Floor Statements

The following Senators are necessarily absent: the Senator from South Carolina (Mr. DeMint), the Senator from New Hampshire (Mr. Gregg), and the Senator from Arizona (Mr. McCain).

The following Senators are necessarily absent: the Senator from Nebraska (Mr. Hagel) and the Senator from Arizona (Mr. McCain).

Mr. President, I rise today to comment on the competing Coburn and Boxer amendments that were offered last Thursday to the highway technical corrections bill. I voted in favor of the Coburn amendment. That amendment would establish a bipartisan, bicameral committee of Congress to investigate the circumstances surrounding the changes that were made to the provisions of the 2005 highway bill relating to the Coconut Road project between the time that the bill passed the House and Senate and the time that it was enrolled.

However, I voted against the Boxer amendment, which purports to command the Justice Department to commence a criminal investigation of this same matter. Whether to initiate a criminal investigation is a decision

that our Constitution vests exclusively in the executive branch. It is not a decision that the Constitution allows to be made through legislative enactments. Although the Boxer amendment's mandate to the executive was modified to state that the criminal investigation shall only commence ``under applicable standards and procedures,'' this change does not cure the amendment's constitutional infirmity. There are no ``applicable standards and procedures'' for a legislative mandate to the executive to initiate a criminal investigation. Whether to initiate such an investigation is a matter of prosecutorial discretion and is a decision entrusted firmly and solely to the executive branch. To the extent that the Boxer amendment purports to commandeer this function, it is a dead letter and will surely be ignored as unconstitutional legislative interference in an executive function.

I would finally note that by insisting on replacing Senator Coburn's amendment with a me-too amendment of their own, the Democratic majority has undercut the likelihood that there will be any investigation of the Coconut Road matter. Senator Coburn's proposal to create a committee of Congress to investigate this matter was perfectly constitutional and would have gotten to the bottom of this issue. The Boxer amendment is an unconstitutional nullity. And even if that amendment weren't unconstitutional, or if the Justice Department undertook an investigation of this affair on its own initiative, such an investigation would only answer whether a Federal crime has been committed. Congress and the people deserve to know the circumstances and potential ethical violations raised by this matter regardless of whether a criminal offense occurred.

I regret that the Coburn amendment was not adopted and was replaced by the Boxer amendment. By taking these actions, the Senate has crossed a constitutional line and has reduced the likelihood that the underlying matter will be adequately investigated.

Mr. President, I rise today to say a few words about S. 2324, the Inspector General Reform Act, which is expected to pass the Senate today with an amendment of mine. The amendment makes several reforms and clarifying changes to the bill.

Section 3 of the bill requires the President to give Congress 30 days' notice before removing or transferring an inspector general from his position. My amendment clarifies that the President may still take other actions against an inspector general without providing 30 days' notice, such as suspending him or otherwise preventing him from taking official actions. While section 3 appears to be designed to allow Congress to respond to a situation where an inspector general is fired in order to impede his discovery of wrongdoing or for other improper reasons, my amendment is intended to address another kind of scenario, one where an inspector general is fired for very good reasons.

We should not assume that inspectors general will be immune to human failings. If an inspector general is fired because he has been indicted or is under investigation for corruption or has otherwise abused the powers of his office, it should be clear that the President can prevent the inspector general from launching new investigations in retaliation or taking other official actions, and that he can be denied access to his office space. My amendment ensures that this is so.

Section 6 of the bill authorizes inspectors general to obtain legal advice from the attorneys working for them. While this provision strengthens the independence of inspectors general, it creates a potential ambiguity as to who has ultimate authority to resolve legal questions within an agency. Agency employees should not face a division of authority if an inspector general were to reach a different conclusion on a legal matter previously resolved by the agency counsel.

My amendment clarifies that the agency or department's chief legal officer remains the ultimate legal authority within the agency. While an inspector general may obtain his own legal advice, his review does not constitute an appeal or review of the general counsel's decisions and judgments. The chief legal officer's views are what is final within the agency, and they are subject to review within the executive branch only by the head of the agency and the Justice Department.

Section 8 of the bill as reported by the committee allowed inspectors general to include their own budget comments with respect to their offices in the President's budget proposal to Congress. I would first note that the generous growth of inspectors generals' budgets during this administration leaves little reason to fear that these offices are being starved of resources. More fundamentally, as a general matter, all agencies and departments should be subject to the Office of Management and Budget's budgeting process, to ensure that the President's budget proposal reflects and balances competing priorities. Rules such as that in section 8 should generally be disfavored. An exception is tolerable here only because of the unique status and role of the inspectors general. And even in their case, we should not assume that every disagreement between the Office of Management and Budget and an inspector general about the size of his budget reflects some effort to suppress an investigation.

All bureaucrats love to see their budgets grow and to build their little empires. We should not assume that inspectors general are immune from this tendency. To mitigate its effects, my amendment would require that an inspector general assert that he would be inhibited in the performance of his duties before he may submit a separate budget request.

The amendment serves two purposes. First, it should rein in requests for ever-expanding budgets, and ensure that inspectors general generally remain subject to budget discipline. And secondly, it ensures that if an administration is retaliating against an inspector general or otherwise reducing his budget in order to prevent him from doing his job, then Congress will be alerted to the fact. If separate budget requests were routine, the submission of such requests would provide little notice to congressional overseers. And if an inspector general believes that an administration is starving him of resources with the intent to undermine his ability to do his job, Congress not only should have before it his separate budget request, it should also be made aware that the inspector general believes that he is being treated that way.

Finally, section 14 of the committee-reported bill would have given the Justice Department's inspector general the authority to conduct legal ethics reviews. I found this provision strongly objectionable. An attorney's decision to investigate, litigate, or provide legal advice is a sensitive one and should be reviewed with great deference. There can be a wide range of legitimate disagreement as to how such issues should be decided. Justice Department reviews of such decisions are equivalent to the attorney discipline proceedings conducted by state bar associations. They are currently conducted within the Justice Department by the Office of Professional Responsibility, and there is no evidence that this Office's reviews are anything less than adequate.

Indeed, recently the Office of Professional Responsibility has taken upon itself the role of reviewing the merits of the Office of Legal Counsel's legal analyses. The Office of Legal Counsel's lawyers are recognized to be among the very best in the executive branch. They are assigned to resolve the most difficult legal questions that confront an administration. I find it dubious that an OPR lawyer would be in any position to assess whether an Office of Legal Counsel opinion is legally correct or not.

Absent at least some evidence that such an opinion was the product of bribery or other improper external influences, I question the basis on which

OPR even assumes for itself the authority to initiate such a review. I fear that OPR's actions are influenced more by the toxic style of opposition attacks on the Justice Department in recent years, in which legitimate policy and legal disputes are recast as ethical lapses, rather than by a sound concern for the integrity of the Department.

While some of the Office of Professional Responsibilities' recent actions are debatable, the notion of extending that Office's authority to the inspector general is totally unacceptable. Inspectors general investigate waste, fraud, and abuse. They are suited neither by temperament nor experience to second guess whether a Justice Department lawyer should have investigated a matter, prosecuted a case, or offered a legal opinion. It is at my insistence that the original section 14 has been removed from this bill.

I commend Senators Lieberman and Collins for their devotion to overseeing and improving the operations of the inspectors general and, with the changes made by my amendment, I will raise no objection to the passage of this bill.

Mr. President, I appreciate my colleague from Texas putting a personal face on this war. Our young men and women are making tremendous sacrifices. We here in the Congress should be willing to do our part to ensure they succeed in their mission. Hearing a story like Justin's simply confirms that we should redouble our efforts to fund what they need to carry out their mission.

The majority leader talked a little bit earlier about delays with the legislation that is currently pending before the Senate. It is going to take us 2 or 3 days, presumably, to complete this legislation that is currently pending--2 or 3 days. That is not a big delay in the Senate. But 14 months is a big delay, and that is the time since the President first asked for the supplemental

appropriations to help fund our troops fighting in Iraq and Afghanistan--14 months ago. That is a real delay. It is because I believe the majority party believed they could delay and delay and thereby apply pressure to accomplish one of two objectives--either put pressure on the administration to back off of the war effort or, knowing we are now really up against a funding crunch, put pressure on the President to accept a lot of unrelated spending, spending that has to do with our pet projects here at home. That is on the theory that the President would have to sign a bill because our troops are so desperate for the funding they need, even if that bill includes a lot of unrelated spending Members of Congress want for their folks back home. We should not submit to what I would refer to as legislative blackmail, to hold our troops hostage, in effect, for this domestic spending. Nothing else explains this 14-month delay.

We have already been told by the Secretary of Defense that it is critical that this supplemental funding be provided to the troops to prevent a slowdown in daily efforts in training and equipping, the halting of military operations and enabling us to replace lost or damaged equipment for ongoing operations. All of these are implicated by this delay.

General Petraeus, when he was back here, added another reason. He stressed the importance of this supplemental appropriations to further progress in Iraq. Here is what he said:

The Commander's Emergency Response Program, the State

Department's Quick Response Fund, and the USAID programs

enable us to help Iraq deal with its challenges. To that end,

I respectfully ask that you provide us by June the additional

CERP funds requested in the supplemental. These funds have an

enormous impact.

In other words, it is not just the funds to buy the equipment and support our troops for their mission there but also to enable our military to provide what is necessary to enable the Iraqi people and the Iraqi Government there to succeed.

All of these are reasons for acting with speed. Yet for 14 months Congress has delayed the supplemental funding.

The Director of the Office of Management and Budget, Jim Nussle, stated during his testimony last week to the Senate Appropriations Committee that if the supplemental request is not provided to the DOD by Memorial Day, then the Army and Marine Corps will be forced to take funding from other areas of their operations budget and will even have to start laying off civilians and contractor personnel. It will certainly force the Pentagon to use short-term expedients which are very costly. In other words, instead of having the ability to spread out their contracts over time, which is a much more economical way of acquiring services and equipment, the Pentagon is forced to pay a premium for short-term contracting, and it is forced to move funds from general accounts to support priority expenditures specifically related to the conflict in Iraq and Afghanistan. This is already adversely impacting the Department of Defense.

Clearly, military planners are leery of engaging in a new operation when they do not even know that the material assets they are going to need for that operation are going to be available or that what they have available today is not going to be replaced in the future because this supplemental funding has not been provided.

We have no more important obligation as Members of the Senate than funding our troops when they are in the middle of a battle. That is precisely the situation right now.

In fact, let me just quote something that was said just a couple of days ago by Ayman al-Zawahiri, currently the leader of al-Qaida. Here is what he said in a long audio message, among other things:

Iraq today is now the most important arena in which our

Muslim nation is waging the battle against the forces of the

Crusader-Zionist campaign. Therefore, backing the Mujahidin

in Iraq, led by the Islamic State of Iraq, is the most

important task of the Islamic nation today.

We are in a war, and what Zawahiri said in one sense is right. This is the most important arena in which this conflict is currently playing itself out. We have a choice: to leave in defeat or to continue to assure victory.

We have sent our troops in harm's way to achieve their mission. They are accomplishing it. The surge General Petraeus has implemented is working. It is up to us to do our part in this effort. All we have to do is have a brief debate and a vote, and the vote is to send money the troops need to sustain their operation. We have known this now for 14 months, yet Congress continues to dither. Now we have run out of time.

There has been a suggestion that in this effort to fund our troops, we should combine all of the spending into one massive appropriations bill. It would be well over $100 billion. If all it does is fund the troops, then that is fine. But if it is used, as I said before, as a way for the majority to sneak through either unrequested defense spending or our favorite other domestic pet projects, that would be a grave injustice to our troops.

I note the distinguished chairman of one of the subcommittees in the House of Representatives on the Appropriations Committee has revealed that he is ready to move the particular bill here because he is going to use it as a way to add other items to the Pentagon, including additional Navy warships and the procurement of new C-17s and F-22 fighter planes beyond what the Defense Department has budgeted. Maybe those are good defense expenditures, maybe not, but the reality is that they should stand on their own two feet as part of a general authorization and appropriations process and not be put on the backs of this supplemental appropriations bill which is what is needed to fund our efforts in Iraq and Afghanistan.

Others have been looking at the supplemental as an opportunity to increase funding for their favorite nondefense programs. It has been suggested by members of the Senate Appropriations Committee last week that some $24 billion in nondefense spending might be added for that purpose.

As I said, Congress should not be extorted into supplying nonwar spending on this supplemental appropriations bill, the emergency bill to fund our war effort. Any effort to do that I suggest should be rejected--among other things, because we know the President has said he will veto a war supplemental funding bill that contains nonwar-related items or strings attached such as some kind of a timetable for troop withdrawal from Iraq. Knowing that is going to be vetoed, it would be irresponsible for the Congress to go ahead and send him a bill and take additional time to get the bill back and redo it in a way that will be not vetoed.

The bottom line is that we have to take care of our troops. We have to support them in the mission we have sent them to achieve. It is time that we get about that, and I urge my colleagues, when the war supplemental comes to this body--hopefully next week--to act with alacrity, we will pass it and not hold it hostage to our other spending priorities that do not relate to our efforts in Iraq and Afghanistan.

The following Senators are necessarily absent: the Senator from New Mexico (Mr. Domenici), the Senator from Arizona (Mr. McCain), and the Senator from Louisiana (Mr. Vitter).

Mr. President, on behalf of Senator Coburn, there is objection.

Mr. President, on behalf of Senator Coburn, there is an objection.

Mr. President, it has been commonplace for critics of the war in Iraq to minimize, if not actually dismiss entirely, the links between Saddam Hussein and terrorists generally and al-Qaida specifically. This is part of a systematic effort by some, especially now that there are irrefutable signs of progress from the military

surge in Iraq, to change the narrative on the war. Instead of debating the way forward, they prefer instead to relitigate the past. In fact, earlier this month the distinguished majority leader stated:

Prior to the invasion of Iraq, there was not a terrorist in

Iraq. And now, of course, there are lots of them.

It is true that there are a lot of terrorists in Iraq which, of course, is the reason why we are still there fighting them and need to stay there until they are defeated. But it is not true that there were no terrorists in Iraq prior to our invasion. In fact, Saddam's ties to terrorists are well known and were confirmed yet again in a recent report commissioned by the Pentagon's Joint Forces Command. This report found that Saddam Hussein actively supported and financed terrorist activities during the years he controlled Iraq. The report, entitled ``Iraqi Perspectives Project: Saddam and Terrorism: Emerging Insights from Captured Iraqi Documents,'' was released on March 13. It was the product of the analysis of over 600,000 documents captured in Iraq since 2003. It concluded that Saddam's security forces and Osama bin Laden's terrorist network ``operated with similar aims (at least in the short term).''

According to the report:

Though the execution of Iraqi terror plots was not always

successful, evidence shows that Saddam's use of terrorist

tactics and his support for terrorist groups remained strong

up until the collapse of his regime.

The report found that Saddam Hussein worked with several different terrorist groups, including groups with direct ties to al-Qaida. Many were engaged in a jihad against the United States and its allies. It wasn't necessary to read with excruciating detail the entire 1,600-page report to find proof of these links; all of the above was available for all to see in the brief abstract that accompanied the report.

Stephen Hayes offers extensive analysis of the entire report by the Joint Forces Command in the Weekly Standard magazine on March 24, 2008.

I ask unanimous consent to have his article printed in the Record.

The Joint Forces Command report sheds light on the relationship between Saddam Hussein and Ayman al-Zawahiri, Osama bin Laden's second in command.

I quote:

Saddam supported groups either associated directly with al

Qaeda (such as the Egyptian Islamic Jihad (EIJ), led at one

time by bin Laden's deputy Ayman al-Zawahiri) or that

generally shared al Qaeda's stated goals and objectives.

Mr. Hayes notes in his article that Zawahiri's organization was being financed by Saddam Hussein at the very time Zawahiri was working almost exclusively with bin Laden. In fact, Zawahiri had been working with al- Qaida from its inception in late 1989. By 1993, Zawahiri, as the leader of the EIJ, sought to merge the organization with al-Qaida and, in fact, the two terrorist organizations eventually merged in 1998.

The Standard further reported that:

Captured documents revealed that the regime was willing to

co-opt support organizations it knew to be part of al Qaeda

as long as that organization's near-term goals supported

Saddam's long-term vision.

The more than 600,000 documents likely revealed only a fraction of what we will ultimately know of the true relationship between bin Laden, the global jihad, and Saddam Hussein. Given this information, it is a surprise that many in the mainstream media have concluded only that there was no smoking gun linking al-Qaida and Saddam Hussein, thus failing to report the key findings in the report to the American people.

I am not one who supports relitigating why it was necessary for the United States to remove Saddam Hussein from power. But for those who find themselves stuck in the past, the Iraqi Perspective Project provides yet another substantial body of evidence, adding to that which was before the Congress when we authorized the Iraq mission. I want to refer to one item in that body of evidence, a letter, dated October 7, 2002, from CIA Director George Tenet to the Honorable Bob Graham, then chairman of the Select Committee on intelligence. Among the things he writes in this letter, these are the items that were available to us

before we authorized the invasion of Iraq. He refers to a question by Senator Bayh about Iraqi links to al-Qaida. He says Senators could draw the following points from unclassified documents. There was, of course, much more that was classified. I will quote this brief portion of his letter:

Our understanding of relationship between Iraq and al-

Qa'ida is evolving and is based on sources of varying

reliability. Some of the information we have received comes

from detainees, including some of high rank.

We have solid reporting of senior level contacts between

Iraq and al-Qa'ida going back a decade.

Credible information indicates that Iraq and al-Qa'ida have

discussed safe haven and reciprocal non-aggression.

Since Operation Enduring Freedom, we have solid evidence of

the presence in Iraq of al-Qa'ida members, including some

that have been in Baghdad.

We have credible reporting that al-Qa'ida leaders sought

contacts in Iraq who could help them acquire WMD

capabilities. The reporting also stated that Iraq has

provided training to al-Qa'ida members in the areas of

poisons and gases and making conventional bombs.

Iraq's increasing support to extremist Palestinians,

coupled with growing indications of a relationship with al-

Qa'ida, suggest that Baghdad's links to terrorists will

increase, even absent US military action.

I commend the Joint Forces Command for its ongoing, exhaustive review of this record of intelligence collected in Iraq. I urge all colleagues to take the time to educate themselves on its findings. I urge the administration to undertake a serious effort to correct the misimpressions formed in recent years about this important issue.

There can be no doubt. Saddam Hussein was a threat. He actively supported terrorists both in and outside of Iraq, and the world is a safer place for him having been removed from power.

Mr. President, about almost 24 hours ago I had asked the chairman of the committee about offering an amendment to this legislation. It is clear that as a result of the agreement that has been worked out and the filing of cloture and so on that it is not going to be possible to get a vote on the amendment I was speaking about.

But I would like to talk briefly about that amendment and indicate that it would be offered on behalf of Senator McCain, my colleague from Arizona, as well as other Senators, some of whom may want to also speak to it briefly.

We all know gasoline prices have risen dramatically. And the amendment Senator McCain and I and others would offer would provide a temporary tax holiday from Memorial Day to Labor Day, preventing the Federal Government from collecting the 18.4-percent tax, the gasoline tax, that otherwise motorists would pay.

I assure my colleagues that the highway trust fund, which that tax goes into, would be kept whole with Federal revenues from the General Treasury. So the money we use to build highways and bridges and so on would not be affected by this amendment.

Briefly, I think we all feel the pinch when we fill up our cars and trucks. But listen to these statistics. According to economy.com, gasoline prices at the pump have increased from $2.22 to $3.33 a gallon, up 50 percent since the start of 2006.

I checked in my home State of Arizona yesterday. It was $3.38. There is very little that Congress can do in the near term to reduce gas prices other than this gas tax holiday. In the long term, we know we have to add more production and refining capacity in our country and that we have to encourage supplies to increase. But for right now, the one thing that Congress can do, and do virtually immediately, is to provide this short-term relief from the Federal gas tax.

At $3.33 a gallon, prices are the highest on record. Nearly 50 cents of the cost of each gallon of gas is due to taxes. According to the Bureau of Labor Statics 2005 Consumer Expenditure Survey, families with two cars spent, on average, $2,013 on gasoline. Since that study was released prices have increased dramatically. Gasoline price increases imply families are now paying at least $3,065 on gasoline in a year.

A big chunk of that is Federal, State, and local taxes. In fact, the average family pays nearly $170 in Federal gas taxes. With the growing financial strains placed on so many Americans' rising food prices and falling home prices, the additional hit of rising fuel prices is becoming a breaking point.

That is why my colleague, Senator John McCain, talked about the need to do something, and do something quickly, and proposed this gas tax holiday in comments he made to the Nation a couple of days ago, and why he has asked this amendment be introduced on his behalf, as well as Senators Warner, Burr, Martinez, Lieberman, and Graham.

In an effort to ease some of the hardship caused by the higher fuel prices that I have indicated, the amendment would merely suspend the 18.4-percent-per-gallon tax on gas and the 24.4-percent tax on diesel fuel from Memorial Day to Labor Day.

As I said, the amendment would not deplete the highway trust fund balance. The amendment would offset any revenue loss from the suspension of this tax with Treasury revenues. So the highway trust found will remain whole.

We all agree that our roads and highways must be maintained to ensure the safety of the road-traveling public, and this amendment would in no way impact highway construction.

It is interesting, last Memorial Day alone, approximately 32 million Americans traveled by car 50 miles or more from home. So suspending the Federal excise tax during the summer when fuel prices have historically been at their highest level would allow millions of Americans to keep a few more of their hard-earned dollars and help them better make ends meet.

Two final comments: There is an argument that this loss should be offset somehow by programs raising taxes somewhere else. Of course, I have never understood why, if you are going to provide tax relief to Americans, you would want to provide the tax relief and then tax them in some other way.

The Congressional Budget Office, former Council of Economic Advisers, Chairman Martin Feldstein, and Clinton Treasury Secretary Robert Rubin are three of the entities or individuals who have said it is unnecessary to offset temporary tax cuts when an economy is slowing.

The $150 billion stimulus bill that passed the Senate by a vote of 81 to 16

in early February was not offset. The $15 billion-plus housing bill that passed the Senate 84 to 12 last week was not offset. Most of the revenue losses associated with the housing bill benefited companies and other businesses, not consumers. If offsets were not needed to offset the benefit to private firms, I ask why our amendment would need to be offset since it aids struggling American families.

Finally, I heard rumors that Senators would like to propose an alternative to what we have produced, a Democratic alternative that was developed yesterday afternoon, that would effectively raise corporate income taxes on oil and gas companies.

Now, I suppose everyone likes to pick on oil and gas companies, though we sure want to have some gasoline in the pumps when we decide we need to fill up our cars and trucks, but this proposal eliminates or curtails the so-called section 199 domestic production deduction for oil and gas companies.

What that means in regular English is effectively raising the corporate income tax rate by 3 percentage points. That is exactly the wrong medicine at a time when our economy is not doing well. Let me repeat that. The elimination of this tax incentive is designed to encourage oil and gas companies to produce oil and gas in the United States so we do not have to go abroad and buy it from somewhere else.

I don't agree with this approach. Rather than raising taxes on oil companies, we should be encouraging them to explore for oil and to produce oil and gas in the United States, to improve our energy security and, importantly, to reduce prices for American consumers. Why on Earth would anyone actually want to limit domestic production? Reducing domestic production would only make the United States more dependent on foreign oil imports and would likely cause consumers to pay even more at the pump. Besides, a tax increase of the type being proposed would have the effect of raising prices at the pump, as costs obviously would be passed on to consumers. That would obviously have a reverse impact, the exact opposite of what we are trying to do with a reduction of the gas tax on consumers of gasoline products.

Finally, there is a significant problem with the proposal to repeal section 199 for U.S. oil companies. A proposal to do this passed the House of Representatives earlier this year. But this very same provision that passed the House would have the effect of keeping the 199 tax incentive for CITGO, the oil company owned by the Venezuelan Government; obviously, not a good idea while we are repealing it for American companies, to leave that tax incentive for a competitor of our oil companies owned by the Venezuelan Government. I don't know whether that was unintentional, but that is the effect of the amendment. Clearly that is not something we would want to do. I don't think we want to hold consumer relief hostage to a tax increase.

Amendment No. 4540, Withdrawn

The following Senators are necessarily absent: the Senator from Tennessee (Mr. Alexander), the Senator from Nebraska (Mr. Hagel), the Senator from Indiana (Mr. Lugar), and the Senator from Arizona (Mr. McCain).

Further, if present and voting, the Senator from Tennessee (Mr. Alexander) would have voted ``aye.''

The following Senators are necessarily absent: the Senator from Tennessee (Mr. Alexander), the Senator from Nebraska (Mr. Hagel), the Senator from Indiana (Mr. Lugar), and the Senator from Arizona (Mr. McCain).

Further, if present and voting, the Senator from Tennessee (Mr. Alexander), would have voted ``yea.''

The following Senators are necessarily absent: the Senator from Tennessee (Mr. Alexander), the Senator from Nebraska (Mr. Hagel), the Senator from Indiana (Mr. Lugar), and the Senator from Arizona (Mr. McCain).

Further, if present and voting, the Senator from Tennessee (Mr. Alexander) would have voted ``yea.''

The following Senators are necessarily absent: the Sentor from Tennessee (Mr. Alexander), the Senator from Nebraska (Mr. Hagel), the Senator from Indiana (Mr. Lugar), and the Senator from Arizona (Mr. McCain).

Further, if present and voting, the Senator from Tennessee (Mr. Alexander) would have voted ``yea.''

The following Senators are necessarily absent: the Senator from Nebraska (Mr. Hagel) and the Senator from Arizona (Mr. McCain).

The following Senator is necessarily absent: the Senator from Arizona (Mr. McCain).

Mr. President, in our country over the last couple of hundred years, you never know what party is going to control the Senate or the Presidency. As a result, in doing the people's business, both parties have operated somewhat by tradition with respect to the nomination and confirmation of judges. It is important because it happens that, more often than not, in the last 2 years of a Presidency the other party controls the Senate. That has been the case in the last three Presidencies, and this Presidency. In this case a Republican is the Chief Executive and the Democratic Party controls the Senate. That has been the tradition.

As a result, and since we do not know whether a Republican or a Democrat is going to be elected President next time or which party is going to control the Senate, it has been understood by both parties that you do not play politics when it comes to confirming judges because, while you may be able to stop the other party's President's nominations one time, they might be able to stop yours next time. Besides which, it is not good government. It is not doing the people's business. The President was elected fair and square. He has the right to submit judicial nominees and it is the Senate's obligation under the Constitution to act on those nominees.

That is why my colleagues and I have pointed out the historical record, that, for example, since the Reagan and Clinton and first Bush administrations, during the last 2 years of the administration, when the other party controlled the Senate, the average for confirmation of circuit nominees is 17. The last President was President Clinton, Republicans controlled the Senate, but we confirmed 15 of his nominees for circuit judge in his last 2 years.

If we were to do the same thing with regard to President Bush, we would have to confirm nine more circuit judges because there have only been six confirmed last year--none this year. The pace at which circuit judges are acted on ordinarily is a relatively slow pace. We would have to do two a month for the remaining time we are in session in order to achieve that. In fact, that would include the months of August and September, when we are not likely to be here in August and September is not likely to be a month where we would confirm judges. So we literally would have to confirm about three a month in order to achieve the same number as Clinton.

Why are those numbers important? Not just because it is what we should be doing. The President has made nominations. The Judicial Conference says many of these are judicial emergencies, meaning we have vacancies in the circuits that need to be filled because there are not enough judges to do the people's business. We should do it because we should do it; it is our responsibility. But even if you only look at it from a political standpoint, the reality is that if this tradition is broken--of 15, 16, 17 judges in the last 2 years of the administration--then clearly we are going to devolve into a situation where, for political purposes, the party in power decides not to support--not even to have votes on--the nominees of the President. That is very bad.

It is important that we maintain this tradition of doing at least 15--and we should do more than that--circuit judges in the last 2 years.

My colleagues have spoken to different judges. Arlen Specter, the senior Senator from Pennsylvania, who is the ranking Republican on the Judiciary Committee, specifically mentioned Peter Keisler, who has been pending the longest. He has been pending for almost 2 years. In fact, he was nominated to the District of Columbia Circuit Court in June of 2006 and received a hearing in August of that year. He is widely regarded as well qualified, fair minded, and has received support from all over the political spectrum. He is a graduate magna cum laude from Yale University. He received his law degree from Yale Law School. He clerked for a judge on the DC Circuit and for a Justice in the U.S. Supreme Court. He served in the White House Counsel's Office, has been in private practice, joined the Justice Department where he was assistant attorney general for the civil division and was even Acting Attorney General during a brief time between the time that Judge Gonzales left the Attorney General's position and Judge Mukasey took his place.

The American Bar Association has rated him ``unanimously well qualified.'' You cannot get a higher rating than that. The Washington Post--no particular friend of this administration--editorialized in favor of Keisler, describing him as a ``highly qualified nominee'' who ``certainly warrants confirmation.''

Keisler was also the subject of an editorial from the Los Angeles Times, which called him a ``moderate conservative,'' and supported his nomination.

There have been some who say we should not fill the last seat on the DC Circuit because it doesn't have as many cases as other circuits. There was a point in time when that was true and I even noted that. But the reality is that today its caseload is increasing. It needs to be filled and Peter Keisler is one of the nominees who should be supported.

I urge my colleagues to find a way to hold the hearings and to bring these nominees to the floor so the Senate can do its business and act on the nominees of the President for the circuit courts.

The following Senators are necessarily absent: the Senator from North Carolina (Mrs. Dole) and the Senator from Arizona (Mr. McCain).

The following Senators are necessarily absent: the Senator from North Carolina (Mrs. Dole) and the Senator from Arizona (Mr. McCain).

Further, if present and voting, the Senator from North Carolina (Mrs. Dole) would have voted ``yea.''

The following Senators are necessarily absent: the Senator from North Carolina (Mrs. Dole) and the Senator from Arizona (Mr. McCain).

Further, if present and voting, the Senator from North Carolina (Mrs. Dole) would have voted ``yea.''

The following Senators are necessarily absent: the Senator from North Carolina (Mrs. Dole) and the Senator from Arizona (Mr. McCain).

The following Senators are necessarily absent: the Senator from North Carolina (Mrs. Dole) and the Senator from Arizona (Mr. McCain).

The following Senators are necessarily absent: the Senator from Mississippi (Mr. Cochran), the Senator from North Carolina (Mrs. Dole), the Senator from New Hampshire (Mr. Gregg), and the Senator from Arizona (Mr. McCain).

The following Senators are necessarily absent: the Senator from North Carolina (Mrs. Dole), the Senator from New Hampshire (Mr. Gregg), and the Senator from Arizona (Mr. McCain).

The following Senators are necessarily absent: the Senator from North Carolina (Mrs. Dole), the Senator from New Hampshire (Mr. Gregg), and the Senator from Arizona (Mr. McCain).

Further, if present and voting, the Senator from North Carolina (Mrs. Dole) would have voted ``yea.''

The following Senators are necessarily absent: the Senator from Kentucky (Mr. Bunning), the Senator from North Carolina (Mrs. Dole), the Senator from New Hampshire (Mr. Gregg), the Senator from Texas (Mrs. Hutchison), the Senator from Oklahoma (Mr. Inhofe), and the Senator from Arizona (Mr. McCain).

Further, if present and voting, the Senator from Kentucky (Mr. Bunning) and the Senator from North Carolina (Mrs. Dole) would have voted ``yea.''