Floor Statements

Mr. President, we are now on this historic piece of legislation. I want to begin a discussion of that shortly.

But since the majority leader discussed the subject of asbestos legislation, and the chairman of the Judiciary Committee, who has been largely responsible for moving that legislation as far as it has come to date, is here and wishes to make a couple of comments, I would like to yield a couple of minutes to the distinguished Senator from Utah and then regain the floor to discuss the Medicare bill.

Mr. President, I say again, this asbestos legislation, discussed by the leader, is very important for us to conclude early next year, and I make the point again, were it not for the work of the chairman of the Judiciary Committee, we would not be at the position where we hope to be close to finishing that legislation at some point.

I will be happy to yield to the Senator from Nevada.

Mr. President, might I suggest that during the time I am speaking, those who would like to speak in conjunction with the Senator from Nevada begin to work up a schedule. I would be happy to propound a unanimous consent request when that is concluded to reflect the agreement, at least for the next several hours, if that could be done.

Mr. President, this is a historic day. Obviously, when one goes back to 1965 and thinks about the creation of Medicare, a lot has changed since then. We are here today to begin debating in the Senate a bill which passed early this morning in the House of Representatives, has long been advocated by President Bush, and which many people have worked on for a very long time, to try to modernize our Medicare system which, after 35 years, we recognize in this new 21st century needs to be changed to some extent.

For example, during that period of time, prescription drugs have become a major component--indeed, in many cases the first component--of treatment for ailments, disease, and afflictions of people.

Mr. President, 35 years ago prescription drugs were used to alleviate symptoms of pain and occasionally to treat conditions, but more intrusive methods were the order of the day at that time. The Medicare program for seniors reflects the conditions then by covering hospital stays and physician benefits, but not outpatient prescription drugs. The prescription drugs which have over the last 35 years become a key, if not the key, component of medical treatment have not been a part of Medicare because they were not as key in 1965. So we know we need to add prescription drug coverage for our seniors and for those who are disabled and who qualify for Medicare.

There are other changes we know, also, that would help to strengthen Medicare, to ensure that as we proceed to provide Medicare to the baby boom generation, we will be able to do so with the highest quality of care possible, at prices that both they and the American people can afford and, as I say, which really encompasses the new concepts of modern medicine in this treatment.

So the question was how we would develop a system to provide prescription drugs as a component of Medicare. There were several different options, but the option that has been finally settled upon is one which I can support, and as someone who actually advocated a somewhat different approach, I would like to speak to those primarily who, like me, were not particularly pleased with the initial direction in which this legislation proceeded, to talk about why, at the end of the day, it is the best we can do under these circumstances and I think under any foreseeable circumstances of the near future, and therefore why it is important to move forward with this legislation.

It is momentous, it is huge in terms of the amount of money we are talking about, a commitment over the next 10 years of $400 billion. That was the amount that Congress agreed to with the adoption of our budget and the crafting of this legislation. We resolved that this money would be set aside to provide this prescription drug benefit and make changes in Medicare to ensure the benefits of Medicare would be available to everyone in a quality way during the 21st century.

Let me discuss first of all some disappointments I have with the bill because these have been discussed by others and I want them to know I am very cognizant of the concerns that have been expressed.

I served on the conference committee that crafted this legislation and I spent literally hundreds of hours working with colleagues through these issues. Some of the battles we fought, I helped to prevail on, others we did not prevail on. But it is the nature of compromise between the two bodies and between the two parties, especially when the Senate is almost equally divided that no one is going to get everything they think is best.

Let me first of all talk about the approach that was taken here and why in some respects I think we made some wrong turns, but how we have tried to recognize that and to ameliorate the effects of those wrong turns as much as we could.

There was a sense in this country, because there are many people who could not afford all of the prescription drugs they need in their treatment, that the Medicare plan had to be modified to ensure they could have access to those drugs at a reasonable cost. That was an approach that many Members thought would best utilize the funding available, to provide the maximum amount of benefit to those who most needed it.

Somewhere along the way, a major decision was made which fundamentally altered that concept. It was a decision that was strongly favored by the AARP, for example, a group which I am very pleased to say is in support of this legislation and has taken a strong role in educating America about the benefits of this legislation. That decision was to make the benefit of prescription drugs universal; that is to say, to make it available to all Medicare-eligible people, not simply to try to help those who needed the help the most.

The first result of that was it significantly reduced the amount of money we could make available to those who need it the most because, obviously, if you provide a universal benefit, you are providing it to everyone who qualifies for Medicare basically equally to those who do not need the benefit, because they have more money, as well as those who do need the benefit. Once that decision was made, it reduced the amount of money we could allocate to help those who needed the help the most. I regret that. We could have structured a plan that would have more targeted the benefits where they were needed the most.

In addition, we created some other problems. One of the problems is, employers who provide prescription drug retiree benefits will have less incentive to do that in the future because the Government will do so if they do not. Many will argue, why should we spend our money, our corporate funds, to support the prescription drug retiree benefits that we have done in the past when, if we stop that coverage, the Government will pick it up? The result of that was we had to allocate over $70 billion of this money to be paid to these business plans, union plans, and even government plans, that provided retiree health care benefits with drug coverage. We had to provide that money to them to enable them to continue providing the coverage. Some call it a subsidy. It is a fair term, I suppose. But one might say we are paying them three fourths of what it would cost the Government, to provide this particular benefit.

So from the Government's point of view, we are saving money because if these company plans did not continue the coverage, the Government would have to pick up 100 percent of the cost. Nevertheless, it took a chunk of the money out of the program to pay for benefits that are already being paid for by somebody else, thus further reducing the amount of money we could allocate to those that need the care the most.

So those are just two examples of problems created by this initial decision.

The original idea of many Members was that we should provide more choices to seniors. Many Members came to that conclusion because Federal Government employees such as Members of Congress have a lot more choices in our drug coverage. We are entitled to enroll in something called the Federal Employees Health Benefits Program, or FEHBP, and we have a lot of health insurance options. These insurance options are integrated health-care plans. They provide all of our care, from hospitals to doctors as well as prescription drugs.

A lot of Federal employees, 10 million strong, like those kind of plans. Many are PPOs, preferred provider organizations, where you go to any one of the doctors on a list who has signed up with that organization, or you can even go out-of-network, you can go to a different doctor, and that is still OK. This was the concept the President originally announced and it is a concept I strongly supported because it would maximize choices.

At the same time, we recognize that a lot of people would still want to maintain what they currently have, what we call traditional fee-for- service Medicare, and simply add a drug benefit on top of that. We did not want to take that choice away. So the concept was to have basically two choices: Stay in traditional Medicare with the new drug benefit, or sign up with one of these new insurance programs, a PPO or what we call today Medicare+Choice, which is predominantly HMOs. That choice has been created in this legislation. The choice is a good choice.

I regret, however, that I don't think we have given the health insurance option a good enough chance to attract very many beneficiaries. There are efforts in the bill to do that, but I think we put too many restrictions on the PPOs, in particular, to expect they will be very successful. For one thing, we strongly regulate how much they can be paid. As a matter of fact, their payment rates are directly tied to what we pay in regular fee-for-service Medicare. That is price control. Congress and the administration set the prices that can be paid under the traditional Medicare Program. We were trying to get away from that heavy price control with this new insurance option. Unfortunately, in an effort to make sure we could keep the costs ratcheted down and compare those costs to what we are paying for traditional Medicare, there is a direct relationship between what we pay in traditional Medicare and what will be paid on the private health insurance side. It is not really like regular private insurance. This is very highly regulated, controlled price, controlled private insurance as the alternative to fee-for-service Medicare.

I think it is less likely those PPOs are going to succeed as a result of that. Nevertheless, we at least, for the first time, have the concept of private health insurance as an option to traditional fee- for-service Medicare for all beneficiaries.

Senator Nickles, in particular, and I worked strongly to increase the flexibility that the insurance option could provide so there could be literally dozens of products out there like the FEHBP for Federal employees, and people could decide what was best for them. Again, unfortunately, that flexibility has been greatly limited in this legislation, primarily because of concerns by the Congressional Budget Office that if very much flexibility were provided, the cost of the program could exceed the $400 billion.

As a result, the options that are offered by these private plans will be very limited. For example, as you will hear others get into the details of the legislation, especially the drug benefit--and my colleague, the Senator from Iowa, the chairman of the Finance Committee, Mr. Grassley, is in the Chamber. I know he will go into great detail about precisely how this works.

When that occurs, and you see how this benefit is going to be provided, one of the things you will see is that even though there is a very generous benefit--the Government will pay 75 percent of your drug costs up to $2,250, after a $250 deductible; so it will pay about $1,500 worth of drug benefits--at that point, then, the individual is going to be responsible for a little under $3,000 worth of drug benefits, before the catastrophic coverage of 95 percent Government- paid kicks in. Some people refer to this as a donut hole.

Obviously, with $400 billion allocated to the problem, we are not going to be able the pay all of everybody's drug costs. There is not enough money in the Federal budget for us to do that. As a result, you can only cover what that amount of money will cover.

Well, it is hoped that the private sector insurance option will provide different ways of ensuring against that donut hole, ensuring against that out-of-pocket expense that individuals will have to pay. But, unfortunately, that cannot be done under this legislation. The threshold can be raised, but the out-of-pocket amount still has to remain the same. As a result, there is a limitation on the insurance product that can be offered.

Again, Senator Nickles and I had hoped there would be a lot more flexibility. I am hoping in the future we can loosen this up so these health insurance options can act like regular insurance options.

Another point: If you go to an insurance company today, a preferred provider organization, and you would like to get treatment from a different doctor who is not in their network, you can go to that different doctor. The plan will only pay an agreed-upon amount, and then you are billed for the difference between that and the physician's reasonable and customary fee. That is standard practice today.

That cannot be done under the way this legislation is written. That has to be fixed as well. Right now there is a price cap on that, and, therefore, it will discourage people from going out of the network, which will discourage people from signing up with PPOs in the first place.

These issues will have to be addressed later because we did not give sufficient flexibility to the insurance company alternative in this current bill. Again, I am speaking primarily to those who, like me, approach this with the idea that we could provide coverage similar to FEHBP coverage that the President originally articulated as the goal, and as someone who did not win all of the battles in this negotiation, but who still believes that at the end of the day, this is the best we are going to do, either now or any time in the future, that I can predict, given the politics, given the closeness of the Democrat- Republican split in the Senate and in the House of Representatives and the various other factors that influenced the decisions that we made.

Let me talk a little bit more about the drug benefit. Seniors today buy Medigap insurance, and that provides them a certain degree of drug coverage. It is regulated by the Government, but I think a lot of seniors believe they have pretty good drug coverage because of the Medigap insurance they have. The reality is, they are paying a lot of money for not that great of coverage. They pay almost as much money in premiums as the amount of coverage they receive. So it is not completely dollar for dollar, but it is not the kind of insurance that ordinarily we would think of.

As a result, the drug benefit that we provide here will be more substantial for the amount of money that is paid. But I do fear a lot of people will see the drug benefit we provide here as less than they are able to obtain today through their Medigap insurance, and it is going to be incumbent upon all of us to explain to people how this drug benefit will work. Again, it calls for us to try to loosen up the way the private insurance market can provide the drug coverage to meet seniors' objectives, not all of which are precisely the same.

Therefore, in order to convince them there are good alternatives to what they have today, since they are not going to be able to purchase the new drug benefit through the means of

Medigap insurance anymore--that will be done through a different mechanism--it is going to be important for us, I think, to provide them the maximum type of flexibility and choices, something, again, that we are going to have to address in the future because it is too restricted in the bill as we have it written today.

There are other items--and I do not want to dwell on the negative-- but just to cite two or three others to show areas in which we could have done better.

Today, we reimburse physicians and hospitals in a very irrational way. It is very tightly controlled. It is price controls. We never get it right. We tend to want to save costs, so we do not reimburse them enough, and then hospitals begin to shut down, doctors begin to get out of Medicare, and we realize we have made a horrible mistake. So then we ratchet the payments back up, and it is a very herky, jerky way of reimbursing the very people we rely upon to provide the critical health care that we want. As a result, we have tried to figure out ways to make this more rational.

Well, the best example is in the case of oncologists, doctors who provide us drugs to treat cancer. The oncologists are not reimbursed at anywhere near what it costs them to provide this service for us. As a result, what they have to do is to buy the drugs for the chemo part of chemotherapy, and they mark up the value of those drugs, sell them to the patient, and that is how they get reimbursed for what they do. Of course, people have said: Well, it is a huge markup. They are making a lot of money off these drugs. And it is true that there is a huge markup. It is not a rational way of reimbursing them.

So what we tried to do was to go back and fix the basic formula, called the practice expense formula, to figure out how much it really costs those doctors to stay in business to provide this all-critical care for cancer patients, and we begin to re-adjust that formula so it will pay them more, and, at the same time reducing the markup they get on the drugs so they would not have to be paid out of that pot of money, in effect.

Well, we got about halfway there, but we still have more work to do on that particular formula. So it is just an example of how the Medicare system served seniors well, but there are clearly things in it that need to be fixed if we are going to continue to provide high- quality care and to ensure that we have physicians and hospitals that can stay in business to take care of us.

Cardiothoracic surgeons are another group. The very best of these surgeons go into the operating room with their own team. This is life and death. They have teams that work together for years. They have had a lot of experience in doing what they do. But they do not get reimbursed for their team members, their nurses, and so on. What they have to do is pay for that out of their own pocket. You can obviously see, at a certain point, they are not going to be able to provide the high-quality care. What they have to do is basically go into the hospital and take whoever the hospital has at that time. They do not work together as a team, and they provide about half as many people as some of these surgeons need in order to provide the highest quality cardiac care.

Here is another area in which we could have provided at least a demonstration project or two to figure out how best to reimburse these cardiothoracic surgeons. We failed to do so in this legislation. We need to do that in the future. Cost containment was another matter. We wanted, given the fact this legislation could explode in cost, to have something in this bill that would ensure that the costs would be controlled.

There is a section in here that purports to do that, but it is largely illusory. It basically says, at a certain point in time we have to get together and make some recommendations. The President has to send some recommendations down to us. We do not have to act on them, of course. And it is really very hard to change the rules of the Senate to force us to act on something like this.

So I just want to let my conservative friends know that, no, there is not good cost containment in this legislation. But I would also ask them to think about one other thing; and that is, there is no free lunch. If you want high-quality health care, you are going to have to be willing to pay something for it.

I think sometimes conservatives look at one side of that ledger but not the other. We have to do everything we can to ensure that taxpayers can afford this expense. But we also do not want to be penny-wise and pound-foolish when it comes to providing quality health care for our seniors and for others who are on Medicare.

Indeed, for those who say we are going to control the costs in this legislation, I would say that the means of doing so that are in the bill are primarily price controls by the Government, which have been demonstrated not to work very well, and I think we can expect that the younger generation is going to bear the full brunt of this expense.

It is a $400 billion expense over 10 years. It is not taken out of any kind of payroll tax or other kind of payment by the beneficiary for that segment of what we are providing. It is going to be paid for out of the pockets of people who are working to earn a living and pay for their kids' education. We have to stop and evaluate whether, with a lot of seniors who are well enough off to afford drug coverage, it is fair to ask their kids, who are struggling at this point to make a living, to bear more of the burden.

There is well over $100 billion of this, probably about $150 billion, in premiums and copays and deductibles that will go toward the benefit we are providing here that is worth $400 billion. But let us not forget that the $400 billion money is being paid by taxpayers. So cost containment is important, and it will boil down to the discipline that we in the House and Senate and the President can exercise in keeping the right balance between cost containment and providing high-quality care.

I have stressed the negatives to try to establish a point. I didn't get my way negotiating this legislation despite hundreds of hours of work in the conference committee. Nobody got 100 percent of what they wanted. For those conservatives who are disappointed because of the kind of things I have been talking about here or the lack thereof that shows we really missed a historic opportunity to make the bill better, I would like now to address why I think, nevertheless, they should support the legislation.

It boils down to the fact that it is extraordinarily difficult with something this big and this complicated and important to so many people, with every Senator and every Representative having a very big stake in trying to get it right, to reach the kind of compromise that is going to make any particular group happy.

I note there was a scathing op-ed piece against one of the Democratic Members who was substantially involved in these negotiations, criticizing him for not representing his point of view well. I can't tell you how wrong the writer of that piece was. From my perspective, that distinguished Senator got far more than I did out of this. He won more of the battles than I did.

I think one should be a little bit careful about simply putting the ideology out there and saying, because one side didn't get everything it wanted, therefore it is a bad bill. The reality is that under the circumstances we face today, I think it would be impossible to put together a bill that would provide drug benefits for our seniors that would do it any better than what we have done here.

Why do I say that? Some people say, let's let this bill fail and we will come back and simply provide a drug benefit to those who need it the most. I think we have gone too far for that. Groups such as AARP are not going to support that. Their support is very important for a program such as this. I don't think a lot of Senators would support that. So even though that might have been how I would have liked to have started this process, I don't think that is going to pass.

Do we let 2 or 3 more years elapse without providing a drug benefit? I don't think that is an alternative. So I would challenge anybody who says this bill isn't perfect to demonstrate to me how they could cobble together a majority to provide an important drug benefit and still achieve all of the objectives they want to achieve and get it passed.

We do need to include prescription drugs in Medicare. They haven't been included, and we all know this is the preferred method for treatment by most physicians for many illnesses and diseases today. We also need to ensure that those who don't have coverage can get it. The options we provide in this bill at least get us part way down that road.

Importantly, we will be reducing the costs of prescription drugs both to third party payers, whether it be the Government or the employers, as well as the seniors for the part they have to pay. How is this done? There are a variety of mechanisms in the bill. One of them is the fact that the Government and the private plans will be buying in bulk. Everybody can understand that concept. You can buy for a lower cost if you buy in bulk. Another is that there are a lot of incentives to use fewer drugs, to use generic drugs, drugs that are based on a formulary that more specifically fits the particular patient's need, and not to have a lot of extra drugs sitting around in the drug cabinet. Almost all of us have extra drugs sitting around, which is probably not a very healthy thing. It is a costly thing as well.

There are a lot of incentives built in this legislation that should permit us to reduce the cost of drugs both for the third party payers as well as for the seniors themselves for the portion they are going to have to take care of.

Another important thing in this legislation is that we at least go a little way toward rationalizing the system of paying the doctors and the hospitals and other health care providers that have not been adequately reimbursed. There were large cuts in store for hospitals and doctors. Those cuts are no longer in place. In fact, there are very modest increases for physicians and hospitals: A 1.5 percent increase for the physicians, instead of the 4.5 percent cut that was going to take place starting January 1 if we did not act. At least there is modest support for those that we really count on when the chips are down to take care of us.

As I said, if we defeat this bill now, I don't see how we can come back and provide these things, how we can get consensus to do it anytime in the near future.

Another important item is the health savings accounts provision. Many of us have believed for a long time this could really provide a long- term way for people to build up the savings they can apply toward health care for insurance and out-of-pocket expenses so that they won't need to rely as much on Medicare when they get to be eligible for Medicare.

We know one of the reasons we have high-priced drugs is that Americans have to bear almost the full burden of the cost of production of drugs since other countries, such as our friends to the south and north, have price controls on how much they can reimburse the drug companies for their prescription drugs. This is unfair trade. It puts all of the burden, a cost shift, on the American consumer. This bill provides instruction to our Trade Representative to come up with a way to deal with those other countries to get them to share more of the burden of the expense of producing these important drugs for us.

We also include the affluence testing of the Medicare Part B premium for those at the very wealthy end of the spectrum; a senior who makes over $80,000 a year, for example. I think it is not too much to ask them to pay a little bit more in their Medicare premium for the coverage they receive.

We index the Part B deductible so we don't have to come back every 10 years and have Congress pass a law. This will basically keep up with the cost of inflation. We also include a change for so-called 340B hospitals. These 340B hospitals are public safety net hospitals, and we enable them to purchase their inpatient drugs cheaper than they can purchase them today. I introduced legislation earlier on this subject, and I am pleased we have that provision included here.

Then finally a provision that is important to those States such as the border States--Arizona, Texas, California, and others--that are required under Federal law to provide treatment to illegal immigrants because of the law called EMTALA, the Emergency Medical Treatment and Active Labor Act, that says no emergency room can turn away a patient whether that patient can pay or not.

Because emergency rooms now are faced with treating illegal immigrants under this requirement and because the Federal Government has not been able to enforce the law to prevent those people from coming into the country illegally in the first instance, we believed it was important for the Federal Government to at least help these hospitals defray some of the expenses they are incurring, which in some cases are so severe, it is forcing hospitals to consider closing down and certainly shutting down emergency room care.

That can't be. American citizens should not suffer because of a law that requires that we provide care to illegal immigrants. We can at least reimburse those hospitals for a portion of the cost they bear. This bill provides $250 million a year for 4 years to provide that kind of reimbursement.

There are a lot of positives in the bill. There is a lot more I know the chairman of the Finance Committee will discuss in more detail.

What I want to do is discuss it from the standpoint of somebody who has been critical, who has constantly said: We can do better. We are missing opportunities. We ought to do this in a way that is more flexible, that looks more like the FEHBP. I didn't win a lot of those battles, but we have an opportunity to at least implement a plan that we have a possibility of making better over time as people see the advantages of the concepts we have put in the legislation.

We have the knowledge that at least in the foreseeable future, because we are adequately reimbursing those people upon whom we rely for care, that we are going to have that care provided to us in a quality way and that our seniors will not suffer because we didn't consider it important enough to provide for them the very best.

Without this legislation, they will continue to pay more than they should for prescription drugs. They won't receive as much in the way of prescription drug coverage or care. And that will be a shame at a time when this country has the capability of providing that kind of care.

Notwithstanding all of the concerns I have noted, the challenges we need to face in the future, we should support the legislation.

I chair the Health Care Subcommittee of the Finance Committee in the Senate. I intend to have hearings next year into areas that may need improvement. I look forward to working with my colleagues to improve this historic legislation as we move forward. We owe our senior citizens no less.

Will the Senator yield for a question?

Mr. President, I ask unanimous consent that following the Senator from Oregon, at the conclusion of his remarks, the order of speaking be Senator Sununu for 15 minutes, Senator Lautenberg for 15 minutes, Senator Murkowski for 15 minutes, Senator Cantwell for 30 minutes, and Senator Kyl for 10 minutes.

Mr. President, I congratulate Chairman Pete Domenici and his staff for bringing a comprehensive Energy bill to the Senate floor. It has many positive features. Unfortunately, on balance, the provisions he was not primarily responsible for, those that came out of the Finance Committee, are far too heavily weighted towards subsidies and mandates and require that I respectfully oppose the bill.

Let me first mention some of the good in the bill. This is the part that came out of the Energy Committee. First, on the subject of reliability, since the year 2000, Congress has attempted to pass mandatory reliability standards. For some time it has been known that the voluntary reliability standards that currently exist were not adequate. This point was brought home in August with the blackout that hit New England and the Midwest.

We know from the United States-Canada Power Outage System Task Force interim report on the causes of the blackout that First Energy failed to follow at least six voluntary reliability standards. The mandatory reliability standards in this bill will ensure that utilities cannot ignore the responsibility they each owe to maintaining the grid. It will go a long way toward keeping the lights on for millions of Americans.

SMD delay, standard market design, the Government knows best, a one- size-fits-all prescription for Federal domination at the expense of States and the market: This had to be stopped in its tracks before it cost consumers billions of dollars.

The same bureaucrats who approved the plan that brought blackouts and skyrocketing prices to California, obviously, didn't learn their lesson.

So we included a strong SMD delay provision in the bill. The message to the Federal Energy Regulatory Commission, FERC, is very plain: When Congress says no, it means no; and it says no rule before 2007. By that, we mean you cannot just slap another label on SMD, such as WMP, or use a different legal basis, such as ``just and reasonable rates,'' rather than discrimination, and then send the same straitjacket kind of a rule out the door. The same goes for standards of conduct rulemaking, a supply margin assessment test, or some other Federal Government regulatory scheme.

Native load: The current stormy debates over how wholesale electricity should move and be traded in this country will mean nothing if we cannot guarantee retail customers, the families and businesses that pay their electricity bills every month, that when they flip the switch the lights will go on. The native load provision that I worked on with Senator Domenici guarantees Arizona's transmission lines will first be used to serve Arizonans and not just sold to the highest bidder. These are some of the good things in the bill. They are all in the electric portion of the bill that Senator Domenici presented.

The bad comes from the Finance Committee on which I also sit, primarily in the form of tax subsidies. The conference agreement includes nearly $24 billion in tax incentives; most are tax credits. I advise my colleagues that the negotiating compromise process here was a curious one. The energy tax provisions in the Finance Committee this year totaled $15 billion over 10 years. The House tax incentives total $17 billion over 10 years.

Mr. President, you would think that, between $15 billion and $17 billion, there is a fairly obvious number there--$16 billion might have been the compromise between the House and Senate. That is not the way it works. The compromise between $15 billion and $17 billion was $24 billion. Guess who lost in the compromise? The American taxpayers. How did you get to $24 billion? Well, obviously, there were a lot of votes that needed to be gained and that is how we got to $24 billion.

Maybe there is another formula. The administration only asked for $8 billion in energy tax incentives. This is three times that amount. Maybe that is the new formula for compromise in a conference committee. So that is not an appropriate number. It is way out of bounds. It is too much of a burden on American taxpayers for benefits that are dubious at best.

Tax credits are not the most efficient way to set policy. They can be inefficient and wasteful. We should use them very sparingly. Tax credits distort the market and cause individuals or businesses to undertake unproductive economic activity that they probably would not do absent the inducement. They are, in effect, appropriations through the Tax Code; they are a way to give Federal subsidies, disguised as tax cuts, to favored constituencies.

Here are some examples of tax subsidies in this agreement:

Section 45, renewable energy tax credit: Cost, $3 billion over 10 years. The conference agreement extends and expands the production tax credit for energy from wind and closed-loop biomass. It also extends credit to new forms of energy, such as solar, open-loop biomass, geothermal, small irrigation, and municipal solid waste. This provision includes energy produced from livestock waste and animal carcasses--so save your Thanksgiving turkey.

Energy-efficient improvements to existing homes, $352 million, for 10 years.

Energy-efficient new homes, $409 million, for 10 years.

Credit for energy-efficient appliances, $255 million, for 10 years. That is for washing machines, refrigerators, and the like.

Extend and modify the section 29 credit for producing fuel from nonconventional energy sources, $3.1 billion, 10 years. Often, companies that claim this credit are not even energy companies. There is one I have familiarity with because Arizona tried something similar.

Alternative motor vehicles incentives: Cost, $2.5 billion, 10 years.

This agreement deletes a requirement that was in the Senate bill I got in for a study. Why did I do that? We found that the Arizona experience could have cost the State of Arizona hundreds of millions of dollars. I wanted to prevent that from happening here. We had a disastrous experience with alternative fuel vehicle incentives. This is a quote from the Arizona Republic when the Arizona Legislature repealed its alternative fuel program:

Lawmakers gutted the disastrous alternative fuel vehicle

program . . . in a volatile and dramatic House vote, ending a

debacle that outraged taxpayers, panicked buyers, and brought

down one of the State's most powerful politicians.

The repealed law, incidentally, paid for up to 50 percent of the cost of a car

equipped to burn alternative fuels. The program could have cost Arizona $\1/2\ billion if it hadn't been repealed--11 percent of the State's budget. When proposed, the cost of the program was projected to be between $3 million and $10 million--less than 10 percent of its true cost. So the question I wanted to study was, are we confident about the revenue estimates for our congressional provision?

I have talked a little about some of the good and a little about some of the bad. Let me conclude by talking about the truly ugly.

Ethanol: The ethanol provisions of the conference report are truly remarkable. They mandate that Americans use 5 billion gallons of ethanol annually by the year 2012. We use 1.7 million gallons now. For what purpose, I ask, does Congress so egregiously manipulate the national market for vehicle fuel? No proof exists that the ethanol mandate will make our air cleaner. In fact, in Arizona--and this is a critical point--the State Department of Environmental Quality found that more ethanol use will degrade air quality, which will probably force areas in Arizona out of attainment under the Clean Air Act. Arizonans will suffer as a result.

Furthermore, according to the Energy Information Administration, this mandate, costing between $6.7 billion and $8 billion a year, will force Americans to pay more for gasoline. Nor is an ethanol mandate needed to keep the ethanol industry alive. That industry already receives a hefty amount of the Federal largess. CRS estimates that the ethanol and corn industries have gotten more than $29 billion in subsidies since 1996. Yet this bill not only mandates that we more than double our ethanol use, it provides even more subsidies for the industry--as much as $26 billion over the next 5 years.

Professor David Pimental, of the College of Agriculture and Life Sciences at Cornell, has studied ethanol. He is a true expert on the ``corn-to-car'' fuel process. His verdict, in a recent study: ``Abusing our precious croplands to grow corn for an energy-inefficient process that yields low-grade automobile fuel amounts to unsustainable, subsidized food burning.'' It isn't efficient. The fuel is low-grade. And what is more, Congress, by going in for ``unsustainable, subsidized food burning,'' will impede the natural innovation in clean fuels that would occur with a competitive market, free of the Government's manipulation. These ethanol provisions, alone, dictate that I vote against the bill.

So, Mr. President, in conclusion, while this bill includes several meritorious provisions, especially those negotiated by Chairman Domenici, I must vote against it because of the $24 billion in tax subsidies and the bill's irresponsible manipulation of the energy markets through the Tax Code and the ethanol mandate.

Mr. President, I was recently advised of the upcoming retirement of Mr. Charles D. ``Chuck'' Anderson after a long and faithful career in the defense industry. Mr. Anderson is retiring from Raytheon as the company's vice president of the Air-to-Air Missiles Division in Tucson, AZ.

Chuck began his career in the 1950s as a paratrooper with the California National Guard, then earned his bachelor of science degree in mathematics and physics from California State Polytechnic University. He went on to earn a master of science degree in Systems Engineering from the University of Southern California in 1972.

For the last 10 years, Mr. Anderson has been with Raytheon, and it is my understanding that he has been responsible for all AMRAAM, Sparrow AIM-9M, AIM-9X, and ASRAAM efforts, including development, testing, and production. He also played key roles in the design and manufacture of the Standard Missile, Standard Arm, DIVAD, Stinger, Advanced Cruise Missile, and Phalanx.

Prior to his years at Raytheon, Chuck served in a variety of capacities with General Dynamics, and over the years he has earned a number of awards: the Winner of the 1998 Department of Defense Logistics Life Cycle Cost Reduction Award; the 1999 Outstanding Contracting Team Award; and the 2000 Secretary of the Air Force Lightening Bolt Award, to name just a few.

Chuck Anderson has spent a career dedicated to keeping America strong. I wish him and his wife, Carolyn, best wishes as they venture into the next chapter of their lives.

Mr. President, I ask unanimous consent that there now be a period for morning business for up to 65 minutes, with the time divided as follows:

Senators Dorgan and Kyl be recognized first in this order for up to 1 minute each; the next 20 minutes be divided with the Democratic side in control of the first 5 minutes, to be followed by 5 minutes under the control of the Republican side, to be followed by an additional 5 minutes for the Republican side, with the final 5 minutes under Democratic control.

I further ask unanimous consent that the next period of time be divided, as follows:

Each side be permitted to ask up to four questions for up to 1 minute each in an alternating fashion, to be followed by a response of up to 2 minutes to be controlled by the other side of the aisle; to be followed by an additional minute by the first side, with the Republicans to ask the first question.

I further ask unanimous consent that the next 8 minutes be allotted in 2-minute segments alternating with the Democrats first and the Republicans concluding; further, that Senator Dorgan then be recognized to speak for up to 1 minute, to be followed by Senator Kyl for the final minute; that upon the yielding of the floor, any debate time remaining during that period of controlled time be yielded back.

Mr. President, let me announce to my colleagues that this is the second in a series of scheduled debates between the Republican and Democratic sides of the Senate on subjects of importance to the American people to be conducted in actual debate format. Rather than the usual situation where we speak to an empty Chamber or talk across each other, we have actually set up a debate in which two Republicans and two Democrats will tackle a subject of interest today and respond to each other and engage in debate the way it was originally intended by our Founders and by the people who set up the rules of the Senate.

All of the speakers will go through the Chair, but they will be addressing this subject in prepared remarks and then in rebuttal and response to each other. Senator Dorgan and I, who chair our respective policy committees, hope we can thus establish a precedent in this body that at least once a month we will pick a topic and engage in debates the way it was intended to be. We hope both our colleagues and the American people will be edified by this process, not to mention the other Senators in the body.

Mr. President, I, too, thank our four debaters this evening, and especially my colleague from North Dakota, Senator Dorgan. He and I chair the policy committees of our respective conferences. We decided that too much of our debate in this body wasn't very civil or very much in the way of debate because we were frequently talking to an empty Chamber. We basically were talking past each other rather than engaging with each other.

The best way for the American people to understand our different philosophies and actually test ideas was to see us in a situation in which, like tonight, you saw questions being asked of each other and the responses being given at that same period, the rebuttals and the replies in proximity to each other, so that these ideas could be evaluated in a context of real meaning, rather than the way the debate frequently occurs here. That is not to denigrate our colleagues in the way we conduct other debates, but we think that by having this kind of an opportunity, we will not only elucidate particular issues, as was done this past week, but we can work together as friends and colleagues and bring out the best ideas and participate in debate of the kind that was originally contemplated in this Chamber.

Again, I thank the debaters. As was indicated, we intend to do this about once a month, and we hope everybody will tune in again. With that, I think we have a wrap-up request.

For the time being, I suggest the absence of a quorum.

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

Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a markup on Monday, November 17, 2003, at 5:40 p.m. in the President's Room 216, The Capitol. Note: This markup was rescheduled from Thursday, November 13, 2003.

Agenda:

I. Nominations: Henry W. Saad to be U.S. Circuit Judge for the Sixth Circuit; James B. Comey to be Deputy Attorney General; Michael J. Garcia to be Assistant Secretary of U.S. Immigration and Customs Enforcement; Claude A. Allen to be U.S. Circuit Judge for the Fourth Circuit; and Federico L. Rocha to be U.S. Marshal for the Northern District of California.

II. Bills: H.R. 1437--To improve the United States Code [Sensenbrenner, Conyers]; S. Res. 253--To recognize the evolution and importance of motorsports [Campbell, Kyl].

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 November 17, 2003, by the President of the United States:

Cybercrime Convention (Treaty Document 108-11).

I further ask 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 the Senate proceed to the immediate consideration of Calendar No. 322, S. 1743.

Mr. President, I ask unanimous consent that the bill be read the third time and passed, the motion to reconsider be laid upon the table with no intervening action or debate; that any statements relating to this measure be printed in the Record.

Mr. President, I understand that S. 1875, which was introduced earlier today, is at the desk, and I ask for its first reading.

Mr. President, I now ask for its second reading and object to further proceedings on the matter.

Mr. President, I ask unanimous consent that the number of conferees appointed for H.R. 2673, the Agriculture appropriations bill for fiscal year 2004, be expanded to include the following additional members of the Senate Appropriations Committee: Senators Domenici, Shelby, Gregg, Campbell, Hutchison, DeWine, Inouye, Hollings, Leahy, Mikulski, Reid, and Murray.

Mr. President, I ask unanimous consent that when the Senate completes its business today, it adjourn until 9:30 a.m., Tuesday, November 18. I further ask unanimous consent that following the prayer and the 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 proceed to executive session to consider the nomination of Thomas Dorr, with the time until 10:30 a.m. equally divided between the chairman and ranking member of the Agriculture Committee, or their designees; provided, that at 10:30 a.m., the Senate proceed to the two cloture votes in relation to the nomination; that following the two votes, and regardless of the outcome of either vote, the Senate return to legislative session and resume consideration of H.R. 2861, the VA-HUD appropriations bill. I further ask unanimous consent that the Senate recess from 12:30 p.m. to 2:15 p.m. for the weekly party luncheons.

Mr. President, for the information of all Senators, tomorrow the Senate will consider the nomination of Thomas Dorr to be Under Secretary of Agriculture for Rural Development and to be a member of the board of directors of the Commodity Credit Corporation. At 10:30 a.m., the Senate will proceed to two cloture votes in relation to the nomination. Those two votes will be the first votes of tomorrow's session.

Following the two cloture votes, the Senate will resume consideration of the VA-HUD appropriations bill. It is the hope and expectation of the majority leader that we will be able to dispose of the remaining amendments quickly and move to vote on passage of the bill.

For the remainder of the day, the Senate will consider any legislative or executive items that are available for action. Last week, we reached a unanimous consent agreement limiting the debate on the nomination of Robert Clark to be a lieutenant general in the Army, and the Senate may take up the nomination tomorrow. In addition, the Senate may take up appropriations conference reports as they become available. Therefore, Senators should expect rollcall votes throughout the day tomorrow.

Mr. President, 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, it is my understanding that there is a rough sense between the Democratic and Republican sides that the next hour, at least on our schedule, had been designated, that the Republican time would take half an hour and the Democratic side half an hour. If there is a different point of view on that side, perhaps that could be expressed. Otherwise, we would go forward. If there is not, then what I would like to do at this time is yield 5 minutes to the Senator from Idaho.

Mr. President, I yield 5 minutes to the Senator from Virginia.

Mr. President, I thank the gentleman for his comments, both on the status of our economy and the great economic growth that we are now enjoying, but also the last point about the importance of confirming judges.

I hope people around America are watching tonight so they will understand why we are talking about the importance of confirming judges nominated by the President to the Federal bench.

We have all heard the phrase, ``justice delayed is justice denied.'' The

reason that is a common phrase is because there is a lot of truth to it. What we are seeing around the country today is delay in justice because the Senate is denying the President a mere up-or-down vote on some of his nominees to the bench.

While it is possible for minority members, along with some in the majority, to defeat a judge on an up-or-down vote, that has only happened one time, a few years ago, since I have been in the Senate.

The judges who are being denied confirmation would all pass with a majority vote, but the minority is holding them up through the mechanism of the filibuster. I will have more to say about that mechanism in a moment.

The key point the Senator from Virginia made was that it is important we confirm these judges, as important as many of our other functions.

Let us reflect for a moment. The Senate was given some very unique responsibilities by the Framers of our Constitution. Among those unique responsibilities is the sole ability to ratify treaties and confirm nominations of the President. Advice and consent of the Senate is the way the Constitution refers to it.

The House of Representatives, with all of the great responsibilities of that body, does not have this authority. This is alone the job of the Senate, and it is a job that the Senate, throughout its entire history, has taken very seriously. Never, in the history of the Senate, has there been a successful filibuster of a nominee to the bench by the President. That is what is so striking, what is so important, what is so significant, about the activity of the minority party during the course of the last couple of years, and it is why we are here tonight talking about this and trying to move America to move our Democratic colleagues to recognize that it is only fair to provide an up-or-down vote for these candidates. That is all we are asking.

We have talked about the fairness to the nominees themselves. Miguel Estrada, one of the most competent attorneys in the country, after more than 2 years, finally withdrew his name from consideration because he had to move on with his career. We could talk about the fairness to these nominees of having to languish for months, for years, without even the courtesy of an up-or-down vote. We could talk to the fairness of the President. We could talk to the fairness of the majority in the Senate.

What I want to address briefly is the fairness to the American people in denying justice by the delay in filling vacancies, vacancies which are emergency vacancies.

What is an emergency vacancy? An emergency vacancy is one which has been determined by the Judicial Conference, which is a nonpartisan entity that acts as the principal policymaking body for the administration of the U.S. courts, that there are so many cases per judge in a particular circuit or district that an emergency exists; there are not enough judges to take care of the cases in any reasonable timeframe, as a result of which litigants suffer.

Perhaps the clearest way to make this point is, every schoolchild knows that the Constitution of the United States guarantees a criminal defendant a speedy trial, but they cannot get a speedy trial if there is no judge. So what happens is that all of the other litigants in the courts have to go to the back of the line and stay there until all of the criminal defendants have had their speedy trial.

In some cases, that means the civil cases languish for 3, 4, 5, 6 years. That is justice denied in the case of those litigants whose justice has been delayed.

What are these judicial emergencies? There are 12 judicial emergencies on the circuit court of appeals including the Ninth Circuit, the Fifth Circuit, the Sixth Circuit, and the Fourth Circuit. Democrats are obstructing nominees for every one of those circuits. For all three of the nominations who have already been filibustered-- Priscilla Owen, nominated to fill one of the two Fifth Circuit judicial emergencies; Charles Pickering to fill one of the Fifth Circuit judicial emergencies; and Bill Pryor, nominated to fill an Eleventh Circuit judicial emergency--in each case, the filibuster is preventing us from filling a seat which has been declared a judicial emergency.

This is not some theoretical exercise. This is a problem that has to be dealt with, and the Senate is falling down in its responsibility to fill these emergencies.

Democrats have also threatened to filibuster other nominees who have been named to fill judicial emergencies in other circuits, by name, Carolyn Kuhl, who I would like to speak about a little later, nominated to fill a Ninth Circuit judicial emergency, Henry Saad for the Sixth Circuit, Susan Neilson for the Sixth Circuit, Richard Griffin for the Sixth Circuit, David McKeague for the Sixth Circuit, and Claude Allen to fill a judicial emergency in the Fourth Circuit.

The cost of judicial vacancies to litigants in civil rights cases not being able to vindicate their civil rights in commercial disputes, in contract disputes, in regulatory cases involving Federal regulations, in every kind of case one can mention, there are cases languishing and litigants who are not being given their rights because there are not sufficient judges to hear their cases.

I mentioned the Ninth Circuit. That is the circuit in which my home State of Arizona is located. I am very familiar with the delays in that circuit. It is hurting the economies of our States. It is hurting the rights of litigants in our States. I will mention a couple of details to make the point.

The Ninth Circuit is the largest circuit in the country. It hears appeals from California, Arizona, Nevada, Idaho, Montana, Washington, Oregon, Alaska, and Hawaii. There are over 5,200 cases pending in the Ninth Circuit. It has the largest civil docket in the Nation, more than 1,500 cases. Since early 2001, cases filed in the district court of the Ninth Circuit and that make their way through the court of appeals take longer to resolve than they did 2 years ago. In 2001, it took 30 months for a case to go from original filing to a final decision on appeal. By June 2003, it took 31 months. This 1-month increase in delay may seem small but the delay adds up across the circuit. There are more than 4,100 cases in the Ninth Circuit affected by this delay.

That means there are more than 123,000 extra days that have been spent by both parties waiting for a decision. It takes 5 months longer to resolve a case in the Ninth Circuit than the national average of courts of appeal, 31 months versus 36 months. That is what has affected my State and other States in the United States Court of Appeals. The filibuster that has been conducted by the Democrats is responsible for the inability to fill these vacancies. Not just vacancies, but judicial emergencies.

The last point I make before yielding time, if the Senator from Alabama is still here and would like to speak briefly, to answer a question that has been asked of me by constituents in Arizona. They remember the movie ``Mr. Smith Goes to Washington'' with Jimmy Stewart. A couple of them have read in the history books about the great filibuster Strom Thurmond conducted over 24 hours. They asked me, if the Democrats are filibustering these judges, why can't you make them talk all night? The answer to that question is, that is not the nature of a modern filibuster. When Jimmy Stewart and Strom Thurmond were speaking that long, they were trying to hold the floor, as our colleague from Nevada did a couple of nights ago when I think he spoke over 8\1/2\ hours. He did not want to give up the floor because he did not want business to be conducted.

In the case of Strom Thurmond and Jimmy Stewart, in the movie, they did not dare give up the floor because they were a one-man band for their cause. They may have had one or two colleagues with them, but basically they were it. They knew as soon as they gave up the floor, the leader would say: I ask unanimous consent we now vote on the matter they were arguing about. They would object and say, I object, and under Senate rules that is enough. It only takes one person to object to go to the next stage. The next stage is filing a cloture motion and then a vote occurs. If 60 Senators say, ``We are ready to vote,'' you take the vote on whatever matter it is. In this case, it would be the nomination of these judicial nominees. They might pass by 51 votes, but you cannot take the vote until 60 Senators agree.

That is the rule that applies on the legislative calendar. Up until now no one thought it would be a rule that would be abused with respect to the Executive Calendar, the calendar on which the judicial nominees are considered.

The Democrats have decided to seek to apply that 60-vote rule so if more than 40 of them vote no to take a vote, we would not have the 60 votes necessary to take that vote and the majority rule would never be permitted to prevail. That is the way it has been for the last several months. We have taken a cloture vote several times and each time there are 44, 45 Democrats who vote against cloture. They vote against taking the final vote. That means there may be 55 or 56 on the other side with some Democrat support, obviously, willing to take the vote. But we cannot get that number up to 60.

Up until now, in the interpretation that has prevailed, we cannot take the final vote which would pass for all of these nominees; 51 votes would be secured for every one of the nominees that have been filibustered. That is why we cannot make someone talk all night. If our colleagues on the Democrat side wished, they could have one person on the floor all night tonight and simply object to our request to go to these votes. But they would not have to talk if they did not want to.

I am pleased they are joining in this debate so we can actually have a discussion about these candidates. In that sense, I guess we have forced an all-night discussion. It is a discussion that should have occurred a long time ago. It is a useful discussion, but it is not a discussion at the end of the day that I suspect will change any of their minds, as a result of which, as long as we adhere to the 60-vote rule that has always been the rule in the past, we cannot get to a vote where the majority would be able to prevail. That is what the Senate rules are.

On Friday, we will have a vote to change the rules. That vote requires a two-thirds majority to pass. It is unlikely that will occur, either.

That is the state of play right now. That is why, to answer the question, ``Can you make somebody talk all night,'' the answer is no, not if they have 40 friends, because if they have 40 friends, all they have to do is vote ``no'' when you have a cloture vote and you cannot go on to your final vote. That rule may sound arcane, but I also say on legislative matters, it has been used by both parties to defeat legislation that did not have a 60-vote majority. It is a right Senators have always felt important, for important matters to require 60 votes. To pass a treaty, it takes two-thirds. The Constitution explicitly spells that out. But to confirm a judge, the Constitution has no supermajority requirement.

There are a lot of people who believe the real intent of the Framers was that a simple majority should apply. Perhaps one day that issue will be tested. Until then, we are with the proposition that as long as any Senator objects, it takes 60 votes to get to a final vote in which a simple majority would prevail. As of right now, that is what is being applied in the case of these judicial nominees.

The important point for Americans to understand is the minority has thwarted the will of the majority; that the consequences are significant for the country; that emergency judicial vacancies are not being filled; and while this is unfair to nominees themselves, it is even more unfair to the American people because the judicial vacancies remain vacant.

It is a solemn responsibility of the Senate to act on the President's nominees. We are not fulfilling that responsibility. It is for that reason the Republican majority decided to take this time tonight and tomorrow to try to bring this matter to the attention of the American people to urge our colleagues to reconsider their position in opposition to even taking a vote on these nominees so eventually we can get to the point where we can simply have an up-or-down vote on the nominees President Bush has made for these important positions.

I reserve the balance of the time allotted to the Republican side during this hour. If there is another Republican wishing to speak, I am happy to recognize that person. If not, I am happy to yield the floor to colleagues on the Democrat side for whatever time is remaining and pick that up a little bit later.

I yield the floor.

Mr. President, I inquire how much time remains of the half hour?

If either Democrat who is on the floor would like to speak, fine. Otherwise I will go ahead and use that time.

I am happy to follow the precedent we have established and use the remaining 2\1/2\ minutes.

I wanted to speak to the qualifications of some of these nominees. Obviously, during the short period of time I have, I am not going to be able to do that except that I said I wanted to mention the qualifications of one of these nominees, Judge Carolyn Kuhl, nominated to the Ninth Circuit Court of Appeals, a judge who would be sitting on cases I might argue to the Ninth Circuit Court.

She has been a judge in a State trial court in Los Angeles since 1995. The American Bar Association rated her ``well qualified,'' their top rating for the Ninth Circuit Court of Appeals. She has served as a superior court judge in Los Angeles County in both the criminal and civil divisions and supervising judge of the civil division, the first woman to hold that position. Before that, she was a partner in a prestigious law firm in California. Before that, she served in the Department of Justice. She worked as a deputy solicitor general of the United States and argued cases before the United States Supreme Court in that capacity. She has extraordinary bipartisan support. A bipartisan group of 23 women judges on the superior court who serve with Judge Kuhl have written to our Judiciary Committee and said, ``As sitting judges, we, more than anyone, appreciate the importance of an independent, fair-minded and principled Judiciary. We believe that Carolyn Kuhl represents the best values of such a Judiciary.'' That is from a bipartisan group of judges.

A bipartisan group of nearly 100 judges who serve with her said: We believe her elevation to the Ninth Circuit Court of Appeals will bring credit to all of us. As an appellate judge, she will serve the people of our country with distinction, as she has done as a trial judge.

There are a variety of other endorsements that have been made of this fine candidate. The bottom line is we reviewed her record, we heard her testimony. She made a tremendous impression on all of us on the committee. The worst a couple of people on the other side can say is they disagreed with a couple of her decisions. I daresay if that was the test of every one of us as Senators, we would be in a sorry position because we cannot go very long without people disagreeing with us philosophically on positions.

Judge Carolyn Kuhl, it is plain, will follow the Constitution. She is one of the candidates we need to act upon. I urge my colleagues to consider these remarks in consideration of her nomination.

Will the Chair advise me when I have spoken for 90 seconds? I simply want to make one point. That is, the chart that is before us on the other side is more than misleading; it is absolutely false. There are always judges who are not confirmed at the end of a Presidential term. There were

at the end of the Clinton term. There were at the end of the first Bush term. So it is wrong to say that, because there were judges who continue be confirmed because they were nominated late, they were rejected.

What is correct is to say is there have been four nominees rejected by filibuster without a fair trial, without an up-or-down vote. I have been trying to think of an analogy, watching people say: Look, it's 168 to 4; we have only filibustered 4. Of course, there are a lot more in the wings.

But here is an analogy that deals with the law: We only hanged 4 people without a trial. We gave the other 168 a fair trial. We had a vote in the jury.

That is what is going on here. It is not a matter of defeating the judges. Judges are defeated by both parties very seldom, and there are some at the end of a President's term who can't be voted on just because of time constraints, and it is about the same number in every party, if I go back in time.

What is unprecedented is the filibuster where you don't even allow them a vote. The analogy I came up with is the one I just mentioned--I think it is very apt--to say, Look, we only hanged four people without a fair trial; the others got a fair up-or-down vote.

That to me is wrong. That is what we are talking about here.