Floor Statements

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 102, which was submitted earlier today by Senator Sununu.

I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, the motion to reconsider be laid upon the table, and that any statements relating thereto be printed in the Record.

Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 10 a.m., Wednesday, April 2. I further ask that following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved for their use later in the day, and the Senate then begin a period for morning business until 11 a.m., with the time equally divided between Senator Hutchison and the minority leader or their designees.

Mr. President, I further ask unanimous consent that at 11 a.m., the Senate proceed to the consideration of the supplemental appropriations bill as reported by the Appropriations Committee. I further ask consent that at 1:30 p.m., the Senate then proceed to executive session and there then be 30 minutes of debate equally divided in the usual form prior to the cloture vote on the nomination of Miguel Estrada to be a circuit judge for the DC Circuit; provided further that if cloture is not invoked, the Senate then return to legislative session.

Mr. President, for the information of all Senators, the Senate will be in a period for morning business tomorrow morning until 11 a.m. to allow Members to continue to make statements in support of our troops. This is, of course, according to the majority leader. At 11 a.m., the Senate will begin consideration of the supplemental appropriations bill. Amendments are anticipated on that measure. The majority leader would encourage Members to notify the managers if they intend to offer any amendments. At 2, the Senate will conduct the fourth cloture vote in relation to the Estrada nomination. Following that cloture vote, the Senate will resume consideration of the supplemental appropriations bill. The Senate will complete action on the supplemental this week so we can get the necessary funds flowing to our brave men and women who are serving in Iraq. Therefore, the leader would inform all Senators to expect a busy day tomorrow with rollcall votes throughout.

If there is no further business to come before the Senate, I ask unanimous consent that the Senate stand in adjournment under the previous order.

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

Mr. President, I ask unanimous consent that I be recognized in morning business for a period of up to 15 minutes.

Mr. President, this is ``Cover the Uninsured Week'' and there have been press events--and I guess you can call them rallies-- around the country designed to inform America about the problem of the uninsured. I guess I am glad that is happening. It seems as though it happens a lot. We have been talking about the uninsured for a long time.

I think it is time we do something about the uninsured instead of just telling everybody that we have. And we can do that. I would suggest we are on the brink of doing it. We in the Senate just have to choose between the employees of the small businesses around the country, who are most of the uninsured, and the big insurance companies that have them under their thumb currently.

There are about 41 million uninsured people in the country at any given time. About 60 percent of those uninsured people are either owners of small businesses or employees of small businesses, or dependents of somebody who owns or works for a small business. Most of the people who are uninsured are working people. The reason they are uninsured and the reason they are not getting health insurance through their small business is that the small businesspeople are caught. They are stuck on a dysfunctional market. They are caught because all they bring to that market is a unit of 4 or 5 people, or maybe 20 or 30, or maybe 60 or 70. And they have very few choices. They consistently pay higher costs for health insurance premiums, and they get lower quality insurance than people who work for big businesses or people who work for the Federal Government, as we do.

I have seen this all over the State of Missouri and, indeed, all over the country. I chaired the Small Business Committee for two terms in the House. In that capacity and since then, I have visited personally with hundreds and hundreds of small businesspeople and with thousands of their employees. This is their No. 1 issue. It is not fair for them to be laboring under impediments that the rest of us do not have.

I was in Farmington, MO, over the weekend. I stopped by an optometrist's office run by a couple of optometrists, and a couple of their employees were there. They gathered around and told me a very familiar story. In 1999--I think it was--they said, we just felt we had to start providing health insurance to our people, as expensive as it was and as difficult as it was.

They had to spend hours and hours soliciting bids, maneuvering, and trying to get insurance for their people. So they started it.

They said: When we started, it was a little over $200 a month per employee. Now, 4 years later, it is over $500 a month per employee.

They are not able to give wage increases to their people because health insurance costs are increasing so fast.

Everywhere I go, small business health insurance costs are going up 20 or 25 percent a year.

There is a further human side to this story. One of their employees-- a really neat lady--I talked with for a while. She is a single mom and a cancer survivor. She is trapped, and the small business is trapped with her, because if they drop the insurance, she will never get reinsured anyplace else. They feel a moral obligation to continue that insurance for her. The other employees are doing without wage increases and dealing with substandard insurance in order to help their fellow employee.

I have seen this story over and over again. And it is not necessary. We can do something about it, and we need to.

Here is what we can do.

The House passed several times in the 1990s--and the President now supports the plan--a plan that would simply allow small businesses to pool through their national trade associations or their professional associations and get health insurance on the same terms and under the same regulatory apparatus as the big businesses, the unions, and the Government currently do.

That is all we need to do, just empower the small businesspeople. It will not cost the taxpayers a dime because it is not a Government program. It is just allowing people to do what is already happening all over the United States.

So here is how it would work: Let's say the National Restaurant Association would sponsor national health insurance plans. They would start an employee benefit side, just like the big companies do. They would contract with national insurance companies. They would have a self-insured side. And then, if you are a restaurant employee, by joining the restaurant association, you would automatically be entitled to get this insurance. They would have to offer it to you. They could not tell you you could not have it. And you would be part of a pool of 20,000 or 30,000 people instead of in a unit by yourself with two or three or five or ten people, like my brother's situation. He has a little tavern kind of restaurant in St. Louis. Actually, it may be more of a saloon. But, in any event, he could join the National Restaurant Association to get coverage. It is just him and my sister-in-law who run this place. Apart from the money, which is impossible for him, he does not have the time and does not want to incur the risk of going out two or three times a year and soliciting bids.

And then, all of a sudden, what often happens to small businesspeople is they get called up because somebody actually filed a claim. The big insurance company tells them their rates went up astronomically. They have no power in this market. They are caught with few choices, with small groups, with high administrative costs. It is not necessary, and it does not even cost anything for us to fix it.

I was talking about this at a dinner the other day with six or seven people who were there to talk about how we could serve the underserved better with health care. This is part of the answer to it. We had a real good dialog with these folks. Many of them are operating a charitable enterprise where they are helping people get health care.

I laid this out for them, and one of the men said to me: Well, who wouldn't support that? Indeed, who wouldn't support it? I will tell you who doesn't support it: the big insurance companies, who control this small group market now. They are operating like monopolists. Monopolists ratchet down their output and raise their prices. That is what is happening. Fewer and fewer people are covered, and prices are going higher and higher. They are making money, and people around this country do not have health insurance. It is wrong, and it ought to stop.

One argument I hear about this is: Look, if we do this, the association health plans will engage in cherrypicking. What that means is, the healthy small business groups will go into the big plans, the sicker small business groups will prefer to stay out there in the small business market. This is actually an argument that the big insurance companies are raising. It is the exact opposite of the truth.

Common sense tells you if you have a history of illness, if you have cancer or had cancer or diabetes or kidney problems, or something similar to that, and somebody says to you, look, you can be

in a small group market, you can work for a small business and be part of a group of 4 or 5 people or 40 or 50 people, or you can work for a big business and be part of a group of 10,000 people, which would you choose?

I have asked that question in small business groups around the country. I have not had a single person say: If I were sick, I would rather be part of the small group. Of course you would rather be part of the bigger group.

This is a haven for small business people who want to help themselves and their employees, and particularly the ones who are sick and need the insurance, such as that lady in the optometrist shop in Farmington. It is a haven for them. And it will cut the cost of their health insurance, on average, 10 to 20 percent and make insurance available to millions of people who currently do not have it. It does not cost the taxpayers anything. It is just like a big co-op.

We have a lot of support in the Senate. I am very pleased about our progress. The chairman of the Small Business Committee, the senior Senator from Maine, Ms. Snowe, is a strong supporter and is leading the fight. Senator Bond is supportive. The Senator who is presiding over the Senate today is supportive. Senator McCain is supportive. I have been talking with a number of my friends and colleagues on the other side of the aisle. I am hoping to get support there.

In the House, it passed on a strong bipartisan basis. I believe we can do the same. It is just a question of the choices we want to make. We can choose these small businesspeople and their employees who have been telling us, year after year after year: We are working full time; We care about our jobs; We care about our fellow employees; Let us help ourselves, or we can choose the big insurance companies that have a monopoly on this market and are charging higher and higher prices and providing fewer and fewer policies of insurance for people who need it.

I think the choice is clear. I urge the Senate to look at this bill, the association health plans. We can get it passed. We can make a difference, and we can do it now.

I yield back the remainder of my time.

Mr. President, I want to place this debate in historical context. The tradition of the Senate has been to confirm judicial nominations of the President if the nominees were competent, if they were qualified, if they were honest, if they had a record and background in the law, in the practice of law or on the bench or in academia, that suggested they could live up to the standards of the judiciary. If they did, they were confirmed and confirmed without having to answer questions that nobody ever has had to answer and would usurp and undermine the executive branch and the Solicitor General's Office if they had to answer it. Under those standards, hundreds of people in Miguel Estrada's circumstances have been confirmed without even any controversy, much less a filibuster, and everybody here knows it.

You can always invent a reason to be opposed to somebody. Senators on the other side have been good at doing that with regard to Miguel Estrada, but he ought to be confirmed. At least he ought to have a vote, if we are going to follow the traditions of the Senate.

Now those traditions have broken down to the point we not only are voting not to confirm people, we are not even allowing a vote. We have Senators conducting a filibuster on somebody because they suspect they might disagree with his jurisprudence.

What is it we are so afraid Miguel Estrada might believe; a man who went to Harvard Law School, was an editor of the Law Review, served in the Solicitor General's Office, has been given high marks by everybody who has ever supervised him? Of course he is in the mainstream.

In the past, we gave people the benefit of the doubt. We don't have time, with every judicial nominee, to go through everything they might believe about every particular judicial issue. The fact is, if we were applying the traditions of the Senate, or anything close, this man would be confirmed and we could move on. Now we cannot even get a vote, and everybody here knows that.

The Senate is broken. It is broken at a time where we may be going to war. The economy is in trouble. Of course we need to move on. I hear Senators from the other side saying we should not be debating this, we should be moving on. Yes. Exactly. But you can't stand up and conduct a filibuster and then say you are not obstructing. You are. Let us have a vote on this man. He will probably carry. Other nominees we have votes on may not carry. Let's get the Senate working together.

It is not the end of the world if somebody gets on the court of appeals that you don't like. He is not going to change the Constitution. He is on the court of appeals. Let's vote on him and let's move on.

What concerns me is something to which the Senator from New York referred. I am concerned that a few years from now a Democratic President may get elected and he is going to start nominating people and we are going to get back on this, except from this side of the aisle. It would be wrong.

I have three kids. They are 12, 10, and 6.

Can I have another minute to talk about my family?

I appreciate it. Sometimes I go down to our little rumpus room and they are arguing about something, and the one thing I tell them I don't want to hear is: They started it. He started it.

There is a code of conduct to which you should adhere. Let's adhere to it. That is in the interest of this Senate. It is in the interests of the Constitution and the interests of the people. What must the people think when they see us doing this on an appellate court nomination? I ask my friends from the other side of the aisle, I know it was done--not to this extent but from this side of the aisle--to some of President Clinton's nominees. Let's go back to the standard we always followed. Let's make the Senate work. Let's keep it from being broken.

I thank the Senator for yielding.

When I was growing up, there was a tradition in the Senate that I observed as an outsider, of course, about how the Senate handled its constitutional function of giving advice and consent for presidential nominees. The Senate pretty much understood on the basis of a bipartisan consensus that its role was secondary, that its power was a check rather than a primary power to appoint people, either to the executive branch or to the judicial branch. I observed that Senators pretty much voted to confirm Presidential nominees if they believed those nominees were competent and if they believed those nominees were honest, and they did not inquire too greatly of the nominees' philosophy for the executive or into the nominees' jurisprudence for the legislative. There would be flaps or personal problems, but basically that was the role the Senate played and the traditional understanding of its constitutional function.

Unfortunately, I think we will all agree, that consensus has broken down over the last few years. We will all agree that both sides have some responsibility for that consensus breaking down. What we are experiencing now from the Senators who are opposing and filibustering the Estrada nomination is so extreme given the past traditions of the Senate that it threatens the spirit and, I argue, even the letter of the Constitution, and it threatens the ability of the Senate and the integrity of the Senate to do the work of the people.

Let me go into that a little bit. First of all, I take it from my understanding of the debate that the Senators who are opposing Mr. Estrada are not questioning his abilities as a lawyer or his honesty or integrity as an individual. I appreciate that. This is not a personal attack on Mr. Estrada. No one is saying he is unqualified as a lawyer. No one is saying he is dishonest in terms of his professional dealings or dishonest as a man and, indeed, you could not say that based on his experience which is clearly well known after the hours of debate we have put into this nomination.

He arrived in this country knowing very little English. He worked his way up, if you will. He was a leader in his law school class. He was on the Law Review. An achievement he was able to get, as not all of us were able to get, he clerked for an outstanding judge, a Democratic appointee on the Second Circuit, and then on the Supreme Court, and did an outstanding job in the Solicitor General's Office, according to his supervisors of both parties.

No one is questioning his abilities or honesty, as I understand it. As I understand, no one is saying they think he is not competent or honest in the sense of the standard that traditionally had been applied. What they are saying is this. They are saying, first of all, they will vote against the nominee, even to an appellate court, because they disagree with that nominee's jurisprudence, which is, itself, a step beyond what the Senate ever did in the past. But they are going beyond that. They are saying they will vote against the nominee, even to an appellate court, not just because they disagree with his jurisprudence, but because they suspect they might disagree with his jurisprudence.

And if he answered questions no other nominee who worked for the Solicitor General's Office has ever been expected to answer, and which they should not have to answer, given the need for the integrity of the executive branch, but they are going beyond that.

The opponents on this floor of the Estrada nomination are not just saying they will vote against nominees if they disagree with their jurisprudence, or vote against them if they suspect they might disagree with their jurisprudence; they are saying they are not even going to allow a vote on a nominee even to an appellate court if they suspect they might disagree with that nominee's jurisprudence.

I ask my colleagues, I beg my colleagues who are opposing this nomination, to consider what this new standard, if it were to be adopted by the Senate as a whole, would mean for the Constitution, would mean for the Senate, and would mean for Estrada, as well.

As I said, the Constitution assigned, we can all agree, the primary power of appointment to the President. Yet the Constitution shares some of that power with the Senate and that is not unusual. Even though we have a separation of powers, there are a number of instances where the executive is given a little legislative power, or the legislative is given a little executive power. For example, when the President is given the power to negotiate treaties and conclude them with foreign countries but subject to the requirement that two-thirds of the Senate ratify those treaties. So the Senate is given, in effect, a little executive power.

The Framers of the Constitution knew how to provide for the Senate to exercise the executive power they gave it by a supermajority vote when they wanted to provide that.

When the Framers said, we want to actually take a little bit more power away from the President, they said, we are not only going to require that the Senate ratify treaties but we are going to require that they ratify them by a supermajority vote, a two-thirds vote. The Framers knew how do to that when they wanted to do it. The assumption is they didn't want to take that extra measure of power away from the executive. Yes, they wanted to share the power of appointments with the Senate, as several colleagues have said. They are correct in saying that. The Senate is a partner in this process. But according to its traditions, it has always been a junior partner. According to the spirit of the Constitution, it exercises this partnership by a majority vote and not a supermajority vote.

If we adopt the tradition in this body that we will filibuster nominees, if we suspect we might disagree with their jurisprudence, we are in effect saying it will require 60 votes for this body to confirm a judicial nomination. That, I submit to you, is a usurpation of the executive authority as granted under the Constitution. It is a shift in constitutional authority away from the executive and to the legislature--and not even to the Congress as a whole but to the Senate.

As much as I stand up for the Senator from New York in saying as much as we have to stand up for the prerogatives and the authority of the Senate under the Constitution, our first responsibility is to the Constitution and to the distribution of powers, as the letter of the Constitution indicates and as the traditions of this Senate have always confirmed.

I am deeply concerned. If we were to adopt the standards being applied here to Miguel Estrada across the board, we would be doing something which is unconstitutional and which violates the spirit and I believe the letter of the Constitution as well.

My second concern is that this kind of a filibuster under these circumstances will poison the operation of the Senate on other matters. The filibuster, whatever you think of it, is a power that should be reserved for issues of only the greatest seriousness. I am not saying an appellate court nomination isn't important, it is important, but it is an appellate court nomination. Mr. Estrada, if he is confirmed to this post, whatever my colleagues may suspect his jurisprudence might lead him to do, is not going to change settled interpretations of the Constitution of the United States that can only occur on the Supreme Court level. And to haul out the nuclear

weapon, if you will, of a filibuster on an issue that, while important, is not of the first letter of importance undermines the integrity and the ability of this Senate to pull together on issues that are of the first importance.

I agree with the Senator from New York. We need to get on to issues of health care. We need to get on to issues of education. We need to get on to issues of defense and of tax relief to create jobs. All of these things are very important. That is why we should not filibuster an appellate court nomination. Allow a vote at least, I ask my colleagues.

Let me say finally that I am concerned about the effect of this on the justice that we as a body and as Americans owe to the man whose interests and whose career are at stake here. Miguel Estrada is, after all, a person. Sometimes the great forces of history, of cultural division, and focus on personal disputes involving broader issues come to focus on one man or one woman. We have seen that happen sometimes in our history. And it may be unavoidable. But we should always keep in mind that we are dealing with a human being, a person who has done his best by his life to keep his obligations to his colleagues and to his country--a person who has excelled by any standard. None is questioning that--a person who has conducted himself with integrity and has done so in a town where it is sometimes difficult to conduct yourself with integrity. And his professional future is hanging, if you will, on a thread. We ought to consider what is just to him. He deserves this post. He has worked hard for it. His qualifications qualify him for the post. We should at least give him a vote.

That is why the newspapers and the opinion of this country for the last week or so have been decidedly in favor, if not of Mr. Estrada and I think most of the opinion of the country has indeed be in favor of confirming him for the reasons I have indicated--but at least in favor of giving him a vote.

I am not going to read all of the editorials, certainly. I ask unanimous consent to have printed in the Record an editorial of February 7, 2003, from the St. Louis Post-Dispatch, one my hometown newspapers, and also a letter--they may already be in the Record--and one in the New York Daily News by Gov. George Pataki.

Mr. President, I want to read an editorial from the February 18 issue of the Washington Post. It sums up the case better than or as well as I can:

The Senate has recessed without voting on the nomination of

Miguel Estrada to the U.S. Court of Appeals for the D.C.

Circuit. Because of a Democratic filibuster, it spent much of

the week debating Mr. Estrada, and, at least for now, enough

Democrats are holding together to prevent the full senate

from acting.

We all know a filibuster is underway here, an obstruction tactic.

That is not from the editorial. That was my editorial comment.

The arguments against Mr. Estrada's confirmation range from

the unpersuasive to the offensive. He lacks judicial

experience, his critics say--though only three current

members of the court had been judges before their

nominations. He is too young--though he is about the same age

as Judge Harry T. Edwards was when he was appointed and

several years older than Kenneth W. Starr was when he was

nominated. Mr. Estrada stonewalled the Judiciary Committee by

refusing to answer questions--though his answers were similar

in nature to those of previous nominees, including many

nominated by Democratic presidents. The administration

refused to turn over his Justice Department memos--though no

reasonable Congress ought to be seeking such material, as a

letter from all living former solicitors general attests. He

is not a real Hispanic and, by the way, he was nominated only

because he is Hispanic--two arguments as repugnant as they

are incoherent. Underlying it all is the fact that Democrats

don't want to put a conservative on the court.

Laurence H. Silberman, a senior judge on the court to which

Mr. Estrada aspires to serve, recently observed that under

the current standards being applied by the Senate . . .

I ask you to listen carefully to this.

. . . being applied by the Senate, not one of his colleagues

could predictably secure confirmation. He's right. To be

sure, Republicans missed few opportunities to play politics

with President Clinton's nominees. But the Estrada filibuster

is a step beyond even those deplorable games. For Democrats

demand, as a condition of a vote, answers to questions that

no nominee should be forced to address--and that nominees

have not previously been forced to address. If Mr. Estrada

cannot get a vote, there will be no reason for Republicans to

allow the next David S. Tatel--a distinguished liberal member

of the court--to get one when a Democrat someday again picks

judges. Yet the D.C. Circuit--and all courts, for that

matter--would be all the poorer were it composed entirely of

people whose views challenged nobody.

Nor is the problem just Mr. Estrada. John G. Roberts Jr.,

Mr. Bush's other nominee to the D.C. Circuit, has been

waiting nearly two years for a Judiciary Committee vote.

Nobody has raised a substantial argument against him. Indeed,

Mr. Roberts is among the most highly regarded appellate

lawyers in the city. Yet on Thursday, Democrats invoked a

procedural rule to block a committee vote anyway--just for

good measure. It's long past time to stop these games and

vote.

I ask my colleagues to consider carefully--and I know there have been abuses of this process on both sides of the aisle--but I ask my colleagues to consider carefully whether, in the name of the Constitution, in the name of the obligation of this Senate to go on to other things and resolve them, in the name of comity and the traditions of this body, the Washington Post isn't right, and whether it isn't long past time to stop these games and vote.

I yield the floor.

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

Mr. President, I ask unanimous consent that the Senate return to legislative session.

Mr. President, I ask unanimous consent that the Senate proceed to a period for morning business.

I ask unanimous consent that a member of my staff, Christopher Papagianis, be granted floor privileges.

Mr. President, I ask unanimous consent that the Judiciary Committee be discharged from further action on S. Res. 65 and that the matter be referred to the Committee on Rules and Administration.

Mr. President, I ask unanimous consent that the Finance Committee be discharged from further consideration of S. 389 and that the bill be referred to the Committee on Health, Education, Labor, and Pensions.

Mr. President, as in executive session, I ask unanimous consent that the injunction of secrecy be removed from the following treaty transmitted to the Senate on February 25, 2003, by the President of the United States: Second Additional Protocol Modifying Convention with Mexico Regarding Double Taxation and Prevention of Fiscal Evasion, Treaty Document No. 108-3. I further ask unanimous consent that the treaty be considered as having been read the first time; that it be referred, with accompanying papers, to the Committee on Foreign Relations and ordered to be printed; and that the President's message be printed in the Record.

Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 9:30 a.m., Wednesday, February 26. I further ask unanimous consent that following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved for their use later in the day, and the Senate return to executive session and resume consideration of the nomination of Miguel Estrada to be a circuit judge for the DC Circuit.