Floor Statements

Mr. President, I rise in opposition to this amendment. I have found myself in similar situations as the Senators from Alaska, with my State of Nevada being singled out and, for this reason, I am very sympathetic to their concerns. I believe that we cannot overemphasize the importance of this road funding to the people in southeastern Alaska. Local lumber jobs in the Tongass have decreased from 5,000 in 1990 to just a thousand today, putting a strain on the surrounding communities. Furthermore, the price of lumber has skyrocketed in the United States. My State is home to Las Vegas, which is the fastest growing city in America. We have seen the cost of lumber and other products soar.

I believe it is important to preserve funding for these roads so that we can continue to have a reliable supply of lumber across the country. I urge my colleagues to join with the Senators from Alaska in keeping this small part of the Tongass accessible to development.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I rise to oppose Senator Dorgan's attempt to waive the rules of the Senate. All of us operate under the constraints of the rules. The rules create a level playing field, provide stability, and bind the Senate together. According to CRS, similar attempts to waive the rules to legislate on appropriations bills have been tried twice since 1989, and failed both times. There is a good reason why the rules have not been successfully waived in recent Congresses. If waiving the rules becomes the practice of the Senate, just another tool for Senators, there will be chaos.

Many of my colleagues were Senators during times when authorizing on appropriations was routine. Do we want to potentially go down this path again? I think not.

Is my colleague seeking to waive the rules for a national emergency, an emergency in his State, relief from a terrorist attack, or a wartime emergency? No. He is seeking to waive the rules of the Senate to overturn regulations on travel to Cuba.

The regulations targeted by Senator Dorgan's amendment do not eliminate family travel. They simply limit the amount of times you can travel to Cuba for family visits--once every 3 years; in case of necessity--and limit it to visiting actual direct relatives. There used to be a tremendous abuse of people vacationing in Cuba claiming to visit their third uncle on their grandmother's side.

According to the State Department, the new regulations, which went into effect in July 2004, have cost the Castro dictatorship up to $375 million in lost revenue. I believe this is a good thing. Most of the money from travel, dollar stores, and hotels go directly to Cuba's military.

Recently, great media attention has been given to the case of SGT Carlos Lazo of Spokane, WA, who has two sons in Cuba. It is for cases of this nature that U.S. law allows his sons to visit him in the United States on a visitor's visa or to immigrate to the United States.

The proper statement for the Senate at this time is to go on record to demand that Castro let these boys go so they can see their father. I, for one, will do everything possible to see that his sons get here and have been assured that our State Department will work to facilitate this. The proper statement for the Senate is not to waive the rules of the Senate to create chaos in this Chamber and let more money go to subsidize Castro's repressive regime.

Mr. President, I yield the floor and yield back the remainder of our time.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 1026

Mr. President, I rise to thank my colleagues for including a provision in this bill which give the people of Nevada a fair chance to keep their hard earned money away from the clutches of Enron.

Enron is still seeking to extract an additional $326 million in profits from my State's utilities for power that was never delivered. Enron, after all of its market manipulation and financial fraud, is still trying to profit from its wrong-doing at the expense of each and every Nevadan.

Section 1270 of the Energy Policy Act ensures that the proper government agency will determine whether Enron is entitled to more money from Nevada. That agency is the Federal Energy Regulatory Commission. When FERC was established by Congress, its fundamental mission was, and remains, to protect ratepayers. FERC has specialized expertise required to resolve the issues surrounding some of the contracts that Enron entered into and eventually terminated.

Many of my colleagues know that Enron has filed for bankruptcy protection. There is an issue in the bankruptcy case as to whether Enron can enforce contracts that it terminated. The enforceability of these contracts should not be decided by a bankruptcy court. A bankruptcy judge does not have the specialized expertise required for this job. A bankruptcy court is responsible for considering different equities than an oversight agency, like FERC, would. The bankruptcy court is responsible for enhancing the bankruptcy estate for the benefit of creditors. FERC, on the other hand, sees a more complete picture which includes protecting the interests of the general public.

This is why section 1270 is so important. It is a provision that is limited in scope. It does not seek to resolve the issue in the favor of one party. Though many Senators from affected States may have been tempted to legislate the outcome, we have refrained from doing so. Let me set the stage for why this provision is so critical. It is a complicated story. It is one that should be told in order to understand why I so strongly support this provision and why I believe the provision should be enacted into law.

There are two major utilities that serve Nevada: Nevada Power and Sierra Pacific Power. Both need to buy power in the wholesale power market to meet the growing energy needs of Nevada. Las Vegas is the fastest growing city in the country. It takes a lot of power to keep the lights on in Las Vegas, Reno, and other parts of our growing State. At the height of the western electricity crisis, when spot market prices for electricity were going not just through the roof but through the stratosphere, FERC urged utilities like the Nevada utilities to reduce their purchases of spot supplies and enter into long-term contracts for electricity.

That is precisely what the Nevada utilities did. Enron was one of the biggest suppliers of wholesale electricity at the time. Starting in December 2000, the Nevada utilities entered into long-term contracts with Enron to meet a significant portion of their long-term needs. At the time, no one was aware of Enron's on-going criminal conspiracy to manipulate the market. No one knew that Enron had engaged in fraud to hide its true financial picture.

The prices that the Nevada utilities agreed to pay Enron for long- term power were truly outrageous. The prices fully reflected Enron's success in manipulating the market. Prices were three times as high as the threshold that FERC had established as a ceiling price that would trigger close scrutiny under the just and reasonable standard. As a result, in November 2001, the Nevada utilities asked FERC to review the rates to determine whether those contract prices were just and reasonable.

Two days after the Nevada companies filed their complaints against Enron, Enron filed for bankruptcy. Its financial house of cards had finally collapsed. As one definitive study of Enron concluded, Enron had been insolvent at the time the company entered into each and every contract with the Nevada utilities.

The contracts between Enron and the Nevada utilities incorporated the Western Systems Power Pool Agreement, a master agreement on file and approved by FERC. This master agreement governs transactions of more than 200 parties throughout the west.

Under the terms of that agreement, if one of the parties files for bankruptcy, the other party may rescind the agreement. So in this case, Enron's bankruptcy would have given the Nevada utilities cause to terminate the contracts. Under the unique terms of this agreement, however, the commercial party that is ``in the money'' will still be able to benefit if the contract is rescinded. So while the Nevada companies could terminate the contract, they still would have had to pay Enron the difference between the contract price and the market price at the time of terminating, to say nothing of the need to buy replacement power.

When Enron entered bankruptcy, the price for electricity had fallen to the level power had sold for prior to Enron's market manipulation. This demonstrates that there was a huge difference between the artificially and unlawfully manipulated price that Enron commanded at the time of the contract and the market price at the time Enron filed for bankruptcy. Given the huge financial hit that the Nevada companies would have had to pay to terminate the Enron contracts, the Nevada companies continued to honor their commitment to purchase power under these contracts.

In March 2002, the Public Utilities Commission of Nevada refused to allow the Nevada utilities to pass more than $400 million in purchased power costs on to ratepayers. As a result, the credit ratings of the Nevada utilities fell below investment grade. Under the terms of the WSPPA, this downgrade gave Enron the right to request assurances regarding the Nevada companies'

intentions with respect to their contracts. In meetings and in telephone calls, the Nevada Companies assured Enron that they would be able to pay Enron everything that would be owed under the contracts.

The WSPPA required Enron to use ``reasonable'' discretion with respect to the contracts. Despite this requirement, Enron terminated the contracts with the Nevada companies and demanded that the Nevada companies pay Enron termination payments totaling approximately $326 million. These termination payments represent pure profit to Enron on power than Enron never delivered. By pure profit, I mean just that. The termination payments are calculated, as I previously noted, by the difference between the cost of power today and the outrageous, manipulation-based prices Enron was able to extract during the energy crisis that Enron had unlawfully created.

The Nevada companies refused to make payment. At this time, it was known that Enron had manipulated the entire western market. As part of Enron's bankruptcy, an ``adversary proceeding'' was initiated to determine the enforceability of these contracts and whether Enron would be allowed to continue to profit under fraudulent contracts at the expense of Nevada's ratepayers.

At this point, the legal proceedings become very complex but the proceedings should be summarized so my colleagues will understand exactly what has happened.

On June 24, 2003, FERC determined that the ``just and reasonable'' standard of review is not available to the Nevada companies with respect to their long-term contracts with Enron. This decision was made because FERC argued that it had previously ``pre-determined'' that the contracts would be just and reasonable when they granted Enron its authority to sell electricity at market-based rates years earlier.

On the very next day, FERC withdrew Enron's authority to sell electricity at market-based rates because of its ``market manipulation schemes that had profound adverse impacts on market outcomes'' which violated its ``market-based rate authorizations.''

The bankruptcy court judge, on August 23, 2003, ruled on a summary judgment motion that the Nevada utilities were required to pay Enron $326 million in termination payments. The court held that, because FERC had not found that Enron's contracts should be modified by virtue of its market manipulation, the filed-rate doctrine applied. It further ruled that it did not need to defer to FERC on whether Enron had complied with the tariff since it could interpret the tariff as well as

Mr. President, I come before the Senate today about a very serious issue that is threatening the disbursal of justice in the western United States.

My home State of Nevada, along with eight other States, has been part of an unbelievable population boom over the last several decades. As a result, we face the frustrating challenges of increased traffic congestion, crowded schools, and a shortage of many services. However, there is one consequence of that growth that has reached a critical level because it is delaying and denying justice for too many Americans.

That is the situation with the Court of Appeals for the Ninth Circuit. The largest circuit in the country, it encompasses 20 percent of the entire Nation's population. The Ninth Circuit has the highest cases per jurist ratio. And the trend is not changing. The Circuit is just too large. Each of the States covered by the Ninth Circuit saw population growths over the last decade, and three of the States-- Nevada, Idaho, and Arizona--are in the top five in the country for population growth. Something must be done, or the Ninth Circuit will continue to bust at the seams.

That is why I am introducing legislation today that would divide the current Ninth Circuit into 3 new circuits. The new Ninth Circuit would include California, Hawaii, Guam, and the Northern Marianas Islands. The new

Twelfth Circuit would be comprised of Arizona, Nevada, Idaho, and Montana. And the new Thirteenth Circuit would contain Oregon, Washington, and Alaska.

This splitting of the Ninth Circuit is absolutely necessary if the residents of Nevada and the other western states are to have equal access to justice. Right now, citizens living under the Ninth Circuit face incomparable delays and judicial inconsistencies. Recently, the Ninth Circuit had more cases pending for more than one year than all other circuits combined.

And because of the sheer magnitude of the number of judges in the Ninth Circuit, it has become increasingly difficult for judges to track the opinions of the other judges in the circuit. In fact, it happened that on the same day, 2 different 3-judge panels in the Ninth Circuit issued different legal standards to resolve the same issue. Can you imagine the headache this causes for district judges who are supposed to follow the standard set by the Ninth Circuit? It compromises the system of justice that is the cornerstone of our democracy.

As a Nevadan, I am also angered by some of the decisions made by the Ninth Circuit Court. I know how Nevadans feel about issues such as the Pledge of Allegiance. Like me, they were outraged that the phrase ``under God'' was ruled unconstitutional by the Ninth Circuit. This wasn't the only case of the Ninth Circuit misinterpreting the Constitution and our laws. In 1997 alone, the United States Supreme Court overruled 27 out of 28 Ninth Circuit decisions. I wish I could say that was just an ``off' year for the court, but their track record wasn't much better in the 6 years before that.

Rather than continue down this path of judicial destruction, it is time to use a forward looking approach to the access of justice in the western United States. I urge my colleagues to join me in our Constitutional duty to establish courts for the sake of justice in this country. Failure to act will cost the citizens of my state, and many other western states, dearly.

Mr. President, I come before the Senate today about a very serious issue that is threatening the disbursal of justice in the western United States.

My home State of Nevada, along with eight other States, has been part of an unbelievable population boom over the last several decades. As a result, we face the frustrating challenges of increased traffic congestion, crowded schools, and a shortage of many services. However, there is one consequence of that growth that has reached a critical level because it is delaying and denying justice for too many Americans.

That is the situation with the Court of Appeals for the Ninth Circuit. The largest circuit in the country, it encompasses 20 percent of the entire Nation's population. The Ninth Circuit has the highest cases per jurist ratio. And the trend is not changing. The Circuit is just too large. Each of the States covered by the Ninth Circuit saw population growths over the last decade, and three of the States-- Nevada, Idaho, and Arizona--are in the top five in the country for population growth. Something must be done, or the Ninth Circuit will continue to bust at the seams.

That is why I am introducing legislation today that would divide the current Ninth Circuit into 3 new circuits. The new Ninth Circuit would include California, Hawaii, Guam, and the Northern Marianas Islands. The new

Twelfth Circuit would be comprised of Arizona, Nevada, Idaho, and Montana. And the new Thirteenth Circuit would contain Oregon, Washington, and Alaska.

This splitting of the Ninth Circuit is absolutely necessary if the residents of Nevada and the other western states are to have equal access to justice. Right now, citizens living under the Ninth Circuit face incomparable delays and judicial inconsistencies. Recently, the Ninth Circuit had more cases pending for more than one year than all other circuits combined.

And because of the sheer magnitude of the number of judges in the Ninth Circuit, it has become increasingly difficult for judges to track the opinions of the other judges in the circuit. In fact, it happened that on the same day, 2 different 3-judge panels in the Ninth Circuit issued different legal standards to resolve the same issue. Can you imagine the headache this causes for district judges who are supposed to follow the standard set by the Ninth Circuit? It compromises the system of justice that is the cornerstone of our democracy.

As a Nevadan, I am also angered by some of the decisions made by the Ninth Circuit Court. I know how Nevadans feel about issues such as the Pledge of Allegiance. Like me, they were outraged that the phrase ``under God'' was ruled unconstitutional by the Ninth Circuit. This wasn't the only case of the Ninth Circuit misinterpreting the Constitution and our laws. In 1997 alone, the United States Supreme Court overruled 27 out of 28 Ninth Circuit decisions. I wish I could say that was just an ``off' year for the court, but their track record wasn't much better in the 6 years before that.

Rather than continue down this path of judicial destruction, it is time to use a forward looking approach to the access of justice in the western United States. I urge my colleagues to join me in our Constitutional duty to establish courts for the sake of justice in this country. Failure to act will cost the citizens of my state, and many other western states, dearly.

Mr. President, I ask unanimous consent that the time since Senator Nelson of Florida yielded the floor be charged against Republican-controlled time.

Mr. President, I rise in support of the nomination of John Bolton to be U.S. ambassador to the United Nations. The President has made an inspired choice.

Mr. Bolton has the necessary experience, the knowledge of the U.N. system and the confidence of the President to be a successful advocate of U.S. policy at the United Nations.

As Undersecretary of State for Arms Control and International Security, Mr. Bolton has taken a tough line

against the tyrants and the despots who wish to harm us.

He has stood up to Iran and North Korea, refusing to appease their nuclear ambitions.

Mr. Bolton is candid about his disdain for rogue regimes. He's not going to be dancing with Kim Jong Il--he called him a tyrannical dictator. That is fine with me. He has also been candid about the weaknesses of the United Nations. That is fine with me too.

The United States has sent forceful, blunt-speaking ambassadors to the United Nations before like Jeane Kirkpatrick and Daniel Patrick Moynihan, and the United States has been better for it.

Senator Moynihan called the U.N. ``a dangerous place'' for American interests.

That is why it is necessary to send Mr. Bolton to the U.N.--to make sure that American interests are advanced.

He is outspoken, but he also is a skilled diplomat, who knows how to work with friends and allies, and has a proven track record of success in building coalitions to support vital objectives.

It was John Bolton who led the effort to create the Proliferation Security Initiative--a multinational coalition of nations, working together in unprecedented ways to stop the transport of dangerous weapons and materials at sea, on land and in the air. Some 60 nations are now supporting this effort.

When he was Assistant Secretary of International Organization Affairs, with the United Nations as part of his portfolio, he was the one responsible for the repeal of the odious 1975 ``Zionism is Racism'' resolution that was passed in the United Nations.

At a time when the United Nations continues to be plagued by scandal and mismanagement, the United States needs a strong presence to reform that body.

Just look at the scandals the UN is facing on oil-for-food, sexual abuse, theft, and sexual harassment:

We now know that Saddam Hussein, corrupt U.N. officials, and corrupt well-connected countries were the real benefactors of the Oil-for-Food Program.

They skimmed their illegal gain from illegal oil shipments, financial transactions, kickbacks, and surcharges and allowed Saddam Hussein to build up his armed forces and live in the lap of luxury while his people starved.

There have been allegations of sexual abuse in peacekeeping operations by U.N. personnel going back at least ten years, most recently in the Congo where 150 allegations of rape, pedophilia, and prostitution are being investigated.

The theft of $3.8 million by an employee of the World Meteorological Organization led to the revelation that Mohammed Hassan apparently cashed an undetermined number of checks for his own enrichment, but his colleagues chose not to speak out.

There was a recent whitewash by the Secretary General of sexual harassment by two senior U.N. officials, the High Commissioner for Refugees and the United Nation's top oversight official.

This list of current scandals does not even begin to touch on broader issues such as the proper role of the United Nations and the need for fiscal responsibility and austerity. There has been a 42 percent increase in the U.N. regular budget over the past 10 years. The United Nations is supposed to have a zero nominal growth budget.

Those funds support programs with questionable value. We are all painfully aware that the United Nations has a Commission on Human Rights which includes notorious human rights abusers such as Sudan, China, Cuba, Saudi Arabia, and Zimbabwe.

The United Nations is imploding under the weight of its own scandals. And these scandals are helping to unveil the cronyism that is corroding the U.N. system. The U.N. is in desperate need of reform--and in desperate need of a reformer like John Bolton. Perhaps most importantly, John Bolton is a strong believer in sovereignty.

The principle of state sovereignty is what undergirds the entire international system.

Yet today we see respect for state sovereignty eroding all around us. We see it in the International Criminal Court's claim of authority to try the citizens of countries that have not consented to ICC jurisdiction. We see it in the U.N. false claim to have sole authority to permit the use of force.

These trends are dangerous, not only because the erosion of sovereignty is a threat to freedom, but because the erosion of respect for state sovereignty absolves states of their sovereign responsibilities to deal with problems within their borders.

It gives states an excuse to punt problems to supra-national bodies, like the UN and the ICC, instead of taking responsibility for problems that originate within their border from poor national governance. In the war on terror, every state needs to meet its sovereign responsibilities. As sovereignty has eroded, terrorists have taken advantage of these trends. John Bolton has the fortitude to stand up for what is right, fight the good fight, and prevail.

Secretary Rice called John Bolton a tough-minded diplomat. That's exactly what the U.S. needs at the U.N.---and exactly what the U.N. needs from the U.S.

Let me conclude by reinforcing why this body should support John Bolton's nomination. The U.S. does not need a U.N. representative for the world. We need a U.S. representative to the world. We need someone who has the interests of our country first and foremost in his mind as he represents us at the U.N.

There are many anti-U.S. forces at the U.N. Appeasement has never worked in dealing with aggressors. And it will not work for our country at the U.N.

I yield the floor.

Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on May 26, 2005, at 10 a.m., to conduct a hearing on ``The Report to the Congress on International Economic and Exchange Rate Policies.''

Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Thursday, May 26, at 9:30 a.m., to consider comprehensive energy legislation.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, May 26, 2005, at 10:30 a.m., to hold a hearing on nominations.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, May 26, 2005, at 2:30 p.m., to hold a hearing on nominations.

Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to hold a hearing during the session of the Senate on Thursday, May 26, 2005 at 10 a.m. in SD-430.

Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a markup on Thursday, May 26, 2005, at 9:30 a.m. in Dirksen Room 226.

Agenda

I. Nominations Terrence W. Boyle, II, to be U.S. Circuit Judge for the Fourth Circuit; Brett M. Kavanaugh, to be U.S. Circuit Judge for the District of Columbia; Richard Griffin, to be U.S. Circuit Court Judge for the Sixth Circuit; David McKeague, to be U.S. Circuit Court Judge for the Sixth Circuit; Paul Clement, to be Solicitor General of the United States; Anthony Jerome Jenkins, to be U.S. Attorney for the

District of the Virgin Islands; Stephen Joseph Murphy III, to be U.S. Attorney for the Eastern District of Michigan; Gretchen C.F. Shappert, to be U.S. Attorney for the Western District of North Carolina; Rachel Brand, to be an Assistant Attorney General for the Office of Legal Policy; Alice S. Fisher, to be an Assistant Attorney General for the Criminal Division; and Regina B. Schofield, to be an Assistant Attorney General for the Office of Justice Programs.

II. Bills: S. 852, A bill to Create a Fair and Efficient System to Resolve Claims of Victims for Bodily Injury Caused by Asbestos Exposure, and for Other Purposes. [Specter, Leahy, Hatch, Feinstein, Grassley, DeWine, Graham].

III. Matters: Senate Judiciary Committee Rules.

Mr. President, I ask unanimous consent that The Committee on Veterans' Affairs be authorized to meet during The session of The Senate on Thursday, May 26, 2005, for a committee hearing titled ``Battling The Backlog: Challenges Facing The VA Claims Adjudication and Appeal Process''.

The hearing will take place in Room 418 of the Russell Senate Office Building at 2 p.m.

Mr. President, I ask unanimous consent that The Permanent Subcommittee on Investigations be authorized to meet on Thursday, May 26, 2005, at 9 a.m., for a hearing entitled ``The Container Security Initiative and The Customs-Trade Partnership Against Terrorism: Securing The Global Supply Chain or Trojan Horse?''

Mr. President, I ask unanimous consent, pursuant to Rule 26.5(a) of The Standing Rules of The Senate, that The Select Committee on Intelligence be authorized to meet after conclusion of the first two hours after the meeting of The Senate commences on May 26, 2005.

Mr. President, I ask unanimous consent that The Subcommittee on Aviation be authorized to meet on Thursday, May 26, 2005, at 10 a.m. on Aviation Capacity and Congestion Challenges-Summer 2005 and Future Demand.

Mr. President, I ask unanimous consent that the Subcommittee on Clean Air, Climate Change, and Nuclear Safety be authorized to meet on Thursday, May 26, 2005 at 9 a.m. to conduct an oversight hearing on the Nuclear Regulatory Commission.

The hearing will be held in SD 406.

Mr. President, I ask unanimous consent that the Subcommittee on Federal Financial Management, Government Information, and International Security be authorized to meet on Thursday, May 26, 2005, at 2:30 p.m., for a hearing regarding ``An Assessment of Federal Funding for Private Research and Development.''

Mr. President, I ask unanimous consent that the Subcommittee on Immigration, Border Security and Citizenship be authorized to meet to conduct a hearing on ``The Need for Comprehensive Immigration Reform: Serving Our National Economy'' on Thursday, May 26, 2005, at 2:30 p.m. in SD-226.

Witness List

Panel I: The Honorable Steven Law, Deputy Secretary, U.S. Department of Labor, Washington, DC.

Panel II: Tom Donahue, President and CEO, U.S. Chamber of Commerce, Washington, DC; Dan Griswold, Director of the Center for Trade Policy Studies, The CATO Institute, Washington, DC; and Douglas S. Massey, Ph.D., Professor, Princeton University, Princeton, NJ.

Mr. President, I rise to discuss the issue of judicial nominees, their confirmation process and whether nominees should receive an up-or-down vote.

We are currently discussing Justice Priscilla Owen and her nomination to the Fifth Circuit Court of Appeals. There has been a lot said about this nominee. Her qualifications have been enumerated on the Senate floor. We have heard that she was elected with 84 percent of the vote in Texas. This is a very large percentage that represents overwhelming support in her home State of Texas.

My Democrat colleagues have questioned her position on the issue of parental notification. As my friend and colleague from the State of Oklahoma talked about, parental notification is supported by nearly 80 percent of the American people.

Before a school nurse gives a child an aspirin, the school will ask for the parent's permission. When it comes to an abortion, which is a surgical procedure, abortion providers do not want to be held to the same standard. The vast majority of the American people believe that a parent should be notified before a surgical procedure, like an abortion, is performed on a child.

The parental notification cases that Priscilla Owen has heard while serving on the Texas Supreme Court all involved a lower court decision that the child should tell a parent about her desire to have an abortion. So in many of these cases, Justice Owen was upholding the determination of the lower court judge who had directly listened to the testimony of the minor who wanted an abortion.

In these cases, there was disagreement among the justices on the Texas Supreme Court, but in cases where she voted in favor of parental notice, her determination was the same as the lower court. It was very reasonable. Anybody could look at that and say this is a reasonable person.

When we review the record of a judicial nominee, when we review their opinions, we should ask ``does that judge follow the law?'' We ask ``is this judge well reasoned?'' We ask ``did they look at the facts?'' Anybody who has reviewed Priscilla Owen's record and her opinions would conclude that she has a good temperament. They would conclude that she was not making law but was interpreting the law according to the way the Texas Legislature had intended. In cases involving parental notification, they would conclude that she had faithfully applied the law.

In addition to discussing Justice Owen's nomination, I also want to address the confirmation process as a whole. In the past, whether it was Judge Robert Bork or Clarence Thomas, Republicans were unhappy with the treatment that some nominees of Republican President's received. The reputation of Judge Bork and Justice Thomas had been attacked. These fine men were vilified. Republicans felt that those nominees were treated unfairly in committee and then on the floor.

When President Clinton was President, some of his nominees were likewise mistreated. The committee process was used to delay hearings or to bottle up nominees. In most cases though, those nominees were eventually given an up or down vote. We have heard the other side complain about the delays that President Clinton's nominees experienced. I believe that the Senate ought to fix that.

I think it is damaging to our system of government to deny any nominee an up or down vote. The Senate should, whether someone is nominated to serve as a judge or in the administration at an agency or department, provide each nominee with an up or down vote. The Senate should reject this delaying tactic which denies a nominee a timely up- or-down vote in committee and on the Senate floor. We ought to fix the whole process.

Unfortunately, both Republicans and Democrats have been escalating the fight over nominees for years. As I pointed out before, many Republicans felt that Judge Bork was mistreated. In response, President Clinton's nominees were too. What one side does, the other side will ratchet it up to the next level when they come into power. We can't keep doing that. Neither side is going to win if we continue on this path. But the American system of government and the American people will surely lose. Good people will no longer be willing to serve in the administration or in positions on the bench if we can't put an end to this. No American is going to want to have their name put up for a position if they are promised to be treated so horribly.

My home State of Nevada is part of the Ninth Circuit Court of Appeals. A few years ago, Nevada had an opening on the Ninth Circuit. I spoke with several people, people who would have been well-qualified as a candidate. I asked if they would be interested if I put their name forward? I consider it a great honor to be on the appellate court. The common feedback: ``Why would I want to put in my name and go through that process given all that you have to go through?''

My fear is that we are discouraging the very type of people who should apply for these positions from doing so. We need the absolute best legal minds to serve on the appeals courts and Supreme Court that we can possibly get. It should be an honor to serve there. We should not do anything to dishonor those positions with the political farce that we have going on in the Senate.

The Democrats have accused Republicans of wanting to change the rules. The rules changed 2 years ago. And it was the Senate Democrats that changed the rules with a partisan filibuster. A partisan filibuster was never done in the history of the Senate before 2003, never. Search the history books, it is very clear. The two cases Democrats bring up were not partisan filibusters. The one case about Abe Fortas, that was clear, he had engaged in objectionable practices while serving as an associate justice on the Supreme Court and was opposed by many Senators in both parties. He was not opposed on a party line basis. It was clear to President Johnson that his nominee did not have the votes to be confirmed as Chief Justice of the Supreme Court.

What we call the constitutional option--is an effort to reestablish the tradition of what the Senate has always done. The minority is correct that filibusters were allowed under the rules. But the people who considered them in the past, the majority of Senators, said it would do too much damage to the institution to actually carry out those filibusters. So, in a bipartisan fashion in the past, before the Democrats led the current filibusters, Senators got together and said: We will go ahead and have up-or-down votes on these nominees.

I believe, for the future of this institution and for the future of bringing good people to the judiciary, we need to fix this process once and for all. Whether it is a Republican President or a Democrat President and whether Republicans or Democrats are in control of the Senate, regardless of which party is in charge, good people should have an up-or-down vote in a timely fashion in committee as well as on the floor of the Senate.

I hope we can join across the aisle and fix this. I actually thought we should have fixed it last year before the Presidential election. I tried to extend my hand across the aisle last year and say to Democrats: We don't know who is going to win the Presidential election, so let's put something in place now so that the filibuster will not continue after the 2004 elections.

I don't think it should matter whether it is a Republican President or Democrat President sending nominees up here. It is OK to vote against them, but I don't believe that only 40 Senators of one party should be able to choose who is on the bench.

Mr. President, I will conclude very briefly with this. For the good of our country, for the balance of powers, we need to end this process of filibustering good people. These good people deserve an up-or-down vote. It is only fair. Let's join together in a bipartisan fashion to do that.

I yield the floor.

Mr. President, I would like to think that if some of the finest and most respected jurists in our country's history were nominated today to sit on the Federal bench, their successful confirmation by the Senate would be guaranteed. I am talking about jurists such as Chief Justice John Marshall, Chief Justice Earl Warren, and Justice Oliver Wendell Holmes. Imagine where we would be today without their bright, insightful legal minds.

Unfortunately, in today's bitter and partisan atmosphere, I don't see how any of them would make it through this grueling, humiliating, and endless judicial nomination process. That is a disturbing thought. We must put an end to this mockery of our system before it becomes impossible to undo the damage.

I am sure a lot of Americans believe this is politics as usual. It is not. Filibustering of judicial nominations is an unprecedented intrusion into the longstanding practice of the Senate's approval of judges.

We have a constitutional obligation of advise and consent when it comes to judicial nominees. While there has always been debate about nominees, the filibuster has never been used in partisan fashion to block an up-or-down vote on someone who has the support of a majority of the Senate.

In our history, many nominees have come before us who have generated strenuous debate. Robert Bork and Clarence Thomas are two of what the other side would consider more controversial figures to be considered for a position on the Federal bench. It is important to note that both of these men, despite the strong feelings they generated from their supporters and their detractors, received an up-or-down vote. Now, sadly, due to the efforts of the Democrats in the Senate, the 214-year tradition of giving each Federal candidate for judge a solid ``yea'' or ``nay'' is at risk.

Senate tradition is not the only thing at risk here, though. The quality of our judiciary is at grave risk. It is and should continue to be an honor to be nominated to serve on the Federal bench. Nominees are aware of the rigorous process that goes along with their nomination-- intense background checks and the opening of one's life history to the public. However, highly qualified and respected nominees do not sign on to being dragged through a bitter political battle. If we allow the filibustering of nominees to continue, I fear that those highly qualified candidates will decline to put themselves and their families through the abyss of this process. The American judicial system will be sorely hurt should this happen. And it already happened with Miguel Estrada, who was an outstanding nominee. We cannot afford to let this happen and let it continue.

I believe that anyone who has been nominated by the President and is willing to put his or her name forward and be subjected to the rigorous confirmation process deserves a straight up-or-down vote on his or her nomination in both committee and on the floor of the Senate. Guaranteeing that every judicial nominee receives an up-or-down vote is truly a matter of fairness. It doesn't mean that there is no debate or opportunity to disagree. It does mean fair consideration, debate, and a decision in a process that moves forward.

I say that today with the Republican President in the White House and a Republican majority in the Senate, but I know we will uphold the up- or-down vote when we eventually have Democrats back in control. That is because this is the fairest way to maintain the health of the judicial nomination process and the quality of our courts.

Our Founding Fathers set up a form of Government with three separate branches, and they were all very distinct. The current state of affairs in the Senate threatens the very balance of power. Although the up-or- down vote is critical to maintaining that balance, there is a need to reform the committee process as well. Each committee should discharge nominees, whether it is with a positive or a negative vote. But at some point, that nominee deserves to have a vote of the full Senate on the floor. The committee should not have the power to kill a nominee on its own.

I sincerely hope we can put an end to this crisis, judge judicial nominees on the basis of their character, qualifications, and experience, and return to fulfilling our constitutional duty.

I understand that the majority leader has just put forward a proposal to correct the unfair treatment of judges. Senator Frist's proposal will ensure that each and every nominee will be treated fairly. It will ensure that each nominee will receive a fair up-or-down vote, whether a Republican President or a Democrat President nominates him or her.

I commend Senator Frist for his leadership. His proposal ensures future nominees are treated fairly. I urge my colleagues to adopt Senator Frist's proposal.

Mr. President, I yield the floor and suggest the absence of a quorum.

Mr. President, I yield back my time on the amendment.

Mr. President, in the decade before 9/11, al Qaeda studied how to exploit gaps and weaknesses in the borders of the United States.

A few months ago, intelligence officials confirmed that the terrorist Zarqawi plans to infiltrate America through our borders. He plans to attack targets such as movie theaters, restaurants, and schools.

A year-long investigation recently concluded with authorities arresting 18 people who planned to smuggle grenade launchers, shoulder- fired missiles, and other Russian military weapons into our country.

Let's face it--the dual threat of illegal border crossing by people who wish to kill us and the weapons they need to do it is very real.

We are not dealing with rational people. We are not dealing with people who respect life or freedom. It would be irresponsible to sit idly by and not treat these threats seriously. We must continue to be diligent in our fight to defeat terror and protect our homeland.

Before 9/11, INS had only 9,800 border patrol agents. With the agency focused on immigration and narcotics, no major counterterrorism effort was underway.

More than 3 years after the devastating terrorist attacks, the men and women who serve on the border's frontline of defense are still overwhelmed. The Commissioner of the U.S. Customs and Border Protection has admitted they need more agents.

Our agents catch only about one-third of the estimated 3 million people who cross the border illegally each year. Three and half years ago it only took 19 to change the course of this country.

The 9/11 Commission addressed this very problem. They recommended banning terrorists from traveling to our country. This is exactly what my amendment attempts to accomplish.

We must commit resources to block terrorists who attempt to enter our country. Last year, I sponsored an amendment to the National Intelligence Reform Act that authorized the hiring of 10,000 new agents to patrol our borders over the next 5 years. And last month, the Senate approved a Budget which funded the hiring and training of 2,000 new border patrol agents next year.

Border security requires a serious commitment by Congress. There is no question that we need to hire new agents. Our security depends on it. But it will take more than simply hiring agents. Congress needs to increase funding for training and equipment. I hope we will remember this during the regular appropriations process.

We cannot wait another year to improve our border security. This is an emergency. The amendment that I am offering will put new agents on the ground in the next few months.

My amendment begins to fulfill the commitment Congress made last year. It provides $147 million to hire and train 400 new border patrol agents by October; 400 new agents is the maximum number of new agents that the Department of Homeland Security can train before the end of this fiscal year.

My amendment does not require any new spending. It is completely offset.

The 9/11 Commission found that many of the 19 hijackers could have been placed on watch lists. They were vulnerable to detection by border authorities. Without adequate staff and coordinated efforts, the terrorists were allowed to enter the United States. Once here they learned how to fly airplanes at American flight schools. They conducted surveillance to assess our weaknesses. And they attacked.

In order to prevent another terrorist attack on American soil, we must improve every aspect of our nation's security. Our security is truly only as strong as our weakest link.

For too long, the lack of funding for border agents has been a weak link. By funding additional agents, we protect both our southern and our, often neglected, northern border. This will make it harder for terrorists to enter the United States and attack us.

The world has changed dramatically since 9/11 when the terrorists used our open and trusting society against us. We can not allow a repeat of that tragedy. This amendment will help those who guard our frontiers by providing necessary tools to ensure the safety of our citizens.

Amendment No. 520

Mr. President, reserving the right to object, will the Senator yield for a second first to take care of a procedural matter?

Mr. President, I move to reconsider the vote.

Reserving the right to object, which amendment is this?

No objection.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, I call for the regular order with respect to amendment No. 475 and make a point of order that the amendment is not germane under the provisions of rule XXII.

I object.

I ask unanimous consent the pending business be set aside and Senate amendment No. 487 be called up.

I ask unanimous consent the reading of the amendment be dispensed with.

I yield the floor.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, I ask unanimous consent the pending amendment be temporarily set aside.

Mr. President, I ask unanimous consent I be permitted to offer four amendments en bloc, and I send those four amendments to the desk.

Mr. President, I ask unanimous consent the reading of the amendments be dispensed with.

I yield the floor.

Amendments Nos. 290, 291, and 317, en bloc

Mr. President, today I introduced a bill that would expand access to speech-language pathology care.

Speech-language pathology, or speech therapy, includes services for patients with speech, hearing and language disorders, which result in communication disabilities. Speech therapy also includes the diagnosis and treatment of swallowing disorders, regardless of the presence of communications disability. Communications disabilities most frequently affect patients who suffer from a stroke, tumor, head injury, or have been diagnosed with Parkinson's disease, amyotrophic lateral sclerosis (ALS) , or other neuromuscular diseases.

As a result of a legislative anomaly, patients cannot receive Medicare coverage for speech-language pathology care in a private practice setting. Under the Medicare program, the same patient is able to receive such care in a hospital, skilled nursing facility, or rehabilitation facility. This bill would not create a new benefit. Rather, it would provide a technical correction to a section of Medicare statute that originated more than 30 years ago. Under current law, physical therapy and occupational therapy care can be received by patients in the private practice setting.

In 1972, speech-language pathology services were added to the Medicare statute under the physical therapy definition section. 14 years later, occupational therapy was defined under a separate section. Unlike speech-language pathology services, occupational therapy services were not incorporated within the physical therapy definition. As a result, a patient can receive both physical and occupational therapy care in an independent practice setting. The legislation I am introducing today would enable patients to likewise receive speech- language therapy services in private practice settings.

Without this legislative fix, beneficiaries may confront situations in which they either do not have access to a Medicare-covered setting or do not meet the requirements to receive care from other settings. This can be especially problematic in rural communities with fewer hospitals, skilled nursing facilities, and rehabilitation facilities.

For example, consider an elderly patient who is discharged from a hospital, but requires follow-up physical therapy and speech-language pathology care. The patient would be able to obtain necessary physical therapy care in an independent practice setting, but would not be able to receive necessary speech-language pathology care in the same setting. The patient would have to see the necessary speech-language pathology care in another Medicare setting, possibly having to travel farther distances to receive such care or not receive it all.

Essentially, the legislation I am introducing today would ensure that patients have access to speech-language pathology services, particularly in rural areas. I urge my colleagues to join me in supporting this commonsense legislation.

This legislation compliments the measure I introduced last month, called the Medicare Access to Rehabilitation Services Act (S. 438). Both bills ensure access to needed therapy care within the Medicare program. I am committed to working toward their enactment and believe that they will help Medicare beneficiaries obtain the quality health care that they deserve.