Floor Statements

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

Mr. President, we are again enduring another filibuster of the PATRIOT Act. It is frustrating to me in the sense that I believe, properly understood, the PATRIOT Act provides tremendous protections to the people of the United States which don't now exist, and that those protections are crafted in a way which is sensitive to and consistent with the great civil liberties which we all cherish.

Two months ago, in December, we had a long debate, and since then, we have had to extend the PATRIOT Act for some time without reauthorizing it. Leaders have met and worked and dealt with some concerns. I know four Republican Senators who had concerns, and their concerns have been met. I think others also have likewise felt their concerns have been met. They are not large changes, but it made the Senators happy and they feel comfortable with voting for the bill today. That is good news. It is time to pass it.

I believe the American people expect that we will be able to have an up-or-down vote on this legislation. That has been blocked. There has been a majority in favor of the legislation for some time.

To get to cloture, we have to use 30 hours of debate, which will probably last throughout the day and into tomorrow. We will get there this time, I am confident. When we do, we will have a fairly strong vote, I believe, in favor of the legislation. We certainly should.

I urge my colleagues to work with us as best they can to move this forward in an expeditious way that allows for the up-or-down vote that is necessary.

I have talked about it a number of times, but I thought today I would focus on the question of why the PATRIOT Act matters, or are these just academic issues? Are they issues of an FBI agent wanting to violate our civil rights and spy on us? Some group in Government out here with black helicopters trying to find out what people are doing and then take away our liberties?

That is a great exaggeration. This is not what is at stake here. This bill is consistent with our great American liberties. It has not been held unconstitutional. Overwhelmingly, the powers given in this act are powers that law enforcement officers have had for years. They have been able to utilize them to catch burglars, murderers, drug dealers, and the like.

The local district attorney can subpoena my library records, medical records, and bank records. The Drug Enforcement Administration Act by administrative subpoena--not even a grand jury subpoena--can subpoena my telephone toll records. That has always been the law. That is the law today. We have provisions that allow our investigators to do that for terrorists. One would think somehow we are ripping the Constitution into shreds, that this is somehow a threat to our fundamental liberties. It is not so.

Let me point out I had the privilege, for over 15 years, to be a Federal prosecutor and work on a daily basis with FBI agents, DEA agents, and customs agents. These are men and women who love their country. They believe in our law. They follow the law. In my remarks, I will demonstrate these agents, unlike what is seen on television, follow what we tell them to do. If they do not follow what we tell them to do, they can be prosecuted, removed from the FBI, the DEA or the Federal agency for which they work. In fact, they know that and they remain disciplined and men and women of integrity who follow the law. Therefore, do not think, when we pass restrictions on how they do their work, that it is not going to be followed; that if it is a really big case, such as on ``Kojak,'' that they will go in and kick in the door without a warrant. That does not happen.

In 2001, we know at least 19 foreign terrorists were able to enter this country and plan and execute the most devastating terrorist attack this Nation has ever seen. The reasons the United States and terror investigators, the people we had out there at the time--FBI, CIA, and others--failed to uncover and stop the September 11 conspiracy have now been explored carefully by a joint inquiry of the House and Senate Intelligence Committees and other congressional committees and commissions, as well as the 9/11 Commission. These very commissions and inquiries have reviewed, in painstaking detail, the various pre- September 11 investigations that were out there--investigations, inquiries, preliminary inquiries--gathering information that raised people's suspicions about terrorism.

These investigations could have but unfortunately did not stop the September 11 plot. We have seen how close the investigators came to discovering or disrupting the conspiracy, only to repeatedly reach dead ends or obstructions to their investigations.

Those are the facts they found. Some of the most important pre- September 11 investigations, we know exactly what stood in the way of a successful investigation. It was the laws Congress wrote, seemingly minor, but, nevertheless, with substantive gaps in our antiterror laws, preventing the FBI from fully exporting the best leads it had on the al-Qaida conspiracy. One pre-September 11 investigation, in particular, came tantalizingly close to substantially disrupting or even stopping the terrorist plot. But this investigation was blocked by a flaw in our antiterror laws that has since been corrected by this PATRIOT Act being filibustered today.

This investigation involved Khalid Al Midhar. Midhar was one of the eventual suicide attackers on the American Airlines flight 77 which was flown into the Pentagon across the river from here, killing 58 passengers on the plane, the crew, and 125 people at the Pentagon. Patriots all.

An account of a pre-September 11 investigation of Midhar is provided in the 9/11 Commission Staff Statement No. 10. The 9/11 Commission looked at what information we did have prior to these events, and this is what the staff statement notes:

During the summer of 2001, a CIA agent asked an FBI

official [a CIA agent responsible for foreign intelligence

talked with an FBI official responsible for the security and

law enforcement international] to review all of the materials

from a Al Qaeda meeting in Kuala Lumpur, Malaysia one more

time. The FBI official began her work on July 24th prior to

September 11, 2001. That day she found the cable reporting

that Khalid Al Mihdhar had a visa to the United States. A

week later she found the cable reporting that Mihdhar's visa

application--what was later discovered to be his first

application--listed New York as his destination . . . The FBI

official grasped the significance of this information.

The FBI official and an FBI analyst working on the case

promptly met with INS representatives at the FBI

Headquarters. On August 22nd, INS told them that Mihdhar had

entered the United States on January 15t, 2000, and again on

July 4, 2001 . . . The FBI agents decided that if Mihdhar was

in the United States, he should be found.

At this point, the investigation of Khalid Al Midhar came up against the infamous legal ``wall'' that separated criminal and intelligence investigations at the time.

The Joint Inquiry Report of the House and Senate Intelligence Committees describes what happens next:

Even in late August 2001 when CIA told FBI, State, INS, and

Customs that Khalid al-Mihdhar, Nawaf al-Yazmi, and two other

``Bin Laden-related individuals'' were in the United States,

FBI Headquarters refused to accede to the New York field

office recommendation that a criminal investigation be

opened, which might allow greater resources to be

dedicated to the search for the future hijackers . . .

The FBI has attorneys. They read our statutes, they read the laws we pass, they tell the agents what they can and cannot do because they are committed to complying with the laws we place upon them.

The FBI attorneys took the position that criminal

investigators CANNOT be involved and that criminal

information discovered in the intelligence case would be

``passed over the wall'' according to procedures. An agent in

the FBI's New York field office responded by an e-mail,

saying--

And I will quote the agent in a second but the scene is this: The FBI field office in New York concluded, after obtaining information from CIA that this individual, one of the hijackers, was a dangerous person and should be found. And the FBI field office--it is a big deal to be a special agent in charge of the New York field office, the biggest one in the country--recommended to FBI headquarters that we act on it. The FBI lawyers read the laws we passed and said ``you cannot.'' This is what the agent in New York responded when he heard this, sent it by e- mail. See if this doesn't chill your spine a bit.

He said:

Whatever has happened to this, someday someone will die

and, wall or not, the public will not understand why we were

not more effective in throwing every resource we had at

certain problems.

That was his reaction. It was a natural reaction.

How did we get this wall? It occurred in a spate of reform legislation after abuses of Watergate and the Frank Church committee hearings. They decided that in foreign intelligence--that is one thing, domestic is another--foreign intelligence does not always follow every rule. We ought to have a clear line between the FBI, which is over here in America, and we ought not give them information that the CIA had because they thought somehow this was going to deny us our civil liberties, which was not very clear thinking, in my view.

But these were good people. They were driven maybe by the politics of the time or what they thought was good at the time. They created this wall we have demolished with the PATRIOT Act--and good riddance it is. There is no sense in this.

The 9/11 Commission has reached the following conclusion about the effect the legal wall between criminal and intelligence investigations had on the pre-September 11 investigation of Khalid Al Midhar. This is what the 9/11 Commission concludes:

Many witnesses have suggested that even if Mihdhar had been

found, there was nothing the agents could have done except

follow him onto the airplane. We believe this is incorrect.

Both Hazmi and Mihdhar could have been held for immigration

violations or as material witnesses in the Cole bombing case.

This was our warship, the USS Cole, that was bombed by al-Qaida, killing a number of American sailors in Yemen; an attack on a warship of the United States by al-Qaida. What does it take to get our attention?

This report continues:

Investigation or interrogation of any of these individuals,

and their travel and financial activities, also may have

yielded evidence of connections to other participants in the

9/11 plot. In any case, the opportunity did not arise.

There was a realistic chance, had these rules not existed, rules that this PATRIOT Act eliminates, we would have been able to move forward with an investigation that had some prospect of actually preventing September 11 from occurring.

Some say, Jeff, you cannot say that for certain; and I am not saying it for certain, but I have been involved in investigations. You never know. You get a bit of information, you follow up on a lead or two, you get a search warrant, you surveil an activity, and all of a sudden you find that bit of evidence that takes you even further into an organization committed to a criminal activity or a terrorist plot you never knew existed. This is reality of law enforcement work today. We ask them every day to do this. And those investigating terrorist cases are giving their very heart and soul to it. They are trying every way possible, consistent with the law, not outside the law, to gather all the information they can to be successful.

So we know the PATRIOT Act was enacted too late to have aided in the pre-September 11 investigations, unfortunately. But it did raise our consciousness of the lack of wisdom on the reform legislation that was passed the year before--all with good intentions.

Let me mention another matter of a similar nature.

Another key pre-September 11 investigation was also blocked by a seemingly minor gap in the law. The case involves Minneapolis FBI agents' summer 2001 investigation of al-Qaida member Zacarias Moussaoui.

Hearings before the 9/11 Commission raised agonizing questions about the FBI's pursuit of Moussaoui. Commissioner Richard Ben-Veniste noted the possibility that the Moussaoui investigation could have allowed the United States to ``possibly disrupt the [9/11] plot.'' Commissioner Bob Kerrey, a former Member of this Senate, even suggested that with better use of the information gleaned from Moussaoui, the ``conspiracy would have been rolled up.''

Moussaoui was arrested by Minneapolis FBI agents several weeks before the 9/11 attacks. Do you remember that? He was arrested early that summer. Instructors at a Minnesota flight school became suspicious when Moussaoui, with little apparent knowledge of flying, asked to be taught how to pilot a 747. The instructors were concerned about it. They were on alert. They did what good citizens would do. Remember, this is before 9/11. But they were concerned about this oddity. They called the FBI in Minneapolis, which immediately suspected that Moussaoui might be a terrorist.

FBI agents opened an investigation of Moussaoui and sought a FISA that is the Foreign Intelligence Surveillance Court--national security warrant to search his belongings. But for 3 long weeks, the FBI agents were denied that FISA warrant. During that 3 weeks--you know the truth--the September 11 attack occurred.

After the attacks--and largely because of them the agents were then able to obtain an ``ordinary'' criminal warrant. So after the attacks, the agents were issued an ``ordinary'' criminal warrant to conduct the search. And when they conducted the search, his belongings then linked Moussaoui to two of the actual 9/11 hijackers and to a high-level organizer of the attacks who was later arrested in Pakistan.

The 9/11 Commissioners were right to ask whether more could have been done to pursue the case. This case was one of our best chances of stopping or disrupting the 9/11 attacks. Could more have been done? The best answer is probably no--based on the law that existed at that time.

The FBI agents were blocked from searching Moussaoui because of an outdated requirement of the 1978 FISA statute. Unfortunately, one of that statute's requirements was that the target of an investigation--if it were to be subject to a search under a FISA warrant, a foreign intelligence warrant--the agent had to have proof that he was not a lone-wolf terrorist, but he

must have been an agent of a foreign power or a known terrorist group. The law did not allow searches of apparent lone wolves, like Zacarias Moussaoui was thought to be at the time. They did not have the evidence to show otherwise.

So according to the FBI Director, the man in charge of the FBI, Robert Mueller--a former prosecutor of many years and a skilled lawyer--the gap in FISA probably would have prevented the FBI from using FISA against any of the September 11 hijackers. As the Director noted in his testimony before the Judiciary Committee:

Prior to September 11, [of] the 19 or 20 hijackers . . . we

had very little information as to any one of the individuals

being associated with . . . a particular terrorist group.

So in other words, their lawyers in the FBI were saying: Well, you can't use the FISA. I know you want to. I know you have suspicions. And I know he looks like a terrorist. And we would like to search his belongings and see if he has any connection with any terrorist organization and maybe find out if they have any bombs or plans there. But you can't do it because we lack one little bit of proof. We can't prove he's connected to a terrorist group or a foreign nation. Sorry. Can't do it.

So the ``lone-wolf'' gap was fixed by the Intell reauthorization, and adopted as part of the PATRIOT Act. We need to reauthorize it and continue it into law.

What the various reports and commissions investigating the 9/11 attacks have shown us thus far is that where our antiterror laws are concerned, even seemingly little things, minor things--it might seem like they were OK at the time--can make a big difference, a life and death difference.

Before September 11, few would have thought that the lack of authority in FISA for the FBI to monitor and search lone-wolf terrorists might be decisive as to our ability to stop a major terrorist attack on U.S. soil. Indeed, that is true. We did not think about it. We did not think clearly about it.

And before September 11, though there was some attention to the problems posed by the legal wall between the intelligence-gathering agencies and the criminal investigative agencies, there was little sense of urgency to fix those matters. We accepted it. The FBI accepted it. It was the way you had to do business. You could not violate the law. I am sorry, you cannot investigate. You cannot participate with the CIA. Even though you may think he is a terrorist instigator, you cannot participate because there is a wall that the Congress created.

So at the time, these all seemed like legal technicalities--not real problems, the kind of problems that could lead to the deaths of almost 3,000 American citizens.

Today, we face the same challenge--recognizing why it is so important to fix small gaps in the law that can lead to large consequences and real-life disasters. Congress must not take the position that enough time has been passed since 9/11. Congress must not allow the information wall to be reconstructed by blocking the passage of the PATRIOT Act, or allow the tools we have given to our terrorism investigators by the PATRIOT Act to be taken away.

We must pass the PATRIOT Act reauthorization conference report. It is that simple. It permanently plugs most of the holes that we know existed in our terrorism laws. The report retains a few sunsets. I do not think they are necessary. I think they were good, sound changes in the law. But people are nervous that they might be abused, so they will automatically sunset if we do not extend them. OK, we will do that. If that will get some people more comfortable so they will pass this bill, we will do that.

And the report has a long list of additional civil liberties protections.

It is a compromise product that came out of our Judiciary Committee, I believe with a unanimous vote, and with a unanimous vote on the floor of the Senate, and went to conference. A few changes were made in conference. But where there were conflicts, overwhelmingly, the conflicts were decided in favor of the Senate product. And it was that product that finally hit the floor of the Senate in December. And we have had this filibuster going ever since. Hopefully, now we are in a position to end it.

I urge my colleagues to examine the nature of the PATRIOT Act as it is now configured. Read it carefully. Ask any questions you have. Make sure you understand what powers police have today in your hometowns all over America. And do not get confused that some of the things provided for might sound if--you listen to critics--as if they are new and far- reaching and utterly dangerous. They are part of everyday law enforcement--overwhelmingly, they are--and I believe are consistent with the highest commitment of American citizens to civil liberties.

I would also mention this. There are almost 3,000 people who are no longer with us today. They have zero civil liberties as a result of the most vicious and hateful attack on 9/11. That is not an academic matter. That is a fact. As that FBI agent said: Someday the American people are not going to understand how we were not able to intercept and investigate these groups.

Mr. President, I thank the Chair and yield the floor.

If the Senator will yield, I have talked about the details of this bill and individual complaints the Senator has about this or that provision in some detail. I will do so again. At this point, what we are facing is a filibuster of the motion to proceed that impacts the entire legislation.

I would ask the Senator if the Senator remembers that when the bill came out of the Senate, it said there would be a 7-day notice if there were a sneak-and-peek search warrant. The House bill had 180 days before notice would be given. The conferees moved far to the side of the Senate and made it a 30-day notice. Is that the basis of the Senator's desire to filibuster this entire bill, the difference between 7 and 30 days, recognizing in this body we seldom get anything exactly as we want it?

Well, we all don't get exactly what we want, I say to the Senator, No. 1.

No. 2, under current law, the so-called sneak-and-peek search by which you can, if you are investigating a major criminal enterprise or a terrorist group, actually conduct a search without actually telling the person the day you conducted it, the courts allow you as much time as they choose to allow you, for the most part. Some courts may have said 7 days. I am not aware at all that is the law in this country. It is what the judge says. This sets the standard. It says 30 days, and then they have to be repeated after that.

We have a bill on the floor that is a matter of life and death. I would ask my colleague to be somewhat more amenable to the fact that he won a pretty good victory in conference but just didn't get everything he wanted in conference by going from the House version of 180 down to 30.

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

Mr. President, I want to share some thoughts on the asbestos litigation legislation that is before us. We have a point of order raised. I believe that point of order is a technical point of order. I believe it is not a point of order that has the potential to avoid a large amount of Federal expenditures. In fact, as we all know, the asbestos bill is funded by those companies and defendants who are being sued as an alternative to paying out money from aberrational, disjointed, inconsistent lawsuit verdicts, with 60 percent of that money going to lawyers both for the defendant companies and for the plaintiffs. They propose to pay

this money into a fund, allowing it to be distributed, with 5 percent or less attorney's fees cost, directly to those who are determined to be sick from asbestos.

Surely, we can make this happen. Surely, we cannot allow the spasm that now exists, that is an embarrassment to the legal system, embarrassment to the profession of law, and an embarrassment to Congress for failing to fix it, when the Supreme Court and other judges have, on numerous occasions, called on us to fix it. That is what I would point out.

I was hoping that this afternoon we would be able to discuss votes throughout the day, amendments. Senator Cornyn has offered an amendment, and we have had votes. There are others out there.

I will point out amendments that I have offered and plan to offer which deal with the subrogation issue, particularly involving longshore shipping companies, where they are self-insured, and those companies are entitled to subrogate to some of this money that would come out, under normal circumstances, to money that is paid to the victims. And for a lot of reasons, I think they are in a specific special place that needs some relief. The silica claims, we need to consider that more carefully. I have proposed legislation that if this bill were to fail, the 5-percent cap on attorney's fees would apply, or the court would apply standards of comparable attorney's fees instead of allowing such a large chunk of money to be taken from the victims and their recovery to pay attorneys, as is the case today.

We have some medical criteria in the bill; that is, if you are going to be sick, how do you know it was caused by asbestos; what do you have to show before you can make a claim so that we can pay those who are sick but not pay those who are not sick; or if those who are sick have a sickness unconnected to asbestos, they should not recover from the asbestos fund; otherwise, we would have a fund that can't survive. That needs to be tightened.

Those are some of the amendments I would like to offer. We will get on that presumably next week after we vote on this point of order.

I urge my colleagues not to allow this budget point of order to derail the opportunity we have today--it may be the last, best opportunity--to fix an asbestos system that is out of control. It is just not working right. Under the present system, we are going to have--and we have today--thousands of people who have been injured by asbestos. Many of them are veterans--thousands of people who are injured, some severely, some dying as a result of their exposure, who will not be able to recover any money because the company against which they have a lawsuit, the company which was responsible for exposing them to asbestos, no longer exists. They are bankrupt, and there is no one to sue.

Secondly, we have a large number of companies--77--that have gone into bankruptcy, and many are in bankruptcy now. If we allow this uncontrolled rush to take every dime out of those companies as quickly as possible, as the lawyers for the individuals who are sick are trying to do, those companies, too, will go out of existence.

There are other reasons certain people are not going to be able to recover who are sick from asbestos. This bill would give everybody a chance to have a fair recovery, so I believe it has a big humanitarian benefit.

Also, if we leave these cases in the litigation system, a jury might become inflamed or become sympathetic for a victim and may render a $100 million verdict. Another jury may render a $100,000 verdict. Another jury may render nothing. So we have really aberrational allocations of scarce resources to people who are sick. We need to have a comprehensive system by which those who are sick are compensated fairly, promptly, and without attorney's fees.

There is no doubt, as we know, that the attorney's fees, according to the Rand Corporation, total 58 percent of the amount of money paid out by the defendants. So defendant companies hire their own lawyers, and they are being sued for huge amounts of money, and they hire the best lawyers they can get. They defend those cases. One study shows they get a little more than plaintiffs' attorneys. Then the plaintiffs' attorneys sue, and they take their fee out of the recovery. If you look at it in an economic sense, all of the money paid out by the defendant companies should go to the victims, as much as possible. They should not have to pay a chunk to their own lawyers or a chunk of it to the plaintiffs' lawyers.

We have 60 percent at stake. This bill caps the attorney's fees at 5 percent. So we are talking about 53, 55 percent of the money being paid out by the defendant companies, and it is not getting to the victims. So we have a lot of ability here to do the right thing. We can get more money promptly to victims. We can get victims compensation who otherwise would not get it because the companies they might sue are no longer in existence or there are other legal impediments to it, and we can treat people fairly, and people similarly situated would get similar amounts.

For example, mesothelioma, the deadly cancer that has been connected to asbestos exposure, would result in a prompt payment of $1.1 million to anybody who has contracted that disease due to asbestos exposure. If the doctor diagnoses that and it is not a diagnosis of any real dispute, you simply go in to the claim administration, make your claim, and 50 percent of that $1.1 million is to be paid within 30 days and the additional 50 percent paid in 6 months.

That kind of process is quite different from what is happening today. There are 300,000 lawsuits pending in America. Some dockets have tens of thousands of lawsuits and only a handful of judges. These cases are not going to trial immediately. People are not getting paid promptly. It is an embarrassment to all of us. Some people are getting paid aberrationally and without consistency or fairness. Some are getting a lot, some are getting nothing. Some people are getting paid little checks over a period of 10 years, and there from different companies that settle up. That is not a way to handle a mass tort, where a lot of people are ill, in which the defendant companies are prepared to pay.

All of that is not working right. We ought to take those companies' money--$140 billion of it--and set it aside in a fund and create a fund from which we can pay people whenever they are sick. That can be done, and that can make the system better.

It was interesting to note that we don't often see a lot of agreement between the Washington Post and the Washington Times. But the Washington Post had an editorial today in which they say:

Some amendments may be reasonable at the margin, but the

bill's central idea to replace litigation with a $140 billion

compensation fund, to be financed by defendant companies and

their insurers, must be preserved.

They go on to say:

The fact that the bill is being attacked from both

directions suggests that its authors, Senator Arlen Specter,

Republican of Pennsylvania, and Senator Patrick Leahy, Democrat of Vermont, have balanced competing interests in a reasonable manner.

I am not sure that is totally correct, but there is some truth to that. It says:

But the truth is that the bill's main opponents are the

trial lawyers who profit mightily from asbestos lawsuits and

who constitute a powerful lobby in their own right. Mr.

Specter and Mr. Leahy are, in fact, model resisters of

special interests who have spent more than two years crafting

legislation that serves the public interest. For Mr. Reid to

demean this effort in order to fire off campaign sound bites

is reprehensible.

That is the Washington Post. I certainly agree with that. The special interests here are those who have lost sight of the victims, who have lost sight of trying to create a justice system that works; the special interest of those people engaged in the system who are enriching themselves in it every single day and do not desire to see it end.

But I will note that Dicky Scruggs, one of America's most prominent, perhaps the most accomplished trial plaintiff lawyer in America, who lives in the Mississippi gulf coast area, where asbestos was such a bad problem at the shipyards, commenced this litigation many years ago-- maybe 30 years ago. He just appeared with Chairman Specter and said that enough is enough. We don't need this in the courts anymore. Not enough money is getting to the victims. The system is not working. We need change. He supports this bill. He believes there is sufficient money in it to take care of

those who are sick, and he supports this bill that has my amendment in it that limits lawyer's fees to 5 percent, unless it goes on appeal.

If the lawyer comes in with a client with mesothelioma, gets a doctor's report, spends a few hours on that, talks with the client, files a claim with the board and they give him a date, and they walk down there and have the doctor's report and the physician says this person has mesothelioma, he is entitled to $1.1 million, and a 5- percent fee is $55,000. That ought to be enough. Yet we have people saying that we cannot have these fees. We cannot cut these fees. This is too much.

We are creating a trust fund. If you file a claim for a person under the Social Security Act, the Federal law limits your attorney's fees. If you make claims in workman's compensation cases in most States, attorney's fees are limited. It is perfectly proper to do so. I believe 5 percent is adequate.

The Washington Times said this. It is a conservative newspaper here:

This bill should pass; Senator Arlen Specter, Pennsylvania

Republican, and Patrick Leahy, Vermont Democrat, are due

accolades for getting this far on a longstanding problem that

has befuddled everyone for decades. Many asbestos victims

have suffered or died of mesothelioma or other illnesses

while the courts and Washington struggle with a resolution.

The victims and their families deserve to be made whole.

I believe those were strong and appropriate words.

Then they comment on Senator Reid, the Democratic leader. They say:

Mr. Reid said the bill benefited ``a few large companies''

while supposedly leaving the little guy in the lurch. Really?

Why, then, do insurance giants AllState and AIG oppose the

bill? Why are many plaintiffs anxious to see it pass? In

reality, the big guys speak through Mr. Reid--in this case,

unscrupulous lawyers who stand to profit greatly from keeping

asbestos cases in the courts.

That is who the big guys are who are making the big money. They say:

. . . the FAIR Act offers what nothing else previously has:

A light at the end of the tunnel for claimants.

I think one estimate I have seen has been that $70 billion has been paid out to date to victims of asbestos. Somebody said the figure is more than that. Think about this: think about the fees. Let's say 25 percent of that is a legal fee. Some make more than that. Some of the numbers show 25 percent as an average total when all is said and done. But most fees are normally one-third. What is 25 percent of $70 billion? What, $18 billion? That is going to lawyers. These are not thousands and thousands of lawyers. Really, I would say there are probably no more than a few hundred plaintiff lawyers who are handling well over 50 percent of the cases. So it is an incredible amount of money. We could create a system where you can walk in with a medical report, basically, and have your compensation delivered to you promptly, without all these fees being taken from it.

Why can we not do this? That is why independent groups such as the liberal Washington Post and the conservative Washington Times have both endorsed the bill. I am hopeful that we will, over the weekend, take a good look at the budget point of order that has been raised here. When my colleagues look at it, I hope they will conclude that this is not the kind of budget point of order which was contemplated when this rule was passed. This budget point of order arose from Chairman Gregg's brilliant understanding that many of our entitlement programs are drafted in such a way that when they score that bill, they score it over a maximum of 10 years. People write the bill so it will cost more the next 10 years than it does the first 10 years.

If the Government is starting an entitlement program, you can object if you can show it goes up too much in the outyears, which I think is a good reform. But this bill is not Federal taxpayers' money. This bill represents money that will be paid into the fund by the people who are paying out money now to victims in a willy-nilly, random fashion that is unprincipled and unjustified. They will put the money in voluntarily in exchange for not having to hire a bunch of lawyers to defend themselves in courts in every jurisdiction, virtually, in this country. That is what they are trying to do.

The legislation does not impose any cost on the American taxpayers, and if the fund was to collapse and not have enough money in it, then the taxpayers do not pick up the tab. They do not pick up the tab. The cases go back in the courts, and any companies that still exist would have to pay, just like they would before this reform passed.

I think this budget point of order, for reasons I am not clear about, lies apparently in a technicality. It does not lie in the classical understanding of its purpose to protect the Federal taxpayers because this is not taxpayers' money; it is the defendant companies' money.

When we vote on this budget point of order early next week--I am a member of the Budget Committee. I know Senator Cornyn is and others are who care about the budget. We meet every day and we take heat every day for trying to constrain the growth of spending and entitlements in this country in a rational way to meet the needs of our people. But to stop the abusive growth in these programs, we support a balanced budget. We support containing spending.

Many of the people who are supporting this objection, however, have not demonstrated, in my view, any important interest over the years in containing spending. A lot of them are big spenders.

That objection, while technically is legitimate, does not in any substantive way have an impact on the debt of the United States in the next 30 years as this act would be enforced.

I urge my colleagues to look into this point. Do not allow this supermajority vote. To keep the bill on track, 60 Senators will have to vote to waive this point of order. It would be a tragedy, indeed. When we see Senator Leahy, Senator Specter, and Senator Sessions supporting a piece of legislation, when we see the Washington Times and the Washington Post supporting a piece of legislation, when we see the veterans groups incredibly anxious to see this legislation passed, and when we see overwhelmingly the businesses that are involved in this process and are paying out this money that want to see it passed, why can't we get it passed?

Let's not allow it to fall on a supermajority vote of 60 instead of the normal 50 required to pass legislation. I hope everyone will study it, and when they do, I think they will feel comfortable in voting to waive the budget point of order.

Mr. President, I wish to share some thoughts about NSA, the National Security Agency, and the wiretaps that have taken place, the brouhaha that has occurred in the press and in Congress, and why I believe this program is necessary, why I believe it is legal.

I know the Presiding Officer has been, perhaps, the most eloquent spokesman in the Senate on this subject. He believes this is legal and proper and has articulated those views very ably.

I shared some thoughts the other day about why it is so important, why there is much political goings-on here instead of substance, and why we need to continue with the program. I would like to share a few more thoughts today about the care the administration took to be respectful of Congress, to not overreach their legal authority, and how they worked to keep Congress briefed on what the program was about.

The administration officials briefed congressional leaders more than a dozen times on the terrorist surveillance program. More than a dozen times they went before the proper senior officials of the U.S. Congress--in the House and Senate, both Republican and Democrat--to advise them about what this program was about and what they were doing. That includes the majority leader of the Senate, who is Republican, the Democratic leader, Mr. Reid, and before him, Mr. Daschle. In the House, it includes the Speaker of the House and the Democratic leader. It includes the chairman of the House Intelligence Committee and the ranking Democrat on the House Intelligence Committee; the Senate Intelligence Committee chairman and the ranking Democrat on the Senate Intelligence Committee. Those are what they call the big 8--or The 8. The Intelligence Committees deal with these highly classified programs involving national security.

We have always understood that you cannot tell 100 Senators and 435 Congressmen a bunch of secrets because if you do, they will leak. As a matter of fact, I am sometimes even amazed the eight can keep a secret, but apparently they have done well, at least until the recent leak, and we don't know where it came from. It may well have come from another source.

These eight are briefed on the program. These are the top people in Congress. They are not children. They are not people who can be pushed around. They are grownups holding particularly high offices. If they have a problem with the program, they are not children; they know when it is time for them to speak up, if they have an objection, to raise it, and they did not object. There were no objections made, no call to stop this program by any of those eight people who, over a period of years, were informed.

It actually is more than eight. As I noted, we have had two Democratic leaders, Senator Daschle and Senator Reid. We had Senator Trent Lott, as well as Senator Bill Frist. We had Senator Richard Shelby, as well as Senator Pat Roberts. So there are 15 members who have been briefed on it and had an opportunity to object and have not objected.

Then all this stuff hits the fan in the newspapers and everybody gets excited about it. We have some Democrats saying it is illegal and that it ought to be stopped. They are saying it is illegal. But if you noticed one word they didn't utilize, it was ``stop.''

They caused all this fuss revealing to the world many of the capabilities of the system, making the system less effective than it could be. In fact, Porter Goss, the head of the CIA, has said it has rendered severe damage to our intelligence capability. They did not say stop. Nobody is saying stop. Nobody has submitted a resolution in the Senate to say stop. Nobody has introduced legislation, which they have every right to do, and which we in Congress have a right to do, to cut off funds for this program.

We could end this program tomorrow. All we would have to do is come together as a Congress and say there shall be no Federal dollars expended to carry out a program of surveillance such as this. They would end it just like that.

That has not been proposed. Why has it not been proposed? Because it is idiotic to stop a program such as this. How stupid can we be if we eliminate a program such as this?

There is an article in the Washington Post--it is breathtaking really--in which Senator Biden said:

I don't understand why you would limit your eavesdropping

to only foreign conversations,'' said Senator Biden to

Attorney General Gonzales.

The article seems to suggest, after complaining about the program, they should have wiretapped more people when both ends of the conversation were in the United States.

Perhaps we should consider that. I think there is a realistic basis to conclude that the President has that power if it is relevant to the security of the United States of America. You just have to read through the lines. I was not in the meetings. I am on the Armed Services Committee and I am on the Judiciary Committee where we had a lot of these discussions and hearings. The President and his team at one point said: What about legislation, can we pass legislation?

All the people who apparently discussed this matter were in uniform agreement that if we brought a bill up to specifically authorize this kind of wiretapping, it would cause a lot of discussion in the Senate, and it would reveal to the world the program. So the President basically said: I believe under the authorization of force you gave me to act against al-Qaida, who has declared a war on us and we have declared a war on them, I have the power to do that on international calls; I am confident in that.

His lawyers have written opinions and briefs. They researched the history, and he concluded that he did, and that is what he basically told the eight Members of Congress, and they did not object. They could have said: No, you have to introduce legislation. That is a reasonable statement for any Member of Congress to make to the executive branch: Mr. President, if you think we can write legislation that would allow technology like this to be legal, explicitly by statute, we will have to write it in such a way that it will obviously reveal to those we are trying to surveil what we are doing and what our capabilities are, and it will undermine the program.

President Bush told us straight up in more than one speech: It is my responsibility to defend the people of the United States of America. That is what he said his responsibility was, and I believed it and the American people believed it and we said yes.

He said: I am going to use every tool I have to defend this country. We said yes, and this is one of the tools he has, and he decided to use it. I think he did so in a very appropriate way. Congress has been advised of that.

Some have said it broke the FISA law; it did not comply with FISA. Attorney General Gonzales made a very nice point, a very important point. FISA claims to be the exclusive means of electronic surveillance, and people have cited that principle, but it actually contains numerous exceptions, such as a 15-day exception after a declaration of war in section 111 of FISA, a 72-hour exception for emergency surveillance under section 105, and finally there is an exception for surveillance authorized by statute in section 109.

The idea clearly is that there would be further statutes passed that would expand the FISA law as circumstances develop.

Then Congress, after 9/11, passed the authorization for use of military force against those whom the President finds are responsible for attacking us on 9/11. He has defined that narrowly as al-Qaida. We authorized the President to use all necessary and appropriate powers to surveil or to attack al-Qaida, to go after al-Qaida.

As the U.S. Supreme Court in Hamdi declared, they said the U.S. military can capture, detain, lock up, put in jail as a prisoner of war an American citizen who has associated himself with al-Qaida in the war against the United States without a trial. We have authorized our military under the authorization to use force, to go out and kill the al-Qaida people wherever they are in the world as they are deemed to be at war against us. So it stretches a bit to say you can't intercept their telephone calls. You can lock them up without trial, put them in jail and restrain their freedom--even an American citizen, you can kill them on the battlefield without a trial or a Miranda warning, but you cannot surveil their phone calls.

What the Supreme Court said in Hamdi was that although the authorization to use force did not specifically authorize locking up people and holding them as prisoners of war, it is a natural incident to the power given to the President to conduct war. The power to conduct war is also the power to detain and restrain people who are at war against you.

Attorney General Gonzales has made a very compelling argument. How much less of an invasion of a person's liberty is it to listen to their phone conversation than it is to lock them up in jail? So a natural incident to the conduct of a military operation, since the beginning of warfare--certainly in modern times--has been surveillance and intelligence-gathering operations. We worked tirelessly to break the German code. We worked tirelessly and broke the Japanese code. We were able to listen in on their conversations. That is what you do against an enemy; you try to find out what they are doing and how they are planning it so you can stop them.

I am confident a rational interpretation of the authorization to use force to go after somebody militarily includes the power to detain prisoners, as the Supreme Court has said, and also would include the power to intercept the communications of the enemy.

This is consistent. Maybe ``amendment'' is not the right word to FISA, but it is a statute passed in harmony with the concept of FISA when it was passed. It is a subsequent statute that would take priority over the past statute.

Another argument is the past statute was more explicit about these intelligence matters and said this was the sole way to do it. But I don't think you can interpret an authorization to go to war in any way that would prohibit intelligence-gathering operations. Indeed, the Hamdi case held that previous statutes that said you could not

lock people up under these circumstances were overridden by the authorization to use force because a necessary incident to utilizing military action against the enemy is to lock up people you capture.

There is also, I believe, a good argument to be made that the President has inherent authority as Commander in Chief and a duty consistent with that authority and responsibility to protect the people of the United States. Every Federal court to have decided the issue has held--including the Third Circuit, Fourth Circuit, Fifth Circuit Courts of Appeals--that this is so. These cases involve surveillance that occurred before the FISA was passed, true; but in 2002 a FISA court of review relied on those cases. The FISA Court, created by FISA, relied on those previous cases to make this ruling:

FISA could not encroach on the President's constitutional

power.

That is In Re Sealed Case, in 2002.

Former Attorney General Griffin Bell, himself a long-time Federal judge who was called in to be President Jimmy Carter's Attorney General when FISA was being considered, was asked about this and the President's inherent power. Judge Bell, if you have known him, in that inimitable way he has, said, ``We can't change the Constitution by agreement.''

I would add, a statute can't amend the Constitution. FISA cannot eliminate the powers of the President, those inherent powers to defend America or to authorize electronic surveillance of an enemy with whom we are in combat, al-Qaida, in a time of war. Authorization for force, the President's inherent power--these are clear, I believe, authorizations of force.

We will have a lot of debate about it. We will have a lot of discussion about it. But as you look at it more and more, I think people are becoming confident that these powers exist. Now we have a recent article saying, Why don't you do even more, if you have this power?

Should we pass legislation? Let's talk about it. I think one thing we need to take out of the FISA law is the pretension that it represents the only authority the President has in these areas; that every act has to be done within the FISA. To that extent I believe it is clearly unconstitutional. Those words are not legitimate. They need to come out. We should not pretend to say we have the exclusive power in the legislative branch to override the President's responsibility to defend this country.

Then if there are other ways we can write the statute, I will discuss it. But I frankly am not sure it is going to be a successful enterprise. It is going to be difficult to write a statute that would draw the line on where the President's authority exists and where it does not. Tell you what, I get nervous, I get a little worried when we at a given point in history start writing a statute to define the ultimate power of the President and propose to contain that power because you never know when we will have a problem with it.

The Church Committee came out with this wall, a wall of separation between the CIA and the FBI, and many believed that wall was responsible for the lack of sharing of information between the FBI and CIA. They thought they were doing it for constitutional reasons. They thought they were doing a good thing. But we realized that was a disaster and we tore that wall down many years later, 20 years later, as a result of the experience we had with 9/11. So I would express my concern about statutes dealing with treatment of prisoners or surveillance, that we need to be careful about how we do that. I think the American people believe there should be some flexibility for the President in matters that could relate to our national security and the lives of our own citizens. We need to be careful as we go forward with that.

But to date, we can say a couple of things with certainty: that the leaders of the House and the Senate were informed fully of what the President was doing. They did not object. And the Attorney General has made a compelling case, I believe, that he was authorized to do these national security intercepts, both by the authorization to use force and by the inherent powers given to the President. I would note, also, that the President's narrow use of a power is something that should be appreciated by the critics. He said it can only involve a phone call that is international and a phone call from al-Qaida, in which one member of the call was al-Qaida.

If we do those two things, the average American can be sure they are not getting caught up in it. To hear the news articles, of course, it was domestic spying. That is far from the reality of this situation.

I ask unanimous consent that the recent editorials of the Washington Times and the Washington Post be printed in the Record.

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

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

I believe my colleagues on the other side are not going to use any of their morning business time that is remaining. A minute or less remains. I ask unanimous consent that I be able to commence my remarks at this time.

Mr. President, last night I was in my office in the Russell Senate Office Building and we were evacuated to the parking deck, and following the excellent leadership of the Capitol Police, people responded professionally and well without any undue alarm and showed good discipline and good spirits.

I point that out to ask, have we forgotten there is an enemy out there who desires to attack us, desires to attack our Nation's Capitol, or any other spot in our country, desires to cause us harm, and that we are spending billions of dollars, that some of the best people in this country are working night and day, like our Capitol Police, in localities all over this country to protect us? From local sheriffs, police officers, State police officers, the FBI, the CIA, the Customs Service, the Immigration Service, to all the agencies that are involved in protecting us, they are out there working their hearts out, and sometimes I think we in this body have gotten too comfortable about this. We have been the subject of a declaration of war by al-Qaida. Bin Laden has declared war on the United States. He has asserted it is his right and, indeed, the duty of his followers to attack Americans and even civilian targets, men, women and children.

We have authorized the U.S. Government, the President, and the executive branch to exercise certain rights because it is war. It is not a criminal matter. If we capture our enemies, they are not entitled to a trial in the southern district of New York because they are prisoners of war. They are entitled to be held without trial as every prisoner of war since the beginning of the Republic and the rules of war have been instituted. They are held without trial. In the Hamdi case, the U.S. Supreme Court stated that even an American citizen engaged in the war against the United States can be held without trial as an enemy combatant against the United States because it is not a criminal matter. A state has one primary responsibility, and that is to maintain its existence against those forces that would destroy it.

I would ask if anyone thinks we would have any liberties at all if bin Laden ran this country. He would tell you what clothes to put on in the morning. We would have people not only not being free, they wouldn't be able to drive an automobile--women would not be--under his mentality.

This is a serious question, and we need to respond to the challenge to this country in an effective way consistent with our heritage of laws and liberties. There is no doubt about that.

Secretary Rumsfeld has pointed out recently something that is so obvious, but we should think about it. He said the military challenge today is to find, fix, and finish the enemy. He said there is no doubt if we target and develop a plan, we can finish them successfully. We have that military capability. There is no military in the world capable of destroying the military of this United States.

I ask you to remember what we heard after 9/11. What we heard was our intelligence is weak. What we heard was we did not have enough intelligence, that we did not have enough information to find the enemy; that they had sleeper cells in this country and those sleeper cells were activated by phone calls from Afghanistan and bin Ladin over here to encourage them to step forward to carry out the events that led to September 11. Isn't that what happened? And we had this spasm of self-flagellation about intelligence and how we operate our intelligence community. Our job unfortunately was based on the fact that there were failures and we could have done better, had we had interceptions of some of those 18 responsible for 9/11 prior to 9/11, that if we had been able to listen to those conversations, we could well possibly have taken steps to avoid that and 3,000 American citizens would have civil liberties today. Now they have none because they are no longer with us.

We have to ask those questions and go back and look at the history of our country and what is the legitimate power of the President and our forces in a time of war.

What do our intelligence leaders tell us about the capability of the National Security Agency as it has dealt with the ability to intercept international phone calls involving al-Qaida members? What do they tell us? What do all three of our top intelligence people

say? The National Intelligence Director John Negroponte testified last Thursday before the Intelligence Committee and he stated:

This was not about domestic surveillance. It was about

dealing with the international terrorist threat in the most

agile and effective way possible.

FBI Director Robert Mueller testified last Thursday as well, stating to the Senate Intelligence Committee:

We get a number of leads from the NSA from a number of

programs, including the program that's under discussion

today.

The FBI Director is saying we get a number of leads from this program under discussion today.

And I can say that leads from that program have been

valuable in identifying would-be terrorists in the United

States, individuals who were providing material support to

terrorists.

Let me interject here. I was a Federal prosecutor for a long time. I dealt with a lot of drug gangs and some organized crime-type groups. They are pretty close-knit organizations. Sometimes you don't even know they exist. Then all of a sudden you have the ability to identify them and penetrate the organization and gain information against them, and all of a sudden you realize right in your own community there is a major drug-dealing gang or a major organized crime network. So one tip, one lead from an intercepted phone call, can identify a sleeper cell in any community in America. I kid you not. That is the way law enforcement works.

How do you get a warrant to surveil the sleeper cell of terrorists in the United States? Oftentimes it is this kind of intercept on a national security call from foreign sources here that causes us to have the information that leads to the identification of a group bent on destroying our country.

CIA Director Porter Goss testified to the Intelligence Committee:

I'm sorry to tell you--

And I hope the American people listen to this--

I'm sorry to tell you that the damage has been very severe

to our capabilities to carry out our mission. . . . I use the

words ``very severe'' intentionally. That is my belief and I

think the evidence will show that.

He is talking about the revealing to the world our intelligence capabilities at NSA.

He goes on to say:

When I start talking about the disruption to our plans,

things that we have under way that are being disrupted

because of releases to the press or public discussion; when I

talk about the risk to access, the sources or methods that

are no longer viable or usable or less effective by a large

degree; when I talk about the erosion of confidence in our

working partners overseas, I'm stung to the quick when I get

questions from my professional counterparts saying, ``Mr.

Goss, can't you Americans keep a secret?''

How can we expect them to share intelligence with us if you pick it up in the newspapers? How can we have techniques of this kind and have them leaked to the press?

I would say it is time for us to reevaluate how we do business. It is time for us to realize that we are in a war and that we are entitled to conduct that war and to win that war. Our military and our intelligence agencies have been charged by us--indeed, they have been criticized by us for not being effective enough in this effort.

I will conclude. I see my colleague from Missouri is here, and he knows this issue very well. I would like to yield to him.

I will conclude with this thought: Please note, Americans, that our military and intelligence agencies have every right to intercept foreign phone calls between two foreign sources. That has never been in dispute. The question we have is whether the authorization of force and the inherent power of the President allows warrantless surveillance of an international call that is connected to the group we are at war with, al-Qaida, that calls into the United States. To say we can't do that will lead to this weird result.

We intercept an international phone call that has not been connected to the United States and we discover information that they are planning an attack on France, we can call France and tell them. If they have a plan that we discover that they are going to attack Canada, we can call them and warn them--or New Zealand or Mexico or any other of our allies and friends around the world. But if the call is into the United States from al-Qaida, we can't intercept that call, we can't use that capability to defend Americans.

I believe that is not logical. The American people don't agree with it. They support and expect our military to carry on these activities. I hope and I believe they will be continued.

Why do I believe they will be continued? Because despite the fact that we have told the world of this capability and severely damaged our capability, not one Member of this Congress that I know of has said we should stop it. If it is so evil and bad, why do they say it does not need to be stopped?

I thank the Chair and yield the floor.

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

I would like to say how much I appreciate his leadership. I note that Senator Bond is a senior Member of this Senate and has served on the Intelligence Committee. He has a son serving in the Marine Corps in Iraq right now in harm's way defending this country. He is a brilliant lawyer, made the highest score on the constitutional law test--I happen to know this--when he was at the University of Virginia. I think the American people need to listen to what he says about this issue.

I guess that is my question. Otherwise, I yield the floor.

Mr. President, I respect my colleague from Texas and those others who believe this amendment will be a preferable way to deal with the asbestos morass we now have. I, however, based on my best judgment, cannot agree. It perhaps will make some businesses happy and some plaintiffs' lawyers happy, but the one group I clearly think will not be as well treated and will not have the same guarantees and protections will be the victims.

We are not here to represent any one group. We are here to look at a litigation problem that has gone wild. It has lost control. It is not operating properly. I think the trust fund concept is the only way to make this thing have any sanity about it.

As I understand it, the medical criteria will help a great deal in making sure that claims by people who are not sick are not maintained in court, that they can be dismissed short of trial. That would be a tremendous benefit. I will not dispute that. It would certainly reduce those kinds of lawsuits.

However, it would have no coherence. It seems to me that two people could file a lawsuit, and one could draw a favorable judge or favorable jury and win

$50 million and the other one, I suppose, could win nothing or $1 million. I do not know that it would represent any predictability for the defendant companies so they could show on their balance sheets precisely what they are going to be looking at in the future as they go forward.

It also would maintain the current litigation method of handling the lawsuits. That, to me, is where we have had the most difficulties because 60 percent of the money that is being paid out is being eaten up by lawyers. So if you have lesser numbers of lawsuits but they are bigger and will be more intensely litigated, the defendant companies have to hire expensive attorneys to defend themselves, and the plaintiffs' attorneys, facing top defense attorneys, will charge their normal high fees, as the case may be, and you end up back where we are, as the RAND Corporation said, with 60 percent--58 percent--of the money being paid out in expenses, which is what I would like to see avoided.

The attractiveness of the legislation that is before us is we take the 60 percent that has been eaten up and we take probably 50 percent of that and allow it to go to the victims. They get it, with certainty, in an equal amount. So if you have mesothelioma, a deadly disease, under this system, you could file your claim, with a doctor's certificate stating you have mesothelioma--a fairly indisputable diagnosis--and you get $1.1 million; half of it within 30 days and I believe the other half within 6 months before you die.

As I noted before, why have we had so many mesothelioma widows here? It is because these lawsuits take years. I am not just saying that. This is a fact. These cases take years, and people die of diseases or become disabled without receiving money.

Under this bill, you will be able to get your money promptly. The proposal, as I understand it, will not necessarily fix that. Maybe the cases could be settled.

Again, I say to my distinguished colleague from Texas, we agree on so much of this. I certainly will say this. His proposal would be far better than the current system.

There is no doubt about that. The current system is absolutely indefensible. It is to the point that it is immoral, and the Congress has no higher responsibility than to make sure our legal system is working effectively. It is not happening that way.

I believe the medical criteria in the base bill before us is not tight enough, that it will still allow a large number of people to maintain lawsuits for diseases they were going to get anyway from other natural causes or misbehavior such as smoking. They were going to get those diseases anyway, and they want the asbestos fund to pay for it. When it is connected to asbestos exposure, and it can be shown scientifically, this bill allows for that. It actually allows for people to draw on the fund who probably shouldn't qualify for it.

I am for tightening up those criteria. I am for eliminating the frivolous, baseless lawsuits where people are not sick, which this Cornyn bill would do. But I do believe it would undermine one of my highest goals in this legislation, and that is that we would be in a position where you make a claim like you would in workers' compensation. You have so much injury, you get so much money, and you get it promptly. And the maximum attorney's fee would be 5 percent.

I don't see how you can limit attorney's fees if you are going to have a long, competitive trial. The victims are going to need top- flight attorneys, and the defendants are going to need top-flight attorneys. The juries are going to be calling these cases. Some of them are going to say big verdicts, and some of them are going to say little verdicts. We will have more inconsistencies, more jackpot justice than I would like to see.

I am reluctantly of the opinion that this would not be the best approach. If this bill gets any worse, I would certainly see that the suggestions of the Senator from Texas would be preferable. If this bill were to flounder and isn't successful, I certainly would agree that his proposal is better than the current law and would support it. Right now, the Specter legislation is preferable.

I yield the floor.

Mr. President, how much time is left?

Mr. President, I will yield the floor when Senator Specter returns. I will say a couple of things. First, under this criteria bill--which has good criteria and some very good provisions in it--veterans are not going to be able to recover. Veterans don't have anybody to sue, and they would be very much disadvantaged. That is why they oppose it.

No. 2, we would still have litigation, and the reason litigation now ceases to be wise is because the defendants are prepared to pay. It is basically not a question so much of how they are responsible--whether anybody is responsible for damages; they are prepared to pay, but they want to know a predictable amount that they are paying, No. 1, and they want to have it paid fairly.

Under this system, if you meet the illness criteria and you are able to proceed with your litigation, one person with asbestosis, who seriously has a disability, maybe is on oxygen--as I have known people to be as a result of breathing asbestos--they might get $100 million, literally. Another person may get zero. So I think we have this aberrational way that a certain limited amount of resources would be utilized to help people who are sick.

We are at a point now where we have created a circumstance that would allow a fairly even workmen's compensation type distribution of it. Secondly, it allows the litigation spasm to continue. Yes, it will take out the bogus claims from people who are not sick and who don't need to be in court. Those claims will be able to be removed. But they will have large numbers of trials of those who actually are injured by asbestos, and the lawyers on both sides have to be compensated. We know today that those compensation arrangements turn out to eat up 58 percent of the cost of what the defendant companies pay out. In other words, many of these companies that are in bankruptcy, and many more on the verge of bankruptcy and could be pushed into bankruptcy, are paying out to victims, but only 42 percent of what they are paying out gets to the victims.

So I was hoping in this legislation--my vision has always been, how can we not fix this system? How hard is it to take this 60 percent, allow the business community some predictability and certainty over 30 years, and get more money to the victims quicker and faster? If, instead of 300,000 pending lawsuits, let's say you have now 150,000 pending lawsuits, that is a lot of lawsuits. That is a lot of lawsuits. And they are pending by the thousands in certain districts in America. People are not going to get trials right away. They are not going to be able to say I want to have my trial today; I have a serious asbestosis; I am on oxygen; I may die soon, or I have mesothelioma, and this is a deadly disease, and the doctors say I only have 9 months to live, and I want to have my case tried. It is not going to happen that way. It is not happening that way now, and it will not under this bill.

Therefore, people are going to die and suffer in poverty for years before they get any payment; whereas, in this bill, we can get the money to the victims promptly and fairly, in an objective way, with plaintiffs similarly injured, similarly situated, getting similar amounts of money--generous amounts

of money. As I noted, a mesothelioma case gets $1.1 million. Half would be paid within 30 days, without any need for an attorney whatsoever. You go in with a medical claim, and if an attorney is involved, the maximum he could get is 5 percent.

My colleague from Texas said we modified the attorney fee rule, and I was at fault for that. Senators Specter and Leahy and others asked we consider the fact that when cases are appealed, they tend to become complex and require quite a bit of lawyer time, and we ought to allow lawyers to have more than that, if the judge approves it. So I thought that was a reasonable request. We have amended it only to that small degree. It is not an opening up of attorneys' fees under this bill.

I am concerned that some of the primary advantages of asbestos reform would not be availed under this amendment. That is why I am reluctantly not able to support it. I hope we can continue with the bill and that other people will bring forth thoughtful amendments, as Senator Cornyn has, and those who joined with him and presented it in a thoughtful way. But as I have stated, I don't believe it is the proper vote.

I yield the floor.

Mr. President, I serve as a member of the Budget Committee, and I am very pleased that Chairman Gregg put in language that allows for this budget point of order. I think it has a potential in many of our entitlement programs to help rein in abusive spending. But this is quite a different matter, I say to my distinguished colleague, Senator Ensign. He is such a terrific asset to this Senate, a great member of the Budget Committee, and is rightly engaged in trying to make sure we don't throw away money. I hope I have been an ally with him in that process.

But this is not Government money. This is money put up by the defendants who are paying out every day in judgments and lawsuits all over America. They have said: We are tired of having 58 percent of the money we pay out not get to the victims. Only 42 percent gets to the victims. We ought to create a system to allow victims to get more money, and we can have a little certainty as to what we pay out. So they agreed to pay into this fund. It is not the Government's money. It simply would be administered by the Department of Labor and, therefore, apparently the experts say it qualifies for this objection.

Let me say what happens if there is a shortage. What happens is the fund fails, the FAIR Act ends, and the plaintiffs get to go back to court, as they are today, and file their lawsuits. And the Government is not on the hook for that money, if there is a shortfall, No. 1.

Senator Ensign correctly guesstimated that more money would come back from foreign company profits into the United States with his tax relief bill than CBO did. Well, I would say this. I can guesstimate this. At one point, I represented plaintiffs. I see that the lead plaintiff lawyer in the history of this litigation has made an estimate on it and he has concluded there is plenty of money in this trust fund. Why is it likely, in my opinion, that there is enough money? People say there is not enough money here and it is going to fail. Why would I conclude that may not be so, that probably the fund may survive?

First, those who are putting money into it think it is enough. They would not subject themselves to this if they didn't think it would work. Second, CBO estimates it, and why would they estimate something in this nature? The reason is, somewhere in the 1970s--probably early 1970s--people became sensitized to the dangers of asbestos. They learned about it and crackdowns were undertaken to limit exposure. By the time 1980 got here, very strict rules were imposed--and that was 26 years ago--on how to handle asbestos, and exposure today is nil compared to what it was in the 1940s and 1950s, when people were unknowingly placed in positions where their health was destroyed as a result of massive exposure to asbestos fibers.

So it is obvious we have very little asbestos in our society today. If you even see somebody take asbestos out of a building today, they have masks on. All of this stuff is required by OSHA so that not one fiber will touch them. I think the likelihood is that we are going to see a continued decline in the asbestos claims and, as a result, I think it is possible--although I am certainly not an expert--that CBO, plaintiff lawyer Dicky Scruggs, and others are correct to conclude there is enough money in the fund to make it go.

There are a few things we need to do, however. We need to tighten up several of the medical criteria issues in this legislation so it will be sure to be successful. If we allow people to come into the fund because at one time or another they were exposed to some asbestos and they may contract some cancer or some other disease, and they can then claim they are, therefore, owed payment from the asbestos fund, we will never have enough money. The criteria we have today are far better than exist in the courts of America, but I think there needs to be some further tightening up, so that people who are sick from asbestos get paid and paid generously, but people who contract other diseases are not unjustly enriched by being paid out of a fund that is designated for people who have contracted disabilities and diseases as a result of asbestos. That is what is fair and just. That is what the fund should do. I hope we will be successful in reaching that.

I say again that I respect this point of order and I respect Senator Ensign for raising it. I point out this is indeed technical in the sense that the monies in this fund are not Federal Government money, and that if the fund runs out of money, the Government doesn't put in extra funds. It goes back into the litigation system and the plaintiffs continue their lawsuits in that fashion. Therefore, I think it would be wise under these circumstances to waive the Budget Act.

I thank the Chair and yield the floor.

Mr. President, I think the first time I heard the figure 31 to 27 was by Senator Durbin. It didn't surprise me, really. The asbestos defendant companies are hiring some of the best lawyers in America, and they charge them big fees. It is part of what they cost. If it is 31 percent for the defendants' attorneys and 27 percent for the plaintiffs' attorneys, I am not really surprised. I had no idea precisely how it would come out, but I am not surprised at that.

What I would say to my colleagues here in the Senate, however, is that it is not disputed that 58 percent of the money paid out by the defendants is going to lawyers and not to the victims. It goes to the plaintiff, and the plaintiff has to pay almost half of the judgment to his lawyer, so he or she doesn't get to keep all the money. He has to pay this big lawyer fee. Plus the corporation is being sued and has 31 percent of what he is paying out going to his own lawyers. So who is winning here? This is really indisputable. Who is winning here? The legal system is grinding up people and companies in an extraordinary way which just has to be ended. We have to work our way through this.

It is so great to have a Presiding Officer, a medical doctor, try to help us deal with some of the medical criteria.

There still remains a great weakness in this bill in a number of things.

My colleagues present the most contradictory arguments. One time they are in here saying we have to have it in the Department of Labor, or we have to pay more and more and more, and then they come in and make the argument that these funds traditionally get out of control.

When Senator Coburn and Senator Cornyn propose an amendment that tightens the medical criteria a little bit, they object and vote against them.

This would be sort of amusing if it wasn't such a serious thing.

Some of my colleagues have been saying that the fund is clearly going to fail because we underestimate the number of claims. Claims are not the real problem. This bill is going to help with the claims. I don't know how many claims this bill will reduce--not quite as much as the Cornyn bill did because it was better criteria, in my view; more realistic, according to medical data and science.

But under this bill, I would guess that 40 percent to 50 percent of the current claims are not legitimate.

It prohibits and bars claims when a person is not sick. The latest estimates are that half the claims being filed today are by people who are not sick.

If you have asbestos exposure and you can see some scarring in a person's lungs, the chance of that person getting sick are enhanced. And under this legislation they don't get paid right then. But if they are monitored medically, and if they become sick, they will get compensation.

That is the best way to handle that, for sure.

If you get sick, you simply walk in with your doctor and with a report that says what the degree of illness is, another doctor will probably check that, and if it is verified, they will write you a check. You do not have to give a third, a fourth, or 40 percent to a plaintiffs' lawyer, and a defendant corporation isn't having to hire lawyers to defend against the lawsuit.

My colleague, Senator Durbin, is so eloquent and is a skilled lawyer. He made an argument that I suppose people listening probably took a bit of an interest in and wondered about. He declared that the 10 companies with the most exposure would pay substantially less under this trust fund than under a court process--$20 billion less.

Let me say two things about that.

It is not a question of how much they pay out, it is how much gets to the victims, people who are sick. That is the most important question. How do we get more money to people who are sick without having to have the whole business collapse?

Second, he did not point out the fact about these tier I companies. These are the companies that are in bankruptcy. They are in bankruptcy already as a result of this litigation. There is only so much a company can carry. If you kill off the company, what do you do then? How can anybody be paid?

You can't destroy the companies totally and take them out of business if you expect them to continue to pay, for 25 years, people who become sick.

That is why they already have protections in bankruptcy, and they are paying through the bankruptcy court less than they would be otherwise. To keep these companies in the game, keep them alive, we give them a certain amount they have to pay depending on how big the companies are. And some are big and can pay a sizable amount--and they will pay a substantial amount of money, but they won't be going bankrupt.

A lot of people do not understand this. If the company that is responsible for exposing you to asbestos no longer exists, whom do you sue? If there are two people who have been exposed to asbestos, both of them have serious lung damage and it reduces their capacity to function, let us say both of them are entitled to a $200,000 judgment. One of them wants to sue a company that is gone, no longer exists, the company that is responsible, you would say: Well, they will be able to recover somewhere. No. If the company no longer exists that exposed him, that

person won't collect $200,000; he won't collect a dime. But the other one happens to have been exposed by a company that is still in existence and has money, or insurance, they can collect the full $200,000.

That is happening today.

To make it crystal clear, I will ask you about an automobile accident. Have you ever heard of people who have been run into, have an automobile accident as a result of a drunk driver who is uninsured and somebody is injured, they say, I am going to sue them and I am going to get a $1 million verdict. You know what the lawyer says? Does the defendant have any money? Well, no. Does he have any insurance? No. What does he have? He has a rental, that is the only car he had, it is a piece of junk, and it is not worth anything. The lawyer says: If you get a $50 million verdict, you will not collect one dime. It is not worth the trouble to go to court over.

This happens in America. It is the way the law is.

But this trust fund says whether the company that exposed them and injured them is in existence or is not, they will be able to recover too out of a uniform trust fund. And companies that are bankrupt will be able to pay at a level that allows them to stay in business and continue to pay into the trust fund.

Seventy-seven companies are already bankrupt. They say: Well, we are going to make more companies pay. We are going to make more companies pay than are supposed to pay--somehow make them pay more than they are supposed to pay. But let me say this to my colleagues or anyone who may be listening. Now there are 8,400 companies being sued, being dragged in, and many of them have the most tenuous exposure.

I remember very vividly a man coming into my office. He bought a company that at one time sold asbestos and had not sold asbestos for many years before he bought it. He buys it and makes it a part of his company. The next thing he knows, all of them are beginning to go at that little company as a defendant which he bought, and he is liable for it. Money is being sucked out of his whole, big company and going into this fund.

These companies realize that. They may not be the main target today, but the clever and sophisticated and determined plaintiff lawyers have demonstrated a capacity to add on companies and make them liable more than they were before. Many companies are willingly prepared to pay into this fund so they won't be sued for the rest of their existence; so when they go to a stockholders' meeting and write a prospectus which shows what their liabilities are, they can say exactly what their asbestos liability is rather than being required to list 5,000 asbestos cases filed against them.

Somebody may say: How much is that going to cost? Well, we don't know. Well, could it be $1 million each? Well, we do not know. We don't think so. I may not want to invest in your company. I may not want to buy stock in your company. I have to have some more certainty about how much you are going to pay.

That is one of reasons we are trying to pass this trust fund, so the defendant companies can say to their stockholders and would-be investors and those who would contract with them what their future financial prospects are.

Isn't that a good public policy thing to try to do?

Veterans, if we don't pass this bill, you are not going to be able to recover. Most of them have nobody to sue. You can't sue the Federal Government for this. A lot of other people already have found that the people they are entitled to sue by law either have no money or no longer exist.

I will say this: I think the legislation is headed in the right direction. I believe that Senator Coburn is correct. We need to watch this criteria. If we get that wrong, it can take this bill down. A doctor knows that thousands of Americans every day who are not exposed to asbestos get colorectal cancer or get throat cancer or get prostate cancer.

If somehow anybody who had any exposure to asbestos is not going to be able to come into the fund and demand that the fund pay them for cancer which they may have been genetically predisposed to, whether or not they have been exposed to asbestos, we have done something that is dangerous and the fund may not be able to survive.

The Congressional Budget Office says this fund, as rewritten, will survive. But I believe it could be tightened up to make it better. I believe that the fund has a chance to be viable throughout its entire life and fulfill its promise because we have done a better job in recent years in dealing with exposure to asbestos.

There has been a sea of change in what has happened. In earlier days, the companies did not warn the people who would be using their product about how dangerous it was. Even after they knew it was dangerous, they didn't warn them. Now everybody is warned. For 30 years, maybe 35 years, there has been exceedingly great care utilized when asbestos is about. You see people with masks on and all of that.

I think it is logical to assume that we will continue to see a decline in the claims and also this bill will take out the unjustified claims. Claims of people who have not been given any disability or sickness, even though they have been exposed and they get sick, they will be paid. If they don't get sick, they won't be paid.

That will reduce a lot of the claims. It will come down to people with legitimate illness. If a person comes in with that most grievous disease, mesothelioma, which is generally a fatal disease, this would entitle them to claim $1.1 million dollars, be able to have half of it paid in 30 days and the other half in 6 months.

Today, they do not know what they will get, and most of the claimants are deceased before money is recovered.

I suggest the absence of a quorum.

Mr. President, I urge everybody who has questions about this legislation and who did not hear Senator Cornyn's remarks, to get a copy and review it. I think he made some terrific points and has gone to the heart of the issue and explained a lot of what we are doing.

Mr. President, the asbestos system, as it is operating today, is fraught with misconduct and inefficiencies and unfairness. That is an absolute fact. I had been involved, as a private lawyer, many years ago--I guess in the late 1970s--with some of these cases. I wish to say that I was representing plaintiffs who were injured badly as a result of severe asbestos exposure--people inside ships and submarines, cutting asbestos with electric saws where the air was so filled with asbestos dust that they could hardly breathe. They had to leave the submarine to get fresh air, and then go back in to work. They were severely damaged and disabled as a result of that. People like the plaintiffs I represented deserve compensation, there is no doubt about it.

Since sometime in the 1970s, it has become clear that asbestos is a dangerous product and there have been complete changes in how it is handled. Asbestos today is almost treated similar to nuclear waste. We have had laws to prohibit it altogether. If you see somebody removing asbestos from a building, they have masks on, and they do all these things with the greatest of care so they are not exposed. But some exposure for most people does not result in serious illness, or any illness at all. But certain exposure can. So it is a dangerous substance, and it creates a lot of stress and concern that a person might get sick. For those who are currently sick, they deserve compensation. So I say it is rational that some people have filed lawsuits to seek recovery.

But the way these lawsuits are now proceeding through the system makes very little sense. We have 300,000 cases pending today. Plaintiff lawyers get a chunk of those fees or recoveries on a contingent basis. We have criticized them for taking their third or 40 percent, or whatever they get out of a recovery--money that on the docket sheet might look like the plaintiff got $100,000, but the truth is, right off the top comes $30,000 to $40,000 that goes to the attorneys, not to mention the cost of buying depositions and the cost of medical witnesses who testify at trial. That all comes out before the plaintiff gets any money. That is the fact, the way it works. I was never been proud of how this system worked in the asbestos cases I saw when I was involved with it. It has gotten worse today.

Groups of lawyers have made hundreds and hundreds of millions of dollars out of these cases, and they file thousands of suits. They may have 10,000 cases pending. Plaintiffs are grouped, and then are not given individual attention. The lead lawyers probably don't even know the plaintiffs' names, and probably have paralegals interview them. So the system is even worse than when it initially started.

What else has occurred with the system? We are having people who are not sick, as Senator Cornyn noted, recovering money and putting companies into bankruptcy; they may never get sick and probably will not get sick. Those cases are crowding out the cases of people who are sick. As I noted last night, there are widows of mesothelioma victims, a deadly cancer that is clearly tied to asbestos. We have those widows--some are for the bill and some are against the legislation-- lobbying us. I say to those widows that the sad thing is that your husband--or it could be a wife--did not get paid before they died. Why can we not create a system in which widows are not out here trying to claim the money, but instead we have a system where money goes straight to the victims, in their days of illness, before they pass away. Isn't that a better system?

Under the national fund, if a person has mesothelioma and can show an exposure to asbestos, they can walk into the Administrator's office-- the office that will receive the claims, with a doctor and a medical report that demonstrates that this person has a disease--and if it is not contested--and I don't think many mesothelioma cases would be--they get a check right there for 50 percent of the $1.1 million. And then the other 50 percent has to be paid, as I recall, within 6 months. So they get a million dollars while they are alive to take care of their last days and their families, instead of having these lawsuits out here pending literally for years while people are dying without receiving compensation. That is happening today.

These cases are not going to trial with big verdicts returned. They are clogging up the system. They are suing hundreds of defendants per plaintiff. Some defendants agreed to pay 250, others 150. The lawyer is taking out their fee, and little checks are going off to people who are sick. They never know how much they are going to end up with before it is over. They started out with 300 defendant companies, I believe, that shipped asbestos, that knew asbestos was dangerous and did not put warnings out, allowed people to breathe it and injure themselves, destroy their health. Those 300 companies

were the only ones originally sued. There was a long battle over that.

Then there was the decision that said, Well, if you were one of the companies that shipped asbestos into Engel's Shipyard, and you cannot prove when you shipped it, but if you shipped it in at any time, you are jointly and severally liable with everybody else. So plaintiffs would not have to prove that they breathed this asbestos--whether it was Owens Corning or Johns Manville or anybody else; as long as the company shipped it in there, they were liable, too. So that opened things up and more cases were filed. And then good lawyers figured out a way to add more defendants and find more deep pockets with insurance. And from 300 defendants, we now have 8,400 companies that have been sued.

One of them I remember several years ago came to me and told me this story. He said: We bought a company, a subsidiary, that for 2 years had sold asbestos. They had not sold asbestos for many years before we bought them. We bought them, and now we are as liable as any company in the country. It is like they put an IV system running through the subsidiary right into the heart of another company that never was involved in shipping asbestos without warning the recipients. Yet they are responsible for funding all this.

So this is the way this issue has mushroomed. This is the way it has really happened. That is why we have thousands of companies willing to pay into this fund to get relief.

I mention the cost of the plaintiff lawyers, but think about these companies. They have lawyers, too. They have to pay them, and these are some high-paid lawyers. If you are, indeed, being sued for $100 million a person, and you have a number of claimants out there, you have to hire good lawyers to defend you.

The RAND Corporation study has concluded that 58 percent of the money actually paid out by companies that are defendants did not get to the victims but was eaten up in these kinds of costs, like fees for plaintiff and defense attorneys. It is really tremendous.

It started out with some tough litigation. Dickie Scruggs of Mississippi, a brilliant lawyer, believes these cases were justified. He thought up the cause of action. He battled these cases for years. He overcame all the legal defenses and then found the evidence that was critical to these cases. Then they found evidence that the company that shipped asbestos had known all along this was dangerous and did not tell anybody. They had a smoking-gun memorandum. That is how it started and went forward.

Dickie Scruggs, just a few days ago, appeared with Chairman Arlen Specter and said: We are beyond that now. These cases ought to be settled based on the health of the person. It is not necessary to have them all in courtrooms all over America. It should not cost so much. It is a whole different ball game now.

Now the companies are willing to pay money. They are not defending on the basis of whether they should pay. They only want to pay a fair amount, and they want some certainty in how much they pay. Dickie Scruggs thought that was reasonable. He said people who are not sick are being paid and the costs are too great.

It is interesting that the real architect of these cases who represented the first plaintiffs and who battled those cases forward through all the objections and battles that occurred now says this bill is good for the plaintiffs.

Some say some businesses might pay too much. I don't know that they know how much they are going to pay and how much they should pay. We are not here as Senators to decide whether companies ought to pay more to plaintiffs, or which defendants should pay more, and how much a plaintiff really should get, except to say we need to create a system that fairly allocates the money to the people who deserve to be compensated, and that the money is fairly distributed.

There is a limited amount of money for asbestos cases. Quite a number of companies have gone into bankruptcy, and many more will follow. If they go into bankruptcy, they do not have to pay anymore. You can't get blood from a turnip. You are not going to be able to recover from bankrupt companies. Creating a system that allows the companies a chance to survive, to make money and to create wealth that they can then pay to people who are sick makes sense. That is what this bill tries to do.

Those are achievable goals. The simple matter is, when you have almost 60 percent of the money paid out by these defendant companies going to costs, why in the world can't Congress come up with a plan to take that 60 percent, not let it be eaten up in costs, and send it straight to the victims? We can do that. That is what Senator Specter, Senator Hatch, and others have worked for years to accomplish.

Lester Brickman, a professor of law at Yeshiva University in New York, who published an extensive article in the Pepperdine Law Review, had this to say about the asbestos litigation:

The rules of ethics don't apply to asbestos litigation.

Everything you see with asbestos is slimy. It's all under the

radar screen and it's infected with self-interest and illegal

behavior.

That is a pretty strong statement. I have to tell you, Mr. President, there is too much truth in it. It shouldn't be that way. We can clean it up. It is time for reform, and that is what we are about today: cleaning up what has become a haven for abuse. We need to establish a system where real victims, those truly and currently sick from asbestos exposure, can receive immediate compensation.

I know there are some who have concerns about S. 852. You can count me among those who believe this is not perfect legislation, that there are still some things that have to be done to fix it. However, it does represent a good start, and I think with certain amendments on the Senate floor and in conference it can be made better. If we work together, we can pass a bill that will help solve this current asbestos crisis.

The asbestos litigation affects our economy adversely in a significant way. It has had an undeniable impact on jobs and economic growth. Instead of spending money on increasing production, expanding jobs, research and development, companies have had to spend millions of dollars paying claimants and fending off lawsuits.

The runaway asbestos litigation system has forced many companies into bankruptcy. Seventy-seven companies are in bankruptcy or on the verge of bankruptcy because they have been the target of asbestos-related lawsuits, causing them to lay off 60,000 American workers who have in turn lost $200 million in wages. That is not a small matter.

Companies are not saying we don't have to pay anymore. In fact, they are prepared to pay $140 billion. They are saying: Give us certainty so we can go to our shareholders and plan our future over the next 30 years, and then we can provide more money to actually go to the people who are sick and less to overhead costs, lawsuits, and lawyers. We will be happy; we will take that. That is the opportunity we have today.

We must be sure that the trust fund we created preserves limited resources for the truly sick and does not pay claimants who have no real injury or whose sicknesses were not caused by asbestos. We are talking hundreds of thousands of people who have had some exposure to asbestos. Only those truly sick should be compensated.

For example, thousands of people have developed colorectal cancer. Are the asbestos companies liable for everybody who at one time worked for them or was exposed in even a slight way to an asbestos product? Are they liable for diseases unlikely to be caused by asbestos? If you get skin cancer, are they liable for that, or heart disease or throat cancer? Maybe, maybe not; it depends on what the science says.

Efforts have been made to place into this system liability requirements on defendants to pay damages for diseases that may have had no connection whatsoever to asbestos. That is the way you kill this system. We can't do that. We cannot have this fund, which has a limited amount of money--huge as it is--with these thousands of claimants--to pay people who are not sick because of asbestos--we have to be generous with victims, but we cannot be paying people whose sickness is not related to asbestos.

Again, there is very little evidence, if any, that colorectal cancer would be connected to asbestos.

As I noted, we now have 8,400 companies that are being sued as a part of

this process. Many of these have a limited link, if any at all, to asbestos but are named in the lawsuit because most of the original manufacturers that were sued have gone bankrupt.

In a statement to the New York City Bar Association, U.S. District Judge Jack Weinstein--one of the most famous judges in the country, I would add--had this to say about the impact asbestos litigation was having on certain companies' ability to stay in business:

If the acceleration of asbestos lawsuits continues

unaddressed, it is not impossible that every company with

even a remote connection to asbestos may be driven into

bankruptcy.

These bankruptcies are not only a threat to jobs and the incomes of American workers, they threaten retirement savings. The average worker at a bankrupt asbestos-related firm with a 401(k) plan suffered $8,300 in pension losses. Of course, in a number of instances, when a person loses his job, he loses his health insurance as well. So this litigation is having an impact on real people.

Judge Weinstein said even a company with a remote connection to asbestos could go bankrupt. One could ask, How is this possible? It is like I said before; this litigation is like an IV system that goes through one person, sucking all the blood out of them, and if they can find another person that has blood in them, they will begin to suck it out of them, too. It is just that simple. Whoever has the money is who they will go to next. Whoever is left standing is the next one this litigation turns on and in an attempt to show they are liable.

We need to bring predictability to this system by creating a national trust fund. If we succeed, I believe the companies with asbestos liability will then be able to start creating jobs rather than eliminating them.

We have a lot of important issues we are going to confront as we hammer out the final language in this legislation. It would be a shame on this Congress if somehow, some way, we cannot pass solid legislation that takes 60 percent of the money that is now going to overhead and lawyer's fees and use that to create better benefits for the plaintiffs and provide certainty to the defendants so they can plan their future without going bankrupt.

Mr. President, I yield the floor.

I appreciate the comments of the Senator and his leadership on this important issue. It is certainly one important for our State and all States.

I see the Senator from New Mexico. I yield the floor.

Mr. President, the Senator from New Mexico should be congratulated for his leadership on this issue. He has understood it from the beginning. He warned us about the dangers of surging natural gas prices for years and years. As a matter of fact, I can remember a host of committee hearings in which Alan Greenspan

warned us that we need to do something about natural gas.

Isn't it true that we have now not only homes being heated and businesses being heated and we are using natural gas for fertilizer and other things, but electricity is using more natural gas than ever, to create our electricity? Is that the Senator's understanding?

Natural gas wells. I live in Mobile, AL, on the gulf coast. We have a lot of production right around where we live. We have never had any serious spills, to my knowledge, that amounted to real damage to the environment since the beginning. They are more safe and careful today than they have ever been, and the technology is better than it has ever been.

We are having a debate now about liquefied natural gas and building terminals where we send our money off to some foreign country that may be hostile to us, and they freeze, liquefy this natural gas at great expense, transfer it all the way over the ocean, and then they have to heat it up, which causes environmental problems, and then put it in our pipelines, and instead of the money staying in our country, it goes around the world.

When we have these huge reserves right off our own shore, doesn't it make sense to the Senator that we ought to go forward and produce? I see the smile on the Senator's lips. We have been through this before. But it is really pretty basic.

I hope the American people are beginning to understand that we can't deny ourselves. Do you know where they get the oil and gas from the Persian Gulf? They get it out in the water. If it is an environmental issue, it is as bad to get it out of the Persian Gulf, I suppose, as out of the Gulf of Mexico, and certainly economically it makes more sense, I believe.

Mr. President, I would be pleased to be part of it and sign onto it. I thank the Senator from New Mexico for his leadership in constantly pressing to make sure this Nation does not make a mistake. We have made a lot of them in our energy policy. We have been blessed to have the Senator there.

We are now talking in Mobile about a new LNG terminal. Some people are concerned about it. We need to be very careful about it. But it costs so much more to import liquefied natural gas and then to regasify it and ship it around our Nation than to produce it off our own shore. And when we produce it off our own shore, the money stays in the United States; it doesn't go to these foreign countries.

I believe, from an economic point of view, we have huge reserves out there. I will share, maybe, my thoughts a little later. Maybe Florida was legitimately nervous in the early days about these wells and whether they would damage their beaches. But this far offshore, production has proven now year after year after year to be safe. It is not their waters. These deep waters are not Florida waters; they are U.S. waters.

We need to begin in a careful way to examine how we deal with this and see if we can't increase our production in the gulf. Alabama has found it to be safe. It is somewhat beneficial to our Treasury.

Mr. President, I see the other Senator from Montana in the Chamber. I thank both of them for their strong advocacy on this question. Senator Burns is, again, offering an amendment, I believe.

To carry this further, I will say this to our colleagues. Now is a good time for debate. If you have amendments, let's bring them on and discuss them. Senator Specter and Senator Leahy, the chairman and ranking member of the Judiciary Committee, with bipartisanship, are committed to this legislation and trying to make it work. We are delighted to hear the debate. We cannot accept everything. But your ideas are being listened to. Some will be voted on. We will have a better bill when we complete the process.

I yield the floor.

Mr. President, I ask unanimous consent that the following Judiciary Committee interns and clerks be granted the privilege of the floor for the remainder of debate on S. 852, the Fairness in Asbestos Injury Resolution Act of 2005: Adam Adler, Jessica Kane, Robert Newell, and Raj Parekh.

Mr. President, I appreciate very much the leadership of the chairman. We have been working on this idea for quite a few years. I believe more strongly than ever that it is time to fix this broken system. I will talk about that more.

If the chairman does not mind, our colleague, Senator Ben Nelson from Nebraska, wanted 2 minutes.

I yield the floor, and I ask unanimous consent I be recognized after Senator Nelson.

Mr. President, the asbestos litigation in America today is out of control. We have been working on fixing it for years. In a previous life, I represented two plaintiffs, people who were injured from asbestos, seriously injured, and adversely affected in their health. I was embarrassed by how long it took, and by how many fees and costs came out of those cases. I have been embarrassed over the years to see this spasm in our legal system continue daily, not dispensing justice in a fair and legitimate way.

We know from a Rand study and from our own experience that 58 percent of the money paid out by these defendants does not go to the people who are sick; it goes to lawyers. Somebody made an interesting point--I believe it was Senator Durbin--that actually a slightly higher percentage of money goes to defense lawyers than to the plaintiffs' lawyers. Regardless which side receives the money, over half of it is going to lawyers.

If you are sued for $50 million and your corporation hires the best legal team possible and spends all this money, and there are court costs and depositions and fees for experts, it eats you up. When the judgments come out, often after years of work, very little money goes to the victim. It is not right. It is the worst performance by the legal system, in my view--other than discrimination based on race in our past--since the founding of the Republic. This cannot be justified, although it is happening this very day in courts all over America.

Over 700,000 individuals have filed asbestos claims, and as many as 300,000 of those claims are pending today. The number of asbestos defendants started out at 300. These defendants were the people who made the asbestos, who shipped it out, who at some point became aware that asbestos was damaging to their health--they put no warnings on it--and just sent it out. Those people were the original asbestos defendants. The original plaintiffs were directly harmed by their actions. For example, my client was in a submarine, sawing asbestos with an electric saw in that confined space, breathing untold amounts of asbestos. By his early fifties, he was on oxygen. That is reality. That happened.

Today, we have people who worked in a repair shop who claim somehow the brakes had asbestos in them and are now responsible for a disease they may have. And it may not be true. The damage is much less in many of these instances than it was for my client and others like him. Yet under the current system, these shaky claims get compensated. We need to sift through this mess and create a system that will work.

Mr. President, $70 billion has been spent today to resolve asbestos- related claims. Of course, less than half of that $70 billion got to the victims. Companies are settling claims filed by people who are not sick because they cannot afford to litigate. It is just that simple. People who are not sick now are getting money as almost a nuisance or extortion payment because the lawyers are filing so many of these cases. It has been driving companies into bankruptcy at an alarming rate.

There were 19 asbestos bankruptcies filed in the 1980s. Seventeen were filed in the 1990s. Between 2000 and mid-2004, there were an astonishing 36 asbestos-related bankruptcy filings, amounting to more filings in the first half of this decade than in the prior two decades combined.

We hear a lot of people saying: I would rather sue and go through the court system than have this national fund. But there may not be a defendant to sue at this rate because 77 companies have gone bankrupt. With those bankruptcies, American workers have lost 60,000 jobs, costing up to $200 million in lost wages.

The money, as I indicated, is not getting to the victims. Some beneficiaries of the Manville asbestos trust fund received as little as 5 cents on the dollar for their claims. If there is a $1 million verdict and you get 5 cents on the dollar, how fair is that?

In my hometown of Mobile, AL, the Mobile Register, which has done a considerable, superb investigative effort into some of the abuses in this system which are prominent along the gulf coast because we have a lot of asbestos exposure in the shipyard industry, said:

The biggest beneficiaries of the asbestos-related lawsuits

tend not to be people with health problems, but the lawyers

and the for-profit lung testing companies they hire.

There has been a tremendous scandal over that. One courageous Federal judge has blown the whistle on it and perhaps broken that system up. But it is just one more example of the many abuses in the current system.

Now, the U.S. Supreme Court has seen this matter from the perspective of the legal system. They are looking down at the 300,000 claims that are pending all over America. They are seeing that things are not going as they should. So in 1991, the Judicial Conference Committee--this is the judges' committee that represents all the Federal judges in America, appointed by the Chief Justice of the United States--said the asbestos situation had ``reached critical dimensions.'' Then they went on to say that the courts were ``ill-equipped'' to address these mass claims in any effective manner. This statement was significant because the Judicial Conference Committee does not write us very often about things like this.

In AmChem Products v. Windsor, in 1997, Justice Ginsburg, writing for the Supreme Court--I will note parenthetically that Justice Ginsburg, who was an ACLU lawyer, one of the more activist members of the Court, and certainly not a shill for the business industry--said this:

The argument is sensibly made that a nationwide

administrative claims processing regime would provide the

most secure, fair, and efficient means of compensating

victims of asbestos exposure. Congress, however, has not

adopted such a solution.

The Supreme Court has in essence issued what is a challenge, a plea to us, really.

In Ortiz v. Fibreboard Corp., Justice Souter, on the Supreme Court, said this:

The elephantine mass of asbestos cases . . . defies

customary judicial administration and calls for national

legislation. . . .

S. 852 is a response to the Supreme Court's concerns. The bill establishes a $140 billion trust fund, privately funded, for the purpose of directing compensation to the individuals suffering identifiable injuries as they result from asbestos exposure. Instead of waiting years for their claims to go through the tort system, the trust fund will allow legitimate asbestos victims to be compensated faster and on a no-fault basis, meaning that the claimants no longer have to go into court and have a trial to prove that their injuries are the result of negligence or fault on another party; they just make a claim and get paid based on the severity of injury. They do not have to prove causation or negligence.

For asbestos victims who are the most ill, like those with mesothelioma, the bill provides for an expedited

claims process and payment system. It is really expedited. Fifty percent of the $1.1 million a person with meso will be entitled to receive will be paid within 30 days, and the rest in 6 months.

Now, we have seen in the paper, we have heard here on the floor, and we have heard from people who have come to the Hill, like widows of persons who have died from mesothelioma, just how long it takes to get compensation under the tort system. Meso is a deadly disease that is, indeed, connected to asbestos. Of that I think there is little dispute. That is why this legislation says that if you have mesothelioma and you have been exposed to asbestos, you walk in with a doctor and they will pay you $1.1 million, and you do not even need a lawyer. You get all of your compensation, and you do not have 60 percent of the money taken out for fees and costs, and the money will be paid promptly. Isn't that the way the system should work?

But we have had these widows and other victims coming here, telling us how long it takes to get their money. I began to think about it a little bit--I know Senator Specter has had the opportunity to deal with this issue, too--and how sad it is to see people who have been widowed as a result of asbestos. Let me say this. Widows are coming here asking for payment as the result of the death of a loved one because they have not yet gotten their money. Why haven't they been paid? Because it takes years in the current system to bring the case to judgment, and then there is only partial judgment. Some defendants settle, some do not settle, and the cases go on. And the people with fatal diseases such as mesothelioma die before the case is ever concluded. I am telling you that is the way it works in the real world. That will end with this process.

We have the ability to create in this Senate a legal scheme for handling these cases that will end a system where the real victims get pennies on the dollar and individuals with no real injuries clog up the system or get windfalls. It will end a system where lawyers are the big winners, often walking away with more than half the proceeds.

The FAIR Act will provide greater certainty to victims, defendant companies, and insurers. Under the fund, victims will be paid on a set schedule, according to their proven illness. Defendant companies and insurers will contribute a set amount of money to the fund on a predetermined timetable, allowing them to move forward and plan for their financial future. The money will go to victims, not to overhead and attorneys.

The Democratic leader has said this is some sort of corrupt process, and those who want to fix this system are somehow coming here with less than clean hands, that their judgment is clouded by K Street or money. I would ask the Democratic leader to defend this system, if you will. Come here and justify what is going on in the courts of America.

Dickey Scruggs, who lives not too far from my hometown of Mobile, AL, was the architect of the asbestos litigation. He started the cases, and he established the legal principles that led to all of these suits around the country. He came with Senator Specter the other day and said it is time to bring it to an end, that this is not a legitimate legal process anymore. It is not working effectively. It is an embarrassment to us all.

It is an embarrassment to me that Congress cannot fix a system where billions of dollars are being paid out, billions of dollars--$70 billion already, and 60 percent of it does not go to the victims. What kind of legal system is that?

Now, we have a lot of businesses that are opposing the legislation. I would suspect their views are that they have gotten a calculator out and they have had their accountants and lawyers get together, and they have calculated that they may not pay as much under the current system as under this bill, so they do not want the bill to pass.

We have plaintiffs' lawyers who are out there making millions of dollars every day on this system. And there are defense lawyers also making millions of dollars on this system. They object to the legislation because they have a special interest in it.

But we are Senators. We represent the public interest. We have a duty and an obligation to defend this American legal system, and to make sure the legal system has integrity. We are entitled and have a responsibility to superintend it. When we see things in the system that are plainly wrong, it is our responsibility to fix them. That is what we are setting about to do with this bill. It is not easy. I do not deny that.

We will continue to listen to the legitimate complaints of those who feel somehow this system will not be fair to them, and continue to make adjustments.

Senator Specter, Senator Leahy, and others have--we have all promised to do that, to try to, in good faith, work in that way. But, again, our responsibility is not to plaintiffs' lawyers, who poured millions of dollars in campaign contributions to one side or another in these races, or businesses that pour out large contributions. What is that? Our responsibility is to integrity and to propriety and to justice. Justice is not being done in these cases. Dickey Scruggs himself says it should end. He supports this legislation. Does anybody say he does not care about victims? He has represented thousands of them, tens of thousands of them.

I am glad to work with Chairman Specter and the others in support of this bill. I believe his work on it comes from the highest motives, the purest motives. We can disagree on the tactics, but it is offensive to me that we have Senators on this floor suggesting that an effort to end this abusive and unjust system is somehow, in itself, a corrupt act. That is not true.

Senator Specter and Judge Becker of the Third Circuit Court of Appeals, a senior judge and capable person, have had meetings all over this country, listening to everybody who has an interest in this matter. Senator Specter has spent hours in these meetings--days, weeks, months, even. Senator Hatch, as chairman of the Judiciary Committee before Senator Specter, has also worked tirelessly to accommodate concerns.

For years we have been working on this legislation. It is an open process. The bill is out there. If it needs to be improved, I support that and will listen to that effort. But I do not think we need to drop the ball now. We are moving forward toward the goal line. We have an opportunity to provide relief to victims in a way that cannot help but be helpful to them, but they may not know that.

I am getting calls from victims, and they are saying things with written messages their trial lawyers have given them to say. It breaks my heart. To think, I used to be representing victims, so I know a little bit about this matter. I am sympathetic to them. They do not know. They have no idea this system is going to provide more money for victims, quicker and faster, with less cost than the current system. They are hearing it only from one side--their lawyer's.

So it is up to us to do the right thing and not play politics, not lose our nerve at this point in history.

I am glad to see Senator Specter here. If he would allow me, I wish to take a couple minutes at this point to say a few words on the passing of Coretta Scott King.

I say to Chairman Specter, if you wish to comment, I did want to have a few minutes to express my thoughts on the funeral today of Coretta Scott King.

Thank you, I say to Senator Specter. You put your heart and soul into this effort. Nobody should think the effort you have gone forward with, and that Senator Hatch and Senator Leahy and Judge Becker and others have gone forward with, is for any other purpose than trying to make this system better. We absolutely can improve the system. It is within our grasp to do so. If we cannot pass legislation that takes the 58 percent of compensation that is currently not getting to the victims and allow those victims to have larger amounts of money, it is our fault. We are pretty incompetent.

Coretta Scott King

Mr. President, I want to take a moment to express some thoughts about the death of Coretta Scott King. She grew up in Perry County, AL. Her father ran a country store as did mine.

Mrs. King, in so many ways, epitomized the good background that she had and where she was raised. She carried those values forward throughout her life. She graduated from Lincoln High School in Marion, AL. It was an all-Black high school that educated the offspring of former slaves from 1867 and 1970. The late Jean Childs Young, wife of former Atlanta Mayor Andrew Young, was another distinguished Lincoln graduate.

After high school, where she was valedictorian of the Class of 1945, Mrs. King accepted a scholarship to Antioch College in Ohio, where she studied the violin, singing, and piano. After graduating from Antioch, she accepted a scholarship to attend the New England Conservatory of Music in Boston, where she met her future husband Martin, who was also a student in Boston.

They got married in 1953 and the very next year, they were at Dexter Avenue Baptist Church, within sight of the State Capitol of the State of Alabama. It was at this time that she and Dr. King came to know Rosa Parks, whose refusal to give up her seat on a Montgomery bus led to the civil rights movement. Rosa Parks was arrested and the Montgomery bus boycott ensued, sparking a movement to ensure that all citizens were treated equally under the law.

Dr. and Mrs. King and Rosa Parks truly changed a system that could not be defended. It was a system that treated people, because of the color of their skin, as second-class citizens and not equal. It was not a defensible system morally or legally.

Judge Frank Johnson got the bus boycott case, and he ruled that the equal protection clause of the U.S. Constitution said people should be treated equally. Requiring someone to go to the back of the bus, despite a State statute to the contrary, did not represent equality. It was unconstitutional. The Supreme Court agreed, and that gave a real boost to the civil rights movement.

During her 78 years, Mrs. King represented the kind of character and integrity and commitment to right living that should inspire us all. And she has given her best full measure. She has seen the toils and snares of life. She moved through them through her full and complete time on this Earth. She has run the race and is fully entitled to the rewards of that successful race.

It is my honor and privilege to express, on behalf of the people of Alabama, my sympathy to the King family, to wish them well and to say to them how our State, our Nation, and, indeed, the world is better off for the courage they displayed.

I yield the floor.

Mr. President, I thought the leaders agreed not to ask for additional time. Otherwise, I would not have an objection. I don't know what Senators Reid and Frist said. They have the time set for an 11 o'clock vote. So I am inclined to object unless----

I will not object.

Mr. President, I thank the Senator.

Indeed, it has been most distressing to me to see this nominee, the epitome of a restrained, principled and highly respected judge, be portrayed as some sort of extremist. It is beyond my comprehension, frankly. Questions have been raised about different cases. Alito answered each and every one of those questions in front of the Judiciary committee. Senator Schumer and I serve on the committee. He was asked about them repeatedly. He was asked 677 questions, and he answered a higher percentage of them than perhaps any judge in history--97.3 percent. A Clinton appointee, Justice Ginsburg, for example, was only asked 384 questions, and she only answered 80 percent of them. Justice Breyer, another Clinton appointee, was asked 355 questions, and he answered 82 percent.

So Judge Alito was most forthcoming. He was asked more questions and grilled and grilled, and he answered them with skill, fairness, and reasonableness. He was unflappable in his testimony and so judicious in his approach to every question. It was a tour de force, a real model of how a judge should perform. I could not be

more proud of him and more proud of President Bush for nominating him.

They say this nomination divides the country. Whom does it divide? It divides the hard left, who wants the Court to eliminate all expression of religion from public life. We see the words ``In God We Trust'' above the door in this Chamber. We had a chaplain open this Senate with prayer. Are we going to have the Supreme Court come in and strike those things down? People are very confused about those issues today. We have people who want to get rid of religion from the public square. They know they cannot achieve this by votes, so they want a judge to do these things. They are not happy with the U.S. Constitution. They want a judge to quote foreign law to reinterpret the words in our statutes and in our Constitution. That is not what the rule of law in America is about.

We have had a lot of extreme cases redefining the meaning of marriage. States have defined marriage since the founding of the Republic. Now all of a sudden we have lifetime-appointed, unelected judges discussing, and some court finding, that the legislature's definition of marriage--people who are responsible to the people, the legislative branch--is not correct. So the judges are now going to reinterpret that definition and make it say what they want it to say. They are going to take people's private property, not for public use, as the Constitution says. Now the court says we can take even poor people's homes so that someone can build a private shopping center. That is not what the Constitution says.

I know of judges who thought it would be better policy if the Constitution said what they want it to, so they just made it say that. But that is not a principled approach to the law; it is not the American approach to law. President Bush said we don't need that kind of judge. We want judges who are faithful and principled to the rule of law. They say Judge Alito is extreme. That is not so. It is an incredibly false charge.

What about the American Bar Association? Those of us on the Republican side have been somewhat critical of them over the years. The ABA is pretty liberal in all of the resolutions it passes. Sometimes it is very liberal. We felt that liberal persuasion infected their evaluation of judicial nominees. But they still evaluate nominees in a very careful way.

The American Bar Association reported to our committee, after surveying 2,000 people, personally interviewing 300, having teams of scholars read all of the writings Judge Alito ever wrote or participated in, and then they voted among themselves. They talked to lawyers who litigated against Judge Alito when he was in practice and judges who served with him and litigants who appeared before him, people who have known him, judges who served with him, and 300 were interviewed in depth. This committee of the American Bar Association-- 15 of them from all over the country--reviewed all of that. Many of them participated directly in the interviews. Sometimes, people will tell the ABA things they may not tell the newspaper, things that are bad about somebody. They came back with a unanimous conclusion that Judge Alito was entitled to the highest possible rating. The American Bar Association, after a most intensive review, has given him the highest possible rating. Would they have done that if they thought he was an extremist? Would they have done that if they thought some of these cases we have heard about were wrongly decided or extreme in any way? No, they would not. So did his colleagues on the bench. One of the most extraordinary panels of witnesses I have ever seen involved judges who served with him on the Third Circuit, not a rightwing circuit. The Third Circuit, if anything, is considered a moderate to liberal circuit. It is in the Northwest, and Philadelphia is the seat of the Third Circuit. New Jersey is also in that circuit. Judge Alito served on that bench for 15 years.

People have suggested that somehow he is a tool of President Bush. He had a lifetime appointment on the Federal bench in the Third Circuit and has served for 15 years. He has not been a part of any of this terrorism stuff we have heard about or any of these rulings involving the Administration. He hasn't been a part of it at all. He comes to it with all his skills and intelligence as an honored graduate at Princeton and Yale, where he served on the Yale Law Review. He will bring his insight into these cases, which is exactly what we want--an unbiased umpire to deal with the issues.

Mr. Stephen Tober and others explained how one gets a unanimous ABA rating. The American Bar Association panel repeatedly gave him high marks. They said Judge Alito ``has . . . established a record of both proper judicial conduct and evenhanded application in seeking to do what is fundamentally fair.''

One of the three members of the ABA who testified was a civil rights attorney, an African American who represented the University of Michigan in that famous affirmative action quota case. He said this about Alito. He said that all the people they contacted concluded that Judge Alito was held in ``incredibly high regard.''

The ABA witnesses said they were unaware of anyone who has claimed that Alito intentionally did anything wrong with regards to the Vanguard matter that has been raised repeatedly and I guess dropped now since we haven't heard that much about it.

We now hear this interesting argument that we needed Harriet Miers. They are now harkening back to Harriet Miers nomination, claiming the Republicans are at fault for her withdrawal. Not one Republican Senator I am aware of ever said Harriet Miers should not be voted on or said they would vote against Harriet Miers. Some raised questions about her experience, as did Senator Schumer, who raised the issue a few moments ago. When Harriet Miers was being considered, Senator Schumer said:

I think there are three places where Harriet Miers yet

hasn't sort of met the burden of proof. The first is

qualifications, the second is independence, and the third,

most importantly, we have to know her judicial philosophy.

So Senator Schumer, who is now asking that we have Harriet Miers, was raising serious questions about her a few weeks ago.

She withdrew. She withdrew because she was sitting at the right hand of the President during so many of these matters involving the war on terrorism. The other side had already made clear they were going to demand her personal conversations, her personal documents, her communications with the President, which are legal documents protected by client-attorney privilege. She realized it was going to be a matter that would probably not be acceptable to the Members of the Senate. It would be an uncomfortable process for her, and she withdrew.

Mr. President, what is the remainder of the time on this side?

Mr. President, the case we have heard the most about is Doe v. Groody. The allegation has been made time and again that Judge Alito ordered the strip search of a 10-year-old girl.

I was a prosecutor for nearly 15 years. I read the case. I was at the Judiciary Committee and heard Alito testify. I would like to share some thoughts about that case. The reason I would like to talk about it is because I would like for everyone who is hearing me talk to understand that this is a typical example of distortion and misrepresentations of the actions of Judge Alito. It is so wrong and so biased and so unfair that it ought to embarrass those who made the charges against him. He clearly did the right thing, in my opinion and it has been misrepresented. It is symbolic of what has been said about other cases that I don't have time to talk about at this late date.

In Doe v. Groody, police officers were investigating a drug-dealing group at a certain house. They went to the judge and presented an affidavit to search that house and all persons on the premises. They presented adequate probable cause to believe that a drug-dealing operation was going on in the house, and the judge agreed.

There was a form for a search warrant and that said John Doe was to be searched. In this case, the judge directly incorporated an affidavit attached to the warrant for purposes of probable cause. The affidavit is where officers asserted probable cause to search all persons on the premises. This was a magistrate in a State court

years before Judge Alito ever knew the case existed. He was sitting on the Federal appellate bench at the time.

So officers go out and do a search, and a female police officer takes the mother, along with the 10-year-old child, into the bathroom. She asks them to pull down their trousers and lift up their shirts so that she could detect whether there were any hidden drugs or weapons. They did not take off their undergarments, nor was there any intrusive touching. The female officer saw no drugs hidden on the mother or the girl, and that was the end of that until sometime later when the police officers were sued personally for money damages.

When it came before Judge Alito, he concluded that the affidavit had been made a part of the warrant that asked for the privilege of searching people on the premises, which gave the police officers at least a reasonable basis to believe they had the authority to do so. They got a warrant. They asked for this privilege. They thought, by attaching the affidavit to the warrant that they had the power to search everyone on the premises. I don't know what the right answer is legally, but I do agree with Judge Alito that the police officer could reasonably have felt that they were operating under the law, and should not be personally liable for money damages to some dope dealer.

American police officers need to pay attention to this matter if this is what my colleagues think is bad law. They get sued enough trying to do their duty.

One of the more fabulous panels we ever had, I thought, were colleagues on the bench who served with Judge Alito. Judge Edward Becker has been on the bench for 25 years, the full time that Judge Alito has been on that bench. One of the more respected appellate judges in America said these things about Judge Alito. This is a man they are accusing of being some radical, some extremist. This is what Judge Becker, who has been on the Federal bench for 25 years, said: Sam Alito ``is gentle, considerate, unfailingly polite, decent, kind, patient, and generous. I have never once heard Sam raise his voice, express anger or sarcasm or even try to proselytise. He expresses his views in measured and tempered ways.''

On integrity, Judge Becker says:

Judge Alito is the soul of honor. I have never seen a chink

in the honor of his integrity which I view as total.

On intellect:

He is brilliant, he is analytical and meticulous and

careful in his comments and his written word.

Mr. President, I conclude with these words:

He is not doctrinaire, but rather open to differing views

and will often change his mind in light of the views of a

colleague.

This is the man who has been nominated and who is entitled to confirmation by the Senate. I thank the President and yield the floor.

Mr. President, I rise today to pay tribute to our late colleague, Senator William Proxmire--beloved father, husband, veteran, and former member of this body. With over 32 years of service in this institution, Senator Proxmire constantly challenged us to remain fiscally responsible. As chairman of the Committee on Banking, Housing, and Urban Affairs for four Congresses, he was constantly working to protect the taxpayers.

Most Members of this esteemed body recall the steady reminder by Senator Proxmire that ``Uncle Sam is the last of the big spenders.'' His firm advocacy for good sense and forethought on spending led to the creation of the ``Golden Fleece'' awards. Senator Proxmire would hand these awards out, to friend and foe, to highlight government waste, abuse and scandal. His ``maverick'' attitude toward our responsibilities with the taxpayers' dollars should be remembered, honored, and, as I am sure he would agree, employed more today. We miss Senator Proxmire and his ``Golden Fleece'' awards.

Our country lost Senator Proxmire this past December as he succumbed to the devastating affects of Alzheimer's--a disease he battled daily since 1994. He spent his last years at the Copper Ridge Institute in Eldersburg, MD. Copper Ridge is a fantastic facility dedicated to the study of caring for those suffering from dementia. The goals of the Copper Ridge Institute are to share the knowledge it has acquired in the field of dementia care. For the last 10 years, staff from Copper Ridge, the Copper Ridge Institute and the Johns Hopkins University School of Medicine have worked together to develop a model of care that respects the dignity of the people battling this disease and that provides a better quality of life to them.

I had the pleasure of meeting and talking with Senator Proxmire's wife, Ellen, in September 2004. Mrs. Proxmire sponsors an annual award in the name of her husband for those who support this dedicated Alzheimer's research. Mrs. Proxmire has truly become the voice for those who cannot speak. She has worked diligently to see more national attention given to Alzheimer's disease and the important role specific care models like that at Copper Ridge play in preserving the dignity and quality of life of those with the disease. As Mrs. Proxmire likes to point out, ``Until there is a cure for the disease, learning to care for those with Alzheimer's is paramount.''

Mr. President, we have a responsibility, as nearly 4.5 million Americans find themselves faced with this terrible disease, to work with those involved with research and medicine in this field. Our country is stronger today because the name ``William Proxmire'' is found on the rolls of the Senate. As we pause to remember this great man, true patriot, and fellow Senator, this institution should take heed and continue our support in the fight for an Alzheimer's cure.

Mr. President, today the Senate will continue to debate the nomination of Samuel Alito to the Supreme Court. Yesterday, the majority leader, Senator Bill Frist, was forced to file a cloture motion to stop a filibuster from Senators on the other side of the aisle. That cloture vote will occur at 4:30 p.m. on Monday. It is our expectation that cloture will be invoked and that the Senate will then proceed to a vote, a final up-or-down vote, on the confirmation of Judge Alito on Tuesday at 11 a.m.

I have some remarks I wish to make on the Alito nomination, but before I do, I suggest the absence of a quorum.

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

Mr. President, it is very distressing and disappointing that we are now looking at a filibuster of the nomination of Samuel Alito to be a member of the U.S. Supreme Court. He has served as a Federal appellate judge--outside of Washington, DC, not involved in any of the political issues here--for 15 years and during that time has assembled an incredibly strong group of admirers who have testified on his behalf to a degree that exceeds almost anything I have had the pleasure to see as a member of the Senate Judiciary Committee where we had hearings on this matter.

The American Bar Association interviewed 300 of his colleagues-- lawyers who have litigated against him; lawyers who have worked with him; judges who have heard him, whom he practiced before; and his colleagues on the bench.

An African-American member of that ABA team--who represented the University of Michigan in defending their admissions policy that some called a quota policy--that individual said, quote: He was held in incredibly high regard. In fact, I am not aware of anyone who was interviewed that said anything bad about this nominee.

He was at the top of his class at Princeton, and the top of his class at Yale Law School where he served on the Law Review. He argued 12 cases before the U.S. Supreme Court. There is not more than a handful of lawyers in

this country who have argued even a single case before the Supreme Court, much less 12.

Then he was U.S. attorney, prosecuting criminal cases for the United States of America in New Jersey, where he prosecuted Mafia groups and drug dealers and people such as that. He has spent 15 years on the bench, demonstrating day after day the judgment, the intellectual integrity, and honesty it takes to be an outstanding judge.

He is a remarkable nominee. His father was an immigrant from Italy. He grew up in New Jersey, and has had the great honor to be one of those sons of immigrants who got to go to the great University of Princeton. He in every way represents the best there is in American law. And more than that, he understands what a judge's role is. He has expressed this in so many good ways. Without notes, he talked to us in that committee from his heart.

He summed up, time and again, question after question, his view that a judge has a responsibility to decide the case that is before them, not to set grand policy for America, but to try the case of the litigants that are before them. Somebody has a complaint, and they are complaining that the law or the Constitution has not been properly followed, and they are asking for relief. The judge decides each case based on the facts.

First, a judge must, with intellectual honesty, find out what the facts are, and, then, after the facts are determined, apply the established law to that fact situation and render a decision without regard to any personal or political views--whether he is a Republican or a Democrat, a liberal or a conservative--without regard to any personal, social, religious, or other views he may have. Then he renders that opinion.

As Alito said, he learned as a judge you should delay making up your mind. It is a habit of mind a judge learns. He hears those facts, he thinks about those facts, and considers those facts and makes up his mind--only after the full matter has been brought before him and has reached its full, ripe point to make a decision. I thought that was a very insightful and wise comment he made.

We had a unanimous highest possible rating from the American Bar Association. As I read last night, one can easily see the tremendous admiration and respect his colleagues on the Third Circuit Court of Appeals have for him. They were so impressive in the committee. Several of these judges were senior judges. Most of them had served the full 15 years with him on the bench. They have known him. They have seen him in private conferences. They said he is a man of intellectual honesty. He is a man who is fair, unbiased. He never raised his voice, never proselytized for his view, but is a man with incredible analytical ability to get to the heart of a matter and make a just decision.

What more could you ask for on the bench? Many of these judges were Democratic appointees. The Third Circuit is not a conservative circuit. It is probably one of the more liberal circuits. It sits in Philadelphia. And to say this man is extreme, outside the mainstream, unworthy of serving on the Supreme Court is in itself an extreme statement. It is not justified.

The President made a simple promise in this last election that he repeated at every stop he made: I want a judge who will show restraint, who will follow the law and not make law, who does not see it in their bailiwick to reset the social policy of America. And we have been seeing that type of judgement time and time again. Our colleagues who like what these judges are doing, our Democratic colleagues, apparently, are not happy with Alito's philosophy of judicial restraint.

Now let me tell you, President Bush--this Senator does not believe we should put a conservative activist on the bench, a judge who will utilize his opportunity on the bench to promote a conservative agenda. That is politics. That is what we do here in the legislative branch. That is what we are supposed to fight out in this Chamber. The American people have a role to play in it because they can vote us out of office. But if a judge on the Supreme Court of the United States uses that power to interpret the meaning of words in the Constitution to undermine the plain meaning of those words, undermine the meaning that the ratifiers and drafters had in mind, to make it say something they want it to say, then they are legislating, they are in this branch.

It is more dangerous than that because they do not legislate like we do. If we legislate, the next Congress can come in and change it. We can be voted out of office, and they can reverse it by 51 votes out of the 100 Senators. But what if a Supreme Court judge declares that no longer can States define marriage as a union between a man and a woman, that we are going to declare that any association of people can call themselves a marriage and say the Constitution says it? They have a lifetime appointment. They never have to answer to the public. They can stay on that bench as long as they desire.

What recourse do the American people have for that? Only a constitutional amendment, and that takes a two-thirds vote in the House of Representatives and the Senate and three-fourths of the State legislatures to overturn it--an incredibly huge task.

So it is critically important we have judges who are not activists on the bench, that we have judges who will faithfully apply the law according to the way the constitutional drafters and ratifiers intended it, and to follow faithfully the laws of the Congress, and respect those laws as long as the laws passed by the Congress or the States do not conflict with the Constitution, and show some respect to the States.

We have had so many of these activities that have gone on in our Court that show a lack of discipline. I pointed out last night that we are at the point where one of the courts of appeals that represents 20 percent of the people in the United States, the Ninth Circuit, has ruled that the Pledge we recited which says ``under God'' in it is unconstitutional. The U.S. Supreme Court did not reverse it. The U.S. Supreme Court simply said that the father who brought that case did not have standing because he did not have custody of the child. Now he has gone back and found somebody else and apparently has a plaintiff who does have standing. I am not sure what the Supreme Court is going to rule.

Will they next come in here with a chisel and take those words right up there on this wall--``In God We Trust''--off the wall of the Senate? It is not such an impossible suggestion. Our Presiding Officer came here shortly after Senator Byrd--but he was here in the Congress, I believe, as a Member of the House when we put ``under God'' in the Pledge. And we ratified that again, when this case first came out, in the Senate that we intend that remain the law. But the Court has the ability--just like that--to strike it down.

That is what this issue is about. We talk about the takings case, the Kelo case, where they redefined the meaning of words that a property can only be taken for a public use. Now they say it can be taken for a public purpose--a big change. It is one thing for the government to take your land to build a dam, or a highway or a public park, but to take your land to build a private shopping center was not what the Founding Fathers had in mind. But this is what the Supreme Court ruled, apparently believing that was too restrictive. It would be better if you could take land for private purposes as long as it had a public benefit and they approved that. Not good.

Regardless of what you think of the merits of that takings issue, it represented a lack of discipline, an activist trend on the Court by which the judges declared that their personal views would allow them to actually bend the plain meaning of the Constitution to have it say what they wanted it to say, not what it actually did say, not what was meant from the beginning.

I am disappointed that we have an objection, any objection to this fabulous nominee. President Bush in his campaign promised a judge who would show restraint, that he would be highly qualified and a man or woman of integrity. That is what he submitted. But now we are looking at a filibuster. I am not kidding. I thought we had settled that issue. But now we are facing a filibuster. They have put it in their news releases, Democratic Senators. Apparently, the former Presidential candidate for the Democratic Party in the last election, who obviously did not

win, called back from Davos, Switzerland, to say that they ought to filibuster. Count him in. He urged a filibuster. The assistant Democratic leader in the Senate, Senator Durbin, apparently is supporting a filibuster of this nomination. It is not right. This is a solid, mainstream judge who was rated, unanimously, the highest rating the American Bar Association gives. He has the unanimous support of his fellow judges on the Third Circuit, Democrats and Republicans. He has an extraordinary record and resume in every respect. They want to filibuster this nomination. I know the People for the American Way want it. I know the National Abortion Federation and other abortion groups want it.

We are Senators. We have to ask ourselves: Is this where we are heading? Is this what we are about, that we are now going to take nominees with the kind of respect Judge Alito has and subject them to a filibuster? It was discussed in this past election. The American people, I am convinced, strongly support the kind of judge Judge Alito will be. They don't want an activist judge setting social policy. They absolutely understand this issue.

I had the pleasure to follow one of our most outstanding young Senators last night, Mr. John Thune of South Dakota. He made a remarkable speech. He concluded it by saying he campaigned on this issue in South Dakota. He promised to vote for this kind of judge. I am thinking, whom did he beat? He beat the former Democratic leader of the Senate, the former majority leader for a short time, Senator Tom Daschle, who was leading filibusters to obstruct up-and-down votes on highly qualified nominees. I submit to the Members of this body that the people of South Dakota were not happy with that. In large part, Senator Thune is here today because of the obstruction of the Democrats over the last several years of highly qualified nominees who simply believe a Federal judge should show restraint and follow the law. That is all we want. That is all the American people want. That is what we have a right to expect in Federal judges.

What kind of filibuster is this we are seeing? It is almost amusing. Where are the Senators? I was here last night. I followed three Republicans talking. We were supposed to be in session until 8. Nobody from the other side of the aisle showed up to talk. I am not sure there are any around today to complain. They are supposed to be telling us why this man should not be on the bench. We have been here for 2 days, and fewer than 25 Democratic Senators have come to the Senate floor. It has been a pretty vacant situation. Republicans shut down the Senate each night. Nobody seems to want to come and raise the issues and debate them. If they want to filibuster, if they have serious concerns, I suggest they come down and express it. Let's talk about it.

My colleague, Senator Specter, during the Judiciary Committee hearings gave the Democratic Senators every opportunity they desired to raise, for as long as they wanted to, any issues they had with Judge Alito. He allowed them to call a whole host of witnesses who would be critical. The truth is, I don't think any of them knew Judge Alito. Most of them had axes to grind one way or the other from some political agenda they had. Even out of that group, I don't think but one or two actually said they were against him. Laurence Tribe raised some concerns, but he never said he was against the nominee or that he should not be confirmed. He is a professor himself, and he knows the legal expertise Judge Alito brings to the court.

If you have something to filibuster about, come on down. Why put us through this? Senator John Cornyn has called this effort needless and strange. That is a good definition. Other words come to mind: pointless, political.

The Democratic leader, Senator Harry Reid, went before the Democratic caucus, according to the New York Times, just last week and urged his colleagues to vote against this nomination. They made it a political agenda item to block this nomination. Is it Presidential politics or politics in general? I submit both. Senator Reid's spokesperson, when asked, said: Well, they want to get as many votes as they can against him to make it an issue in the election--for politics, not a question of whether the judge is ready, qualified, and able to serve.

Maybe this is some sort of theory that, We can reward our base--the National Abortion Rights Action League, the People for the American Way, the Alliance for Justice, some of those leftwing groups that have been driving the process for years. Maybe it will keep them happy. Maybe they will keep sending money. Maybe they will keep attacking George Bush and saying he is appointing extremists to the bench. Maybe that is what they are trying to do.

There is no basis to object to this nominee. There is absolutely no justification for denying him an up-or-down vote, which is what the filibuster attempts to do. We can all agree, I suppose, that it is an international filibuster because it was apparently hatched in Davos, Switzerland, where Senator Kerry now is with those masters of the universe trying to figure out the world economy. Maybe they ought to spend more time trying to get gasoline prices down than worrying about conjuring up a filibuster of a judge as able as Judge Alito. They are not here in the Chamber, and that is what we have every right to expect.

Maybe, since they are abroad, they are worried about Judge Alito's position on foreign law. We have seen a trend with members of the U.S. Supreme Court. Recently, Justice Ruth Bader Ginsburg went to New York and made a speech in some great detail--shocking, to me; I have recently read the speech--in which she defended the citation and consideration of foreign law to determine how to interpret American law. This is contrary to our American legal system. A judge's duty is to apply the plain meaning of the words, if there is some dispute about it, to look to the legislative history or maybe the background of the bill from an American perspective, not a European perspective.

For example, in Roper v. Simmons in 2005, the case held that the execution of individuals who were under the age of 18 at the time they committee a capital crime violates the 8th and 14th amendments, overruling a previous precedent of the Supreme Court. Our liberal colleagues have been very strong in claiming that we should stick to precedent, particularly when they talk about abortion. But in that case, the court reversed Stanford v. Kentucky.

The majority of the Supreme Court, trying to interpret the Constitution of the United States, spent almost 20 percent of its legal analysis discussing the laws of Britain, Saudi Arabia, Yemen, Iran, Nigeria, and China.

We have a lot of complaints. People are not happy with rulings of the Court. Many times, those rulings are justified and we are simply unhappy with the result. We are concerned about it. Maybe it is not justified. But I believe the American people understand that this is a dangerous trend by the Court that they would seek to interpret American law by looking to Nigeria and China--red China, last I heard--Yemen, where there are terrorists, and Iran, a pariah to the international community. They are quoting them, discussing what their views of our Constitution are relative to cruel and unusual punishment. Regardless of what one believes about the merits of the case, legislatures absolutely should discuss the age at which an execution should occur, but what does the Constitution say about it? That is what the Supreme Court is supposed to be deciding, not what they think ought to be done.

In Grutter v. Bollinger in 2003, Justice Ginsburg looked outside the Constitution to make her decision, noting with approval that the International Convention on the Elimination of All Forms of Racial Discrimination allowed for such discriminatory practices or ``maintenance of unequal or separate rights for different racial groups.''

This is a question under our Constitution which says that every American, whether they are of minority or majority ancestry or background, is entitled to equal protection of the law. That raises some questions about quotas and matters of that nature. So in her decision, did Justice Ginsburg look at our Constitution, which guarantees every citizen, regardless of their race, equal protection of the law? What did she look at? She considered the

International Convention on the Elimination of All Forms of Racial Discrimination. That is not a basis for an American Justice to lay an opinion. We have seen a lot of that.

Let me briefly cite what Judge Roberts said about that:

If we're relying on a decision from a German judge about

what our Constitution means, no President accountable to the

people appointed that judge and no Senate accountable to the

people confirmed that judge, and yet he's playing a role in

shaping a law that binds the people in this country. I think

that's a concern that has to be addressed.

Absolutely, he is correct. He goes on to say:

In foreign law, you can find anything you want. If you

don't find it in the decisions of France or Italy, it's in

the decisions of Somalia or Japan or Indonesia or wherever.

As somebody said in another context, looking at foreign law

for support is like looking out over a crowd and picking out

your friends. You can find them, they're there. And that

actually expands the discretion of the judge. It allows the

judge to incorporate his or her own personal preferences,

cloak them with the authority of precedent because they're

finding precedent in foreign law, and use that to determine

the meaning of the Constitution. I think that's a misuse of precedent, not a correct use of precedent.

I say to the President pro tempore that if he chooses to speak at this time, I would be glad to yield if he would like.

Before I yield, I have been making humor here about Senator Kerry over in Davos, Switzerland, calling for a filibuster back here. One of the issues we have with regard to the confirmation of judges is that judges show restraint and be faithful to our law, not ``foreign law.'' There is no doubt that Judge Alito and Justice Roberts do not agree that we ought to be quoting foreign law to justify legal opinions in the United States. Judge Alito said this:

I don't think we should look to foreign law to interpret

our own Constitution.

Amen to that.

He said this:

Our Constitution does two basic things. It sets out the

structure of our Government and it protects fundamental

rights. The structure of our Government is unique to our

country, and so I don't think that looking to decisions of

supreme courts of other countries or constitutional courts in

other countries is very helpful in deciding questions

relating to the structure of our Government.

Amen to that.

He went on to say:

As for the protection of individual rights, I think we

should look to our own Constitution and our own precedents. .

. . Our country has been the leader in protecting individual

rights.

Are we going to look to China, Yemen, or Iran on that issue? He goes on to say:

I don't think that it's appropriate or useful to look to

foreign law in interpreting the provisions of our

Constitution. . . . I think the Framers would be stunned by

the idea that the Bill of Rights is to be interpreted by

taking a poll of the countries of the world.

That is the kind of judge we need on the bench. That is the kind of judge President Bush promised to nominate. That is the kind of judge he sent up here, and he deserves confirmation.

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

Mr. President, I thank our colleague, Senator Thune, for his excellent remarks. I know he cares deeply about the judiciary. I know that he talked about it a lot in his campaign. He is such a talented new Member of the Senate. There are many reasons he is here today, and I suggest that one of the reasons is because the individual he ran against--the former Democratic leader, Tom Daschle--led an obstruction of highly qualified judicial nominees. We are seeing that again today.

Now this Democratic leader, Mr. Reid, has urged his colleagues to vote ``no'' in the party conference. Some have tried to say that is not so. But when the Democratic leader goes before his colleagues and urges them to vote ``no,'' it has an impact. It sets this as a political vote rather than allowing and encouraging each individual Member to vote their own conscience. It is going to reduce the number of votes that Judge Alito will receive because people try to follow their leaders when they can. But it is not right.

This is a fabulous nomination. Judge Sam Alito is one of the finest nominees to ever come down the pike. He and Chief Justice Roberts were fabulous as witnesses, with incredible academic backgrounds and experience and a proven record of support from Democrats, liberals and conservatives, and a professional record and resume in both cases that are superb. But they do have a little difference of opinion, apparently, from some in the Senate. Senator Thune made reference to it. Judge Alito and Judge Roberts believe it is

their duty to follow the law. It is their responsibility as judges to be neutral umpires, to not allow their personal, political, social, or religious views to impact their interpretation of the laws before them.

That is what a judge is all about in the American legal system, for heaven's sake. What kind of threat is that when you have a judge who believes in that philosophy?

Judge Alito's whole judicial approach to life and to his work is that a judge should put aside personal views and be a neutral, fair umpire, deciding the discrete case before the court, based on a fair and honest finding of the facts and an honest application of the law to those facts. That is what a judge is supposed to do.

We have Members on the other side insisting that a judge's ideology ought to play a part in the judge's decisionmaking process. That goes squarely in the face of what our American legal system is all about. Why do we give our judges, let me ask, a lifetime appointment to the Federal bench? Why? Because we wanted them to be free from pressure and do their duty day after day, fairly and honestly finding the facts truly in the case and applying the law to those facts--not as Judge Alito said, to engage in implementing ``grand theories.'' I thought that was a good phrase. That is the kind of judge President Bush promised, and that is the kind of judge Senator Thune promised to support when he ran. That is the kind of judge I have believed in, in my career. I practiced for 15 years, for a long time, before Federal judges. I respect them. We had some magnificent Federal judges that I practiced before. I lost some cases and I won some cases, and every good lawyer does. But we all know one thing--that as long as that judge does his best, day after day, to honestly find the facts and apply the law, we can live with that. Your clients can live with that, too, even though they may be disappointed about the case. If we feel the judge is going to redefine marriage because he didn't like the way the State of Massachusetts defined marriage, and he is just going to say the Constitution somehow made reference to marriage, and a marriage now is no longer between just a man and a woman, but between two men or two women--this is going to be somehow found in the Constitution? And he is going to impose this on the people? What kind of power is that? Would five unelected judges, with lifetime appointments, who are utterly unaccountable to the American people, say that the phrase ``under God'' in the Pledge of Allegiance is not constitutional? Next, I suppose they will come in here with a chisel and right up there on the wall in this Chamber they will want to take out those big letters saying ``In God We Trust.'' I suppose that will be the next thing we have.

Well, that is not called for in the Constitution. The Constitution simply says Congress shall make no law establishing a religion or prohibiting the free exercise of your religion. So this is a recent phenomenon to see such a hostile approach to public expressions of religious faith in America. That is not our heritage, not the way the people understood the Constitution; that is not what the Constitution says.

But our colleagues don't like that. Is almost amusing, as we have gone through the committee process, to see them grasp in desperation to find something to complain about with Judge Alito. None of them could agree on what they didn't like. They bounced all over the place mostly. It sounded like they didn't like President Bush. They were having grievances about Abu Ghraib prison, which President Bush had nothing to do with. It was not the policy of the administration or the Army, and the people who abused those prisons are serving jail time today.

(Mr. ALLEN assumed the chair.)

Mr. President, they want to say this has something to do with that. They have been hankering for Harriet Miers, which is rather odd, I think. They have suggested somehow that some rightwing cabal caused President Bush to withdraw her nomination. She didn't have a lot of constitutional experience. I am not aware she has ever argued a case before the Supreme Court. Very few lawyers have, although Judge Alito has argued 12 cases before the U.S. Supreme Court. She has not served as a judge. He has served 15 years as a Federal appellate judge.

At any rate, she is a wonderful person who has many fine qualities. I am not at all sure that she would be any more restrained or any more liberal in her interpretation of judicial decisions than Judge Alito. I don't know what her philosophy would be. But I do know this: They have complained steadfastly that Judge Alito somehow is a tool of President Bush to defend his national security policy and his war on terrorism and that Judge Alito is going to be a part of his efforts to arrogate powers to the executive branch.

Who has been at President Bush's right arm for 5 years? It is Harriet Miers. She is the counsel to the President of the United States. She is his personal lawyer. She sits right by him. She has been involved in every one of these decisions about executive branch powers, National Security Agency wiretaps of al-Qaida telephone conversations. She has been part of all of that. You think they would have let her come through here? They say: Oh, we think she would be a fine nominee. What would they have done to her? Those in this Chamber who think she would have gotten a pass on those issues, raise your hand. And she knew that. That is why she withdrew herself. She wrote the President a letter and said: It has been insisted that if I come before the committee, I have to divulge my private conversations with you, the President of the United States, my advice to you on all these issues. It would violate attorney-client privilege. That is something I cannot do and will not do. I am in an untenable position. I am honored to serve you. I would like to continue to serve as your chief counsel, which she does today. But I ask you to withdraw my nomination.

That is all that was about. Goodness. It indicates how desperate they have gotten to find complaints about this fine judge.

By the way, Judge Alito has not been a part of any of this national security, Washington, inside-the-beltway stuff. Judge Alito has been sitting on a Federal bench in the Third Circuit--living in New Jersey-- outside Washington, DC. He has not had a single case I am aware of dealing with any of these national security or Presidential wartime powers issues. He comes at it as a skilled scholar, a person with a demonstrable record of fairness, and great intellectual capacity. I think when these cases come before him, as some may, he will decide them fairly. That is what everybody who knows him says.

Another deal they keep talking about is the unitary executive. Have you heard that phrase? They say: Oh, he is terrible; he believes in a unitary executive. It is almost amusing. Senator Kennedy and others have used this phrase more than once: He believes in an all-powerful Executive. Now, you know no judge believes in an all-powerful Executive. You have to watch judges. They can strike down anything they want to. They are not going to give the President unlimited power. They are not going to give Congress unlimited power. But a good judge will follow the Constitution and will contain the executive if it goes too far and will contain the legislative branch if it goes too far. He or she will show personal constraint and not go too far as a member of the court. I think some need to remember that. Some have gone too far, in my opinion.

This has not been about Judge Alito. It has been about an opportunity to attack President Bush. That is what everything seems to come down to here. That is why it is so political.

They said he recommended, in defending a former Attorney General of the United States who had been sued personally for monetary damages, that they not defend the case on the basis that the Attorney General had absolute immunity from suit, but suggested he argue that he had a qualified immunity.

The former Attorney General of the United States believed he had absolute immunity, and Judge Alito then, as a young lawyer in the appellate section of the Department of Justice, was obliged to make the argument, if it was defensible in any way, for absolute immunity, and he made it.

That didn't mean he believed the Attorney General can never be sued. But I am going to tell you, the Presiding Officer has been a Governor of Virginia. People will sue for anything. If

every Governor, if every Senator, if every attorney general can be hauled into court and be sued because they voted on some bill or did something and they have to pay out of pocket these judgments or lawyers to defend themselves, you can shut down the Government. We do have some cases where a Government official has absolute immunity and sometimes they have qualified immunity.

I was Attorney General of Alabama. I had to defend the Governor and other officials in various lawsuits, some of them as bogus as $3 bills, but you have to go down there and defend it. Are you going to try the case for 6 months or, if he has immunity, do you assert the immunity and get the case dismissed in the beginning? You get the case dismissed. That is what any good attorney for the Department of Justice would do.

He has never, in any way, supported an all-powerful Executive or an all-powerful executive branch that is ``unchecked by the other two branches of Government.'' Where did they come up with those kinds of ideas?

This is what he said in a speech at law school about the case of ex parte Milligan: It expressed that ``the Constitution applies even in extreme emergency.'' The Constitution does apply in the case of extreme emergency. That is what Judge Alito wrote some time ago.

He also said at the hearings:

The Bill of Rights applies at all times, and it is

particularly important that we adhere to the Bill of Rights

in times of war and in times of national crisis.

That is what he told us under oath in committee. He also said:

No person in this court is above the law, and that includes

the President and that includes the Supreme Court. Everybody

has to follow the law, and that means the Constitution of the

United States, and it means the laws that are enacted under

the Constitution of the United States.

He also said this:

Neither the President nor anyone else, I think, can

authorize someone to . . . override a statute that is

constitutional. . . . The President has to follow the

Constitution and the laws, and it is up to Congress to

exercise its legislative power. . . . The President has to

comply with the fourth amendment, and the President has to

comply with the statutes that are passed.

So it is clear that Judge Alito and his opponents are not talking about the same thing when they talk about the unitary executive theory.

According to Judge Alito, the ``unitary executive theory'' is not a theory that supports ``inherent authority to wiretap American citizens without a warrant, to ignore congressional acts at will, or to take any other action he saw fit under his inherent powers.''

Those items have to do with the scope of Executive power, which is an entirely different matter from this theory of a unitary executive. They have tried to take this theory of a unitary executive, which has been around a long time, and twist it to say it has something to do with whether the President has the power to wiretap you.

Judge Alito clearly explained that the unitary executive theory has nothing to do with the scope of Executive power, the separation of powers doctrine, Presidential signing statements, or the constitutionality of independent agencies. As he stated during the hearings:

The unitary executive doesn't have to do with the scope of

executive power . . . I don't see any connection between the

concept of a unitary Executive and the weight that should be

given to signing statements in interpreting statutes.

That is so correct and so weird that it even has to be clarified. Do we have any lawyers in this body?

He goes on to say:

I don't think I've ever challenged the constitutionality of

independent agencies.

Instead, this is what Judge Alito said about the unitary executive theory--this is what he said:

[I]t is the concept that the President is the head of the

executive branch. The Constitution says that the President is

given the Executive power.

Does anybody dispute that? I am quoting him.

And the idea of the unitary Executive is that the President

should be able to control the executive branch, however big

it is or however small it is . . . It has to do with control

of whatever the executive is doing. It doesn't have to do

with the scope of Executive power. It does not have to do

with whether the Executive power that the President is given

includes a lot of unnamed powers or what is often called

inherent power.

Isn't that a good statement? We have heard a lot of discussion for some time now about this problem of the President, and he is supposed to head the executive branch. We have all these agencies that act like independent nations. When the FBI and DEA get together and reach an agreement, they enter into memorandums of understanding, like a treaty. The agencies are both under the executive branch, under the President's authority, but they get so big for their britches that they think they have their own independence. There is a concern that the President is put in charge of the entire executive branch and is supposed to supervise all kinds of different federal agencies--the Immigration and Customs Enforcement Bureau, the Corps of Engineers, the Drug Enforcement Agency, the FBI, all of them. And then the Congress takes all the management of power and gives it to all the individual executive branch people so that the President can't even run the agencies, and then they blame him when things go wrong. That is the way we do things around here.

I asked Charles Fried, who was a former Solicitor General of the United States--the person who argues cases on behalf of the United States before the U.S. Supreme Court--and had been a professor at Harvard Law School before that teaching judicial philosophy: Mr. Fried, you have been around a good while. You have heard this talk about the unitary executive. What is it? What does it mean to you?

Boy, he just hit it right on. I was surprised. He even rebuked the members of the committee for misinterpreting the theory, he said this:

I think what has been said about the unitary Executive in

these hearings is very misleading. The unitary Executive says

nothing about whether the President must obey the law. Of

course he must obey the law. It talks about the

President's power to control the executive branch.

[It] is not an invention of the Reagan Justice Department,

it was propounded in the first administration of Franklin

Delano Roosevelt who objected to the powers of the

Comptroller General who tried to fire a Federal Trade

Commissioner, and who referred to himself [this Comptroller]

as the general manager of the executive branch. That is the

origin of the notion, the FDR administration.

Some Comptroller General declared he was the general manager of the executive branch and Roosevelt didn't like it and he talked about that and said the executive branch is headed by the President. Here, America, the Government, is one. It cannot sue itself.

Judge Edward Becker was aware of all these things. He is one of the most distinguished Federal appellate judges in America. He appeared at the committee with a group of his colleagues from the Third Circuit. They have served with Judge Alito, many of them for his full 15-year career--most of them at least 7 or more years--during his tenure on the Third Circuit Court of Appeals.

For those who may not fully understand it, an appellate judge on the court of appeals handles the appeals from the trial courts where juries and witnesses testify. Everything that is said in those trials is written down. If somebody is unhappy with the result and thinks they did not get fair treatment, they will appeal to the court of appeals and the court of appeals will review the record, listen to the arguments, consider the law, and determine what the facts are in the case and rule whether they got a fair trial.

If you are not happy with the court of appeals' decision, then you appeal to the Supreme Court and the Supreme Court does basically the same thing, it reviews the transcript and the record and considers the decision of the court of appeals that decided it.

That is what Judge Alito has been doing for 15 years. That is what his life has been. He goes to work and reads transcripts. He is not listening to people's phone calls. He is not approving search warrants, such as State county judges, and magistrates judges, and city judges can do. Judge Alito has been up here doing the very same kind of work he would be doing on the Supreme Court.

What do they say about how he performed in that role? This is what Judge Becker said about Judge Alito's temperament. Sam Alito:

is gentle, considerate, unfailingly polite, decent, kind,

patient and generous. . . . I have

never once heard Sam raise his voice, express anger or

sarcasm, or even try to proselytize . . . he expresses his

views in measured and tempered tones.

Pretty good job description of what you would want in a Supreme Court Justice, wouldn't you think?

What about the question of integrity? What did Judge Becker, one of the great judges in the United States today, say about his integrity?

Sam Alito is the soul of honor. . . .I have never seen a

chink in the armor of his integrity, which I view as total.

Judge Becker, on Sam Alito's intellect:

He is brilliant, he is highly analytical, and meticulous

and careful in his comments and his written work. . . . He is

not doctrinaire, but rather open to differing views and will

often change his mind in light of the views of a colleague.

Isn't that a fine statement of what you would want in a judge?

What about his approach to the law? They say he has views and he is going to let his views impact his decision-making process. What does Judge Becker, who served with him for 15 years and watched him and sat right beside him on that same court of appeals, say?

He scrupulously adheres to precedent. I have never seen him

exhibit bias against any class of litigation or litigants. .

. . His credo has always been fairness.

Judge Anthony Scirica, Chief Judge of that Third Circuit, has been on the bench for 20 years. This is what Judge Anthony Scirica said about him. Alito:

is a thoughtful, careful, principled judge who is guided by a

deep and abiding respect for the rule of law.

He goes on to say Alito ``is intellectually honest.''

Let me insert here a parenthetical. I am telling you, those of us who tried a lot of cases before judges, want a judge who is honest intellectually and does not play games, does not twist facts, does not twist the law so he can justify a decision, and most people know which judges do that.

Judge Scirica said that Alito:

is intellectually honest, he is fair, he is ethical. He has

the intellect, the integrity, the compassion and the judicial

temperament that are the hallmarks of an outstanding judge.

He goes on to say:

His personal views, whatever they may be, do not jeopardize

the independence of his legal reasoning or his capacity to

approach each issue with an open mind.

All of us have some beliefs, unless we are a potted plant or already beneath the soil. But the question is, when you put a robe on somebody with a lifetime appointment, are they going to allow some personal belief they may have to not give the litigants before the Court a fair shake and allow their personal bias, their disagreement with the law, or their personal concern, to override what their duty is? Alito is absolutely not this kind of a judge.

So what else does he say about him?

Judge Alito is modest and unassuming.

We had one of our Senators, remarkably, make this statement. It takes your breath away, really.

If there is a case involving an employer and employee and

the Supreme Court has not given clear direction, Judge Alito

will rule in favor of the employer.

Then he goes on to say if it is a prosecutor or defendant, ``he will rule for the prosecutor.''

That is not what these people who know him say. That is not what his record says and demonstrates. That is not the opinion of anybody who knows the man.

Judge Maryanne Trump Barry, who was appointed to the court in 1999 by President Clinton, had previously worked with Alito in the U.S. Attorneys Office in New Jersey in the 1970s. This is what Judge Maryanne Trump Barry said about him.

In the Attorney General's office, Samuel Alito set a

standard of excellence that was contagious, his commitment to

doing the right thing, never playing fast and loose with the

record, never taking a shortcut, his emphasis on first-rate

work, his fundamental decency [were clear].

She goes on to say:

Judge Alito is a man of remarkable intellectual gifts. He

is a man with impeccable legal credentials. He is a fair-

minded man, a modest man, a humble man, and he reveres the

rule of law.

This is not a man who is going to get on the Supreme Court and rule against every defendant. As a matter of fact, there is a host of cases in which he ruled for the defendant, sometimes in dissent. He is certainly not going to rule for the employer if the employee has been wronged. Judge Ruggero Aldisert, appointed by President Lyndon Johnson, a Senior Judge who has written a number of books, who campaigned for John F. Kennedy and ran for office as a Democrat, said this about Alito. He is a remarkable man, I must say.

Judicial independence is simply incompatible with political

loyalties and Judge Alito's judicial record on our court

bears witness to this fundamental truth.

Judge Leonard Garth has been on the bench since 1973. Judge Alito, right out of law school in 1976, clerked for Judge Garth. Judge Garth found him to be:

fiercely intelligent, deeply motivated, and extremely

capable.

While Alito was Judge Garth's law clerk, Judge Garth:

developed . . . a deep respect for Sam's analytical ability,

his legal acumen, his judgment, his institutional values,

and, yes, even his sense of humor. . . .

He said Alito:

is an intellectually gifted and morally principled judge.

Some may not like it. They are going to think there is something wrong with that. Judge Garth said he was a ``morally principled judge.''

He is a sound jurist, always respectful of the institution

and the precepts that led to decisions in cases under review.

He goes on to say:

His fairness, his judicial demeanor and actions, and his

commitment to the law, all of those qualities which my

colleagues and I agree he has, do not permit him to be

influenced by individual preferences or any personal

predilections.

Judge Garth did say he was very careful about those words. He knew some were suggesting that Judge Alito, who served for a time in the Reagan Department of Justice and had been unanimously confirmed by this Senate to the court of appeals, after being appointed by former President Bush--some were somehow saying that he might allow his views, whatever they are--and I have not seen any evidence that he has particularly strong political views--that he might allow them to influence him.

He said that:

. . . his commitment to the law, which my colleagues and I

agree he has, do not permit him to be influenced by

individual preferences or any personal predilections.

If you served on a bench a long time with a judge, you will know whether that is true. This is a Democratic individual.

Judge John Gibbons said this about it. He said that he was now representing some prisoners in Guantanamo, his law firm was, and he was not happy with the way they had been treated. But he said:

I am confident, however, that as an able and legal scholar

and a fair-minded Justice, he will give the arguments . . .

careful and thoughtful consideration without any

predisposition in favor of the position of the executive

branch.

So this Judge Gibbons had been on the bench and is now retired from the bench. He is now in private practice. His law firm, for reasons of which I am not aware, was representing prisoners in Guantanamo. He thinks they are entitled to trials, I suppose. But he said absolutely he trusted Judge Alito to give him a fair trial.

He went on to add:

Alito is a careful, thoughtful, intelligent, fair-minded

jurist who will add to the Court's reputation as the

necessary expositor of constitutional limits on the political

branches of the government.

Judge Tim Lewis, African American, served on the Third Circuit Court of Appeals for 7 years before going into private practice focusing on civil rights and human rights law. Judge Tim Lewis joked about sitting on the leftwing of the panel. Judge Lewis claimed he is:

openly and unapologetically pro-choice and always has been.

He said that:

Judge Alito never had an ideological bent or a result-

oriented demeanor or approach.

He is:

intellectually honest.

Then he went on to add this, he emphasized it:

If I believed that Sam Alito might be hostile to civil

rights as a member of the United States Supreme Court, I can

guarantee you that I would not be sitting here today. That is

the first thing I want to make clear.

He said Alito ``will not have any agenda-driven or result-oriented approach.''

That was one of the more remarkable panels we have ever had. Judge Alito has served with Republicans and Democrats--experienced judges, extraordinarily wise, very interesting to listen to, and their respect for him was remarkable.

Indeed, the ABA panel member--an African American who represented the University of Michigan in the affirmative action admissions case which went before the Supreme Court--said that Judge Alito was ``held in incredibly high regard'' by the ABA.

I will share a few words from Judge Alito himself before I wrap up.

In his testimony, he was asked about cases that may come before him. I have to say nobody would dispute that in recent years he was more forthcoming than any nominee we have had in discussing openly how he would analyze a case, without going too far and prejudging it in any way. He said these words, which I think reflect good judgment and wisdom of judgment.

By the way, we have a transcript, but all of this was without notes. He spoke so beautifully. He looked right at us.

This is what he said:

Good judges develop certain habits in mind. One of those

habits in mind is to have a delay in reaching a conclusion

until everything has been considered. Good judges are always

open to the possibility of changing their minds based on the

next brief that they read, or the next argument that is made

by an attorney who is appearing before them, or a comment

that is made by a colleague during the conference on the case

when the judges privately fully discuss the case.

That is what we want in a judge. We want a judge who comes in with a philosophy and a demonstrated record of not rushing to judgment, not allowing any personal views he may have to influence him. He analyzes a case, but has a record that has won the respect of colleagues, liberals and conservatives, Republicans and Democrats, the bar, and his colleagues on the bench.

He is an extraordinary nominee. I could not be more proud of him. He did a magnificent job in testifying. I never thought that anyone would testify to the level of John Roberts because he is such a skilled attorney and advocate. But this judge in his own way was every bit as good. He made us all proud, and President Bush should be very proud for submitting his nomination.

I am pleased to support him. I will be voting for him, and I hope my colleagues will do the same.

I thank the Chair. I yield the floor.

I suggest the absence of a quorum.

Mr. President, I thank Senator Specter for his excellent leadership of the Judiciary Committee during both the Roberts and Alito hearings. He squarely addressed the tough issues in the first questioning. He made sure every member of the committee had full and ample opportunity to ask any question they wanted. We had 30-minute rounds. We had opening statements. We had the opportunity to have multiple rounds. Basically, I think the people could have asked questioned theses nominees for as long as they wanted.

Of course, both Roberts and Alito were magnificent in their testimony, superb in their knowledge of the Constitution and the role of a judge in every possible way. That is why they have been favorably received by the American public which is why Chief Justice Roberts was confirmed, and why Alito will be confirmed.

We have the greatest legal system in the world. It is the foundation of our liberties. It is the foundation of our economic prosperity. But the focus and the key ingredient of our legal system is an independent judge who makes decisions every day based on the law and the facts, not on their personal, political, religious, moral or social views. If we descend to that level, if we allow those social, political views to affect or infect the decision-making process, justice has been eroded. That is contrary to every ideal of the American rule of law.

What is important today is Judge Alito's legal philosophy. It is not his political philosophy that is important. What is his legal philosophy? The core of his beliefs as a judge is that a judge should be careful, fair, restrained, and honest in analyzing the facts of the case and applying the relevant law to those facts. For what purpose? To decide that dispute, that discrete issue that is before the Court at that time and not to indulge, as he indicated, in great theories. That is not what a judge is about.

So this is what American judges must do for our entire legal system to work. That is why I am so proud that President Bush has given us two nominees who can explain, articulate that role of a judge in a way every American can understand, relate to, and affirm.

My colleagues, I am afraid, lack a proper understanding of this concept. It goes to the core of our differences over judges. They want judges, I am afraid, who will impose their own views, their personal views, on political issues in the guise of deciding discrete cases before them. Oftentimes, these are views that cannot be passed in the political, legislative process but can only be imposed by a judge who simply redefines or reinterprets the meaning of words in our Constitution, and they declare that the Constitution says that same-sex marriage must be the law of the land. They just declare that to be so. It only takes five unelected, life-time appointed judges to set that kind of new standard for America.

Is there any wonder people are worried about that? It erodes democracy at its most fundamental level when political decisions are being set by judges with lifetime appointments, unaccountable to the public.

So that is what we are worried about in so many different ways. There has been a trend in that regard, no doubt about it, by our courts. I think they have abused their authority by taking an extremely hostile view toward the expression of religious conviction in public life.

They have struck down Christmas displays. Our courts have declared our Pledge of Allegiance to the Government unconstitutional because it has ``under God'' in it. By the way, for those of you who can see the words over this door, ``In God We Trust,'' it is part of our heritage, written right on the wall of this Chamber.

This is an extreme interpretation of the separation of church and state. It is not consistent with our classical understanding of law in America. We had the Supreme Court, in this past year,

redefining the takings clause. The takings clause says you can take private property for public use.

It does not say you can take it for any purpose, like a private mall. They redefined the meaning because they thought that was smarter, better policy. But we don't appoint judges to set policy. As legislators, we have that responsibility. We are the people who will be voted out of office if we set bad policy. We are the ones meeting people every day and campaigning, trying to understand what the American people care about. That is not what judges do, at 80 years old, sitting over there reading briefs every day.

This is an important issue. They declared that illegal aliens, despite State laws to the contrary, are entitled to benefits. They struck down every partial-birth abortion law. They have declared that morality--this is hard to believe but true in recent years--cannot be a basis for congressional legislation. Yet they contend that they may decide opinions and redefine the meaning of words and the understanding of words over hundreds of years based on what they declare to be evolving standards of decency.

Is that a standard or is that just a license for a judge to do whatever they feel like doing at a given time? Evolving standards of decency, who can define that? Do they have hearings on what these standards are?

These are important issues. The American people are concerned about it. President Bush was concerned about it. He promised he would appoint judges who show restraint, judges of great ability and integrity but who would show restraint and be more modest in the way they handle these cases. That is a fair standard. It is a legitimate issue for the American people to decide. He talked about it in almost every speech he made. That is what he promised to do, and that is what he has done.

If we were to name judges, there is a legitimate concern that we would appoint judges who would promote some conservative agenda. I don't favor that; I oppose that. We don't want a judge to promote a liberal or a conservative agenda, although the plain fact is, if anybody looks at it squarely, they will see that the Court has actually been promoting a more liberal agenda. But we are not asking that a conservative agenda be promoted. We are asking that the courts maintain their role as a neutral umpire to decide cases based on the law passed by the legislative branch or State legislatures or passed by the people through the adoption of the U.S. Constitution.

I don't understand the opposition to Judge Alito. He is such a fabulous nominee. It does appear, according to the New York Times last week, the 19th of January, that our Democratic leader, Senator Harry Reid, has urged his colleagues to vote no so they can, for political reasons, make it a political issue. We need to be careful about that. I am afraid there has been an attempt to change the ground rules of confirmations, to set standards we have never set before for nominees. That knife cuts both ways. If this is affirmed, then there will be more difficulty in the future for Democratic Presidents to have their nominees confirmed.

Judge Alito has a remarkable record. He is the son of immigrants in New Jersey. His father was an immigrant to this country. He goes off to Princeton, gets his degree with honors, declines to accept an invitation to join an eating club that excludes women and others. I guess that was beneath the members of that club. He decided while he was there that he would just dine with everybody else, the scruff and the scrum that you find at Princeton. Then he went to Yale Law School where he finished at the top of his class, served as editor of the Yale Law Journal, participated in the ROTC at a time when that was not an easy thing to do, served in the Army Reserve for 8 years, and was offended that Princeton would kick the ROTC from their campus. I am sure he was not pleased when the rioters bombed the ROTC building at Princeton.

He is an American. He believes in his country. He was prepared to serve his country, go where he was asked to go, if called upon in that fashion.

He was chosen to clerk for the Third Circuit after he graduated, the court on which he now sits with Judge Garth. That is quite an honor. For 3 years he served as assistant U.S. attorney in that great large New Jersey law office for the U.S. attorney where he argued appellate cases. He did the appellate work. That is what he will be as a Supreme Court judge, an appellate judge, not a trial judge. That is what he did when he started out his practice. Then he went to the Solicitor General's Office of the Department of Justice, which is often referred to as the greatest job for an attorney in the world, to be able to stand up in the courts of the United States of America, particularly the Supreme Court, and to represent the United States in that court. He argued 12 cases before the Supreme Court. Not one-half of 1 percent of the lawyers in America have probably argued any case before the Supreme Court. He argued 12. That is a reflection of his strength and capability.

Then he became U.S. attorney in New Jersey, which is one of the largest U.S. attorney offices in America, where he prosecuted the Mafia and drug organizations and was highly successful in that office and won great plaudits for his performance. He then was placed, 15 years ago, on the Third Circuit Court of Appeals. He has served as a circuit judge in the Third Circuit Court of Appeals for 15 years, writing some 350 opinions and participating in many others.

He has had his record exposed to the world. What does it look like? Without question, it is a record of fairness and decency. Some of us on the conservative side have questioned the bar association. They are pro-abortion in their positions. They take liberal positions on a lot of issues, and some people have criticized them for that. They declare their ratings of judges are not based on that. But sometimes they have been accused of allowing their personal views to infect that rating process.

How did the American Bar Association rate Judge Alito? They gave him their highest possible rating. They found that he was well qualified, unanimously, by the 15-member committee that meets to decide that issue. They interviewed 300 people, people who have litigated against Judge Alito as a private lawyer, people who have been his supervisors, people who have worked for him, people who had their cases decided by him.

They go out and talk to these people. They will share with the American Bar Association privately what they might not say publicly. So they interviewed 300 people, and contacted over 2,000. They concluded that Judge Alito has established a record of both proper judicial conduct and evenhanded application in seeking to do what is fundamentally fair.

They declare that Judge Alito was held ``in incredibly high regard.'' That was said by attorney John Payton, an African American who argued the University of Michigan quota case before the U.S. Supreme Court, not a rightwinger. He said they found the people they interviewed held Judge Alito in incredibly high regard. I asked him if he chose that word carefully. He said: I did; yes, sir.

Judge Alito represents that neutral magistrate that we look for in our judges in America. His academic record is superb. His proven intelligence is unsurpassed. The experience he brings to the U.S. Supreme Court is extraordinary, including 15 years as an appellate judge doing in a lower court basically the same thing one would do at the Supreme Court level.

This is what he said at the hearing:

Mr. President, I ask unanimous consent for 30 seconds to wrap up.

This is what he said:

I had the good fortune to begin my legal career as a law

clerk for a judge who really epitomized openmindedness and

fairness. He read the record in detail in every single case.

He insisted on following precedent, both the precedents of

the Supreme Court and the decisions of his own court. He

taught all of his law clerks that every case had to be

decided on an individual basis. He really didn't have much

use for grand theories.

That is what we need on the bench today. I think it would restore the public confidence. I am proud to support this nomination.

Mr. President, I respect Senator Leahy. He is an excellent advocate for the Democratic side. I was pleased he supported Judge Roberts, and I am not as thrilled he is not supporting Judge Alito. It was a process that was a bit rough at times, but fundamentally I think the judge was able to have his day in court.

I yield the floor.