for a long time. We can put the 8 years of the Clinton administration behind us, the problems he had with the judges, over 60. We can put the first 4 years of the Bush administration behind us. I have looked forward to this day for a long time. We are now in a new Congress and a new day, and it was made possible by virtue of some very, very unique individuals called Senators. One of them is here on the floor. The other, Senator Byrd, has left.

Senator Byrd has served 53 years in the Congress, 47 in the Senate, 6 in the House. The chairman of the most important committee, many say around here, the Armed Services Committee, Senator Warner of Virginia-- if there were ever a southern gentleman, it is the white-haired Senator from Virginia, John Warner. They worked for months with some of the youngsters here, Lindsey Graham, Mark Pryor, Ken Salazar, in coming up with this unique instrument that is only possible in the Senate.

Now, Mr. President, I say that this is not a victory for the Senate, though it is. I say this is a victory for the American people. It is a victory for the American people because the Senate has preserved the Constitution of the United States. No longer will we have to be giving the speeches here about breaking the rules to change the rules. We are moving forward in a new day, a new day where the two leaders can work on legislation that is important to this country.

Just as a side note, I can throw away this rumpled piece of paper I have carried around for more than a month that has the names McCain, Chafee, Snowe, Warner, Collins, Hagel, Specter, Murkowski, and Sununu. It is gone. I do not need that any more because of the bravery of these Senators. I am grateful to my colleagues, as I have said, who brokered this deal. And it was a brokerage, for sure.

Now we can move beyond this time-consuming process that has deteriorated the comity of this great institution called the Senate. I am hopeful we can quickly turn to work on the people's business. We need to ensure that our troops have the resources they need to fight in Iraq and around the world and that Americans are free from terrorism. We need to protect retirees' pensions and long-term security. We need to expand health care opportunities for all families. We need to address rising gasoline prices and energy independence, and we need to restore fiscal responsibility and rebuild our economy so it lifts all American workers. That is our reform agenda. Together we can get the job done.

It is off the table. People of good will recognize what is best for the institution. There are no individual winners in this. Individual winners? No. A little teamwork it took. And the American people should see this picture: Democrats and Republicans, some who have been here as long as Senator Byrd and Senator Warner, and some newcomers. Senator Salazar has been here for 5 months. He was part of this arrangement. People from red States, from blue States, they represent America. That is what happened tonight.

Now, I would rather that something else had happened. I would rather that we had marched down here tomorrow and voted and we gave our high fives and we had won. We are not doing that. We have won anyway because this is a victory for the American people.

I love this country, Mr. President. I have devoted my life to public service. I do not regret a day of it. I will have been in public service 41 years, and I said to my caucus that there has never been a more important issue I have dealt with in my political life than this issue that is now terminated. It is over with. And I feel so good. This will be the first night in at least 6 weeks that I will sleep peacefully. I have not had a peaceful night's rest in at least 6 weeks.

I owe a debt of gratitude to these Senators who did what the two leaders could not do. I tried. It could not be done. But I hope, as we proceed in the days to come, that this is past history. Of course, there will be filibusters in the future. It is the nature of this institution. And that is the way it should be. We are not on a slippery slope to saying all the Presidential nominations are subject to a simple majority--to change the rules. We are not going to say that legislation is subject to a simple majority to change the rules. The filibuster is here. Mr. Smith can still come to Washington.

I, through the Chair, extend my appreciation to the distinguished Republican leader for his patience, my many trips to his office, the few trips he made to my office, the many telephone calls, the BlackBerrys we exchanged. I have admiration for the good doctor from Tennessee. And I hope that we, working together, can do good things for this country. The country needs a Senate that works together.

Again, Mr. President, the only person I see here who I can personally thank is the distinguished Senator from Virginia. I say, through the Chair, to you and the other 13 Senators, thank you very much.

It is my understanding that we go to the debate on Judge Owen at what time?

I ask unanimous consent that the time of the two leaders not

take away from the debate that will begin at 9:45. What I am saying is, whatever time we use, the debate should start immediately after our time, the incremental time.

I realize that. I would like to reserve my time and use this time to speak on the matter now before the Senate.

Just so I understand, it was my understanding the debate on Priscilla Owen was supposed to start at quarter to 10.

I misunderstood. I apologize, Mr. President.

(Mr. Vitter assumed the Chair.)

Mr. President, I have addressed the Senate on several occasions to do what I believe is setting the record straight about Senate history and the rules of this body. But, frankly, I would much rather address wage and health care costs, bringing down gas prices, talk about education, spiraling deficits we have. But the majority leader has decided we will spend this week and next week, or at least part of next week, talking about judges who I believe, Mr. President, are not in the mainstream of American jurisprudence.

I am happy to engage in this debate. I would rather not. But I do want the debate to be accurate. For example, my good friend, the distinguished Republican leader, issued a statement last Friday in which he called the filibuster a ``procedural gimmick.'' I took time yesterday to correct that assertion, setting forth in the Record what the word ``gimmick'' means. The dictionary defines it as a scheme, a new scheme. I indicated that certainly the filibuster was everything but that. It is not a gimmick. It has been part of the Nation's history for two centuries. It is one of the vital checks and balances established by our visionary Founding Fathers. It is not a gimmick.

Also, some Republicans have stated improperly the use of the filibuster. They have said time and time again that the defeat of a handful of President Bush's judicial nominees is unprecedented. In fact, hundreds of judicial nominees in American history have been rejected by the Senate, many by filibuster.

There was, of course, the most notable, the nomination of Abe Fortas, to be Chief Justice of the United States. He was successfully filibustered in 1968. Here, Mr. President, is a Washington Post which I read in the morning when I come in. It is from many years ago. The first sentence:

A full-dress Republican-led filibuster broke out in the

Senate yesterday against a motion to call up the nomination

of Justice Abe Fortas for Chief Justice of the United States.

``A full-dress Republican-led filibuster.'' We have had filibusters. That is what has been disappointing to me with some of my colleagues in saying there has not been a filibuster. There has been. During the Clinton administration, more than 60 judicial nominees were bottled up in the Judiciary Committee and never received floor votes. Of course, as indicated by my distinguished friend, the Republican leader, during that period of time Democrats were complaining about what was going on, saying there should have been hearings in the Senate, and even came to the floor--and these were accurate quotes of the majority leader-- saying: Let's have some votes, let's have some votes on these people.

Well, Mr. President, we never said we would break the rules to change the rules. To change the rules in the Senate can't be done by a simple majority. It can only be done if there is extended debate by 67 votes. So I do not at all say that the statements made by the Republican leader were wrong about our wanting votes and we were disturbed that there are no votes, but we never, ever suggested that rules should be broken.

But in addition to the pocket filibusters--call them whatever you want--the 60, I think 69 nominations never made it out of the Russell Building, out of the Judiciary Committee, but in addition to those performances, Republicans engaged in explicit filibusters on the floor against a number of Clinton judges when they did get out of committee, and they defeated a number of President Clinton's executive branch nominees by filibuster.

It is the same advice and consent clause. Why, if a filibuster of Surgeon General Henry Foster was constitutional, is a Democratic filibuster of Fifth Circuit Court nominee Priscilla Owen unconstitutional? If Foster is constitutional, why wouldn't the same apply to Priscilla Owen? The Republican argument doesn't add up.

But I would say this to my friend, the Presiding Officer. I have said let's not dwell on what went on in the Clinton administration. Let's not dwell on what went on in the 4 years of President Bush's administration. I am sure there is plenty of blame to go around. As we look back, I am not sure--and it is difficult to say this, but I say it--I am not sure either was handled properly. I have known it wasn't right to simply bury 69 nominations, and in hindsight maybe we could have done these 10 a little differently. But the American people are tired of what we are doing, tired of the constant fighting going on. What is going to take place if this continues?

We will have a vote sometime next week. It will be a close vote, of course, We only need six Republicans. The Presiding Officer was formerly chairman of the powerful Appropriations Committee. It is very difficult at best to get appropriations bills passed. Most everything around here is done by unanimous consent. Things won't work as well as they could have. We need to avoid this. We are all legislators.

But, sadly, now the President of the United States has joined the fray and become the latest to rewrite the Constitution and reinvent reality. Speaking to fellow Republicans on Tuesday night, 2 days ago, he said the Senate ``has a duty to promptly consider each . . . nominee on the Senate floor, discuss and debate their qualifications and then give them the up-or-down vote they deserve.'' Every one of the 10 he speaks of had votes, every one of them. Right here on the Senate floor, people walked down to these tables and their name was called and they voted.

Referring to the President's words, duty to whom? The radical right who see within their reach the destruction of America's mainstream values. Certainly not duty to the tenets of our Constitution or to the American people who are waiting for progress and promise, not partisanship and petty debates.

The duties of the Senate are set forth in the U.S. Constitution. Nowhere in that document does it say the Senate has a duty to give Presidential appointees a vote. It says appointments shall be made with the advice and consent of the Senate. That is very different than saying every nominee receives a vote. I repeat, all of these about which we are concerned, including Priscilla Owen, have had a vote, right here. The fact was even acknowledged by the majority leader that a vote is not required. Senator Byrd asked the majority leader--Senator Byrd was here, the majority leader was here--last week, he asked the majority leader if the Constitution accorded each nominee an up-or-down vote on the Senate floor. The answer was no. Senator Frist was candid. The answer was no. The language was not there, Senator Frist said. He is correct. Senators should read the same copy of the Constitution Senator Frist had memorized.

It is clear that the President misunderstands the meaning of the advice and consent clause. The word ``advice'' means advice. President Clinton consulted extensively with then Judiciary Chairman Hatch, and as a result of that we debated Ginsburg and Stephen Breyer to the Supreme Court, both fine minds, fine justices. In contrast, this President never sought or heeded advice of the Senate. Now he demands our consent.

That is not how America works. The Senate is not a rubber stamp for the executive branch. Rather, we are the one institution where the minority has the voice and ability to check the power of the majority. Today, in the face of President Bush's power grab, it is more important than ever. Republicans want one-party rule. The Senate is the last place where the President and Republicans can't have it all. Now the President wants to destroy our checks and balances to assure that he does get it all.

That check on his power is the right to extended debate. Every Senator can stand on behalf of the people who have sent them here and say their piece. In the Senate's 200-plus years of history, this has been done hundreds and hundreds of times--stand up to popular Presidents, to unpopular Presidents, arrogant with power, to block legislation harmful to American workers in the eyes of the Senator, and, yes, even to reject Presidential nominations, even judicial nominations.

Who are the nominees now before this Senate?

Priscilla Owen is a Texas Supreme Court justice nominated to the Fifth Circuit. She sides with big business and corporate interests against workers and consumers in case after case regardless of what the law is. Her colleagues on the conservative Texas court have written that she legislates from the bench. Her own colleagues have called her opinions ``nothing more than inflammatory rhetoric,'' her interpretation of the law to be ``misconceptions,'' and those are quotes, and even rebuked her for second-guessing the legislature on vital pieces of legislation. If she wanted to legislate, she should run for Congress. If she wants to interpret and uphold the law, she should be a judge. She cannot do both. And I might note that the Attorney General of the United States has called her activism unconscionable.

I read to the Senate yesterday what that word means. Unconscionable. It, Mr. President, means that her acts are out of the mainstream for sure. Let me flip open my dictionary here. ``Unconscionable.'' ``Shockingly unjust'' and ``unscrupulous.'' That is what the Attorney General of the United States said about Priscilla Owen. I repeat: ``shockingly unjust, unscrupulous.'' He served with her on the supreme court. He should know.

In case after case, her record marks her as a judge willing to make law from the bench rather than follow the language of the legislature judicial precedent. She has demonstrated this tendency most clearly in a series of dissents involving a Texas law providing for a judicial bypass of parental notification requirements for minors seeking abortion. She sought to erect barriers that did not exist in law such as requiring religious counseling for minors. Good idea, perhaps, but not something that you do from the bench. It should be done by the legislature.

Janice Rogers Brown, a supreme court justice from California, nominated to the DC Circuit, is using her seat on the bench to wage an ideological war against America's social safety net. She wants to take America back to the 19th century and undo the New Deal which includes Social Security and vital protections for working Americans like the minimum wage. Every Senator in this body should tell the more than 10 million working Americans already living in poverty on the minimum wage why someone who wants to make their life harder and destroy their hopes and dreams should be elevated for a lifetime to one of most powerful courts in the country. She has been nominated to a court that overseas the actions of Federal agencies responsible for worker protections, environmental laws and civil rights and consumer protection. She has made no secret of her disdain for Government. According to Justice Brown, Government destroys families, takes property, is the cause of a ``debased, debauched culture,'' and threatens civilization. That is her statement.

I would be happy to yield for a question.

I say through the Chair to my friend, I was present and participated in attempting to break the filibuster of Paez. I know how the distinguished Republican leader voted. I was here this morning, and I heard no answer to the question asked by the Senator from New York.

He has not done that publicly. That is correct.

Justice Brown received a ``not qualified'' rating from the California judicial commission when she was nominated for the Supreme Court of California because of her tendency to inject her political and philosophical views into her opinions and complaints that she was insensitive to established legal precedent.

Speaking recently at church on ``Justice Sunday,'' Justice Brown proclaimed a ``war'' between religious people and the rest of America. Imagine that. Is this someone we want protecting the constitutional doctrine of the separation of church and state or freedom for all Americans to practice religion?

She has expanded the rights of corporations at the expense of individuals--arguing to give corporations more leeway against attempts to prevent consumer fraud--some of these things make you smile--to stop the sale of cigarettes to minors, to prevent discrimination against women and individuals. She may be the daughter of a sharecropper, but she has never looked back to ensure legal rights of millions of Americans still fighting to build better lives for their children and their children's children. They may not be sharecroppers, but they live like sharecroppers, and she has done nothing to protect them.

These are the nominees over which the Republican leadership is waging this fight, and they are prepared to destroy the Senate that has existed for 200 years to do so.

The Senate is a body of moderation. While the House is the voice of a single man, single woman, and the House of Representatives is a voice of the majority, the Senate is the forum of the States. It is the saucer that cools the coffee. It is the world's greatest deliberative body. How will we call this the world's greatest deliberative body after the majority breaks the rules to silence the minority? Breaking the rules to change the rules. This vision of our Government--the vision of our Founding Fathers--no longer suits President Bush and the Republicans in the Senate. They don't want consensus or compromise. They don't want advice and consent. They want absolute power.

To get it, the President and majority leader will do all they can to silence the minority in the Senate and remove the last check we have in Washington against this abuse of power. The White House is trying to grab power over two separate branches of government--Congress and the judiciary. They are enlisting the help of the Republican Senate leadership to do it. Republicans are demanding a power no President has ever had, and they are willing to break the rules to do it.

Make no mistake. This is about more than breaking the rules of the Senate or the future of seven radical judges. At the end of day, this is about the rights and freedoms of millions of Americans. The attempt to do away with the filibuster is nothing short of clearing the trees for the confirmation of an unacceptable nominee to the Supreme Court. If the majority gets its way, President Bush and the far, far right will have the sole power to put whoever they want on the Supreme Court--Pat Robertson, Phyllis Schlafly. They don't want someone who represents the values of all Americans, someone who can win bipartisan consensus. They want someone who can skate through with only a bare partisan majority, someone whose beliefs are on the fringes of our society. Nobody will be able to stop them from

placing these people on the highest court of the land--extremist judges who won't protect our rights and who hold values far outside the mainstream of America.

Here is what is really at stake: The civil rights of millions of Americans; voting rights of millions of Americans; the right to clean water to drink and safe air to breathe for millions of Americans; the right to free speech and religious briefs for millions of Americans; the right to equality, opportunity, and justice for millions of Americans; nothing less than the individual rights and liberties of all Americans.

It is up to us to say no to the abuse of power, to stand up for the Constitution. We need people who have the ability to be profiles in courage. Let the President and the Republican Party know that the Supreme Court is not theirs to claim.

The debate all comes down to this: Will we let George Bush turn the Senate into a rubber stamp to fill the Supreme Court with people from the extreme right's wish list, or will we uphold the Constitution's use of advice and consent powers to free the President to be like other Presidents have been, to force the President to look at the mainstream? I hope it is the latter. I know that is what my fellow Democrats and I will fight for, and I hope there are at least six responsible Republicans who will stand up and have the courage to join in this momentous battle.

Will the Chair advise me as to what the order is now for debate to go forward on the nomination?

And then after that, we will go an hourly basis.

I hope I didn't inconvenience the majority with taking too much time. If I did, we will try to readjust it later.

It is my understanding the majority leader is on his way. I have no problem with the Senator speaking and the same time would be extended to the majority.

The Republican leader is going to come to the floor and talk about what the schedule will be the next couple of days. It should not take long. I ask when he shows up that the distinguished Senator from Florida yield to the majority leader.

We get 5 minutes, they get 5 minutes.

I suggest the absence of a quorum.

A few minutes ago he said he was on his way.

Let me say, one of the distinguished clerks, without divulging a person's name, said that when Senator Frist and I talk about coming to the floor, it is dog time, meaning every minute is 7 minutes, so you never know.

Mr. President, reserving the right to object, first of all, I would ask the distinguished majority leader to amend his unanimous consent request to have the time begin when we complete our statements today. We might not be at a quarter of the hour, but whenever that would be we would rotate on an hourly basis.

Mr. President, I have another reservation.

Mr. President, I would ask the distinguished majority leader would we not be better off moving to

get rid of--I don't mean that in a pejorative sense--but clear the calendar of four, at this stage, noncontroversial judges? We could move to Thomas Griffith, who is on the calendar. We could move to discharge and consider the Michigan Circuit Court nominees, Griffin, McKeague, and Neilson. We could get time agreements on all those. We would have four circuit judges. They would be able to go to work within a few days--actually go to work. Otherwise, they are going to be waiting until we go through all of this. It would seem to me that would be the better thing to do. So I would ask the distinguished majority leader if he would agree that we could move to these, with reasonable time agreements, prior to moving to Priscilla Owen?

Mr. President, one further statement.

Mr. President, in that we have started this process, my friend, the distinguished majority leader, should be advised we will not agree to committees meeting during the time we are doing debate on Priscilla Owen.

Mr. President, I would also like to make a suggestion. The idea is not original with me. I wish it were. But we had a meeting last night. The distinguished majority leader was present at that meeting. My friend, the junior Senator from Utah, suggested that what might be good for this body is the same thing that happened when we had the difficult issue here 6\1/2\ years ago dealing with the impeachment of a President of the United States. At that time, we retired to the Old Senate Chambers. No staff was there, just 100 Senators. We worked through some very difficult problems, and it surprised everyone.

The distinguished Senator from Massachusetts and now retired Senator Phil Gramm were the people who saved the day--two people who battled ideologically for a combined total of 40 or 50 years. Basically, because of them, we resolved an extremely difficult issue as to how the impeachment would be handled.

So I would ask my distinguished friend, the Republican leader, to consider joining with me and having, in the next day or so--hopefully today--have all of us retire to the Chamber and sit down and talk through this issue and see if there is a way we can resolve this short of this so-called nuclear option. I think it would be good for the body. I think it would be good for the American public to see we are able to sit down in the same room and work things out. I am not sure that we could, but I think it would be worthy of our efforts. Nothing ventured, nothing gained. I would ask my friend if he would consider following the suggestion of Senator Bennett of Utah.

Mr. President, I know we need to move on. I want to briefly say we are following the rules. We believe in following the rules, not breaking the rules. And while it is good to talk about this up-or-down vote, the fact is if we move forward as contemplated by the majority, it is moving toward breaking the rules to change the rules. That is improper. It will change the Senate forever and that is not good.

Mr. President, the majority leader said that during the Dole years, Clinton nominees were treated fairly. Sixty-nine Clinton nominees were not even given the decency of a hearing. They never saw the light of day. We have participated in hearings. The matters have come to the floor. For my friend to say that Clinton was treated fairly under the Dole years is simply untrue.

Everyone should know that Priscilla Owen and Janice Rogers Brown have had votes right here on the Senate

floor in compliance with the rules of the Senate. They have had votes. It is as if we are retreating 50, 60 years. When you keep telling these falsehoods enough, people start believing them. The American people are not believing this. These two women about whom my friend speaks have had votes.

My friend from Massachusetts asked a question. The President's lawyer, Alberto Gonzales, and now the Attorney General of the United States and previously a member of the Texas Supreme Court, said on multiple occasions that Priscilla Owen's activism was unconscionable. Alberto Gonzales is a smart man. He knows what the word means, but in case someone doesn't, let me read what it does mean. Unconscionable: Shockingly unjust and unscrupulous. That is what the Attorney General of the United States of America says about Priscilla Owen. Mainstream? I think not. Shockingly unjust or unscrupulous--that is what Priscilla Owen is in the mind of the Attorney General of the United States.

I ask unanimous consent that my time be charged against the Democrats' time when we take that, approximately an hour from now.

There will be a lot more said about Priscilla Owen, but I think a fairly good indication of the kind of judge she is should come from the Attorney General of the United States who says that her unconscionable activism is replete through her opinions. I assume he knows what it means. I am confident he does. He is a brilliant man. ``Shockingly unjust, unscrupulous''--those are not the words of the Senate Judiciary Committee, not some special interest group; those are the words of the Attorney General of the United States about Priscilla Owen. And she has had a vote here on the Senate floor.

Janice Rogers Brown, I am sure she has come from nothing to something. I think that is good. That is the way America should be. But before anyone starts crowing about the vote in California, she didn't have an opponent. It is a Missouri system. She had no opponent.

Her opinions, if they weren't on such serious matters, would be laughable--seriously, laughable. The California Supreme Court is made up of seven justices; six of them are Republicans. She has dissented, in the last 6 years alone, 31 different times.

Among other things, she has said: Supreme Court decisions upholding New Deal protections, like the minimum wage and the 40-hour workweek, are, in her words, ``the triumph of our own socialist revolution.'' Tell someone working at General Motors, tell someone working at Titanium Metals in Henderson, NV, that the 40-hour workweek is part of the socialist revolution. Tell somebody working on nights and weekends and holidays that they can't get time and a half, or tell somebody working at McDonald's or in a plastics factory in Fallon, NV, that they are not entitled to the minimum wage. That is Janice Rogers Brown, who has had a vote on the Senate floor.

Yesterday, I spoke about a statement the majority leader made calling the filibuster a procedural gimmick. Again, going to the dictionary, it defines gimmick as ``an ingenious new scheme or angle.'' The filibuster is not a scheme, and it certainly is not new. The filibuster is far from a procedural gimmick. It is part of the fabric of this institution we call the Senate. It was well known in colonial legislatures, before we became a country, and it is an integral part of our country's 214- year history.

The first filibuster in the Congress happened in 1790. It was used by lawmakers from Virginia and South Carolina who were trying to prevent Philadelphia from hosting the first Congress. Since then, the filibuster has been employed hundreds and hundreds and hundreds of times. It has been employed on legislative matters. It has been employed on procedural matters relating to the President's nominations for Cabinet and sub-Cabinet posts. And it has been used on judges for all those years. One scholar estimates that 20 percent of the judges nominated by Presidents have fallen by the wayside, most of them as a result of filibusters.

Senators have used the filibuster to stand up to popular Presidents, to block legislation and, yes, even, as I have stated, to stall executive nominees. The roots of the filibuster are found in the Constitution and in our own rules.

In establishing each House of Congress, Article I, section 5 of the Constitution states that:

Each House may determine the rules.

In crafting the rules of the Senate, Senators established the right to extended debate. And they formalized it with rule XXII almost 100 years ago. This rule codified the practice that Senators could debate extensively.

Under rule XXII, debate may be cut off under limited circumstances: 67 votes to end a filibuster of a motion to amend a Senate rule. That is what is being attempted here. But, no, we are not going to follow the Senate rules. No, because of the arrogance of power of this Republican administration, which controls the Supreme Court, the House, and the Senate. It is not enough that they come to the people's body and say: Let's take our chances by a fair ball game. They are going to change the rules in the middle of the ball game. Talk about people having votes--these nominees, all 10 of them, have had votes. It is unfair for the majority to continually say it is 10. Three of them either retired or withdrew. We have agreed for votes on two others. It is five people who are not in the mainstream. Janice Rogers Brown accuses senior citizens of blithely cannibalizing their grandchildren. That is in the mainstream? Priscilla Owen in the mainstream?

This administration is unwilling to play by the rules. It takes 67 votes to change a Senate rule when there is a filibuster in progress. But we are going to have Cheney, the Vice President, come sit where the Presiding Officer is sitting now and say that it only takes 51. This great paragon of virtue is going to say it only takes a simple majority. We need 60 votes to end a filibuster against legislative business.

It doesn't take a legal scholar to know this. We have all read in the newspapers that this is a slippery slope. Once you have a rule changed--illegally--then you can do it again. There is precedent on the books. In the future, it will be changed. If we decide we don't like Bolton--the man who was chasing people down the hall throwing papers at them--to be a representative of the U.N., if we decide we want to filibuster him, we can change the rules to say he is the President's man and is entitled to a simple majority vote. You cannot do that. It may be an issue of importance to the President or the majority leader on a legislative matter, so just change the rule. The precedent will have been set. A simple majority is all that is necessary.

A conversation between Thomas Jefferson and George Washington I believe describes the Senate and our Founding Fathers' vision of this body in which we are so fortunate to serve. Jefferson asked Washington:

What is the purpose of the Senate? Washington responded

with a question of his own:

Why did you pour that coffee into your saucer?

Jefferson replied:

To cool it.

To which Washington said:

Even so, we pour legislation into the senatorial saucer to

cool it.

That is exactly what the filibuster does. It encourages moderation and consensus, gives voice to the minority so cooler heads may prevail. It also separates us from the House of Representatives, where the majority rules through the Speaker appointing the Rules Committee. It is very much in keeping with the spirit of the Government established by the Framers of our Constitution, limited government, separation of powers, and checks and balances. The filibuster is a critical tool in keeping the majority in check. The Presiding Officer, who is a new Member of the Senate, someday will be in the minority. That is the way it works.

This central fact has been acknowledged and even praised by Senators from both parties: The filibuster is a critical tool to keep the majority in check. In fact, another freshman Senator, my colleague from Georgia, Senator Isakson, recently shared a conversation he had with an Iraqi Government official. Senator Isakson asked this official if he was worried about the majority in Iraq overrunning the minority. The official replied:

No . . . we have the secret weapon called the

``filibuster.''

In recalling the conversation, Senator Isakson remarked:

If there ever were a reason for optimism . . . it is one of

[the Iraq] minority leaders proudly stating one of the

pillars and principles of our Government as the way they

would ensure that the majority never overran the minority.

They were comparing what they were going to experience in Iraq to what we now have--the filibuster. Of course, he was right.

I spoke yesterday about Senator Holt and his 1939 filibuster to protect workers' wages and hours. There are also recent examples of the filibuster achieving good.

In 1985, Senators from rural States--even though there were few of them--used the filibuster to force Congress to address a major crisis in which thousands of farmers were on the brink of bankruptcy.

In 1995, 10 years later, the filibuster was used by Senators to protect the rights of workers to a fair wage and a safe workplace.

I cannot stand here and say the filibuster has always been used for positive purposes. It has not. Just as it has been used to bring about social change, it was also used to stall progress that this country needed to make. It is often shown that the filibuster was used against civil rights legislation. But civil rights legislation passed. Civil rights advocates met the burden. It is noteworthy that today, as I speak, the Congressional Black Caucus is opposed to the nuclear option--unanimously opposed to it.

For further analysis, let's look at Robert Caro. He is a noted historian and Pulitzer Prize winner, and he said this at a meeting I attended. He spoke about the history of the filibuster. He made a point about its legacy that was important. He noted that when legislation is supported by the majority of Americans, it eventually overcomes a filibuster's delay, as a public protest far outweighs any Senator's appetite to filibuster.

But when legislation only has the support of the minority, the filibuster slows the legislation--prevents a Senator from ramming it through, and gives the American people enough time to join the opposition.

Mr. President, the right to extended debate is never more important than when one party controls Congress and the White House. In these cases, the filibuster serves as a check on power and preserves our limited government.

Right now, the only check on President Bush is the Democrats' ability to voice their concern in this body, the Senate. If Republicans roll back our rights in this Chamber, there will be no check on their power. The radical rightwing will be free to pursue any agenda they want, and not just in judges. Their power will be unchecked on Supreme Court nominees, the President's nominees in general, and legislation such as Social Security privatization.

Of course, the President would like the power to name anybody he wants to lifetime seats on the Supreme Court and other Federal courts. It is interesting to note that the statistics used by the majority leader do not take into consideration the nominees who we have been willing to clear. Sure, you get statistics like that when they will not bring them forward.

Basically, that is why the White House has been aggressively lobbying Senate Republicans to change Senate rules in a way that would hand dangerous new powers over to the President over two separate branches-- the Congress and the judiciary--and he and his people are lobbying the Senate to break the rules to change the rules. I am sorry to say this is part of a disturbing pattern of behavior by this White House and the Republicans in Washington, especially the leadership.

From Dick Cheney's fight to slam the doors of the White House so the American people are kept in the dark about energy policy while the White House has the lights turned on--between the public interests or the corporate interests, it is always the corporate interests--to the President's refusal to cooperate with the 9/11 Commission, to Senate Republicans' attempt to destroy the last check in Washington on Republican power, to the House majority's quest to silence the minority in the House, Republicans have sought to destroy the balance of power in our Government by grabbing power for the Presidency, silencing the minority, and weakening our democracy.

America does not work that way. The radical rightwing should not be allowed to dictate to the President and to the Republican Senate leaders, as they are trying to do.

For 200 years, we have had the right to extended debate. It is not some ``procedural gimmick.'' It is within the vision of the Founding Fathers of this country. They did it; we didn't do it. They established a government so that no one person and no single party could have total control.

Some in this Chamber want to throw out 214 years of Senate history in the quest for absolute power. They want to do away with Mr. Smith, as depicted in that great movie, being able to come to Washington. They want to do away with the filibuster. They think they are wiser than our Founding Fathers. I doubt that is true.

Mr. President, will the Senator notify us as to how much time the Republicans have in the first wave of statements and how much time the Democrats have when they are allowed to make statements?

I thank the Chair.

Mr. President, I will respond, if I could. As indicated, that is why I asked the question. You have 42 minutes and we have 41. We need to stick to that. I would have no objection to your using the full time and deducting 15 minutes, or whatever it is, from the next hour that you have. That would be appropriate.

I simply say, if the Senator needs the full hour, I ask that it be deducted so we can kind of keep on track here. We will use 42 minutes our first go-around. We ask that you deduct whatever time you use off of the second time that you are to be recognized.

We don't need the time on our side.

Then following the two managers making their statements, thereafter, we go to an hourly timeframe and we have to, I think--it would be good for the managers not to be extending the time because it makes it impossible when you have people scheduled to come over here. I agree to this under the extraordinary circumstances also of the two managers of this nomination--that they be given a full hour. Following that, the Republicans would be recognized for an hour, and the Democrats for an hour, and we go on that basis.

Mr. President, I have somebody here complaining that we have already set the schedule. We are entitled to the time by the rules.

Mr. President, I have listened to the leader's statements these past days on his trip to the Middle East. It is a fascinating place. I returned about a month ago myself. But the one thing that I always see in the Middle East is this tiny, little State of Israel, surrounded by these other countries that are about as undemocratic as a country could be.

Israel is a democracy. Every day we hear about what is going on in the Middle East, we should realize that. Israel has risen above this. They maintain their democratic principles in spite of the violence that is going on, on a daily basis, in that part of the world.

Mr. President, yesterday afternoon the majority leader and I met one last time trying to reach a compromise that would avert the so-called nuclear option. The so-called nuclear option is nothing that we named. I know for cosmetic purposes those in the majority now have tried to call it a ``constitutional option,'' which must be directly out of Orwell's book ``1984'' because it means everything but a constitutional option. The name came from the Republican leadership last year. So the ``nuclear option'' is a name from the majority, not us.

I do not know if they met with my friend, Frank Luntz, or with whom they met to change the name from ``nuclear option'' to a softer sounding proposal, ``constitutional option.'' As I said, violating 217 years of standard procedure in the Senate, changing the rules by breaking the rules, is about as far as you could get from a constitutional option.

But it appears that my distinguished friend, the majority leader, cannot accept any solution which does not guarantee all current and future judicial nominees an up-or-down vote. That result is unacceptable to me because it is inconsistent with constitutional checks and balances. It would essentially eliminate the role of the Senate minority in confirming judicial nominations and turn the Senate into a rubber stamp for the President's choices. In fact, the majority should look carefully at what they are getting because not only would this eliminate the role of the Senate's minority but also the majority in judicial confirmations. The majority would be eliminated, too. The Senate would no longer have a role.

I can only conclude that the true purpose of the nuclear option is not to win confirmation of some or all of the small handful of nominees Democrats filibustered last year. Remember, today it stands at 208 to 10. And focusing on the number 10 is somewhat misleading because of the 10, 3 have either withdrawn or retired. And we have said, time and time again, that 2 of the remaining 7 we would agree to 10 minutes from now--2 Michigan judges. So it is really 208 to 5--208 to 5.

So the goal, it appears to me, of the Republican leadership--and note I do not say of the mainstream Republicans in this country, I do not say of the Republicans in the Senate--but, rather, the goal of the Republican leadership in this body and their allies in the White House is to pave the way for the future, so that the Senate would basically be eliminated from the confirmation process. They don't want consensus, they want confrontation.

Yesterday, after rejecting our last attempt at a compromise, the majority leader issued a statement. In this statement, the majority leader said there is going to be an upcoming debate over judicial nominations, and he said he hoped the upcoming debate is free from ``procedural gimmicks like the filibuster.'' That is a quote: ``procedural gimmicks like the filibuster,'' ``procedural gimmicks like the filibuster.''

We had a freshman Senator go to the Middle East and tell the leader of Iraq that the United States was different than any other country in the world because of the filibuster--a Republican Senator. A gimmick?

The filibuster is not a procedural gimmick. The filibuster is an important check on executive power and part of every Senator's right to free speech in the Senate. Robert Byrd, on Thursday, from this desk right behind mine, talked about free speech.

Senator Robert Byrd has been in the Senate for approximately 25 percent of

the time this country has existed. I should say in the Congress--47 years in the Senate, 6 years in the House of Representatives--more than 50 years, approximately 25 percent of the time that we have been a country. He should know something about free speech. He was here on the Senate floor when the great Margaret Chase Smith, a Republican Senator from Maine, talked about the value of free speech in the Senate. He was in the Senate when the Republican Howard Baker talked about the importance of the filibuster in protecting our democracy. A gimmick? I think not.

Senator Byrd was in the Senate when the debate over civil rights took place. I heard Barack Obama upstairs with the press corps say: Isn't it interesting, the filibuster was used against African Americans but they worked around it and prevailed in spite of it. They didn't move to change the rules in the middle of the game.

Senator Robert Byrd was here when Dan Inouye, the Medal of Honor winner from Hawaii, a new Senator, came to the floor, and as an Asian American whose friends and family were put in internment camps during the Second World War, spoke on the Senate floor about what it means to be a minority and how the filibuster should be available to protect the minority. A gimmick? I think not.

Over the years, the filibuster has proven to be an important tool of moderation and consensus, which partly explains why the Republican leadership is opposed to it. They aren't interested in moderation. They are only interested in advancing their right-wing, radical political agenda, an agenda being driven by the people who are saying we are filibustering against people of faith.

Mr. President, every day--for 23 years--with rare exception, I go to the House gym and work out. There I met Congressman Rush Holt. He is a nuclear scientist, a Congressman from New Jersey. Rush's father, also named Rush Holt, served in this Chamber in the late 1930s. As a freshman United States Senator, he led a filibuster to preserve wage and hour protections for American workers. Rush Holt, Jr., is so proud of his father. He talked to me about the pride he had in his father being a United States Senator, and he told me this story about the filibuster his father conducted alone to preserve wage and hour protections that had come about as part of the New Deal. He wasn't using a political gimmick. He was using something that was part of the vision of our Founding Fathers, something they wanted in this body to make it unique and different--free speech. An important tool to stand up for working men and women in this country, that is what Senator Rush Holt, Sr., was using.

Of course, the filibuster has not always been used for good. I acknowledge that. Just as it has been used to bring about social change, it was also used to stall progress--I have talked about that-- things this country needed to change, such as civil rights legislation.

But Senator Barack Obama speaks in favor of the filibuster. He understands, as an African American, why it is important. But at these times people have spoken and public opinion has spurred this Chamber into action, as indicated, it brings about compromise. So you see the filibuster is not a political gimmick. It is part of the fabric of this institution we call the Senate, the greatest debating society in the world--or at least it has been so far. Is that going to be taken away from us?

While I was in the gym this morning, Mr. President, I was stopped by a Republican House Member. I will not name him for fear the Republican leadership in the House will remove him from a subcommittee or whatever they do to punish people over there, and we know that happens. But everyone within the sound of my voice should know that I am telling the truth. A Republican House Member came to me this morning and said: I never thought I would say this to the Democratic leader of the Senate, but I am praying for you, that you prevail in this battle going on in the Senate. A Republican House Member is praying for me and this institution to maintain the institution as it is.

So as the moment of truth draws near, I, too, am praying, Mr. President. I do not say that lightly. I pray that cooler heads will prevail and the responsible Republicans--and they are there, I know they are there--such as this Congressman who spoke to me this morning, will join Democrats in standing up against this abuse of power, to maintain our checks and balances, to maintain the separation of powers that has made this country the power that it is, one that the world looks upon with awe, inspiration and admiration.

Mr. President, I rise today for myself and Senator Ensign to introduce the Southern Nevada Limited Transition Area Act, which will enhance the ability of a rapidly growing community to diversify its economy, gainfully employ its residents, and achieve fiscal sustainability.

In addition to creating a vital economic center in Henderson with this legislation, we hope at a future date to add another title to this bill that will allow Clark County to convey a small parcel of land to the Nevada National Guard for no consideration so that a new armory can be developed. Conversations are currently taking place at the State and county levels that may impact this conveyance, so we are awaiting more information.

The bill I am introducing today would convey approximately 547 acres of land from the Bureau of Land Management to the city of Henderson, NV, for development as an employment and business center.

The Bureau of Land Management has designated this parcel for disposal because of its urban surroundings and its isolation from other public land, which renders it difficult for the agency to manage.

The parcel is located in a rapidly growing area of the city, but is impacted by aircraft noise and overflights from the nearby Henderson Executive Airport, making it unsuitable for residential use.

Rather than shying away from this property because of the limitations on its use, the city of Henderson has put together a forward looking plan that will turn the area into a bustling business center. In addition to productively diversifying the land use pattern in the Las Vegas Valley, the proposed development of this land will encourage a broad range of employment opportunities for the region, while also helping to pay for public infrastructure in nearby residential areas.

The way that the land privatization would work is as follows. The bill would convey the land to the city by patent. The city would then subdivide and sell lots at fair market value. As in previous conveyances of Federal land designated in the Southern Nevada Public Lands Management Act for disposal, 85 percent of the proceeds from sales would return to the BLM's Special Account for a variety of conservation purposes in Nevada. Five percent of the proceeds would fund the State of Nevada's general education program. And the city of Henderson could use the remaining 10 percent to cover expenses associated with subdividing the property and providing infrastructure.

Henderson is a rapidly growing city. Its leaders are dedicated to making the city a national model of logical development, diversified employment, and fiscal sustainability. This bill helps establish the conditions needed to realize that vision.

This bill provides key assistance to southern Nevada by enabling the City of Henderson to move forward with an important economic development project. This is a simple, but an important effort that this body can make to further strengthen our Nation's economy. I look forward working with the Energy Committee and the Senate to pass this legislation.

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

Mr. President, I rise today for myself and Senator Ensign to introduce the Southern Nevada Limited Transition Area Act, which will enhance the ability of a rapidly growing community to diversify its economy, gainfully employ its residents, and achieve fiscal sustainability.

In addition to creating a vital economic center in Henderson with this legislation, we hope at a future date to add another title to this bill that will allow Clark County to convey a small parcel of land to the Nevada National Guard for no consideration so that a new armory can be developed. Conversations are currently taking place at the State and county levels that may impact this conveyance, so we are awaiting more information.

The bill I am introducing today would convey approximately 547 acres of land from the Bureau of Land Management to the city of Henderson, NV, for development as an employment and business center.

The Bureau of Land Management has designated this parcel for disposal because of its urban surroundings and its isolation from other public land, which renders it difficult for the agency to manage.

The parcel is located in a rapidly growing area of the city, but is impacted by aircraft noise and overflights from the nearby Henderson Executive Airport, making it unsuitable for residential use.

Rather than shying away from this property because of the limitations on its use, the city of Henderson has put together a forward looking plan that will turn the area into a bustling business center. In addition to productively diversifying the land use pattern in the Las Vegas Valley, the proposed development of this land will encourage a broad range of employment opportunities for the region, while also helping to pay for public infrastructure in nearby residential areas.

The way that the land privatization would work is as follows. The bill would convey the land to the city by patent. The city would then subdivide and sell lots at fair market value. As in previous conveyances of Federal land designated in the Southern Nevada Public Lands Management Act for disposal, 85 percent of the proceeds from sales would return to the BLM's Special Account for a variety of conservation purposes in Nevada. Five percent of the proceeds would fund the State of Nevada's general education program. And the city of Henderson could use the remaining 10 percent to cover expenses associated with subdividing the property and providing infrastructure.

Henderson is a rapidly growing city. Its leaders are dedicated to making the city a national model of logical development, diversified employment, and fiscal sustainability. This bill helps establish the conditions needed to realize that vision.

This bill provides key assistance to southern Nevada by enabling the City of Henderson to move forward with an important economic development project. This is a simple, but an important effort that this body can make to further strengthen our Nation's economy. I look forward working with the Energy Committee and the Senate to pass this legislation.

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

Thank you very much, Mr. President.

Wishing Senator Paul Sarbanes Well

Mr. President, I would first like to say we have just received word that Paul Sarbanes has been taken to the hospital. He was attending the funeral of Chairman Rodino in New Jersey. We hope that for him and Chris everything works out fine. But I think everyone who is part of the Senate family should give their thoughts and prayers to Paul Sarbanes, a wonderful human being. I am confident he will be OK, but he is at a hospital now in New Jersey.

Judicial Nominations and the Nuclear Option

Mr. President, the majority leader stated the Senate will turn to the subject of judicial nominations this week. We are ready for that. We stand united against an outrageous abuse of power that would pack the courts with out-of-the-mainstream judges.

The time has come for those Senators of the majority to decide where they stand, whether they will abide by the rules of the Senate or break the rules for the first time in 217 years--217 years--of American history. Will they support the checks and balances established by the Founding Fathers or vote to give the President unaccountable power to pick lifetime judges?

I am confident and hopeful there will be six Republican Senators who will be profiles of courage. I have had Senators come to me, even today, Republican Senators, in personal conversations, telephone conversations, today and over the weeks, who have said: We know you are right. We know you are right. But we can't vote with you.

Boy, I will tell you, that is--I told my staff today, these conversations have been some of the biggest disappointments I have ever had in my political life. To have people say they know they are breaking the rules, but they want to--I don't know all the reasons-- maybe so the President likes them or they think he likes them. I don't know all the reasons. It is hard for me to intellectually understand, emotionally understand how a Senator could say they know we are right but they are willing to break the rules to change the rules. I believe there must be at least six out there who are willing to stand up and be, I repeat, profiles in courage.

While we are ready to debate this issue, I am deeply pained we need to do so. The Senate in which I have spent the last 20 years of my life is a body in which the rules are sacrosanct. We may choose to amend the rules by a two-thirds vote. We may enter into unanimous consent agreements to waive the rules. But never before in the history of the Senate has a partisan majority sought to break the rules in order to achieve momentary political advantage.

We know that the Parliamentarian has said--and it is a nonpartisan office--this is the wrong way to go forward. I have had conversations with the Parliamentarians myself. So I repeat, never in the history of the Senate has a partisan majority sought to break the rules in order to achieve momentary political advantage, because that is what it would be. If this happens, it will be a short-term win for my colleagues on the other side of the aisle but a long-term loss for the Senate and for the American people.

I have worked so hard, Mr. President--I am not boasting about how hard; we have all worked hard, but I have spent the majority of my time in the last month on this issue. I have said privately and publicly this is the most important issue I have ever worked on in my 40 years in public service.

In an effort to avoid this confrontation and preserve constitutional checks and balances, I have made every effort to be reasonable--every effort. Here on the floor, I offered last Monday an up-or-down vote on Thomas Griffith, a controversial nominee to the DC Circuit. Last Thursday, I offered to have an up-or-down vote on three nominees to the Sixth Circuit, two of whom were filibustered last year.

These are not judges we would choose, but we know the difference between opposing bad nominees and blocking acceptable ones. In making what I thought were good-faith offers, I asked the majority: Do you want to confirm judges or do you want to provoke a fight? Regrettably, all of my proposals have been rejected--all of my proposals. There were certainly more than these, and I am not going to go through the proposals I made privately. I have only talked about those I have made separate from these offers.

I wrote to the majority leader last week and suggested two ways to break the impasse. First, I made clear my previous offer to allow an up-or-down vote on one of the most controversial nominees remaining on the table.

Second, I suggested we consider changing the rules in accordance with the rules--not too unique; if you want to change the rules, follow the rules--if the majority leader were to put his

proposal in the form of a Senate resolution and allow it to be referred to the Rules Committee.

I have spoken to Senator Dodd. In fact, he was here last week to speak on this matter, but because of what was going on in the Chamber he was unable to do that. Senator Dodd said he would do everything in his power as ranking member to expedite this consideration.

Neither of these good-faith suggestions have been accepted, and I guess it is clear why, I am sad to say. Republicans in the Senate demand to have it all. A 95-percent confirmation rate is not good enough. Votes on some of the most controversial nominees isn't good enough. They are prepared to do whatever it takes to achieve total victory.

Meanwhile, the White House appears to be pulling strings.

At a meeting I had in the White House, I asked the President: Mr. President, you could avoid so much controversy in the Senate. We could move forward on your agenda so much easier if you would intervene on this so-called nuclear option and help us resolve it.

He said to me: I have nothing to do with that. That is all up to you--not me but the Senate leaders--I am staying out of this.

Well, within hours after that, deputy White House Chief of Staff Carl Rove was quoted as discouraging any middle ground, all or nothing. Then Vice President Cheney gave a speech in which he said: All or nothing. On Friday, the Washington Times--and this is really interesting for those of us who love the Senate. On Friday, the Washington Times reported that White House Press Secretary Scott McClellan ``flatly rejected any talk of compromise that would confirm only some of the President's blocked nominees.'' The White House is telling the Senate how to operate? The Press Secretary of the President is telling the Senate what to do and not to do? The White House, through their Press Secretary, flatly rejects an offer of compromise. What has this body come to?

It is disturbing that the White House is playing an aggressive role to discourage compromise. Every high school student in America learns about checks and balances. The Senate advice and consent role is one of the most important checks on Executive power. The White House should not be lobbying to change Senate rules in a way that would hand dangerous new powers to the President over two separate branches--the Congress and the judiciary.

Of course, the President would like the power to name anyone he wants to lifetime seats on the Supreme Court and other Federal courts, but that is not how America works. The Constitution doesn't give him that power, and we should not cede that power to the executive branch.

As the majority leader admitted with Senator Byrd last week, there is no constitutional right to an up-or-down vote on judicial nominees. If there were, more than 60 of President Clinton's nominees had their rights violated. In fact, the Senate has rejected hundreds of judicial nominations over the years. Legal scholars say 20 percent of those selected for the Supreme Court have not gone forward. Prior to 1917, there was no way to stop the filibuster, and lots of judges simply didn't come forward. So we have rejected hundreds of judicial nominations over the years, some by an up-or-down vote, some by filibuster, and some by simple inaction. In each case the Senate was acting within its authority under the advice and consent clause of the Constitution.

My friend, Senator Frist, says he wants a fairness rule, but a rule allowing the President to ram extreme judges through the Senate is unfair to the American people. Meanwhile, we need to get back to the people's business and put people over partisanship. We were sent here to govern, and right now we are not doing that. Gas prices are up, families have lost health insurance, pension plans are unstable, to say the least, and the situation in Iraq is grave. The Senate, literally, is fiddling while Rome is burning.

Mr. President, I am going to continue to talk to the majority leader. I am going to talk and talk and talk as much as I can to try to resolve this issue. I know there are other efforts at compromise under consideration. But unless cooler heads prevail, this confrontation will be upon us later this week. If it comes to that vote, Democrats and responsible Republicans--if it comes to that vote, Democrats in the Senate and responsible Republicans in the Senate will vote to preserve checks and balances and preserve the principle that the Senate rules must not be broken.

Mr. President, the eyes of the Nation are upon us. There have been few moments of truth like this one in the history of this great institution. The American people will see whether the Senate passes this historic test.

Would the Chair announce what the business is before the Senate?

There is no time for morning business this morning; is that true?

Would the Senator yield for a unanimous consent request?

Mr. President, I ask unanimous consent that amendments numbered 638, 690, and 723 be removed from the list of first-degree amendments to H.R. 3.

On behalf of Senator Lautenberg, I call up amendment No. 619.

Mr. President, I ask unanimous consent to include in the Record at the conclusion of my remarks a written statement that I submitted at a symposium sponsored by the U.S. Chamber of Commerce on extending the Terrorism Risk Insurance Act, or TRIA, and a letter signed by seventy-four CEOs of the largest integrated financial services companies in

the country which provide banking, insurance and investment products and a second letter from the Coalition to Insure Against Terrorism, CIAT, which represents over seventy-five companies and major associations, a virtual cross section of the U.S. economy, both of which express strong support for extending the terrorism insurance program.

Mr. President, in 2002 I co-sponsored, and Congress passed, the Terrorism Risk Insurance Act, commonly referred to as TRIA. This important legislation provided a government backstop for the terrorism insurance market that disappeared after the attacks of September 11. TRIA is working. Today, because of TRIA, terrorism risk insurance is available and businesses have meaningful access to coverage. The primary purpose behind TRIA, and the reason it needs to be extended, is to make sure that the American economy and markets function in the face of a terrorist threat. There needs to be a mechanism in place to allow the economy to rebound more quickly and to protect American jobs in the unfortunate event of another terrorist attack here in the United States. The threat of an attack has not gone away and will not go away when TRIA expires at the end of 2005.

While some in Washington continue to hope that a private market will develop in the absence of TRIA, let me quote from two reports put out recently by those who are in the business of watching markets. The first is a Special Report by the rating agency Moody's Investors service dated April 28 which expressed concern about the potential effects of the pending expiration of the Terrorism Risk Insurance Act,

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

Mr. President, I once again want to persuade my Republican colleagues that the so-called nuclear option to break the Senate rules regarding judicial nominations is unnecessary and unwise. Earlier this week, I came to the floor of the Senate and offered to enter into a unanimous consent agreement that will allow an up-or-down vote on controversial nominee Thomas Griffith to the DC Court of Appeals.

We have confirmed 208 of President Bush's nominations to the Federal court, but this record near 100 percent is enough, and the Republican leaders have brought us to the brink of a nuclear showdown. There will be a lot of nuclear fallout if this happens, which would be bad for the Senate and bad for the country.

As I said on the Senate floor earlier this week, Democrats understand the meaning of checks and balances and our constitutional role in ensuring a fair and independent judiciary. We know the difference between opposing nominees and blocking nominees. We will oppose bad nominees, but we will only block unacceptable nominees. Unfortunately, my effort to demonstrate good faith to this point has been rejected.

My statement earlier this week was immediately rejected. The distinguished majority leader, my friend, has indicated that the Senate would not be allowed to vote on Griffith unless Senate Democrats agree to an up-or-down vote on all judicial nominees. What that means is the majority leader will not compromise unless Democrats agree to give up the last check in Washington against abuse of power: the right for extended debate. This is not about seven radical judges. In some people's minds, it is paving the way to the Supreme Court.

Our position is clear: Let us find common ground and confirm judges. Their position appears to be: Let us threaten to break the rules until we get everything we want.

Let us find common ground to confirm judges. That does not mean everybody. If we cannot find compromise, as I said 2 days ago, then we have to vote. We will fight to protect the Nation's constitutional system of checks and balances and depend on Republicans of good will who serve in the Senate who do not want to break the rules to change the rules. That is what the people sent us to do, and we will live up to our responsibility to the American people.

Today, I want to try to do what my Republican colleagues say they want to do, and that is confirm Federal judges. Today, I am prepared to enter into an agreement that would be in respect to two and possibly three nominees to the Sixth Circuit Court of Appeals, which has had tremendous problems for going on 13 years. David McKeague, Robert Griffin, and likely Susan Neilson, Sixth Circuit nominees from Michigan, have been caught up in a dispute that began when the Republican Senate failed to vote on either of the two eminently qualified women President Clinton had nominated to the Michigan seats on that court: Helene White and Kathleen McCree Lewis.

Helene White is a distinguished judge on the Michigan Court of Appeals. Her nomination was pending in the Senate Judiciary Committee for more than 4 years--I repeat, more than 4 years. Kathleen McCree Lewis is a highly regarded appellate litigator at a prominent Detroit law firm. Her nomination was pending for more than a year.

Despite their outstanding qualifications, both of these nominees, along

with over 60 other Clinton nominees, were buried in the Republican- controlled Judiciary Committee. They were never given the courtesy of consideration by the Judiciary Committee, not even a hearing, much less the courtesy of an up-or-down vote by the full Senate.

It seems as if each day a Republican Senator comes to the floor and says that every judicial nominee is entitled to an up-or-down vote on the Senate floor. I challenge these Senators to explain why Helene White, Kathleen Lewis, and 67 others were denied up-or-down votes on the Senate floor.

I have said that what was done in the last 12 years let us put behind us. The 69 Clinton nominees and the 10 Bush nominees, let us put them behind us and go forward. We have a new Congress. We have new leaders, at least two new leaders, Senator Durbin and I, and we have a number of new Senators. Let us move forward on a new note.

The failure of the Senate to confirm these two outstanding Clinton nominees meant that there were vacancies on the Sixth Circuit when President Bush took office more than 4 years ago. President Bush nominated candidates to fill those unjustified vacancies, and as other judges have left the court, the President has eventually sent four Sixth Circuit nominees to the Senate. In light of the shameful treatment of President Clinton's Sixth Circuit nominees, Senators Levin and Stabenow objected to the Bush nominees to this court, and three of them were filibustered in the last Congress. They were determined that the GOP tactic of denying hearings and votes to qualified nominees should not succeed.

I have talked about these on the Senate floor earlier. These were procedural objections. It had nothing to do with the qualifications of two of these Sixth Circuit nominees.

I supported the two Senators from Michigan. They have been fighting a grave injustice that has been perpetrated on White and Lewis. They have been fighting for the principle of fair treatment. I and all Democrats have been proud to stand with them in that fight.

Now with the Senate facing the threat of a nuclear option, we have to remember why we are here. We are here to govern, not endlessly engage in political bickering that brings us to the brink of a Republican shutdown. The American people face great challenges each and every day: escalating health care costs; record high gas prices; skyrocketing tuition; as we learned today on the national news, pensions that are being thrown out the windows of major companies that have tens of thousands of employees; mounting debts that will be handed down to our children and our grandchildren. Under President Bush's leadership, middle-class Americans have gone backward, not forward. Instead of helping them, we are bickering over seven judges and, in my estimation, many radical judges.

For the sake of the American people and the dignity of the Senate, Democrats have been and will be reasonable. We believe too much is at stake. Our very system of constitutional checks and balances is at stake in this dispute. In granting an up-or-down vote on two and likely three of these circuit court judges--and let me say, the nominee I have talked about, Susan Neilson, from everything we know, is a fine woman. She was just grievously ill, and therefore she was not able to have the hearing before the Judiciary Committee. We are confident that will take place quickly. Once that is done and the two Senators from Michigan have had a chance to vet her, that will take care of our being able to move forward on three, not just two.

Henry Saad would have been filibustered anyway. He is one of those nominees. All one needs to do is have a Member go upstairs and look at his confidential report from the FBI, and I think we would all agree that there is a problem there.

The other two nominees, Griffin and McKeague, would not have been filibustered but for the treatment of the Clinton nominees.

Accordingly, I want the majority leader to be aware that Democrats are prepared to enter into the following unanimous consent agreement: If the nominations of Griffin, McKeague, and Neilson are reported from the Judiciary Committee, we agree to limit floor debate on all three nominations to a total of 6 hours equally divided. Following the use or yielding back of that time, there would be a vote on each of these three nominations. Once again, I say to my Republican colleagues, do they want to confirm judges or do they just want to provoke a fight?

We have confirmed all but four of the judicial nominees the majority leader has brought to the Senate floor this year. We are prepared to vote on the nomination of Griffith to the DC Circuit. We are prepared to vote on two and likely three of the nominees to the Sixth Circuit. Why are we being denied the opportunity to confirm these judges? We have already confirmed 208 of President Bush's judicial nominations. If the majority leader will accept our offer to vote on Griffith and these Sixth Circuit nominees, we would have confirmed 212 of President Bush's nominees and rejected only 5. Is the majority leader prepared to break the rules and violate 217 years of Senate tradition, all for five extreme judges? I hope not.

I have great admiration and respect for my Republican counterpart, and I am hopeful and confident that somehow we can work our way through this morass.

In a New York Times op-ed 2 days ago, former Senator George Mitchell, who was the majority leader in this body, quoted from a famous speech delivered by one of his predecessors, former Senator Margaret Chase Smith, whom I did not have the opportunity to meet, but I wish I could have. In her famous ``Declaration of Conscience'' speech against the terrible McCarthyism then practiced by members of her own party, she said:

I don't believe the American people will uphold any

political party that puts political exploitation above

national interest. Surely we Republicans aren't that

desperate for victory. While it might be a fleeting victory

for the Republican Party, it would be a more lasting defeat

for the American people. Surely it would ultimately be

suicide for the Republican Party and the two-party system

that has protected our American liberties from the

dictatorship of a one-party system.

Today, the Senate is not plagued by McCarthyism but by what some believe is an abuse of power.

Lord Acton, whom we studied in college--I thought it was just something the teacher had me think about that had no practical application to my life's work, but it has. Lord Acton: ``Power tends to corrupt.'' Lord Acton: ``Absolute power tends to corrupt absolutely.''

We have now a legislative body that is controlled by the Republicans in the Senate by a significant majority, by a significant majority in the House of Representatives, seven of the Supreme Court Justices across the street are Republican appointees, the White House is Republican. Let's not have Lord Acton's theory come to be.

Today, the Senate is not plagued by McCarthyism but by what some believe is abuse of power. Still, Senator Margaret Chase Smith, this great Republican Senator, her words ring true. I hope there are enough modern-day Senator Margaret Chase Smiths who will be guided by the interests of the Nation, not partisan politics.

I yield the floor.

I, frankly, wish I could spend more time on the most important highway bill. I was chairman of the full committee on two separate occasions, and I am interested in the jurisdiction of the highway bill. I am sorry my attention is diverted from all we are doing on judges.

Let me say this to my distinguished counterpart, the Republican leader, the senior Senator from the State of Tennessee, I have said in the Senate on a number of occasions, I cannot justify what went on during the 8 years Clinton was President. I am not here to go into a dissertation of what happened the last 4 years during the Bush years.

But I say this: We never got into any problem with filibusters during the Clinton years because these people never got any kind of attention. They were buried in the committee. I hope the American public understand that 69 people were nominated by a President of the United States, nominations came to the Hill and were lost. Some of them waited years and years, almost 5 years. We are not here to debate every 1 of the 10. We have narrowed it down to a fairly small number.

We have to go forward. I don't know if the distinguished Republican leader and I can come up with a formula that satisfies our two caucuses. We realize the time is of the essence. Not only has the country had enough of the judicial problem we call the nuclear option, but the Senator from Tennessee and the Senator from Nevada have had enough. We have to move on. We have work we have to do in this Senate. The Republican leader has mentioned the things we have been able to accomplish so far. It hasn't been easy what we have been able to do but we put the record of our accomplishments this quarter about as far as one could go in saying we have done a pretty good job.

We have a lot of other things to do. He has mentioned a few things. But whether or not we can get things done in this Senate means we have to move beyond this problem.

Some have said that the Senate will stop. The Senate is not going to stop. It is a body that has lots and lots of rules and procedures and things are going to slow down. It will make it very hard to get things done.

We are now approaching June. After we finish 2 more weeks of work, we have 7 weeks remaining until the August recess--7 weeks to do all the things we need to do. Then we come back, and it is time to finish our appropriations bills. We have so, so much to do.

This is not to make me look good or the Senator from Tennessee look good. We have the people's business to do. We are chosen, as indicated by the vision of our Founding Fathers, to represent States. The State of Nevada has about 2.5 million people. The State of New York has 19 million. The State of California has 35 million. In the little State of Nevada, I have as much power as Senators from heavily populated states.

I hope that Senator Frist and Senator Reid can work a way out of this. I don't know if we can. We have met on this. Our conversations, I am sorry to say, are completely filled with discussion of this. We have talked about every possible avenue we think is a way to get my caucus and his caucus out of this.

I have come to one conclusion: If we work out a deal, there are not going to be many happy people around here. We will have to work something out that is a good compromise. As I have said in the Senate before, what does that mean? Both sides are unhappy.

I hope we do not have to come here and I have to look to six Republicans to stop a change of the Senate as we have known it. I hope we do not get to that point.

I have said, with the majority leader off the floor and I say it when he is in the Senate right here, I have the greatest respect and admiration for this man.

I have said it in my private conversations with others, I have said it in the Senate again today. He chose public service for the right reason. Senator Frist is an accomplished surgeon, in a specialty, transplant surgeon. He is a man of means. He does not have to come here. He did it because he wanted public service. I have admiration for him. I wish we could move past this and move on with the business at hand.

I, again, say I cannot justify what went on during the Clinton years. It was bad. As the distinguished Senator mentioned, people's lives were disrupted and changed. They quit jobs and then they had no job. They waited in limbo for years. It affected people's lives. He and I have discussed how it affected individual human beings to their detriment.

I know for the people we are talking about, the Republicans--I am sorry, the people nominated--I don't know if they are Republicans; I assume they are--by President Bush, this has had an adverse effect on some of their lives, not all of them but some of them. So we have to move on. When we move on, we have to have the Senate we have always known.

We need the partisanship to continue. There is nothing wrong with partisanship. We are the envy of the rest of the world because of our two-party system. We are not like the parliamentary system in Great Britain where they have three parties, and Blair, with his party, barely got a majority. We are not like India or Great Britain.

Mr. President, what a wonderful country this is. President Bush was elected with fewer votes than the person he beat. His case was decided in the Supreme Court of the United States. I did not like the decision they made, but I felt like the rest of Americans--it was all over with. There was not a car burned, no fire started. There were no demonstrations. He became our President the minute that decision was made.

But the fact that we are partisans in protecting this great two-party system we have does not mean we should not work together on issues for this country. We need to do that. I hope we can do that. As the distinguished majority leader said, we are coming down to where the rubber hits the road. I would think next week there will be a decision made on this one way or the other. I hope it is something that is good for the American people. I am going to do my level best to work with my 44 Senators to see that is the case. I know he will work with his 54 Senators to see that is the case. And history will determine how the Senator from Nevada and the Senator from Tennessee fared on this issue, whether we were able to come through on an issue of tremendous importance, because the microscope is on the Senate of the United States as we speak.

This was only a minor issue. What we have done, I say to my distinguished friend through the Chair, and my former leader, is that we have three judges, one for the DC Court of Appeals and two for Michigan, probably three for Michigan, who we said we have no objection--they are all circuit court judges--to move forward on. What Senator Frist has said in reply is that he wants to have all the judge issues resolved before we move to any of these circuit court judges. That is what he said and that is what I said.

Mr. President, may I respond to my distinguished friend?

Mr. President, the majority leader and I have had, as I have indicated, many conversations. I think we should proceed one by one. The distinguished majority leader wants to resolve this issue once and for all. So I accept him at what he wants to do. I am going to work with him over the next several days--hopefully, it doesn't take that long--to see if we can resolve this in some manner. If not, we both agreed that this matter is going to end sometime next week anyway. We would hope that in the meantime we can resolve this. We are on the highway bill. We have a lot of work to do on that. In the interim, I would hope that we can work something out. If we can't, next week we will have a showdown.

Senator Byrd, if I could be rude and interrupt, through the Chair, without the Senator losing his right to the floor.

Senator Byrd, I feel this very way, very strongly. I say, respectfully, to a man who is the dean of the Senate today, has been in the Senate almost 50 years, who I have the widest respect for, we are not going to resolve this issue right now. We are trying to do that. We are going to have some private conversations. What I am saying to my distinguished leader, give us a little bit of time.

I yield the Senator another hour.

It is 208.

Ten.

Mr. President, will the Senator yield for a question?

That speech was given 41 or 42 years ago?

I say to my distinguished friend, we have heard a lot of speeches in the last several months on this subject, but I have to say candidly that this is the best speech we have heard. This is outstanding, especially coming on the footsteps of the great Senator Robert Byrd who made a statement about the right to free speech.

As I look back at a very young Senator from a very small State taking on people who had been here a long time, going against a majority of his party, in a sense, certainly a lot, as a young Senator, shows why 20 years prior to giving this speech he was a hero on the battlefield for America and why he has been a hero on the battlefields of the Senate for all these many years.

Mr. President, reserving the right to object.

To the leader through the Chair, it is my understanding we will have a vote Monday night, and it will be one of the amendments on the list; is that right?

Further, Mr. President, we have been on this bill 2 weeks, but that is somewhat misleading because we have had so many other issues that have interrupted the discussion of this bill. The work on this bill is good. I compliment the managers and the others. Not only do we have these managers on the bill, but there are many committees that have jurisdiction on this bill. It is a very complicated bill jurisdictionwise. It is a big bill moneywise. The managers have to be complimented for doing this.

I believe this is what we can accomplish in the Senate. We have only spent

a few days on this bill. I repeat, this is a remarkable piece of work we have done. I hope we can continue doing the work for the people of America as needs to be done. I have no objection.

Mr. President, I appreciate the support of the Senate in approving this resolution regarding the territorial integrity of Georgia. It is important that the Senate speak on this matter with one voice and at this time, as President Bush just wrapped up his trip to Europe and Russia with a 2-day visit to Tiblisi, Georgia.

I was in Georgia 6 weeks ago. I went there at the urging of the former Prime Minister, who died tragically in an accident several months ago. The Prime Minister came to visit me here in my Capitol office, and he described his country to me: mountainous, filled with historic churches, strategically important, and a friend to the United States. ``You have to go there,'' he said. I promised him that I would go there, and even after he died, I wanted to fulfill that commitment.

And after having spent 2 days and nights in Georgia, I can say that the Prime Minister's description was right on the mark. Georgia is a beautiful country, with an incredible history and stunning architecture. Above all, the Georgian people have a wonderful spirit.

Less than years ago, Georgia underwent the peaceful ``Rose Revolution.'' A group of young, thoughtful and energetic reformers took on the corrupt leaders of the Soviet era, denying them an opportunity to steal a parliamentary election. Thousands gathered in Freedom Square, night after night, to expose the fraud and criminality of the previous regime. From that point on, there was no turning back. Democracy had finally arrived in Georgia.

But Georgian sovereignty and independence has been put at some risk recently through the continued basing of Russian troops on Georgian soil. Previous agreements negotiated with the Russian government calling for the complete withdrawal of Russian troops have been ignored. Some 3,000 Russian military personnel still remain in Georgia. It is time for them to go. I am confident that President Bush carried that message to President Putin during his recent visit.

I am glad we could pass this Resolution calling on Russia to support the territorial integrity of Georgia, and expressing our support for the Georgian people and their pursuit of democracy. Georgia is our friend, our ally and our strategic partner. Passage of this resolution sends exactly the right message to the Russian Government and to the people of Georgia. Again, I appreciate the support of my colleagues and I commend the President for his decision to visit Georgia. I know he was as well received as our Senate delegation was.

Mr. President, I am grateful that the distinguished Republican leader would come to the floor of the Senate and acknowledge the people who look after us every day. The training of our Capitol Police force is exceptionally good. I was with them, as was the distinguished Republican leader, and I am amazed at their professionalism as they took us away.

I am an alumni of different universities, a proud lawyer, and a number of other things I have had the good fortune of working with over a number of years, but I am an alumni of the Capitol Police. I am very proud of that. I recognize that the work I did those many years ago as a Capitol policeman pales in comparison to the problems that face this beautiful building of the American people.

I am so confident that we have the best police force in the world here on Capitol Hill. They have to deal with bomb threats and all kinds of chemical problems. The Republican leader, who is a doctor, worked through the anthrax problem; I wasn't involved with that. But they are experts at that. They are aware of anything that is going on in the world regarding terrorism because of these evil people from around the world. This is, if not the No. 1 target, one of the top targets.

I appreciate and commend and applaud the majority leader for coming here immediately and recognizing these people who look after us every day. Every day, we see them standing around doors, and they don't appear to be working real hard, but it is on days such as this that they earn their pay over and over again. I am glad and happy that I had the experience to be a Capitol policeman, and I look forward to continually being protected, along with the American public, in this great building by these wonderful men and women.

Mr. President, I apologize for Senators having to wait for me. I want to begin by saying I support this legislation. I commend the work of the managers of the bill, Senator Cochran and Senator Byrd. I understand how essential this bill is to our troops who are risking their lives and, of course, to the tsunami victims who are struggling to rebuild their lives.

The conference report, though, comes up short on two issues: Iraq and, of course, immigration--short of what the world rightly expects from the most free nation in the world, and short of what Americans should expect from their elected leaders is what is written all over this conference report.

Starting with Iraq, the Chairman of the Joint Chiefs of Staff recently said that the insurgency is as strong today as it was a year ago. The recent upsurge in violence and unrest in Iraq seems to bear out that remarkable and very troubling conclusion. Yet the administration acts as if the situation in Iraq is essentially under control and the remaining difficulties are Iraq's problems.

The unfortunate truth seems to be that more than 2 years after President Bush declared the end of major combat operations--remember ``mission accomplished''--Iraq has a limited capacity to defend itself or govern itself.

Even worse, the administration has no real plan to help Iraq acquire that capacity. As much as the President may want to dump Iraq's problems on the new Iraqi Government, his administration has a responsibility to our troops and the Iraqi people to help address these problems and to inform Congress how he plans to do so.

I would underscore that this supplemental appropriations bill should not have had to come before this body at this time. It should have been in our regular budget. This war is ongoing. There is no reason to do it in this way.

I have supported and the Senate passed an amendment crafted by Senators Durbin, Levin, and Kennedy requiring the administration to inform us of its efforts and plans for securing and stabilizing Iraq. Unfortunately, Republican conferees dropped the important amendment from the text of this bill.

As troubled as I am by the Republican majority's actions on Iraq, I am perhaps more disturbed by what they decided to do on immigration, and how they went about it.

Republicans tacked the so-called REAL ID immigration legislation onto this emergency supplemental that is to provide funding for our troops. REAL ID imposes dramatic new burdens on the States and substantially alters the immigration and asylum laws in ways that this Nation may soon come to regret the action taken by this body.

For the House to self-righteously say that on appropriations bills they will allow no authorizing legislation, people can always waive this REAL ID--this is the mother of all authorizing legislation on an appropriations bill.

This REAL ID Act makes reckless and unwise changes to our laws with respect to the environment, refugees, judicial review and, most of all, States rights. It is essentially anti-immigrant legislation couched in the language of antiterrorism. The Wall Street Journal, not the bastion of the so-called liberal press, said the changes made by REAL ID ``have long occupied the wish list of anti-immigration lawmakers and activists.'' That is the Wall Street Journal.

REAL ID will make it much more difficult for individuals fleeing persecution to seek asylum in the United States, will sharply reduce the ability of the Federal courts to rein in overzealous or ill-willed administration officials, and will give the Secretary of Homeland Security unprecedented authority to waive environmental and other laws.

REAL ID could compromise the privacy of American citizens, create long

lines at local DMVs, and make it harder for States and the Federal Government to keep track of who is in our country. In short, REAL ID may make us less rather than more safe.

As troubling as what the majority did on immigration is the way they went about it. Republicans tacked on REAL ID knowing full well immigration issues had nothing to do, as I have said before, with the underlying legislation and that REAL ID had never, ever been considered in the Senate, either in the Judiciary Committee, the committee of jurisdiction, I believe, or on the Senate floor.

Compounding matters, House and Senate Republican conferees went behind closed doors without Democrats and included a modified version of REAL ID.

What so troubles me is that the Republicans have the votes. They are in the majority. They had the majority in the conference. But they refused to have up-or-down votes so the public could see what they were doing. They had the ability to turn down every amendment we offered, but they were unwilling to do that.

They rejected a bipartisan plea to give REAL ID and other immigration issues the time and attention they deserved, and limited opportunities for opponents of REAL ID to offer motions to strike or change what they agreed to.

As a result of the Republicans' decision to incorporate REAL ID and their abuse of the process, most Democratic conferees either refused to sign the conference report or did so while taking strong exception to the REAL ID provision.

I am also disappointed about the White House's role in this matter. For years now, the administration has been talking about the need to reform immigration laws. Remember the big trip President Bush made, when he was first elected, to meet with President Fox in Mexico? They have been talking about the need for reform, so law-abiding, hard- working immigrants can find work in this country, help our economy grow, and support their families here and back, mostly, in Mexico. Since this legislation will hurt hundreds of thousands of the very people the administration professes to be concerned about, I would have expected the President to oppose it. Unfortunately, he chose not to do so.

The best thing we could do for our security would be to enact comprehensive and effective immigration reform so we can gain control once again over our borders and focus our limited resources on terrorists and criminals.

Senator Frist has indicated he is willing to set aside time for a separate debate about immigration later this year, and I know he will follow through on that. That is what he said he would do. The Senate and the American people deserve time to consider this issue and time to revisit many of this legislation's most problematic provisions.

Finally, I think our ability to succeed in Iraq should have received much greater attention in this bill, and immigration should have been dealt with more thoughtfully and thoroughly in a subsequent legislative vehicle. Our troops and taxpayers are expecting solutions and leadership from the President and the Congress. The world is expecting this Nation to live up to some of the lofty immigration rhetoric espoused by the administration early on. I regret the majority acted in this fashion. I look forward to opportunities to revisit these unwise decisions.